author: Carpenter, J.

text:
    SCHMOLT v. NAGEL.
    Municipal Corporations — Detroit Charter — Alleys—Change —Authority of Council.
    Though under its charter (section 169, Charter of 1904) the authority of the common council of Detroit over alleys is not absolute, a change in the location of an alley for the benefit of a landowner will not be enjoined where as a means of ingress and egress the alley as changed will furnish the same service as before, and the change will be more likely to enhance than impair the market value of the lot of the principal objector.
    Appeal from Wayne; Brooke, J.
    Submitted November 14, 1907.
    (Docket No. 23.)
    Decided March 17, 1908.
    Bill by Rudolph Schmolt and others to enjoin Ludwig Nagel and others, trustees, from closing an alley. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Thomas Hislop, for complainants.

      Wesley L. Nutten and Theodore J. Richter, for defendants.
   Carpenter, J.

Complainants and defendants own all the property in block 29, James Campau subdivision, city of Detroit. This block is bounded on the north by Scott street, on the east by Chene street, on the south by Pierce street, and on the west by Dubois street. According to the original plat there was an alley in said block running north and south parallel to Chene street and 100 feet west therefrom, and another alley of the same width in the center of the block running from said north and south alley westerly to Dubois street. Defendants own all the property fronting on Chene street and also a lot across the alley therefrom situated on Pierce street. The society of which defendants are trustees is unincorporated. It maintains a church and school on its said property. Desiring additional space for a school yard, said society petitioned the common council of the city of Detroit to close that portion of the north and south alley between its property fronting on Chene street and its property on Pierce street. The common council gave notice to the parties in-. terested; a hearing was had and it was agreed that if the defendants would convey from the westerly side of its lot fronting Pierce street a strip 18 feet wide for alley purposes, the prayer of the petition would be granted. This conveyance was made by the defendants to the city, and the common council thereupon passed the resolution closing the alley. The bill is filed to enjoin the carrying out of the proposed scheme. The case was heard in the circuit court upon pleadings and testimony taken in open court, and a decree entered dismissing complainants’ bill. Is that decision correct ? is the only question for our consideration.

The charter of the city of Detroit provides:

“ The common council * * * shall have power to establish, open, widen, extend, straighten, alter, vacate, and abolish highways, streets, avenues, lanes, alleys, and public grounds or spaces within said city.” Detroit Charter (1904), § 169.

Under this provision the authority of the common council is not absolute. This is shown by our decision in Horton v. Williams, 99 Mich. 423, a case upon which complainants rely. That case is, however, clearly distinguishable from the one at bar. There by closing a part of an alley, the remainder was converted into a cul-de-sac and complainants practically deprived of ingress and egress to the rear of their several lots. No such result is effected by the contemplated change in the case at bar. As a means of ingress and egress the alley as changed will furnish the same service as heretofore. The grievance of complainants is purely fanciful, and not one to be redressed by injunction.

Special attention should be paid to the alleged grievance of the first-named complainant, Rudolph Schmolt. He owns a lot immediately adjacent to the proposed alley. It is his claim that he is especially affected by the change because theretofore his lot did not abut on an alley. The grounds of his complaint should be noted. They are not sentimental. They are these: He fears (a) that heavy coal wagons turning from the new alley to the east and west alley will injure his barn; and (6) that the adjacent alley will actually impair the market value of his property. We are convinced that each of these apprehensions isgroundless. There is abundant turning space for the coal wagons. There is no reason to believe that they will strike his barn, and if they should, it would be the result of carelessness for which he can obtain compensation. Nor is the claim that the alley will impair the market value of his property established by the testimony. This is a congested portion of the city and the evidence in the case indicates that the proximity of the alley, insuring, as it would, space and light on one side of his house, will enhance its market value rather than impair it. In a locality like this an adjacent alley is less objectionable (at least from a pecuniary point of view) than a building— and if the alley were not there a house would almost certainly be erected — which would cut off light and air. The case is governed by Bauman v. City of Detroit, 58 Mich. 447.

The decree is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    BAAR v. BOARD OF SUPERVISORS OF OTTAWA COUNTY.
    1. Health — Contagious Diseases — Persons Infected — Care-Liability of County.
    Under section 4424, 2 Comp. Laws, as amended by Act No. 7, Pub. Acts 1903, a county is not liable for articles of furniture supplied by a dealer at the request of the city board of health to take the place of similar articles belonging to an indigent person destroyed by said board to prevent the spread of smallpox; the claim, if any, should be made by the owner of the articles destroyed.
    2. Same.
    The county is liable for formaldehyde furnished upon the order of the city board of health to disinfect premises occupied by an indigent person afflicted with smallpox.
    Certiorari to Ottawa; Padgham, J.
    Submitted January 7, 1908.
    (Calendar No. 22, 497.)
    Decided March 17, 1908.
    Mandamus by Henry Baar to compel the board of supervisors of Ottawa county to allow certain claims for articles furnished in cases of contagious diseases. There was an order denying the writ, and relator brings certiorari.
    Reversed, and writ granted.

      George A. Farr, for relator.

      Gorie C. Coburn, for respondent.
    In 1903 an epidemic of smallpox .prevailed in the city <of Grand Haven, Ottawa county. The board of health of that city provided for the care of some indigent persons. Relator was a druggist. He furnished to said board of health formaldehyde for fumigating and disinfecting the residences where these indigent persons had lived. One Boer, a furniture dealer, furnished two of these indigent persons certain articles of furniture to take the place of those which had been destroyed by order of the city board of health. To avoid a multiplicity of suits, this claim was duly assigned to the relator.
    In 1906, relator obtained certificates of the board of health of the city and presented the claims to the respondent claiming that it was the duty of the county to pay them under 2 Comp. Laws, § 4424, as amended by Act No. 7, Pub. Acts 1903. The act of 1903 amends the section only in clothing the board of supervisors with power to investigate and audit the claim at such amount as they shall deem reasonable. Section 4424 reads as follows:
    “When any person coming from abroad or residing in any township within this State shall be infected, or shall lately before have been infected with the smallpox, or other sickness dangerous to the public health, the board of health of the township where such person may be, shall make effectual provision in the manner in which they shall judge best for the safety of the inhabitants by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself, his parents or other persons who may be liable for his support, if able; otherwise, as a charge of the county to which he belongs: Provided, That the health board shall keep and render an itemized and separate statement of expenses incurred in so caring for each person.”
    The respondent refused to allow the bill, claiming that the county was not liable under the above section, and that the relator’s remedy was against the city under section 4460.
   Grant, C. J.

(after stating the facts). The claim of Mr. Boer, the furniture dealer, clearly is not within the statute. If there is any liability at all under the statute after the recovery of the patient it is for property destroyed to prevent the spread of the disease. It creates no liability on the part of the county to a merchant who furnishes new goods to take the place of the old ones destroyed. Mr. Boer, therefore, has no claim. The claim of Mr. Baar is different. The protection to the public in fumigating with formaldehyde was necessary in order to prevent the spread of disease by destroying its germs. Without such precaution people visiting the occupants of the house afterwards would be exposed to danger. So would the occupants, and the occupants in going among the public would be in danger of spreading the disease.

An examination of the record in Elliott v. Board of Sup’rs of Kalkaska Co., 58 Mich. 452, discloses the fact that the articles there destroyed, for which the respondents were held liable, were the nurse’s wearing apparel used by him while nursing in the pesthouse. This was for the protection of the public. The fumigation in this case was as essential for the protection of the public as was the destruction of the clothing in that. We therefore think this case is ruled by that, and that the claim of Mr. Baar should have been allowed at such sum as the board should deem reasonable.

The writ will issue.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Blair, J.

text:
    ROGAN v. GUSTAFSON.
    1. Attachment —Claimant’s Bond —Action —Evidence —SufFi-OIENOY.
    In an action of assumpsit on a bond given by the claimant of attached property, evidence examined, and held, that the .testimony of claimant and his witnesses showing the bona fides of the sale under which he acquired the debtor’s interest in the goods being undisputed, there was no evidence to support an instruction leaving the question of fraudulent transfer to the jury, and that a verdict should have been directed for defendants.
    2. Intoxicating Liquors — Property Rights — Illegality of Transaction — Effect as Showing Fraud.
    That a sale of the stock and fixtures of a saloon included also the tax certificate, and that the buyer unlawfully conducted the business under the certificate, would not warrant a jury in disregarding undisputed testimony showing the sale to be bona fide and finding that the buyer was in fact carrying on the business for the seller.
    Error to Iron; Stone, J.
    Submitted January 10, 1908.
    (Docket No. 41.)
    Decided March 17, 1908.
    Assumpsit by Martin Rogan against Charles Gustafson, principal, and Alex Dalpra and Fred Reindl, sureties, on a bond. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      M, H. Moriarty and Clarence D. Dwyer, for appellants.

      George 8. Power, for appellee.
   Blair, J.

The writ of error in this case is prosecuted by defendants to review a judgment in favor of plaintiff against Gustafson as principal and the other two defendants as sureties on a bond given under section 733, 1 Comp. Laws. At the close of the testimony in the case, defendants’ counsel requested the court to direct a verdict in their favor, for the reason that the undisputed evidence showed that the defendant Gustafson was the owner of the property. The court refused this request and instructed the jury with reference thereto as follows:

“ Now, gentlemen, it comes right down to the question, Was this a bona fide sale and transaction, so far as these goods and chattels were concerned, from Tissue to Hopf, and, after a month, from Hopf to Gustafson ? The bill of sale, I think, is dated July 2. That was just a week before this judgment was put on. A week after that time Mr. Rogan commences an attachment suit against Tissue, a man who is not in the country and a man who cannot be served with process, and he seizes these goods, and there in steps Mr. Gustafson and gives this bond. Now, gentlemen, if you shall say that by a preponderance of evidence here, it appears that these goods and chattels described in this bond and contained in the saloon, were the goods and chattels and property of Gustafson at the time, then your verdict will be, no cause of action.

“ But if, on the other hand, you say that it was not; that it was tainted with a whole fraudulent transaction; that there was no bona fide transfer of the property here; that it was all a scheme to defraud Rogan and any other creditors, then Rogan is entitled to a verdict at your hands for $265.”

This ruling and instruction raise the question for our consideration.

Prior to May 31, 1906, one Fred Tissue was engaged in carrying on a saloon in Crystal Falls and was the owner of the tax certificate and stock used in his business, though, perhaps, he was not the absolute owner of the stock. At some time prior to July 9th, but whether before or after the sales to Hopf and Gustafson hereinafter referred to does not appear, Tissue became indebted to the plaintiff Rogan in the sum of $265. On May 31, 1906, Tissue executed a written bill of sale of the property to one Fred Hopf for an expressed consideration of $576. It was understood that the “license,” so-called, was included in the sale, but it was not mentioned in the bill of sale. On the 2d day of July, 1906, Hopf executed a written bill of sale to the defendant Gustafson for an expressed consideration of $796.11. Both of these sales were brought about by the defendant Fred Reindl, an agent of the Menominee Brewing Company and a brother-in-law of Hopf. Reindl had advanced $100, and another man $400, to Tissue to enable him to pay the liquor tax, and Tissue owed Reindl for his advance at the time of the sale to Hopf. Reindl loaned to Gustafson the money with which he bought out Hopf. Reindl testified:

The Court: State to the jury whether the deal between Tissue and Hopf, as you understand it, was a bona fide, square deal or not — an actual sale and transfer.

“A. If I can tell just how the deal was — there was another gentleman and I went in and paid Tissue $400 to pay his license. I gave him $100 personally, myself, to make the $500, and the other man gave him $400. I got my brother-in-law to buy the place.

‘ ‘ Q. That is Hopf ?

“A. And when he bought the place there wasn’t any more than $10 worth of liquor that belonged to Tissue. The bills will show for it. Hopf paid every cent for the liquor in that place. The agents came in there, and he paid for the liquors and cigars and carpet on the floor, and curtains and bar, and even the clothes that the bartender wore. My brother-in-law paid Mr. Lustfield and Mr. Wehse.”

Hopf testified:

I know Fred Tissue. I had dealings with him on the 27th and 28th of May last. I bought a stock of liquors, cigars and fixtures in the room there. He didn’t own much of the stock. I had to pay all the different liquor bills he had of liquor to the dealers. It cost me between six and a half and seven hundred dollars, with the license. I carried on the business about a month and I went at the tailor trade. I sold the stock to Mr. Gustafson — Charles Gustafson. He paid me between seven and eight hundred dollars for it. It was a cash transaction and I delivered the stock over to him. He took possession of the stock about the second day of July.

“Q. Did you execute that bill of sale at that time ?

“A. Yes, sir. * * *

“Q. Did you buy his rights under the license, or claim to, is that the idea ?

‘lA. Yes, sir.

“Q. Also his entire interest in the stock ?

“A. Yes, sir. * * *

“Q. Were you in there yourself ?

“A. Yes, sir.

“Q. And had this government license and claimed to Tbe operating under the other man’s license ?

“A. Yes, sir.”

Gustafson testified that he did not know Tissue, that lie bought the stock and “ license ” of Hopf and paid him $796 in cash on July 2, 1906:

“Q. You testified that the goods without fixtures were worth $350.

“A. Yes, sir.

“Q. In your bill of sale from Hopf to you, you didn’t include the license. , Why was that ?

“A. They agreed the license was good to me—

“Q. Whose name was the license in ?

“A. Fred Tissue.

“Q. Had you taken out any other license ?

“A. Not, only the government license.

“Q. You had been doing business there continually since that time ?

“A. Yes, sir.

“Q. It was understood at the time you purchased those goods that the money you paid was to pay for the license also ?

“A. Yes.’1

Hopf paid the United States internal revenue tax on the "business of retail liquor dealer in the saloon in question for the month of June, 1906, and Gustafson paid such tax for the months of July, 1906, to June, 1907, both inclusive, and each received the customary receipt from the collector.

Plaintiff instituted suit in attachment and seized the property in question on the 9th day of July, 1906, which property was delivered to Gustafson on the execution of the bond above mentioned. The ground for the attachment, as stated in the affidavit, was “that the said Fred Tissue has absconded from the State with intent to defraud his creditors.”

We are of the opinion that the defendants’ request should have been given and that the court erred in submitting the question of fraud to the jury. The testimony is undisputed that the consideration for the bill of sale was actually paid by Gustafson, and we find no circumstances sufficient to warrant a finding by the jury that there was no bona fide transfer to him or that he had entered into a “ scheme to defraud Rogan and any other creditors.” So far as this record discloses, all of the. creditors of Tissue, except Rogan, were paid by Hopf, and there is nothing in the record to indicate that Gustafson had, or was chargeable with, knowledge that Tissue was indebted to Rogan. He testified that he did not know Tissue, and no inquiries were prosecuted by plaintiff’s counsel as to his knowledge of Rogan’s claim or of Tissue’s circumstances. In fact, there is no evidence in the record that Tissue was indebted to Rogan at the time of the bill of sale to Gustafson. The mere fact that the attempted sale of the tax certificate was illegal and that the conduct of the business was unlawful would not warrant a jury, under the circumstances shown in this record, in disregarding the undisputed testimony and finding that. Gustafson was in fact carrying on the business for Tissue.

Judgment reversed, and new trial granted.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    LEFFINGWELL v. BETTINGHOUSE.
    1. Wills — Testamentary Capaoity — Evidence—Sufficiency.
    Instances of forgetfulness, habits of untidiness increasing with advancing years, and failure to exhaust the subject of conversations, afford no evidence of lack of testamentary capacity.
    2. Same — Admissions by Proponent.
    Statements made by the proponent of a will contemporaneous with its execution, characterizing conduct of the testator, to the effect that testator acted like a crazy woman and that proponent could do nothing with her, afford no evidence of a lack of testamentary capacity where there is nothing to indicate insanity in the conduct of testator so characterized.
    3. Same — Conduct During Last Illness.
    A raving spell during the .last illness of an aged person has no tendency to prove that she lacked testamentary capacity when she made her will two years before.
    4. Same — Insane Delusion — Lack of Filial Affection.
    That testator reached an erroneous conclusion that some of her children lacked filial affection for her, cannot be said to be an insane delusion where it was based upon evidence consisting of their refusal to assist her in carrying out her plans, of which they did not approve.
    5. Same — Undue Influence — Inference from Opportunity.
    Undue influence will not be inferred from opportunity.
    6. Same — Subsequent Conversations — Admissibility.
    Conversations between testator and the beneficiary under her will, occurring after the will was made, are incompetent to show undue influence except when accompanied by other facts and circumstances warranting the inference that similar statements were made before.
    Error to Kent; Wolcott, J.
    Submitted January 13, 1908.
    (Docket No. 12.)

    Decided March 17, 1908.
    Eliza Leffingwell presented for probate the last will and testament of Amelia M. Bettinghouse, deceased. The will was allowed in the probate court, and Henry O. Bettinghouse a<nd others appealed to the circuit court. There was judgment for proponent on a verdict directed by the court, and contestants bring error.
    Affirmed.

      Taggart & Taggart, for appellant.

      JE. J. Doyle, for appellee.
   Carpenter, J.

The parties to this suit are brothers and sisters, children of Amelia M. Bettinghouse, deceased. Amelia M. Bettinghouse died October 27, 1905, in her 83d year. She executed a will July 8, 1903. She was then in her 81st year. She bequeathed substantially all her property, consisting of a house and lot in the city of Grand Rapids, and about $3,500 in money, to proponent, her youngest daughter, Eliza Leffingwell, though she gave a small amount to each of the contestants. This is a proceeding to admit said will to probate. Contestants contend that the testatrix lacked testamentary capacity; that the will was the result of an insane delusion and that it was procured by the undue influence of proponent, Eliza Leffingwell. In the circuit court the issue was tried before a jury and a verdict directed in proponent’s favor. Contestants contend that this decision was erroneous and ask for a reversal of the judgment.

Amelia M. Bettinghouse was a midwife. She was active in her profession up to her last illness which commenced a short time before her death. She was industrious and thrifty and accumulated the property in controversy. Not one instance of lack of business shrewdness is disclosed by the testimony. For several years prior to 1902 she intended to make a will — though she never did make it — giving to her son Henry C. Bettinghouse, one of the contestants, all or nearly all her property. An incident occurred that year which changed her intention. That incident was this: She was annoyed very much because the neighborhood boys played ball upon a vacant lot adjoining her home. The players broke down her fence, and when she built a new and higher fence, they came on her premises by means of a stepladder; they broke the windows in her house, and tore down her chicken park. This nuisance continued for a long time. Testatrix resorted to extreme and perhaps unwise measures to stop it. She threw rotten eggs at the players and daubed excrement on the ball ground, but the ball playing continued. Among the players were employés of the fire department. Her son Henry was assistant chief in that department. She asked him to interfere. According to his own testimony he expressed no sympathy with his mother and gave her to understand that he would not assist her. Proponent, on the other hand, sympathized with her mother and did what she could to stop this nuisance — and in this respect she differed not only from Henry, but from the other children of testatrix residing in Grand Rapids— and it was stopped. This conduct of Henry greatly incensed testatrix and from tha,t time to the time of her death she exhibited to him and to all others her resentment and there is no doubt whatever that it resulted in changing her testamentary plan.

Should the trial court have submitted to the jury the questions of testamentary capacity, insane delusion, or undue influence ?

First. The question of testamentary capacity. We may dispose of this question upon the assumption that there was no question for the jury unless lack of testamentary capacity could be inferred from certain acts, conduct, and statements of testatrix, and certain admissions of proponent hereinafter referred to. The acts, conduct, and statements of testatrix relied upon as evidence of lack of testamentary capacity are instances of forgetfulness which were neither numerous nor remarkable. Habits of untidiness which increased with advancing years. This was not evidence of insanity. See Hibbard v. Baker, 141 Mich. 124. Stress is laid upon the fact that testatrix in her conversations would pass abruptly from one subject to another. We quote the most significant testimony upon this subject:

“ She would be talking about her baby cases and then turn right off before she was half way through and commence about the fire department.” -

What is really meant by this is that she did not exhaust the subject of her conversations. The utmost that can be said of this testimony is that she did not discuss a subject as fully as in the opinion of the witness it should have been discussed. According to this test, who would not be judged insane ? There is no evidence of insanity. See Blackman v. Andrews, 150 Mich. 322. Other statements, acts, and conduct are referred to. They are less significant than these and need not be detailed. Under the authority of Hibbard v. Baker and Blackman v. Andrews, supra, they afford no evidence of lack of testamentary capacity.

Perhaps the most significant testimony is that relative to admissions made by proponent. There is testimony that in characterizing her mother’s conduct in trying to stop the ball playing, she said: “She acts like a crazy woman,” and after her mother was taken sick in her last illness, she said: “She is having another raving spell again,” and also — the witness thinks this was in 1903— she said: “Mother acts like a crazy woman, I cannot do anything with her.” Do these admissions afford evidence of lack of testamentary capacity I do not understand that it is claimed that proponent actually thought her mother insane. Her statements were merely extravagant comments on conduct which though peculiar was nevertheless'sane. For instance, she said her “mother acted like a crazy woman,” because she threw rotten eggs at the ball players and daubed their ball grounds with excrement. No one claims that this was insane conduct. It was conduct which testatrix thought would accomplish a most important and desirable object. Had proponent taken the stand as a witness for contestants and described this conduct, she would not, under the authority of Hibbard v. Baker and Blackman v. Andrews, supra, have been permitted to express an opinion that her mother lacked testamentary capacity. Neither could she base such an opinion upon the fact that her mother would not follow her advice, and had she expressed such an opinion, the jury would have been instructed to disregard it. Is the expression of such an opinion out of court entitled to greater weight than when made in court ? Certainly not. The raving spell during the last illness of testatrix had no tendency to prove that she lacked testamentary capacity when she made the will two years before. Declarations and conduct of testator after a will is made are often admitted to prove lack of testamentary capacity. See Spencer v. Terry’s Estate, 133 Mich. 39. This is upon the theory that the subsequent condition may be presumed to have existed when the will was made. Where that presumption is forbidden — and this is such ,a case — such testimony is inadmissible. We conclude therefore that the issue of testamentary capacity was not one for the jury to determine.

Insane delusion. There is evidence that testatrix reached the conclusion that the contestants, particularly her son Henry, lacked filial affection for her. It is said that this conclusion was an insane delusion. It is possible that it was an erroneous conclusion, and for that reason a delusion. But it certainly was not an insane delusion. It was a conclusion reached by weighing evidence, and there was evidence to justify it. It would have been error to submit this issue to the jury. Bean v. Bean, 144 Mich. 599.

Undue influence. Is there evidence that the will was the result of undue influence exercised by proponent over testatrix ? Nearly all of the arguments advanced by contestants in support of the claim that there was evidence of undue influence are answered by saying that undue influence will not be inferred from opportunity. It is insisted however that there is testimony tending to prove that proponent ‘ ‘ poisoned the mind of her mother by statements that were untrue,” and thereby exerted an undue influence over her will. The only testimony which we have been able to discover in support of this contention was given by contestant Amelia Bordeaux. This testimony related to certain conversations which occurred when she, proponent, and testator were together in proponent’s home, and she testified on her cross-examination that “the conversations I have detailed must have been after the will was made.” Manifestly what was said at this time could not have influenced testatrix in making the will. This testimony is entirely inconsequential unless it warrants the inference that similar statements had been made before, and that such statements influenced the making of the will. Is this a legitimate inference ? In Walts v. Walts, 127 Mich. 610, it is said:

“Evidence showing acts of undue influence at a date subsequent to the execution of the will is competent, in connection with other facts and circumstances, in support of the charge of undue influence exerted at the earlier date, see Porter v. Throop, 47 Mich. 313; Haines v. Hayden, 95 Mich. 349.”

Here there is an entire absence of such other facts and circumstances. -Moreover, the circumstances surrounding the conversation should be considered. The witness Amelia Bordeaux resided in Buffalo, New York. She had come to Grand Rapids to see her relatives and while visiting proponent and her mother these conversations occurred. They related to the conduct of the other children toward their mother at the time of the trouble with the base ball players. It is going altogether too far to assume that what was said on this somewhat unusual occasion was merely a repetition of what had been said before. Nor can it be inferred that testatrix was in any way influenced by the opinion of proponent. The substantial change she made in her plan was to substitute proponent for her son Henry as the principal legatee in her will. We know why this change was made. It would scarcely be too much to say that the testimony demonstrates that it was made because of the base ball trouble. There is then no reason to infer that it was made because of any influence exerted by proponent.

I think the learned trial judge correctly decided that there was no evidence of undue influence.

The judgment is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


text:
    WINKLEMAN v. CITY OF ADRIAN.
    Master and Servant — Injuries to Servant — Work Directed by Servant —Appeal — Previous Decision as Law of Case.
    In an action against a city for the death of a sewer employe, caused by the giving way of certain sheet piling, evidence examined, and held, to he in legal effect the same as that shown by the record on a former appeal to this court and that a verdict should have been directed for defendant on the ground that the piling was put in under the direction of deceased who alone was responsible for its defects. Salzwedel v. City of Adrian, 145 Mich. 380.
    Error to Lenawee; Chester, J.
    Submitted January 14, 1908.
    (Docket No. 48.)
    Decided March 17, 1908.
    Case by Bertha J. Winkleman, administratrix of the estate of Fritz Carl. Salzwedel, deceased, against the city of Adrian for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      James W. Helme, for appellant.

      Theodore M. Joslin, for appellee.
   Blair, J.

This ease has been submitted to three juries and is now before this court for the second time. The first report of the case will be found in 145 Mich. 280, where a sufficient statement of the case will be found. The plaintiff has remarried since the second trial. A new trial was ordered by this court, and the jury, upon such trial, having found a verdict for plaintiff, defendant again brings the case to this court for review.

Defendant’s counsel contends that a verdict should have been directed for defendant, in accordance with our previous decision, and, unless the testimony presented by this record is substantially different from that in the record previously reviewed, this contention must prevail.

Plaintiff’s counsel insists that the record is substantially different, the testimony of the following witnesses showing that Salzwedel did not have charge of the building but that Andrew J. Wood did, viz., William Jones, Isaac Thompson, Frank Johnson, Henry C. Lentz, John Edmunds, and Fred Witt. On the other hand, it is argued that the testimony of defendant’s witnesses that Salzwedel did have charge of the construction was thoroughly impeached and the jury might properly diregard it.

Jones, Johnson, and Thompson testified at the previous trial. Edmunds, Lentz, and Witt were new witnesses. The testimony of Lentz is unimportant. Witt testified:

“Q. Ask him who was the foreman and boss of that sewer ?

“A. Wood.

“Q. Ask him who built the curbing?

“A. He says he don’t know because he wasn’t there.

“Q. Well, ask him if he ever worked on the curbing ?

“A. No, sir. He said there were others that done that.

“Q. Ask him what others did it ?

“A. He says he couldn’t say, because he didn’t work at that place, he was a block away.

“Q. No, I don’t mean the day he got killed but other times.

“A. No, he says he hasn’t worked there any of the time, he said he was a block away from where these men worked right along.

“ Q. Ask him if there was more than one boss there— more than one foreman ?

“A. No.

“Q. Was Mr. Wood the boss of all the men there ?

“A. Yes.”

Edmunds testified, among other things, as follows:

“Q. I ask you who gave the directions as to how the curbing should be built ?

“A. Why, the foreman, I heard him tell them when they commenced to go up hill there, it wasn’t so deep, and not so solid curbing to start on, but I heard Mr. Wood telling them, ‘Be careful, boys, and build your curbing so you are safe.’

“Q. And did Mr. Salzwedel have anything to say about it, any more than the rest of them ?

“A. Why, he seemed to act to be the leader of it, he laid the tile, and put down the crosspieces as many as he wanted, it seems, so to suit him. Mr. Wood gave the men orders about putting in the curbing. Salzwedel was a sort of leader, he was doing the main work of putting in the sewers down in the bottom, in getting the full depth of it, Salzwedel had, as far as I understood it, he had a perfect right to get as many curb planks in there as he wants to, and as many crosspieces as he wants to. Mr. Wood didn’t hinder him from having what he wanted to be perfectly safe.

“Q. Yes; and Mr. Wood had charge of all the men at the time they were building this curbing ?

“A. He did.

“Q. And he gave each and every one of them their orders ?

“A. He gave them orders to build the curbing and build them so they could be working in a safe place.

“Q. Yes.

“A. And I noticed that when the curbing was built, he often went by himself, he would kind of drive a plank down a little, if he thought they wasn’t quite deep enough for them to keep them from caving in on each side.

etQ. You said — you attempted to explain there about the foreman putting in the curbing — you talked about Wood, and then you talked about the foreman; what do you mean by that ?

“A. That foreman, Mr. Wood, he was the foreman of the sewer.

“Q. Yes; but you say down below, when you were working there, and putting in shoring and curbing that Mr. Salzwedel told you how he wanted that put in ?

“A. Well, Mr. Westerman, I’ll— If a man gives me the job to put in those tile and curb them, and gives me the right to have what I want to save myself, I consider that I am boss, I use my own judgment there about, so that „I think that I am safe to put in my big tile; they were big tile they were putting in there. * * *

“A. If he wasn’t perfectly satisfied that that was safe to put his tile in here, there would be nobody to hinder him from having what he wanted.

“Q. Yes, he always did have what he wanted, didn’t he ?

“A. He did.

“Q. And he gave his orders for what he wanted ?

“A. He did; and if he didn’t get just what he wanted—

“ Q. He would ask Wood for it ?

“A. Yes, and he got it, so if he didn’t get what he wanted there would be no blame for it.

Q. Nobody to blame for it but himself ?

“A. It seems so. * * *

Q. But as to the general direction of the men who were working, as to putting in that curbing, Mr. Wood gave the orders to them as to how to put that in ?

“A. He did.

Q. And what directions were given by Mr. Wood ?

CiA. Well, I have already explained the direction he was giving, he gave the directions to put in that curbing and put crosspieces enough in there so that Mr. Salzwedel could be safe in there.

“ Q. Yes, the number of crosspieces, Mr. Salzwedel could have as many crosspieces, of course, as he wanted ?

“A. He could have what he wanted, yes.

Q. And if any of the other men called for anything there, they could have it ?

“A. Yes. * * *

Q. Well, but your claim is here that Mr. Salzwedel seemed to have charge of that part of the work.

“A. Why, wouldn’t it be natural, Mr. Westerman, when I am in there, that I have charge to get what I want to be safe ?

Q. Yes; well, he directed the other men, if he thought he wanted something, didn’t he, and told them where to put it, and how he wanted to put it, Mr. Salzwedel did F

“A. Why, he wouldn’t tell them what to do, but if he called for an extra plank to go down there, there was men up above to give it to him. * * *

Q. And you thought from what you saw, or you believe from what you saw, that Mr. Salzwedel was directing how he wanted it to keep himself safe down there ?

“A. Why, sure thing. * * *

“Q, Well, who was directing the general construction ?

“A. Mr. Wood ordered the curbing built there.

“Q. Yes.

“A. But under the instructions if they built so they were safe to work there.

“Q. And Mr. Salzwedel only followed out his orders, did he, the same as you, when you were working down there F

“A. Well, I couldn’t answer for what Mr. Salzwedel tried to do down there; he probably worked and thought he was perfectly safe, and found out he wasn’t, the same as I have been in ditches, where I thought I was safe and been buried clear to my neck two or three times.”

Johnson testified:

“All I ever seen Wood do was walk up and down the bank. I have heard him tell Mr. Salzwedel to see that everything was right down in the ditch before he went down in. I have heard him give directions to the other men. I did not receive directions from any one except Andrew Wood.”

Jones testified:

“Andrew J. Wood hired and discharged the men on the Nelson street sewer. I hired out to John Hammer and kept right on the same. Hammer died and Mr. Wood took his place. Mr. Wood hired men after that time. Mr. Wood see that the material was there for the sewer, the tile and manholes, also the curbing, and such work as that. He told the men what to do. He generally walked up and down the sewer, watched the sewer. There was no one around there in the capacity of a boss, or foreman, besides Mr. Wood. * * * Why, I heard Mr. Wood telling men what to do.

“Q. Yes, and did you hear Mr. Wood tell Mr. Salzwedel what to do ?

“A. Well, I heard him giving his men directions, that is, some of them.

“Q. And among those, was Mr. Salzwedel one of the number to whom he gave directions ?

“A. Well, he was one of the number of men that was working there.

“Mr. Westerman: Well, we move to strike that out.

The Court: Well, he wants to know whether you heard him give him any directions.

“A. Well, you see, Í might, and still not remember it; you see; that is the idea; I could not remember as to him instructing him at any certain time. It has been so long that I couldn’t remember him instructing him at any certain time. * * *

“Q. Do you mean — I ask you if you mean that Mr. Wood directed the building of the curbing, that he oversaw it ?

“A. Why, that’s my idea of the matter.

“Mr. Westerman: I object to that as incompetent, to the question as incompetent.

“The Court: It seems to me that it isn’t very hard work to tell how that curbing came to be in there.

“Mr. Joslin: Well, lam asking who gave, the orders and directed the men about building the curbing.

“A. Why, Mr. Wood gave the orders. * * *

“Q. I ask you to state to the jury what Mr. Wood did about building the curbing.

“A. Well, now, I’ll tell you, Mr. Joslin, while that curbing wa§ being built, Mr. Charlie Cregg and I was laying tile at the time, below there.

“Q. Did you do any work on the curbing yourself ?

“A. I don’t think I did, I don’t think I helped on the curbing before he was killed. The sheeting was driven, the curbing wasn’t driven. While we were digging we’d call to the man handiest by to drive the sheeting down as we wanted it drove down. Cregg and Salzwedel and I all did this.

“Q. What men were working on the job there helped in any way towards constructing that sheeting and putting it in, at various parts of it ?

“A. Well, I saw Mr. Salzwedel working on it, and I saw Mr. Witt working on it. I saw several men around there to work. While Mr. Wood told us whenever we wanted the sheeting drove down to call a man to drive it down, keep the sheeting drove down. Well, different men would drive the sheeting down. Mr. Wood told Mr. Salzwedel and me and Mr. Cregg also that when we wanted that sheeting drove down, to call a man to drive it. I never heard Mr. Salzwedel give any orders to the men there of any kind except to drive the sheeting down. ‡ * í:

Q. Did you ever receive any directions from Mr. Wood about digging out for the tile ?

“A. Why, I couldn’t say as for that; we knew what our work was, and went right on with it.

Q. Yes. Did he ever give you any directions to keep that sheeting driven down to the subgrade ?

“‘A. Yes, sir.

‘ ‘ Q. Down to the bottom of the tile ?

“A. Well, I don’t know as that was mentioned, really, but he said that we should be careful and see that our sheeting was kept down. We did not drive this sheeting clear down to the bottom of the tile, if we did, we would have to have dug the whole ditch out.

Q. In order to drive one of those boards down, you had to take your shovel, as I understand it, and excavate it right underneath it ?

“A. Right underneath the board; yes, sir. Mr. Wood told us to keep the boards, the sheeting, well driven down. * * *

Q. Did you ever hear Mr. Salzwedel say anything about working in there, as to whether he was afraid or not ?

“A. Well, he told me he wasn’t afraid in there. * .* * When we wanted a board driven down we would call to the nearest man, to have it driven down. * * *

Q. Well, did he say to you, ‘Come on, all right, it is all safe ? ’

“A. Well, now, I couldn’t sayas he said, ‘all safe,’ but he says, ‘Come on, it is all right.’ * * *

‘ ‘ Q. Who would put in that shoring and curbing ?

“A. Well, I saw different men working on it.

Q. Did you see Mr. Salzwedel working on it?

“A. I saw Mr. Salzwedel working on it, Mr. Witt working on it.

Q. Would Mr. Salzwedel tell Mr. Witt what to do ?

“A. Mr. Salzwedel was about the only man that could talk with Mr. Witt; I didn’t work with him when they were putting it in.

Q. Well, didn’t you hear Mr. Salzwedel tell Mr. Witt and Mr. Cregg and Mr. Stegmiller what to do ?

“A. Well, I couldn’t swear .that I did, any more than when we wanted him to wait on us, Mr. Stegmiller. * * *

Q. Did you ever hear Mr. Salzwedel say to any man there about how to put that in, or where to put it, or when to put it in ?

“A. Why, I couldn’t say as for that.

Q. Will you swear that you didn’t ?

“A. How ?

Q. Will you swear that you did not hear him say anything about it ?

“A. Swear that I didn’t hear him ?

“Q. Yes.

“A. I wouldn’t swear one way or the other, because I don’t remember what — it has been so long ago, I don’t remember the conversation. * * *

Q. Yes, but Mr. Salzwedel was there all the time ?

“A. No, he wasn’t, not laying tile, he wasn’t ?

Q. No. Well, what was he doing when he wasn’t laying tile ?

“A. Well, he was building curbing.

Q. He was building curbing ?

“A. That is right.

“Q. He was building curbing ?

“A. Helped build curbing ahead; yes, sir.

“Q. Well, then, he was managing that part of it, wasn’t he?

“A. Well, I wasn’t there.

“Q. Well, you was there when he was doing that work, you say he wasn’t there all the time you were at work ?

“A. Well, so far as the managing part is concerned, building the curbing up above there, I don’t know who the boss carpenter was at that.

“Q. Well, you say that Mr. Salzwedel worked at it part of the time ?

“A. Yes, sir, he worked at the curbing, building the curbing.

“Q. Well, now, did he direct you, or did he direct Cregg, or Stegmiller, or Witt ?

“A. In building the curbing ?

“Q. Yes.

“A. Well, I don’t know as to that, I didn’t — I was digging out and laying tile while this curbing was being built.

“Q. Yes; well, you saw Salzwedel there at work?

“A. I saw Salzwedel.

“Mr. Westerman: Did you see or hear Mr. Salzwedel give any of these men any instructions as to what they should do ?

“A. Well, I couldn’t say now what the conversation was on the sewer, I don’t remember as to that.

“Q. No, but did you hear him give any instructions to any of these men ?

“A. Well, I couldn’t swear that I did.

“Q. And you couldn’t swear that he didn’t ?

“A. I couldn’t swear that he didn’t; no, sir.

“Q. You couldn’t say that he directed the constructing of that curbing and shoring, then ?

“A. I couldn’t say that he did; no, sir.

“Q. And you couldn’t say that he didn’t ?

“A. I couldn’t say that he didn’t.”

Thompson testified:

“I didn’t hear anybody give any directions for the building of the curbing at all. * * * I didn’t see Mr. Wood laboring at anything at the time that I worked there for Mr. Wood.

“Q. And what did you see or hear him do ?

“A. I didn’t hear him do anything. * * * I heard Wood give orders to the men that was working on the bank doing the shoveling. I never heard him give any orders to any one about how to construct the curbing, not to the men who were erecting the curbing. * * * I don’t know as I ever heard him give Mr. Salzwedel any directions. Don’t know as Mr. Salzwedel was any boss at all, in building the curbing, whatever.

“Q. Do I understand you correctly, that you worked in carrying these sheeting right around there where the curbing was being put up, and helped to put it up yourself ?

“A. I helped to carry the material, the plank and the sheeting.

“The Court: Now, did you ever help put up the curbing?

'A. Why, no; I didn’t say I helped to put up the curbing.

“Mr. Joslin: When you was carrying this sheeting who was you delivering the sheeting to, the men that-were putting it in, or did you help to put it in ?

“A. I was delivering the sheeting to the men that was building the curbing, Mr. Salzwedel, Mr. Gregg, and Mr. Bill Jones.”

The testimony of Jones, Johnson, and Thompson does not differ in substance from their former testimony, and does not support the plaintiff’s contention that Salzwedel did not have charge of the construction of the curbing. The testimony of Edmunds not only does not support plaintiff’s-contention, but is hostile to it. The fair inference from his testimony is that Salzwedel was in charge of the particular work of putting in the curbing. In all its material elements, the case is the same as when here before, and must be ruled by our former decision.

Judgment reversed, and no new trial granted.

Grant, O. J., and Moore, Carpenter, and McAl-VAY, JJ., concurred.


author: Montgomery, J.

text:
    GENSLER v. NICHOLAS.
    1. Landlord and Tenant — Summary Proceedings — Amendment of Complaint After Appeal.
    The complaint in summary proceedings to recover leased premises may be amended so as to correct the description of the land after appeal to the circuit court, the complaint furnishing other means of identification of the premises than that contained in the specific description and there being but one contract and one controversy between the parties. Section 10268, 3 Comp. Laws.
    2. Pleading — Amendments—Propriety—New Matter.
    The true test of the propriety of an amendment of a pleading is whether the effort is to introduce what is a new subject of controversy or to amplify or correct the statement of the cause of action originally intended, and which is the real subject of controversy between the parties.
    3. Landlord and Tenant — Lease — Construction — Term Created.
    A lease for the.term of “three years with privilege of five years ” is not a lease for three years with the privilege of five additional years.
    4. Same — Continuance in Possession — Effect.
    Where a lease provides for a term of three years with privilege of five years, continuance in possession after the expiration of the three years is an election to continue under the lease, and does not create a tenancy at will or from year to year.'
    5. Appeal and Error — Questions Considered — Theory Below.
    A claim in this court that the lease in controversy did not terminate at the end of five years from its date, but at the end of five years from the date possession was given under it, is not open to appellant where the point was not made below and counsel stated on the trial that the lease terminated on the anniversary of its date for the purpose of supporting his claim that a tenancy from year to year or at will was subsequently created.
    Error to Clinton; Dodds, J., presiding.
    Submitted January 14, 1908.
    (Docket No. 114.)
    Decided March 17, 1908.
    Summary proceedings by Mary Gensler against George Nicholas for the possession of certain real estate. There was judgment for complainant, and defendant brings error.
    Affirmed.

      Shepard & Smith (Lyon & Moinet, of counsel), for appellant.

      Fred B. Everett, for appellee.
   Montgomery, J.

This action was brought to recover possession of land under section 11165, 3 Comp. Laws. The complaint averred the following:

“That George Nicholas is in possession of the following described lands and tenements, situated in the township of Ovid, in said county of Clinton and State of Michigan, to wit: The south half (i) of the northwest quarter (i) of the southwest one-quarter (i) of section twenty-eight (28), township seven (7) north, range one (1) west.

“ That said Mary Gensler, the complainant herein, is the owner of a life estate in and landlady of said premises, and said George Nicholas, the defendant herein, is the tenant under her.

“That said George Nicholas holds said premises unlawfully and against the rights of said complainant, Mary Gensler, and that said Mary Gensler is entitled to the possession of the same.”

Summons was duly issued and served upon the defendant who appeared on the return day specified and demanded security for costs. The defendant did not plead but demanded a jury trial and the case was adjourned. On the adjourned day the defendant did not appear and the complainant proceeded to offer evidence and judgment passed against the defendant. The defendant thereupon appealed the case to the circuit court. After entering upon the trial, it was objected that the land described in the complaint was not the land with reference to which the contract between the parties offered in evidence referred. Complainant was thereupon permitted to amend the complaint so as to describe the land as the south half of the northeast quarter of the southeast quarter of section 28 in the same township and range. It is alleged that this was error and three reasons are assigned: First, that the statute under which complaint was made and filed precludes such an amendment; second, that the issue was thereby made entirely different in the circuit from the issue in justice’s court; third, that a new, distinct, and separate cause of action was substituted by the amendment in place of the original cause of action tried in justice’s court. Counsel mainly rely in support of the first proposition upon Bryan v. Smith, 10 Mich. 229, and Clark v. Gage, 19 Mich. 507.

The first case, Bryan v. Smith, holds that under section 11165 it is essential that the complaint contain a sufficient statement of facts to show a right existing under this section. But the question of whether an amendment to the complaint was allowable was not considered or discussed.

The case of Clark v. Gage holds that in proceedings under this section, a description of the lands must be contained in the complaint sufficient to definitely and intelligently designate and identify the premises intended, and that the precision required should be measured by rules of pleading rather than by those which govern contracts. In that case, no question of the right to amend was involved.

We see no valid reason for excluding from the provisions of section 10268, 3 Comp. Laws, summary proceedings in the nature of those in question. That section is very broad in its terms. It provides that the court in which any action shall be pending shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time, before judgment is rendered therein.

The question arises whether this amendment introduced a new cause of action, or whether it was a correction of error in stating the cause of action upon which the case was brought.

It was said in Pratt v. Montcalm Circuit Judge, 105 Mich. 499:

“ It is a question of acknowledged difficulty to ascertain in just what cases an amendment may be said to set out a new cause of action.”

We think, however,, the true test is whether the effort is to introduce what is a new subject of controversy or on the other hand to either amplify or correct the statement of the cause of action originally intended, and which is the real subject of controversy between the parties.

Defendant’s counsel cite the case of Angell v. Pruyn, 126 Mich. 16, and it may well be used as illustrating what is in fact the introduction of a new cause of action. In that case, the plaintiff sought to recover for a breach of warranty on a sale of certain fruit trees. By his original declaration he confined his averments to transactions occurring in September of 1894 and averred a contract made as of that date for the delivery of certain trees which were not true to the warranty and on which he suffered damage. The amendment sought to be introduced was an amendment averring another contract made in August, 1895, for trees to be delivered in the spring of 1896. As a matter of fact, two separate causes of action existed in favor of the plaintiff, as the case shows. It was held that the attempt to introduce this additional cause of action by amendment was introducing a cause of action not originally counted upon, and that such an amendment should not have been permitted.

In the present case there is no claim that more than one cause of action existed in favor of the complainant, nor is there any intimation or indication that there was more than one contract between them. The complaint furnished other means of identification of the premises in controversy than that contained in the specific description. The complaint averred that Mary Gensler was the owner of the life estate in and landlady of the premises, and that defendant was a tenant under her. This was a means by which defendant was apprised of what lands were intended, and in such case, we think it was competent to permit an amendment giving the true description.

It is stated as a result of the authorities in 1 Encyclopaedia of Pleading and Practice, p. 560:

“ Amendments are also allowed to correct an erroneous description of the property which is the subject of the suit, or to which the suit relates.”

The case of Cooper v. Granberry, 33 Miss. 117, was an action to recover possession of lands. The complaint described the land as the north half of the west half of the southwest quarter of section 14, township 4, range 2 west. The plaintiff moved the court for leave to amend the complaint, describing the land as situated in the southeast instead of the southwest quarter of section 4. Leave was granted. The court say:

“ The statute under which the complaint was filed, in the clearest manner authorized the amendment. The object of the suit was to recover a particular tract of land, and it would have been simply useless litigation, after the error was confessed, if the amendment had not been permitted. The object of the amendment was to bring before the court the true subject of litigation, and not to go through the forms of a trial in regard to a subject, about which there was no controversy between the parties.”

In Rau v. Railroad Co., 13 Minn. 442, the complaint alleged that the plaintiff was the owner and in possession of lots 7 and 8 in block 182 in the town of West St. Paul. On the trial, the plaintiff testified that he occupied lots 9 and 10 in block 181, and the defendant objecting to the testimony as not referring to the property described in the complaint, plaintiff asked leave to amend the complaint by inserting the words “lots 9 and 10, block 181 ” in lieu of the words “lots 7 and 8 in block 182.” The court alio wed the amendment, and the defendant excepted. The court say:

“ There is no pretense that the claim which the plaintiff evidently intended to set up in this case was changed by the amendment, nor that the defendant was misled by the mistake corrected, nor prejudiced by the amendment. We see no reason to doubt the propriety of the allowance of the amendment, in view of the very liberal provisions of sections 100, 101, 104, p. 463, Gen. Stat.”

In Heilbron v. Heinlen, 72 Cal. 376, certain lands in range 20 east were described in the complaint. Plaintiff’s counsel asked, and were permitted against the objection of defendant’s counsel, to amend the complaint by striking out the word “twenty” and inserting the word “nineteen.” The court say:

“We see no error in the ruling. A mistake had evidently been made in describing the land sought to be recovered, and it was not an abuse of the court’s discretion to allow it to be corrected.”

In Leeds v. Lockwood, 84 Pa. 70, the prsecipe in the writ did not give a description of the land for the recovery of which action was brought, and after a lapse of 10 years, in which the case was pending, an application was made to amend the description of the writ so as to make it apply to other lands. It was conceded that the description in the writ and original declaration did not cover the land in possession of the defendant, Myron Luther, but, by adopting that in the proposed amendment, the description covered the land in controversy. The trial judge refused the amendment, on the ground that it introduced a new cause of action, saying that the description was filed on an entirely different lot.

“ If the description indicated the lot, but was defective in some particulars, doubtless an amendment correcting the mistakes would be allowed. But it is proposed to change the description from one lot to another, and an entirely different lot. ”

The supreme court, however, reversed the holding of the trial judge, saying:

“The court should have allowed the amendment asked for by the plaintiffs. The misdescription, no doubt, resulted from a mistake in commencing at the northeast corner of the Lane and Traverse tract, instead of the northeast corner of the tract in controversy. >

“ Even before the passage of the acts of 1871 and 1872, a defect of this kind might have been cured by filing a new description. Sample v. Robb, 4 Harris (16 Pa.), 805. Since the date of those acts, amendments may be permitted in all cases, and at any stage of the proceedings.”

The court, however, held that as the amendment would substitute a tract of land different from that described in the writ, the defendant would have the right to plead the statute of limitations, treating the date of the amendment as the date upon which suit was instituted.

Upon this latter question, the supreme court of Missouri seems to have taken a different view, in Mann v. Schroer, 50 Mo. 306. In that case the plaintiff it seems erroneously described the property on which a lien was filed. The statute required the lien to be filed within 90 days. After the expiration of 90 days he filed .an amended petition correcting the description. The defendant filed answer, and among other things set up that the suit was not commenced within 90 days after the lien was filed. The court say:

“The original petition was filed and the writ of summons was issued within the ninety days, and the amended petition was only a continuance of the original proceeding, and not the commencement of a new action.”

In the present case, the question is not in any way affected by the statute of limitations.

Cases may be found in which the court, applying the technical rule, has treated the correction of a description as the introduction of a new cause of action. But where the statute of amendments permits an amendment, either in form or substance, and where the amendment is permitted to correct an erroi' in stating the real subject of controversy between the parties, and where the party is in no way misled, and particularly where no question arises under the statute of limitations, we think it is “sticking in the bark ” to hold that a misdescribed cause of action is of necessity the real subject of controversy between the parties. Such a technical view of the statute of amendments practically eliminates the provision which permits amendments in matters of substance as well as in matters of form.

. It is further contended that the circuit judge erred in refusing to direct a verdict for the defendant. It will be necessary to state briefly the relations of the parties. The original contract between the parties bore date the 27th of February, 1901, and was as follows:

“It is hereby contracted and agreed between Mary Gensler of Ovid, Clinton Co., Mich., 1st part, and Geo. Nicholas, of the same place, of the 2nd part, that the party of the first part rents unto the party of the second part, the following described premises, to wit: The South one-half (£) of the North one-half (^) of the East one-half (£) of the South East quarter (£) of Section twenty-eight (28) township seven (7) North range one (1) west) in Michigan.- For the term of three years with privilege of five years for the sum of twenty-five dollars ($25) annually, to be paid September «1st yearly. It is further agreed that any improvements said party of the second part may make on said premises, may be removed by him at any time. The party of the first part to give possession Sept. 1, 1901, in witness whereof we have this subscribed our names, this 27th day of Feb. 1901.”

The defendant remained in possession until the spring of 1906 when notice was served, on March 14th, to vacate. The grounds upon which the defendant asked a directed verdict were that the lease in question expired in 1904, and that there was no evidence of an agreement between the parties with reference to the possession of the land after that time, and that defendant’s subsequent possession created a tenancy from year to year, or tenancy at will, and that defendant was entitled to three months’ notice to quit. Also that there was no evidence showing authority for service of notice to quit. These were all the points specifically made, although it was suggested that the lease might be construed as a lease for three years with the privilege of five additional years. That this latter is not a correct, construction, see Delashman v. Berry, 20 Mich. 292. Nor did the defendant become a tenant at will. His election to continue in possession for the remaining two years was an election to continue under the lease. He has now argued for the first time in this court that the lease did not terminate at the end of five years from its date, but at the end of five years from the date when possession was given. We think this objection is not now open to the defendant for two reasons: First, the point was not made below; and, second, defendant’s counsel distinctly stated on the trial that, under the lease, it appeared that the time expired the first day of March, 1904. This upon the claim that the three years had terminated at that day. The present claim is wholly inconsistent with the claim made below.

No error open to the defendant to urge is discovered on this record, and the judgment will be affirmed.

Grant, C. J., and Ostrander, Hooker, and Carpenter, JJ., concurred.


text:
    STATE BANK OF CROSWELL v. JOHNSON.
    1. Gifts — Nature.
    Where, during his last illness, the payee of a certificate of deposit indorsed thereon a direction to the bank to issue a new certificate payable to himself and another or the survivor of them, and delivered it to the other person named, with the intent that the right to the entire fund should become absolute and irrevocable in the donee only in case of his death, but that in the event of his recovery such person should have an equal interest with him, the transaction partook of the nature of both a gift inter vivos and a gift causa mortis.

      2. Same — Delivery—Necessity.
    To sustain a gift either inter vivos or causa mortis, there must be a delivery, actual or constructive, and the donor must * part with his dominion over the property so that no further act is required of him to vest the title in the donee.
    3. Same — Delivery—Sufficiency—Certificate of Deposit.
    The indorsement of the certificate of deposit and the delivery thereof to the donee with intent to make the gift as specified in the indorsement was as effective to pass the title to the interest specified as though a new certificate had been issued to the donee as directed by the indorsement.
    4 Same — Joint Tenants — Survivorship—Personal Property.
    The rule that the law of survivorship does not apply in the case of joint ownership of personal property does not affect the right of a donor to make a gift to his surviving wife.
    Appeal from Sanilac; Beach, J.
    Submitted January 15, 1908.
    (Docket No. 53.)
    Decided March 17, 1908.
    Bill of interpleader by the State Bank of Croswell against Samuel Johnson, administrator of the estate of Thomas Parker, deceased, and Alice Parker, to determine the title to a certificate of deposit. From a decree for defendant Johnson, defendant Parker appeals.
    Reversed, and decree entered for appellant.

      Wilford Machlem (Thomas Wellman, of counsel), for appellant.

      C. F. Gates, for appellee.
   Blair, J.

The complainant bank filed a bill of inter-pleader for the purpose of determining the ownership of a fund which it had on deposit, which was claimed by the defendant Johnson, as administrator of the estate of Thomas Parker, deceased, as belonging to his estate, and by the defendant Alice Parker, widow of Thomas Parker, by virtue of the transfer to her, by indorsement, of the following.certificate of deposit, on the 11th day of December, 1906, viz.:

“State Bank oe Croswell. No. 17820. $1800.00.

“Croswell, Mich., July 3, 1906.

“Thomas Parker has deposited in this bank eighteen hundred dollars, payable to the order of himself July 3, 1907, on return of this certificate, properly indorsed, with 5 per cent, interest per annum for all full months, if left twelve months. Interest will stop one year from date unless renewed.

“F. J. Battersbee, Cashier.”

The certificate was indorsed, as follows:

“ F. J. Battersbee,

“ Cashier of the State Bank of Croswell.

‘ ‘ Issue a new certificate in place of this one and make said certificate payable to Thomas Parker and Alice Parker or the survivor of them.

his

“ Thomas x Parker.”

mark

The indorsement was written on the certificate of deposit by Mr. Battersbee, cashier of the State Bank of Croswell, at Mrs. Parker’s request.

“Mrs. Parker came over one day to Croswell and wanted me to fix up that matter, said Mr. Parker was very sick and wanted me to come out. * * * I said I can fix the matter so it will do just as well as my going. I asked her the condition of Mr. Parker and she told me, said he was very sick. I asked her if the doctor was satisfied he was in a condition, to do business and she said she thought he was; I wrote this and told her to get the doctor as one witness, if he would act as a witness I would feel confident he was in a condition to do business. I told her to have two witnesses and told her to send it or bring it back to me.”

Mr. Batterbee’s impression was that after writing the indorsement he put the certificate of deposit in a safety deposit box rented by Mr. Parker and gave the box and keys to Mrs. Parker.

“Q. When did you get the box back ?

“A. I don’t know whether it was the next day or two days after I was in the postoffice and I saw a package lying on top of my desk there. * * *

“A. Yes, and I carried it to the bank and saw it was Mr. Parker’s. I said to the assistant cashier, ‘ Our box is back.’ * * * I am not sure whether it was before or after his death that I got it. He died I think a couple of days after this. * * *

“Q. The box was locked ?

“A. Yes.

“Q. When did you open, the box ?

“A. When Mrs. Parker came over.

UQ. How long after you got the box ?

“A. I don’t know, she came over shortly after Mr. Parker’s death, probably the next day.”

Dr. Fraser, who was Mr. Parker’s attending physician, testified with reference to the signing of the indorsement by Mr. Parker, as follows:

“On the day before the certificate was signed, Mrs. Parker came to- the office for some medicine for her husband and asked me if the next time I came to the house I would put a fountain pen in my pocket as Mr. Parker would like me to do a little writing for him and I said I would,, and I did. When I got to the house that afternoon, he said, speaking to me, that Alice wanted me to do some writing, he didn’t know what it was but he guessed it was all right and I said to him, whether he knew or not that he would know before he got through, as I wouldn’t be a party to anything else. She was coming into the room with this certificate in her hand at the time Mr. Parker spoke to me, and she handed it to me. I read the certificate and the indorsement on the back and I said to Mr. Parker, ‘ This is a certificate of deposit of the State Bank of Croswell for $1,800 and indorsed on the back is the following,’ and I read the indorsement on the back. And he said, ‘That’s all right, Doctor, it is her money and I want her to have it; the certificate should have been made out that way in the first place and I told Mr. Battersbee to make it out, and always supposed it was made out payable to Thomas Parker and Alice Parker or the survivor of either of them. I supposed it was until a day or two; that’s the way I wanted it made out.’ I said, ‘ That’s all right.’ Then I signed the paper and witnessed * * *

Q. After that what did he say about whom to give it to?

“A. To the best of my recollection, he handed the paper back to Mrs. Parker.

‘ ‘ Q. Thomas Parker ?

“A. Thomas Parker handed it to Mrs. Parker. * * *

Q. What did he say about whom he wanted it to go to?

“A. He said, ‘That’s right, that’s as it should be,'it is hers and I want her to have it.’ As I said, he said he was under the impression that- the original certificate had been made out that way to the joint names.”

The trial judge, after hearing the proofs, found that the fund in question was part of the assets of the estate of Thomas Parker, to which the administrator was entitled, and decreed that the money which the complainant had paid into court be paid by the register to defendant Johnson, From this decree, defendant Alice Parker appeals to this court.

Counsel for appellant present in their briefs, among others, the following proposition, which is the only one which we find it necessary to consider:

That a valid donatio causa mortis to appellant was shown. We are of the opinion that the transaction above set forth partook of the nature both of a gift inter vivos and of a gift causa mortis. The donor intended that the right to the entire fund should become absolute and irrevocable in the donee only in case of his death, but that in the event of his recovery, she should have an equal interest with him. . In either case, there must- be a delivery, actual or constructive, and the donor must part with his dominion over the property so that no further act is required of him to vest the title in the donee. 20 Cyc. pp. 1231, 1232; Chaddock v. Chaddock, 134 Mich. 48.

The important question, therefore, for our determination, is whether this record discloses such a delivery and parting with the jus disponendi. In determining this question, it is essential to bear in mind that Mr. Parker, although a shrewd man, was unable to read and write, and could, therefore, only know the contents of his certificate of deposit through information from others. It appears from his statement, which is wholly undisputed, that he had supposed “until a day or two” that the certificate “was made out payable to Thomas Parker and Alice Parker or the survivor.” It is manifest, therefore, that he intended to give her a present interest in this fund equal to his own, and that, in the event of his death, which he must have anticipated and which actually occurred on the second day after, to give her the entire fund. He did all that he could to carry out his intention and the question is, Did he go beyond an intention to make the gift? We are of the opinion that this question must be answered in the affirmative.

In the case of Reed v. Whipple, 140 Mich. 7, Peter W. Reed, on the 8th day of May, 1898, the day before his death, directed one Hannah Waters to procure for him from his safe two certificates of deposit and a bank book representing a savings deposit, which she procured and handed to him as directed. Immediately upon receiving them, he indorsed the certificates in blank and wrote the following on the back of the savings bank book:

“John Porter: Please assign the amount of this book to Miss Hannah Waters.

“P. W. Reed.”

Mr. Porter was the cashier of the bank. After indorsing the certificates and writing the words above quoted on the savings bank book, Mr. Reed delivered the certificates and bank book to Hannah Waters and said:

“ This is all the money I have. I don’t think I can get better. If I do, I want you to give them back; if I do not, they are yours. Take them down to the bank in the morning and have them renewed to you. I want you to take them and take care of yourself and the baby, and if I get better, I want you to transfer them back to me.”

Neither the certificates of deposit nor the bank book were presented until long after the death of Mr. Reed. It was held that the transaction constituted a valid gift causa mortis and the estate of Peter W. Reed had no interest in the fund.

The ground of the holding in Reed v. Whipple is that the delivery of the savings bank book with the writing thereon was, in effect, a delivery of the fund itself. As said in Wetherow v. Lord, 41 App. Div. (N. Y.) 413:

“The contract which is created between a depositor and a savings bank is quite different from a contract between a depositor and a bank of deposit. In .the former case the book evidences the contract, and the bank is not compelled to pay the depositor except upon presentation of the book. * * * It is, therefore, evident that the unqualified delivery of a book of deposit in a savings bank, with intent on the part of the person making the delivery to give an amount of money to the donee, is sufficient to vest in the donee absolute title to the money represented by the book.”

The same rule and for the same reasons applies to certificates of deposit, and the delivery of such a certificate, with intent to donate the fund, even though not indorsed, is a valid gift of the money deposited. 20 Cyc. p. 1230, and notes.

By delivering the certificate to his wife with the intention of giving her the entire fund in the event of his death, Mr. Parker lost control of the fund, parted with the right to dispose of it evidenced by the certificate, and the gift causa mortis was complete, subject only to revocation by his recovery. Reed v. Whipple, supra; Whalan v. Milholland, 89 Md. 199 (44 L. R. A. 208); Wilcox v. Murtha, 41 App. Div. (N. Y.) 408; Green v. Langdon, 28 Mich. 221; Driscoll v. Driscoll, 143 Cal. 528; Fischer v. Union Trust Co., 138 Mich. 612 (68 L. R. A. 987); Filis v. Secor, 31 Mich. 185; Love v. Francis, 63 Mich. 181.

Even if he had recovered, Mr. Parker could not have disposed of his wife’s interest in the fund without her consent. Kaufman v. State Savings Bank, ante, 65.

The indorsement of the certificate which represented the fund and the delivery thereof with intent to make a gift as specified in the indorsement was as effective to pass the title to the interest specified as though a new certificate had. been issued to Mrs. Parker as directed.

Our decisions that the law of survivorship does not apply in the case of joint ownership of personal property does not affect the right of a donor to make a gift to his surviving wife.

In Wait v. Bovee, 35 Mich. 425, where the doctrine was announced, it was said:

“ There is no question on evidence as to whether there was a gift by the husband to the wife, or a contingent relinquishment of right by one to the other; the case fairly excludes all considerations of that kind.”

In the Matter of Albrecht, 136 N. Y. 91 (18 L. R. A. 329), it is said, among other things:

“We are aware that there are many authorities holding that where the husband purchases a security or makes a deposit, or subscribes for stock in the joint name of himself and wife and pays therefor with his own funds, upon his death the entire security belongs to the wife, if" she survives him. But the decision in all these cases is put upon the ground that it is apparent from the character of the transaction that the husband intended to give the property to his wife in the event of her survivorship and, hence, the transfer possesses all the essential qualities of a gift causa mortis, which he may revoke in his lifetime, and which does not take effect until his death, if not previously recalled.”

, It results that the decree must be reversed, and a decree entered in accordance with this opinion, with costs to be paid out of the estate.

Grant, C. J., and Moore, Carpenter, and Mo Al-ya y, JJ., concurred.


author: Moore, J.

text:
    SEELEY v. SWIFT & CO.
    1. Saving Questions fob Review — Exceptions—Necessity.
    Where a question was objected to as not proper rebuttal, and after a suggestion from the court a word was omitted from the question, after which no further objection was made or exception taken, no question thereon is presented for review.
    2. Trial — Instructions—Construction as a Whole.

      A portion of a sentence in a charge cannot be selected for criticism where a reading of the entire sentence answers the criticism.
    3. Same — Ambiguity—Unnatural Construction.
    Ambiguity is not a proper objection to a charge where, to discover the ambiguity complained of, it is necessary to put an unnatural emphasis upon a portion of a sentence, more especially where any uncertainty is corrected by other portions of the charge.
    Error to Wayne; Mandell, J.
    Submitted January 15, 1908.
    (Docket No. 65.)
    Decided March 17, 1908.
    Case by John A. Seeley against Swift & Company for damages to plaintiff’s horse and buggy. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      George B. Greening, for appellant.

      Navin, Sheahcm & Bourke, for appellee.
   Moore, J.

The plaintiff was the owner of a horse and buggy. His wife drove out on Gratiot avenue. She stopped the horse in front of a store, got out of the buggy and hitched the horse; then went into the store to do some shopping. While she was in the store somebody came along with another rig and ran into the horse and buggy. The leg of the horse was broken, and the buggy damaged. The horse was subsequently shot because of the injury it received. This suit was brought to recover damages. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

It is the claim of plaintiff that the injury was done by an employe of defendant negligently driving one of its delivery wagons into his horse and buggy. Error is assigned upon the admission of the testimony of policeman Wagoner. That part of his testimony referring to Paul Columbó was received without objection. That part of it referring to Moses Richards was at first objected to as improper rebuttal testimony. The court suggested the record be read as to the questions put to Moses Richards. This was done and the following occurred:

“The Court: All except the word ‘large’is found in your question. If you will eliminate that.

“Q. Answer the question ?

“A. He did. '

<CQ. Did he tell you that there was one man driving it ?

“A. He did, sir.”

It will be observed that after the suggestion of the court, counsel seemed to be content, as no further objection was made and no expeption was taken. r

Error is assigned upon two portions of the charge which are quoted in the brief, counsel saying as to the first quotation that it was a statement of the judge that the evidence was undisputed, when in fact it was disputed. A portion of one sentence in the charge standing alone would justify the criticism, but if the entire sentence is read it answers the criticism.

As to the second excerpt from the charge, we quote from the brief:

“ The trial court also erred in stating to the jury: ‘It is claimed by the plaintiff that Swift & Company’s rig did the damage, and I may state now, as matter of law, that Swift & Company, if this rig was theirs, and that has been shown by the proof, if you are satisfied that it was their rig, and that rig was in and about their employment at the time, the master is responsible for the negligent acts of the servant.’ This language is susceptible of two constructions. The jury might assume from the judge’s charge in this connection that it had been shown by the proofs that the rig was the rig of Swift & Company.”

To make this ambiguous it is necessary to put an unnatural emphasis upon the words “and that has been shown by the proof.” If the emphasis is put upon the words as it would be natural to put it, we think it a forced construction to say the charge was ambiguous. Especially so when the jury were told over and over again that unless the injury was done negligently by the agent, employe, or servant of the company the verdict should be for the defendant.

Judgment is affirmed.

Grant, C. J., and Blair, Carpenter, and Mc-Alvay, JJ., concurred.


text:
    GATES v. DETROIT & MACKINAC RAILWAY CO.
    1. Injunction —Preliminary Injunction — Object — Preservation of Status Quo.
    The object of preliminary injunctions is to preserve the statusquo, so that upon the final hearing the rights of the parties, may be determined without injury to either.
    3. Same — Mandatory Injunctions — Propriety.
    Though courts look with disfavor upon mandatory injunctions, and will only grant them when necessary to preserve the status quo, the fact that the status quo is not always a condition of rest, but sometimes a condition of action, is' recognized, and whenever a mandatory injunction is essential to-preserve the status quo, and serious inconvenience and loss will result if it is not preserved, the courts do not hesitate to-grant it.
    3. Same — Carriers—Railroads—Delivery of Cars to Connecting Carrier.
    Where a railroad company has f or seven years delivered cars of logs at the terminus of its "line tb a connecting carrier, under a special contract of carriage with complainant, and only refuses to do so and to require complainant to unload at its terminus after a disagreement has arisen concerning the construction of the contract as to other matters, and the company can suffer little injury by continuing to do temporarily as it has done for seven years, while the complainant will suffer serious if not irreparable loss, a case for a mandatory injunction is presented.
    4. Same.
    In so far as the injunction allows complainant to determine what logs he is shipping under the contract and what outside of it, and compels defendant to accept his determination upon that point, it is too broad.
    Appeal from Bay; Collins, J.
    Submitted January 16, 1908.
    (Docket No. 77.)
    Decided March 17, 1908.
    Bill by Samuel G. M. Gates against the Detroit & Mackinac Railway Company for an injunction. From an order granting a preliminary injunction, and an order denying a motion to dissolve, defendant appeals.
    Modified and affirmed.

      Gillett & Clark, for complainant.

      Weadock & Duffy (James McNamara, of counsel), for defendant.
   Grant, C. J.

The defendant has appealed from an order granting a preliminary injunction and the order of the court refusing to dissolve it. The injunction is mandatory in character, and reads as follows:

“ It is further ordered, and the court does hereby strictly command and enjoin the defendant, Detroit & Mackinac Railway Company, its counselors, attorneys, solicitors and agents, employés and servants, and each and every of them, particularly those of its officers and agents, employés and servants, who have charge and control of defendant’s yard in North Bay City, Bay county, Michigan, to place all cars containing logs shipped by complainant from town 25 north, range 4 east, Oscoda county, Michigan, and town 25 north, range 5 east, Alcona county, Michigan, to said North Bay City (excepting logs marked ‘U. T.’ now on section 13, town 25 north, range 4 east), upon the transfer track in defendant’s yard at North Bay City heretofore used for the placing of such cars for transfer by the engines of the Michigan Central Railroad Company, and to leave safe and unobstructed access thereto by the said engines at such times and under such conditions as have heretofore been customary and usual until the further order of this court, and that the said defendant and its officers and agents, employés and servants, before mentioned, do absolutely desist and refrain from refusing or wilfully neglecting so to do, and from exacting or demanding the payment of freight in excess of $3 per thousand feet as a condition of the placing of cars for loading or of the acceptance for shipment or hauling of any logs heretofore or hereafter cut and shipped or offered for shipment by complainant from town 25 north, range 4 east, Oscoda county, Michigan, and town 25 north, range 5 east, Alcona county, Michigan, to North Bay City, Michigan (excepting logs marked ‘U. T.’now on section 13, town 25 north, range 4 east), and from exacting or demanding the payment of any sum in excess of said freight at $3 per thousand feet and the additional provisional sum of $1 per car as a condition of placing the same upon the transfer track aforesaid and permitting their removal therefrom by the Michigan Central Railroad Company, until the further order of this court.

“Also from exacting or requiring as a condition of such placing of cars, acceptance, hauling or delivery, the unloading or agreement to unload such cars at North Bay City until the further order of this court.

“It is further ordered that upon the placing of cars containing complainant’s logs upon the transfer track aforesaid, complainant shall be entitled to the period of two days of twenty-four hours each, commencing six hours after the receipt of notice that cars have been so placed, exclusive of legal holidays and Sundays, to transfer, unload and return said cars without the charge or payment of demurrage therefor, but that complainant shall pay provisionally for the use of such cars during said period the sum of $1 per car in addition to the freight due upon the contents of such cars.”

The rights and obligations of the parties to this litigation depend upon a contract which was in issue in a suit at law between these same parties, which was brought to this court upon writ of error, and is reported in 147 Mich. 523.

The main contentions growing out of the contract were there decided against the defendant. Under that contract the defendant agreed to deliver the logs at Bay City. Complainant’s mill at Bay City was located about eight miles from the terminus and yard of the defendant, and on the Michigan Central Railroad. For seven years it had been the custom of the defendant to deliver the cars loaded with defendant’s logs upon a side track in its yard. The engines of the Michigan Central Railroad then received the cars upon this side track and drew them to the complainant’s mill, where they were unloaded and returned to defendant’s side track. On May 8, 1907, the defendant, through its superintendent, notified Mr. Gates that he must unload his logs at North Bay City, and refused to allow their cars loaded with complainant’s logs to be taken from the defendant’s rails for delivery to the mill. Thereupon Mr. Gates filed this bill in chancery, alleging the custom of the defendant to deliver its logs in the manner it had done for seven years; that the contract was made with reference to that custom, and that it was binding upon the defendant. The defendant denied the custom. The bill also sets forth the impracticability of unloading the logs in the defendant’s yard for reshipment to his mill, and the serious inconvenience and loss, and irreparable injury which would result to him from so doing. It.is unnecessary to set forth the allegations in detail. The answer admits many of the essential facts.

The main contention on behalf of the defendant is that the preliminary injunction is mandatory and therefore not within the power of the court to grant. The two important questions raised by the pleadings are:

Is defendant under obligation to deliver its logs on its side track at Bay City (the place mentioned in the contract for delivery) for further transportation to the defendant’s mill?

What portion of the logs, if any, did not come from the lands covered by the contract ?.

The question of the price for transportation of logs covered by the contract was settled in the former suit. The object of preliminary injunctions is to preserve the status quo, so that upon the final hearing the rights of the parties may be determined without injury to either. Courts look with disfavor upon mandatory injunctions and will only grant them when it is necessary to preserve the status quo. Usually an order restraining action will accomplish this result, but the status quo is not always “a condition of rest, but of action.” Whenever courts have found a mandatory injunction essential to the preservation of the status quo, and serious inconvenience and loss would result if not preserved, they have not hesitated to grant it. Coe v. Railroad Co., 3 Fed. 775; Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 730, 746 (19 L. R. A. 387, 395). See, also, authorities there cited; 4 Pomeroy on Equity Jurisprudence (3d Ed.), § 1359; 1 High on Injunctions (4th Ed.), § 621a; 2 High on Injunctions (4th Ed.), § 1415k; 22 Cyc. p. 743.

So far as the delivery of the logs is concerned, the preliminary injunction only preserves the status quo which had existed for seven years.

If the complainant can maintain that this delivery was the one contemplated by the parties and included in the contract, he will be entitled to a permanent injunction. The defendant can suffer little injury by continuing to do temporarily as it has done for the last seven years, while the complainant will suffer serious if not irreparable loss. We think this a proper case for the issuance of a mandatory injunction. But the injunction allowing complainant to determine what logs he is shipping under the contract and what outside of it, cannot be maintained. This is not preserving the status quo as known to both parties. It permits the-complainant to determine, the status quo and compels the defendant to accept his determination upon that point. This cannot be done by the preliminary injunction of a court of chancery. As to this the preliminary injunction will be dissolved.

The defendant will recover costs.

Blair, Moore, Carpenter, and McAlvay, JJ., concurred.


text:
    WALMSLEY v. BOWMAN.
    1. Justices op the Peace — Costs—Security — Failure to Furnish — Effect as Nonsuit.
    Failure of a plaintiff in justice’s court to furnish security for costs when ordered is his own voluntary act and leaves no discretion to the justice but compels a judgment of nonsuit, there being no sufficient showing for an adjournment.
    3. Same — Appeals—Dismissal—Voluntary Nonsuit.
    An appeal from a judgment of nonsuit entered in justice’s court on plaintiff’s failing to furnish security for costs as ordered is properly dismissed, the nonsuit being voluntary.
    Error to Livingston; Miner, J.
    Submitted January 17, 1908.
    (Docket No. 83.)
    Decided March 17, 1908.
    Assumpsit in justice’s cohrt by David L. Walmsley against Edward A. Bowman for work and labor. Judgment of nonsuit was entered in favor of defendant, and plaintiff appealed to the circuit court. There was an order granting a motion to dismiss the appeal, and plaintiff brings error.
    Affirmed.

      D. D. Harger and Alex. J. Groesbeck, for appellant.

      William P. Van Winkle, for appellee.
   Blair, J.

This case was commenced in justice’s court in the township of Howell, Livingston county, Michigan, before Richard D. Roche, justice of the peace, by summons issued June 7, A. D. 1907. On June 17, A. D. 1907, the return day of the summons, plaintiff, a nonresident, appeared by his attorney, and defendant by his attorney. Plaintiff declared verbally. The defendant demanded that plaintiff be required to file security for costs and also a bill of particulars of his claim, both of which were ordered to be filed, by the court, and, thereupon, the cause was adjourned until July 9, 1907, at ten. o’clock in the forenoon. On July 9th, as appears by the return of the justice, both parties appeared. Plaintiff moved for further adjournment of said cause, no security for costs having been. yet filed. Defendant resisted this motion, for the reason that no security for costs had been filed, as ordered by the court, and that no proper showing had been made by said plaintiff for said adjournment. It appearing to the court that said plaintiff was a nonresident of the county of Livingston, and that no proper showing for an adjournment had been made, the motion for adjournment was denied; whereupon, the defendant being ready for trial, and the plaintiff not being ready, and after a delay of one hour not yet being ready, and refusing to proceed with the same, said cause was dismissed and a judgment of nonsuit was rendered in favor of the defendant, Edward A. Bowman, and against'the plaintiff, David L. Walmsley, for the costs of the suit, taxed at the sum of two dollars.

The cause was in due time regularly appealed to the circuit court where, upon motion of. defendant, it was dismissed upon the ground that the judgment in justice’s court was a voluntary nonsuit and, therefore, not appeal-able.

The sole question for our consideration is, whether the circuit judge erred in determining that the nonsuit was voluntary. We are of the opinion that the decision of the circuit judge was correct. Schulte v. Kelly, 124 Mich. 330.

The failure of the plaintiff to prosecute his suit by filing security for costs was as much voluntary as his failing to appear or to declare would have been, and left no discretion to the justice but compelled a judgment of nonsuit.

The judgment is affirmed.

Grant, C. J., and Moore, Carpenter, and McAlvay, JJ., concurred.