author: Hooker, J.

text:
    MERRILL v. NEWTON.
    Pleading—Deceit—Sufficiency of Declaration.
    A declaration which alleges that defendant made certain representations to plaintiff as an inducement to him to purchase land of defendant, that plaintiff believed and relied up on such representations and purchased the land, that the representations were false, and that plaintiff was damaged thereby, sufficiently states a cause of action for deceit.
    Error to Gratiot; Daboll, J.
    Submitted April 9, 1896.
    Decided May 12, 1896.
    Case by Parker Merrill against James E. Newton for deceit. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Newell Leonard, for appellant.

      Charles Merrill, for appellee.
   Hooker, J.

The declaration filed in this cause alleges that the defendant was owner of blocks 66 and 67 of the village of St. Louis, and, as an inducement to the plaintiff to purchase the same, produced and exhibited to the plaintiff a regularly executed plat of the W. fractional ■J- of the N. W. fractional J of section 30, dated October 30, 1873, upon which land said blocks were situate, and represented that said blocks were bounded on the south by a duly-platted street, 66 feet wide, called “Prospect Street,” which street had not been accepted or used by the public, and that he covenanted that said street should not, at his instigation, be appropriated to public use, but should forever remain to the exclusive and undisturbed control, possession, use, and occupancy of the plaintiff, unless by reason of public action. It alleges, further, that the land devoted to such street was actually but llj feet in width, that being the distance between the south line of said blocks and the boundary line of said parcel, i. e., the quarter line of said section. It is stated, further, that the alleged covenant was broken; but this is unimportant, as the case was not submitted to the jury upon that theory, but upon the claim that the defendant misrepresented the width of the street, to the plaintiff’s injury; and a verdict was rendered in favor of the plaintiff.

Inasmuch as the court instructed the jury that there could be no recovery upon the covenant, the testimony relating to it became unimportant, and was practically withdrawn from the jury. Hence the assignments of error relating to that subject need not be considered.

The question given most prominence by counsel for the appellant is that the court should not have permitted a recovery for misrepresentation and deceit, it being claimed that the declaration counted upon a covenant, and upon that only; but, in our opinion, the declaration states a cause of action upon the theory adopted by the trial court, whether it does upon a covenant or not, which we need not discuss. It states the representation as to the width of the street, made as an inducement to the plaintiff to purchase; that he believed and relied upon it, and purchased the land; that the representation was false; and that Re suffered damage by reason thereof. The declaration contains the essentials to support the action. The parties were before the court on a former occasion, and plaintiff was defeated because his declaration did not state a case upon the theory now presented. Merrill v. Newton, 99 Mich. 227.

The court instructed the jury, in substance, that the plaintiff’s right of way over the land represented as Prospect street did not depend upon the acceptance by the public. This was held in Merrill v. Newton, 99 Mich. 225.

We deem it unnecessary to discuss severally the various assignments of .error. The case appears to have been fairly submitted to the jury, and. should be affirmed. It is so ordered.

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


source: Caselaw Access Project

license: Public Domain

text:
    HUFFMAN v. MICHIGAN CENTRAL RAILROAD CO.
    Master and Servant—Inferior Appliances—Assumption of Risk.
    A railroad brakenian will be held to have assumed the risks incident to the use in lanterns of an inferior quality of oil furnished by the company employing him, where it appears that the oil had made him trouble for several weeks, and that he continued to use it without complaint.
    Error to Wayne; Aldrich, J., presiding.
    Submitted April 21., 1896.
    Decided May 12, 1896.
    Case by William D. Huffman against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Henry Russel, for appellant.

      William Stacey, for appellee.
   Hooker, J.

The defendant appeals from a verdict of $5,000 in an action for injuries suffered by the plaintiff by reason of his getting his arm between double dead-woods upon cars which he was coupling. It was in the evening, and the testimony shows that in coupling such cars, with which he was familiar, it was necessary to reach under the deadwood, to enter the link. This he did, and the cars came together. Hé stated that the slack in the stationary cars permitted a rebound, and that, when the cars came together again, his arm was v caught between the deadwoods, and crushed.

The case went to the jury upon the claim that the defendant was negligent in furnishing an inferior grade of oil for the lantern, which plaintiff testified grew dim at the time that he was hurt, rendering it difficult to see. The undisputed testimony shows that the company had investigated the subject of the oil, of which, some weeks before, there had been complaint; and, were the question of fact for us, we should be obliged to find that no negli-, gence was shown, and we think that there is little excuse for a verdict based upon the evidence of negligence contained in this record, as it seems to us to be a palpable disregard of the rule' that requires the plaintiff to establish his case by a preponderance of proof.

But, aside from this, the testimony conclusively shows that the plaintiff was familiar with this oil, which he says had made him much trouble for the period of two months, yet he continued to use it without complaint. It is obvious that he had a better opportunity for knowing the character of the oil than' the company had, and, upon his own theory, was much more negligent than the company was. We have often held that an employé assumes the risks incident to the use of poor machinery and materials, where he knows their quality, and this case seems to fall within that rule.

The judgment will be reversed, and, as it is apparent from the plaintiff’s own testimony that he has no cause of action, no new trial will be ordered.

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


text:
    BALCH v. CITY OF DETROIT.
    1. Statutes—Condemnation Proceedings.
    Condemnation proceedings which had become final by the confirmation of the verdict therein, and the expiration of the time to appeal, without an appeal by either party, before the enactment of Act No. 467, Local Acts 1895, providing that all proceedings to take private property on the part of the city of Detroit should be prosecuted under that act, are not affected thereby.
    3. Same—Enforcement of Judgment—Mandamus.
    A judgment- which had thus become final may be enforced by mandamus directing the city to pay the amount awarded from funds already in its hands, or, if that cannot be done, to proceed to levy an assessment for , that purpose, under the general law in force before the passage of such special act.

      Certiorari to Wayne; Frazer, J.
    Submitted April 31, 1896.
    Decided May 12, 1896.

      Mandamus by George W. Balcb and another against the city of Detroit and others to compel the payment of an award for land condemned for street purposes. From an order denying the writ5 relators bring certiorari.

    Keversed.

      Gray & Gray (Edwin F. Comely, of counsel), for relators.

      John J. Speed, for respondents.
   Hooker, J.

Previous to 1895, the right to institute proceedings for taking private property for street and highway purposes, on behalf of the public, was vested in city councils and boards of supervisors under a general law, viz., Act No. 124 of the Public Acts of 1883, and an amendatory act, numbered 48, of the Public Acts of 1887. At its 1895 session, the legislature passed an act, applicable only to the city of Detroit, which, while in the main it followed the provisions of the pre-existing general law, differed from it in important particulars. See Act No. 467, Local Acts 1895. Its first section provided that all proceedings to take private property, on the part of the city of Detroit, should be held and prosecuted under the provisions of said act; and its last section repealed all acts and parts of acts in conflict therewith. It contained no saving clause whereby the procedure in pending causes was pointed out. This act was passed June 4, and took effect on September 1, 1895, and was considered in the case of City of Detroit v. Chapin, 108 Mich. 136, where it was held that it terminated a proceeding commenced three days before it took effect, and which had not been submitted to a jury.

We have now before us a case where a verdict was rendered in such a proceeding on February 2, 1895, and in which a judgment of confirmation was entered on February 19, 1895, from which neither party appealed. The council took no steps to provide for the payment of the sum awarded by the jury, and has not sought to take possession of the land. It now claims that the award was excessive, and that there is no law under which it can raise the necessary fund to pay it. With the first question we have nothing to do, the verdict and judgment of confirmation being made final by section 11, Act No. 124, Pub. Acts 1883.

Counsel for relators* ask a mandamus directing that the common council pay the award from funds now in its hands, or, if that cannot be done, it provide, in the next annual tax levy, a sum sufficient for the purpose, and pay the same to the relators as soon as it shall be collected. In the circuit court the writ was denied, and the proceeding is before us upon certiorari.

It is contended upon relators’ behalf that the confirmation of the award gave them a vested right to the compensation, although the title or right to use the land could not vest in the public until payment should be made. Such was the view taken under the statute of New York in the case of People v. Common Council of City of Syracuse, 78 N. Y. 60, where it is stated that the English rule is much more favorable to property owners, in that the municipality is bound from the time of the statutory notice of an intention to condemn. The case cited holds that after the confirmation, and expiration of the statutory period, without appeal, the award became binding and conclusive upon both parties, and that the relator then had a legal right to compel the performance of the duties enjoined by the statute upon the common council, for the assessment and collection of the amount awarded, under the statute. Such, we think, is the effect of our own statute. Act No. 124, § 11, Pub. Acts 1883.

It seems to be conceded that this would be the effect of our statute were it not for the act of 1895, which is said to repeal the pre-existing act so far as Detroit is concerned, and therefore to preclude the levying of an assessment under its provisions; while the new act requires the designation of the assessment district by the council before the trial, and gives to all within it a right to intervene and defend, which manifestly cannot be done in this case. As stated in the case of City of Detroit v. Chapin, the provisions contained in the later act requiring the early designation of the assessment district, and notice thereof, with the obvious purpose of enabling the residents of such district to be heard upon the questions of the necessity and cost of condemnation, were important changes in the law, and, when taken in connection with decisions of this court theretofore made, and the sweeping repeal contained in the last section, without any saving clause, had the effect to discontinue pending cases, rendering it necessary for new proceedings to be commenced, which should afford an opportunity to those subject to assessment to be heard before judgment. But the construction of the former law cannot depend upon one passed 12 years later; and, to our mind, section 11 is conclusive that the judgment should be final and binding upon all interested therein, which, under the case of Borgman v. City of Detroit, 102 Mich. 263, includes the public, the landowner', and the taxpayer. In cases which had gone to judgment that had become final by confirmation and failure to appeal at the time the law took effect, the landowner’s right to compensation had become vested, and he is as much entitled to his compensation now as he would have been had the law of 1895 not been passed. We must therefore conclude that the relators have a right to insist that the judgment of condemnation shall stand, and that they be paid the amount adjudged in their favor.

Both statutes permit local assessments for such judgments, and do not prohibit assessment in full or in part upon the city at large. See Act No. 467, § 2, Local Acts 1895; Act No. 124, § 15, Pub. Acts 1883. There is therefore an opportunity for the claim that, if the change in the law precludes a local assessment, there is nothing to prevent an assessment upon the city at large. In fact, that would seem to be the only method if, as contended, there can be no local assessment. We cannot be oblivious to the fact that the opening of streets and highways are generally matters of local interest and benefit, and not of general interest or benefit; and that, while the highways belong to the public, they are seldom paid for by the whole public or State, but by some subdivision, such as a county, township, city, or district, and our laws are framed upon such theory. In cities, especially, it is common for these proceedings to be instigated by those having lands to improve or bring into market; and we doubt the intention of the legislature to impose upon the inhabitants of the entire city of Detroit the burden of paying judgments already rendered in these cases. Section 1 of Act No. 467 is pointed in its requirement that the proceedings which the city shall institute and prosecute for the purpose of taking property for the use of the public shall be held and prosecuted under the provisions of this act, and no other; and, to the extent of relieving the public where the land has not been taken, we have held that the former act could not apply, it being plainly prohibited. But, where the land has been taken,—i. e., condemned,— there is nothing in the later law that indicates an intention to annul the judgment, even if the legislature could lawfully do so; nor is there any indication of an intention to impose the burden upon the city or State. On the contrary, section 2 indicates that it is still the policy to permit local assessments.

' We think that the assessment may yet be made in conformity to the general act, as that is not inconsistent with the provisions of the later act. The writ will therefore issue requiring the respondents to pay the amount of such award, or, if the necessary funds have not been provided, to take the necessary measures to levy, collect, and pay the same.

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


text:
    McLEAN v. McLEAN.
    Equity Jurisdiction—Personal Decree.
    A court of equity, having acquired jurisdiction through a bill filed by a secured creditor for an accounting as to the property owned by a copartnership, may, where it appears upon the accounting that there is no property against which complainant can enforce his demand, retain jurisdiction and render a personal decree against the defendants, notwithstanding complainant has an adequate legal remedy.
    Appeal from Bay; Maxwell, J.
    Submitted April 21, 1896.
    Decided May 12, 1896.
    Bill by William S. McLean against Seth A. McLean and Henry M. Campbell for an accounting. From a decree dismissing the bill, complainant appeals.
    Reversed.

      William H. Sweet (W. A. Burritt, of counsel), for complainant.

      T. A. E. & J. C. Weadoclc, for defendants.
   Hooker, J.

Henry M. Campbell and Seth A. McLean were copartners. The latter made a loan at a bank, for which he gave the firm paper, with the complainant, who was his uncle, as indorser. The money received was deposited in the bank where the loan was made, in the name of the firm, and was checked out by firm checks drawn and signed by Seth A. McLean; some of it, if not all, being to pay his individual obligations. His partner, Campbell, was ignorant of the entire transaction, and the bank was not the customary place of deposit for the firm funds. There is nothing to indicate that the complainant was aware that this money was not borrowed for the use of the firm. The note was renewed, and finally paid by the complainant. Before and after this transaction, complainant indorsed other paper at the request of Seth A. McLean; a firm note of $500 being earlier, and an individual note of Seth A. McLean being later, in point of time. The $500 note was subsequently paid.

In March, 1893, Seth A. McLean gave to the complainant a bill of sale reading as follows, so far as it appears in the record, viz.:

“To the consideration of moneys to me loaned, and as collateral security for certain indorsements on Commercial Bank paper indorsed by me from time to time, and for various amounts, I hereby invest and sell to W. S. McLean, as collateral security for such loans and indorsements, my two-thirds (f) interest (undivided) in and to the personal property of the firm of McLean & Co., of Bay City, Bay county, Mich., consisting of horses, carts, harnesses, salt blocks, heading, staves, tools, etc., in and for such sum as said loans and indorsements may represent at time demand may be made for delivery of said personal property.
“Dated Saginaw, East Side, March 20, 1893.”
It was signed, “Seth A. McLean.”

On December 1, 1893, Seth A. McLean gave to complainant a second bill of sale, reading as follows, viz.:

“Know all men by these presents, that Seth A. McLean, of Bay City, in the county of Bay, and State of Michigan, of the first part, for and in consideration of the sum of $5,500 to him paid by William S. McLean, of Saginaw, Mich., of the second part, the receipt whereof is hereby acknowledged, has bargained and sold, and by these presents does grant and convey, unto the said party of the second part, his executors, administrators, or assigns, all of his interest, right, and property in the firm of McLean & Co., of Bay City, Mich.; the same being a two-thirds interest in all personal property of said firm, said goods and chattels consisting principally of the following goods and chattels, to wit: All book accounts due said firm; all horses, carts, harness, wagons, slab wood, staves, heading, pickets; all tools, implements, machinery; and all goods and chattels connected with the business of said firm.
“Whereas, I did, on the 20th day of March, 1893, make, execute, and deliver to William S. McLean a bill of sale of all my interest at that time of all said goods and chattels, the purpose of this bill of sale is to transfer all goods and chattels acquired by said firm since the date of said March 20, 1893; it being my intent to herein include all my interest in all goods and chattels of said firm not now owned by said William S. McLean by virtue of said former bill of sale. To have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever. And the said party of the first part, for his heirs, executors, and administrators, does covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, to warrant and defend the sale of said property, goods, and chattels hereby made, unto the said party of the second part, his executors, administrators, and assigns, against all and every person or persons whatsoever. This bill of sale is given supplementary to former bill of sale, and to include all property not included in former bill of sale therein specified.
“In witness whereof I have hereunto set my hand and seal this 1st day of December, 1893.
“Signed, sealed, and delivered in presence of
“Seth A. McLean.”

There is nothing to indicate that either bill of sale was recorded.

A day or two later, Campbell, the other partner, gave a mortgage to one Bump in trust for the creditors of the firm, and the property was sold and applied upon the debts.

The bill prayed an accounting, among other things.

It seems to be admitted that complainant has no right to redress from Bump, the trustee, or from creditors, as his brief states that—

“No relief is desired against any defendants except McLean and Campbell. The object in amending the bill, as I understand, was to try the question of which mortgage should take precedence; but, the property being disposed of, this question is not in the case. We have not and do not claim a right to a decree against them.”

He contents himself with asking a personal decree against the two copartners. If entitled to this, a judgment might have been obtained in an action at law, and it is only upon the theory that the court of chancery had jurisdiction to foreclose the mortgage, or to order an accounting with the trustee and Campbell, and, having entertained the suit for that purpose, may render a personal decree, although a decree of foreclosure cannot be rendered, upon the principle that, having acquired jurisdiction for a proper purpose, it may render a personal decree. But if, as contended upon behalf of the defendant Campbell, the bills of sale, upon their faces, indicate that they were personal obligations of Seth A. McLean, and were not intended to bind the partnership property as such, the complainant could not obtain relief from the property until the partnership debts were paid, and, the property being exhausted, he cannot obtain satisfaction from that source. He had, however, a right to an accounting with the trustee and Campbell, and equity was the proper forum to obtain it. This he sought by his bill, and the accounting was had; and, while it admittedly shows that neither Seth A. McLean nor Campbell has any interest left in the partnership property, it also shows that both are liable personally upon the $500 note, and we see no reason why a decree for $500 and interest should not be entered against them, with costs of both courts. See Coller v. Porter, 88 Mich. 549.

In other respects the decree will be affirmed.

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


author: Grant, J.

text:
    BANNER v. SCHLESSINGER.
    1. Partnership—Fraud of One Partner—Joint Liability.
    Members of a copartnership are jointly liable'for goods fraud-, ulently obtained for the firm by one partner, and by him fraudulently disposed of.
    2. Same—Pleading—Joint Tort Feasors.
    It is not necessary to allege a partnership in order to bind, as joint tort feasors, parties who join in, and knowingly assist in, the fraudulent disposition of goods fraudulently obtained.
    3. Trial—Instructions to Jury.
    When the court attempts to state to the jury the substance " of a witness’ testimony, it should state that which supports the theories of both parties, and not give undue prominence to that favorable to one party only.
    4. Sale—Fraudulent Representations—Evidence.
    Evidence of the fact that fraudulent representations, made to the seller’s agent on a fraudulent purchase of goods by another, were communicated to the seller, is admissible in an action to recover the value thereof, not for the purpose of corroborating the testimony of such agent that such statements were made, but for the purpose of showing that the seller knew of them, and relied upon them in selling the goods.
    Error to Wayne; Donovan, J.
    Submitted April 22, 1896.
    Decided May 12, 1896.
    Case by Simon Banner and another against Robert Schlessinger and others for the, fraudulent conversion of certain merchandise. From a judgment against Robert Schlessinger alone, plaintiffs bring error.
    Reversed.

      Sloman, Groesbeck & Robinson, for appellants.

      Russel & Campbell, for appellees.
   Grant, J.

The plaintiffs are merchants in New York City. Defendant Robert Schlessinger, either alone, or with defendants Max and Philip as partners, carried on the clothing business in Detroit. In August, 1891, he went to New York, and purchased of the plaintiffs a bill of goods amounting to about $800. Shortly after this purchase he failed, and executed mortgages on all his goods, to the amount of about $16,000, to secure his home creditors. The declaration contains three counts,—two special, alleging a fraudulent conspiracy on the part of the defendants to defraud plaintiffs and their other creditors, and a third count in trover. The special counts allege,- in substance—

“That they [plaintiffs] were induced to sell these goods in pursuance of fraudulent representations made by the defendant Robert Schlessinger on or about July 27, 1891 (which false pretenses are set up therein), and that on or about September 1, 1891, and divers other dates between then and the commencement of suit, the defendants, Robert, Max, and Philip Schlessinger, fraudulently conspired to secrete these goods, and goods purchased from other firms, and to dispose, incumber, and convert the remainder, with intent to defraud the plaintiffs.
“That, in pursuance of such fraudulent conspiracy, after the receipt of plaintiffs’ goods, the defendants, in the month of October, shipped, and caused to be shipped, by express, to Grand Rapids, in the nighttime, and after the usual business hours, a large quantity of goods of the stock in trade of the defendant Robert Schlessinger, including the goods purchased from the plaintiffs, under the false and fictitious name of Schultz, and that, after the receipt of the goods at Grand Rapids, the defendant Max Schlessinger went there, and, by representing himself as being Schultz, obtained the goods from the express company, and sold them to a merchant at Grand Rapids for the sum of $900, when the goods so shipped were of the value of $2,000, and which facts, it is alleged, were well known to the defendants, and each of them.
‘ ‘ That thereafter, in pursuance of such conspiracy, during the months of September and October, 1891, they shipped to different points in the State of Michigan other goods, under fictitious names, which had been procured from divers merchants with whom Robert Schlessinger dealt, by means of false representations, and that the proceeds of this conversion were appropriated by the defendants to their respective nse.
“ That, in pursuance of the same purpose, on or about November 5, 1891, they caused mortgages, aggregating in amount $14,793.67, to be made upon the remainder of the goods, ‘the amount of which mortgages largely exceed the value thereof,’ and by reason of the foreclosure of which the same were sold for considerably less than the first two mortgages thereon, whereby the plaintiffs lost their said claim, and became greatly damaged.”

Verdict and judgment were rendered against defendant Robert, and in favor of defendants Max and Philip. Plaintiffs appeal.

Max and Philip testified and claimed that they were simply employes, and not interested with Robert as partners. Robert testified that they were partners with him, and that they were to share equally profits and losses. The testimony on the part of the plaintiffs disclosed that Max and Philip assisted in putting up and shipping away some of the goods purchased from plaintiffs. If they were in fact partners, and Robert alone made the false representations upon which the goods were purchased for the firm, and they were fraudulently disposed of by him, all are jointly liable. Haney Manufacturing Co. v. Perkins, 78 Mich. 1. If the defendants Max and Philip were not partners, but joined in and knowingly assisted in the fraudulent disposition of the goods, then all would be jointly liable, even though Max and Philip received no direct benefit. There was evidence to sustain this claim. Max went to Grand Rapids, personated the fictitious Schultz, obtained the goods from the common carrier, and sold them for half their real value. The plaintiffs were entitled to have the case submitted to the jury upon these two theories, and it was not necessary to allege a partnership in order to bind all as joint tort feasors, having partnership relations, upon the first theory. Of course, the mere selling of the goods by Max and Philip, if they, were not partners, without any guilty knowledge or participation in the fraudulent act, would not render them liable for conversion. We do not think the case was fairly submitted to the jury upon these theories.

When a court attempts to state to a jury the substance of the testimony of a witness, it should state that which supports the theory of the one party, as well as the other. We think the court, through inadvertence, did not fairly state to the jury the testimony of Robert and Max, but gave undue prominence to that which was favorable to the defendants.

In view of a new trial, one other point should be considered. One Mendelson, plaintiffs’ credit man, had testified to the representations which defendant Robert made to him at the time of the purchase, and that he communicated these representations to the plaintiffs. One of the plaintiffs was asked to state what these representations were, as reported to him by Mendelson. This was excluded, evidently upon the ground that it was hearsay. If it were offered in corroboration of the witness Mendelson, it would be incompetent; but such was not its purpose. The court should have admitted it for the purpose of showing that plaintiffs knew what the false representations were, and that they relied upon them in selling the goods.

The other assignments of error are based largely upon the principles already discussed, and need not be further noticed.

Judgment reversed, and a new trial ordered.

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


text:
    DOTY v. NIXON.
    1. Contract—Substituted Agreement.
    Plaintiff sold cattle to defendants, under a contract by the terms of which a part of the purchase price was paid down, and plaintiff agreed to keep the cattle for a certain time, when the balance was to be paid. The defendants being unable to make payment, by consent, the cattle were shipped to market in the name of plaintiff, in charge of one of the defendants, who sold them, and the proceeds were remitted to plaintiff, and were applied on the contract price. Held; that such departure from the terms of the original agreement did not constitute a new contract, and did not release defendants from their obligation to pay the balance of the'contract price.

      2. Trial—Inconsistent Counts—Instructions to Jury.
    It is not error to refuse to require an election on inconsistent counts, where the effect of the instructions to the jury is to submit the case upon the theory of only one of the counts.
    Error to Eaton; Smith, J.
    Submitted April 22, 1896.
    Decided May 12, 1896.
    . Assumpsit by Ellis Doty against Ladd J. Nixon and others upon a contract for the sale of cattle. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      W. R. Clarke and Huggett & Smith, for appellants.

      Spaulding, Norton & Weimer, for appellee.
   Hooker, J.

The plaintiff was the owner of certain cattle, which he bargained, receiving from the hands of defendant Middleton a payment down, and promising to retain the cattle and feed them for a period agreed upon. Middleton was not able to pay for them, and an arrangement was made by which they were shipped to Buffalo, in charge of Middleton, but in the name of the plaintiff, who received a draft from a Buffalo dealer for the amount for which they were sold. This sum did not equal the amount that plaintiff would have been entitled to under the original contract, and he brought this action.

The first count of his declaration alleges the contract with the three defendants to take the cattle, and their failure to accept the cattle. The second states their delivery to, and acceptance by, the defendants, and their failure to pay for the same. The common counts were also, added.

The court instructed the jury that the plaintiff could not recover unless the defendants were partners at the time of the purchase, and the purchase was made upon their behalf as partners, and Doty so understood it, and he directed them to find a verdict for the amount named in the verdict if they should conclude that it was a partnership transaction.

Counsel contend:

1. That there was no evidence of a partnership transaction.

2. That the two special counts were inconsistent and antagonistic, and that plaintiff should have been required to elect upon which theory he would go to the jury.

3. That the first agreement was changed by an agreement subsequently made with Middleton, by which plaintiff released the defendants from the contract.

We think there was evidence tending to show the existence of the copartnership; that the original contract was made upon its behalf; and that plaintiff so understood it. The court did not err in submitting that question to the jury.

The defendants showed that Middleton was unable to pay for the cattle, and that it was arranged that they should be shipped to Buffalo in plaintiff’s name, so that the pay would go to him; Middleton to go with the cattle, and arrange for their sale. The car being too small to accommodate all of them, three head were put in a pasture by Middleton’s direction, and plaintiff never saw them again. We think] that the evidence conclusively shows that these cattle were shipped in furtherance of the contract, and that there was no evidence tending to show a release by the plaintiff of the defendants from their promise to pay in accordance therewith. The money received was applied, and apparently the plaintiff should have been paid the remainder.

The charge of the court did not leave inconsistent claims to the jury, as it made the case hinge upon the making of the contract. The delivery seems to have been conclusively shown, as Middleton received and disposed of all of the cattle under the agreement mentioned.

A point was made upon the failure of the court to give a request to the effect that if Middleton bought cattle, to be bunched and shipped with others purchased by the other defendants, it would not have the effect to make them liable to plaintiff, as partners. The jury were plainly told that plaintiff could not recover unless defendants were partners, and participated, as such, in the purchase, which rendered the point raised unimportant.

We deem it unnecessary to discuss the other questions raised.

The judgment is affirmed.

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


author: Hooker, J..

text:
    NASH v. ROCKFORD VENEER CO.
    1. Sale—Passing op Title.
    A contract for the sale of standing timber, ■which provides that the purchaser may cut and draw to the railway such as he selects, the same to be paid for before shipment, passes the title to timber cut and removed thereunder.
    2. Same—Estoppel.
    The fact that the seller, after the purchaser has rejected and refused to pay for a portion of the timber cut and removed, asks him to comply with the contract, and not ship'any until he pays for all, is not inconsistent with the understanding that title had passed.
    Error to Kent; Gírove, J.
    Submitted April 22, 1896.
    Decided May 12, 1896.

      Assumpsit by Charles Nash against the Rockford. Veneer Company upon a contract for the sale of timber. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Earle & Hyde, for appellant.

      William O. Webster, for appellee.
   Hooker, J..

This cause is before us upon a finding of fact and law by the circuit judge, which shows:

1. That plaintiff is a farmer, and defendant a corporation engaged in the manufacture of oak veneer.

2. That plaintiff sold to defendant such timber, standing in the tree, on the lands of the plaintiff, as it deemed suitable for veneering purposes, with the license to defendant to cut down and remove the same, at $10 per 1,000 feet; and the defendant agreed to pay him therefor before shipping such timber from the railroad grounds at Clarksville.

3. That defendant, by its agent, selected such timber as it wanted, while standing in the tree.

4. That it employed choppers, and directed them what timber to cut.

5. That they cut down, and made logs of, such timber as they were‘directed to cut.

6. That the defendant caused such logs to be hauled to the railroad grounds at Clarksville.

7. That defendant thus took and removed 17,118 feet of lumber.

8. The first 5,000 feet that were cut were hauled to Clarksville, whereupon the same were scaled by defendant’s agent, and, being paid for, were shipped to the defendant. The log's in controversy were cut afterwards. At the time the first log was scaled, defendant’s agent told the choppers that logs as small as 24 inches at the small end would be taken. They cut no tree that did not include at least two logs that were afterwards scaled, but cut some logs which were excluded, as too small or defective, the same being top logs. They were hauled by the defendant to Clarksville, but were afterwards rejected.

9. The scaler scaled and marked 10,461 feet, but refused the remainder.

10. After the scaler had gone, the plaintiff was informed by defendant’s agent, Mr. Post, that the defendant would take those scaled, but would not take the others. Plaintiff replied that, if defendant did not take all the logs, it ought not to take any of them; and Mr. Post informed the defendant thereof, and defendant decided it would not take any of the logs, and so informed Mr. Nash, and it did not take any of the logs.

The court held, as matter of law, that the timber taken by the defendant, was identified by cutting and removal of the same, and that the title passed as fast as the trees were severed from, the realty. Judgment was rendered for the amount of such timber, at $10 per 1,000 feet, with interest.

Counsel for the defendant claim:

1. That the title to the timber remained in the plaintiff, inasmuch as it was not paid for, and that, as the defendant did not take the logs from Clarksville, this action for goods sold and delivered cannot be maintained.

2. That, under the undisputed evidence, it was not obliged to take the top logs, which were found to be unsuitable for its purposes.

The first proposition seems to rest upon the argument that, inasmuch as the timber was not to be shipped from Clarksville until paid for, title was reserved in the plaintiff, and would only pass to the defendant upon payment. Counsel say that “the finding .that ‘defendant agreed to pay the plaintiff therefor before shipping such timber from the railroad grounds,’ as matters of law, would vest the title in the plaintiff until the logs were paid for. ” They further urge that the fact that Nash objected to the removal of the logs shows that the defendant did not receive the logs.

If the title to the logs actually passed to the defendant by the cutting of the trees, the fact that the plaintiff objected to the removal of a.part only was consistent with his rights under the contract, and we are not convinced that he could insist upon such rights only at the peril of releasing the defendant from its obligation to accept and pay for the logs. Upon the theory that the defendant had already received the logs, it had no right to refuse to pay for a part of them, and when the plaintiff asked it to comply with its contract, and not ship any until it did pay for all, abandon the property, and say that it never received it. If, however, the legal effect of the contract was that the title did not pass until the logs were paid for, the defendant’s counsel are right in their contention that this action cannot be maintained. We are of the opinion that the prohibition of removal, either by the contract or the direction of the plaintiff in accordance therewith, was not inconsistent with the understanding that title and possession had passed to the defendant. Had the parties designed to have the title remain in the plaintiff until payment should be made, it would have been easy to express such intention; and, as we think the language used was consistent with ownership by the defendant, the court did not err in not determining that the contract reserved the title to the logs, to the plaintiff, until payment should be made, or that there had not been a delivery to the defendant.

We are asked to hold that, upon the undisputed evidence, the defendant was under no obligation to accept the top logs, which were not suited to its purpose, and that it did not accept them; but we think there was evidence which made those questions disputed questions of fact, and the finding of the circuit judge is therefore final.

The judgment is affirmed.

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


text:
    SPARROW v. INGHAM CIRCUIT JUDGE.
    Appeal prom Probate Court—Insanity.
    No provision is made for an appeal from an order of the probate court committing a person to an insane asylum under Act No. 304, Pub. Acts 1895, and an appeal cannot be taken under section 6779, 2 How. Stat., authorizing appeals from orders of the probate court in all cases not otherwise provided for.

      Mandamus by Edward W. Sparrow to compel Rollin H. Person, circuit judge of Ingham county, to dismiss the appeal of Mary H. Sparrow from an order of the probate court committing her to an insane asylum.
    Submitted April 28, 1896.
    Granted May 12, 1896.

      M. V. & R. A. Montgomery, for relator.

      Smith & Lee, for respondent.
   Grant, J.

The relator, Edward W. Sparrow, filed a petition in the probate court of the county of Ingham, setting forth that his sister, Mary H. Sparrow, was afflicted with a form of insanity known as paranoia. An order for an inquest was duly entered, and the inquest held, resulting in a finding by the physicians, and an order of the court, that Miss Sparrow was insane, and directing that she be taken for care and treatment to one of the state asylums, as a private patient. These proceedings were had under Act No. 204, Pub. Acts 1895, which will be found in the margin. The inquest was a long one, many witnesses were sworn, and two prominent physicians, who were appointed by the court, listened to the testimony, examined the patient, and filed their certificate of insanity. Miss Sparrow thereupon took an appeal to the circuit court. The respondent refused to dismiss the appeal, and the purpose of this application is to secure the writ of mandamus to compel the reversal of that order and the dismissal of the appeal. The sole question presented is, does the right of appeal exist in such cases ? The act makes no provision for an appeal, and the sole claim on behalf of the respondent is that it exists by virtue of section 6779, 2 How. Stat., which, reads as follows: “In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree, or denial of a judge of probate may appeal therefrom to the circuit court for the same county.”

NOTE.

Pub. Acts 1895, No. 204, p. 878.

An act to amend section twenty-one of act number two hundred and twenty of the session laws of eighteen hundred eighty-nine, entitled “An act to amend sections twenty-one and twenty-two of act number one hundred and thirty-five of the public acts of eighteen hundred eighty-five, entitled ‘An act to amend, revise, and consolidate the laws organizing asylums for the insane, and regulating the care and management thereof, and of the inmates therein, and to repeal act number one hundred and sixty-four, laws of eighteen hundred fifty-nine; also act one hundred and ninety-four, laws of eighteen hundred seventy-seven; also act ninety-one, laws of eighteen hundred seventy-three, and the acts amendatory thereto; also act number one hundred and seventy-two, laws of eighteen hundred seventy-three,’ approved June third, eighteen hundred eighty-five,” being section ninety-one hundred thirty c,. Howell’s Annotated Statutes of Michigan.

Section 1. The people of the State of Michigan enact, that section twenty-one of act number two hundred and twenty of the session laws of eighteen hundred eighty-nine, entitled “An act to amend sections twenty-one and twenty-two of act number one hundred and thirty-five of the public acts of eighteen hundred eighty-five, entitled ‘An act to amend, revise, and consolidate the laws organizing asylums for the insane, and regulating the care and management thereof, and of the inmates therein, and to repeal act number one hundred and sixty-four, laws of eighteen hundred fifty-nine; also act one hundred and ninety-four, laws of eighteen hundred seventy-seven; also act ninety-one, laws of eighteen hundred seventy-three, and the acts amendatory thereto; also act number one hundred and seventy-two, laws of eighteen hundred seventy-three,’ approved June third, eighteen hundred eighty five,” be and the same is hereby amended so as to read as follows:

Seo. 21. No person who is a resident of this State shall be held as a private patient in any asylum, public or private, or in any institution, home, or retreat for the care or treatment of the insane, except upon the certificates of two reputable physicians under oath, appointed by the judge of probate of the county where such alleged insane person resides to conduct an examination, and an order from said judge of probate setting forth that the said person is insane, and directing his removal to an asylum or institution for the care of the insane. When the relatives or friends of any insane person shall make application in his behalf for an order admitting him to any asylum, public or private, or to any institution, home, or retreat for the care or treatment of the insane, to the judge of probate of the county where he resides, the judge of probate shall institute an inquest and take proofs as to the alleged insanity before granting such order, and shall immediately notify such alleged insane person of such application, and of the time and place of hearing to be held therein, and any relative or other person having such alleged insane person in charge or custody shall likewise be notified of said time and place of hearing, and the judge of probate may appoint a guardian ad litem to represent such insane person upon such hearing, and shall fully investigate the facts; and if the judge of probate shall deem it necessary, or if such alleged insane person shall so demand, a jury of twelve freeholders, having the qualifications required of jurors in courts of record, shall be summoned to determine the question of insanity; and the said judge of probate pending such proceedings, if it shall appear to be necessary and essential so to do, such alleged insane person may be placed in the custody of some suitable person, or may be moved to the asylum of the district in which said insane person resides, or to any hospital, home, or retreat, to be detained until such application can be heard and determined: Provided, however, that the period of such temporary detention shall not exceed in all fourteen days, and all the expenses thereof shall be paid by the petitioner or out of the estate of said alleged insane person. Such alleged insane person shall have the right to be present at such hearing, unless it shall be made to appear to the judge of probate, either by certificate of the medical superintendent of the asylum or the officers in charge of .such hospital, home, or retreat to which he may have been temporarily committed, or by the certificates of two reputable physicians, that his condition is such as to render his removal from the institution for that purpose, or his appearing at such hearing, improper and unsafe. The said judge of probate shall, if satisfactory evidence is adduced showing the alleged insane person to be of unsound mind, and in need of care or treatment in an asylum, home, or retreat, grant an order for the commitment of such insane person to such institution, there to be supported as a private patient. Before making his order committing an insane person as a private patient to any of the public asylums supported by this State, the judge of probate shall require the petitioner, or friends of such insane person, to enter into such bond for the support of such insane person thereat as may be provided by the by-laws thereof, and to pay such sum to the medical superintendent or treasurer thereof as an advance payment towards his support as such by-laws may require, which bond shall be signed by at least two sureties, who shall justify their responsibility on oath before such judge of probate; and said judge of probate, at the request of the medical superintendent of the asylum in which any insane person may be committed as a private patient, may require such sureties to justify their responsibility anew, or order that a new bond be filed in the place and stead thereof.

The order of the judge of probate shall be in the following form:

State or Michigan, ) County of ----. ) '

At a session of the probate court for the county of-holden at the probate office in the-of-on the-day of ---in the year one thousand eight hundred and---.

Present-, Judge of Probate. In the matter of--, an alleged insane person.

To the Medical Superintendent of the--:

Having received the certificates of---and---, duly qualified medical examiners in insanity, appointed by this court, by whom-of-, an alleged insane person, was personally visited and examined, and after notifying the said ——— of the proceedings to be taken in h--case, and having taken the testimony of-, credible witnesses, and having fully investigated the facts in the case with-the verdict of a jury as to the question of insanity, I, the judge of probate in and for said county, do find that the said-is insane, and a fit person for care and treatment in the---asylum.

[It is therefore ordered that the said —-be removed to--asylum, there to be supported as a private patient.

Judge of Probate.]

This act is ordered to take immediate effect.

Approved May 24, 1895.

This provision was enacted early in the legislation of the State, and is found in the Revised Statutes of 1846. At that time no jurisdiction to determine the insanity of persons, for the purpose of confinement and treatment, had been conferred upon courts of probate. Provisions were subsequently, from time to time, enacted by the legislature for the confinement and treatment of the insane, and especially for those of the pauper, indigent, and criminal classes. Prior to the enactment of statutes providing for an inquest to investigate and determine the insanity of private persons who had means, or whose friends were able to provide for them, they had been received into the state asylums upon the application of their relatives and friends. In 1879 the claim was made that the insane asylum at Kalamazoo was not designed for the reception and treatment of persons who had sufficient means to secure care and treatment elsewhere. This court, however, determined otherwise, and held that it was not the design to exclude any of these unfortunates from the care and treatment which those specially fitted by experience and study might give. Van Deusen v. Newcomer, 40 Mich. 90. The court in that case were equally divided upon two propositions: (1) "Whether the superintendent was liable, in an action for false imprisonment, for detaining a person whom he in good faith believed to be insane, and who was admitted without any inquest; and (2) whether, in doubtful cases, an inquest was a prerequisite to confinement in the asylum. Not long after, the legislature made provision for such inquest, the last provision being that under which the present proceeding was had.

The authority for an appeal from one court to another must be found in either the Constitution or the statute. It is conceded that the right of appeal in this case is not found in the Constitution, and, if it exists at all, it must be found in the statute. Not every order of a probate court is appealable. Walker v. Hull, 35 Mich. 488; Moore v. Moore, 48 Mich. 272. In these cases the court has given reasons why certain orders are not appealable, some of which are applicable here. Where the statute contains no language indicating the existence of the right of appeal, the purpose of the law is- an important, if not the controlling, consideration in determining whether the right of appeal exists by virtue of a' prior general statute permitting appeals, especially where the tribunal, at the time of the passage of the general act, had no jurisdiction over the subject of the later statute. If the appeal will destroy, or tend to destroy, the very purpose and benefit designed to be accomplished by the law, courts will hesitate long before determining that the right of appeal exists by virtue of the former statute. He would be very obtuse who did not perceive that the chief object of this act is to furnish in the early stages of the disease the best medical treatment available, in order to effect a cure, and prevent, if possible, the terrible result of permanent insanity. If appeals are allowed in these cases, they may not reach a trial and determination in the circuit court for one or two years. A writ of error will then lie to the Supreme Court. If error is found, a new trial must be granted, and it may be years before a final determination can be reached. Meanwhile the sick person, unless dangerous to the lives and property of others, must remain without treatment, and permanent insanity may result, where prompt treatment by skilled physicians might cure the malady. This point is ably discussed by Mr. Justice Marston in Van Deusen v. Newcomer, 40 Mich., at page 112. It is not reasonable to suppose or infer that the legislature intended to provide for any such condition of affairs. They did intend to provide a speedy and competent tribunal to investigate and determine whether the malady existed, and provide for prompt and efficient treatment. No other conclusion is possible, or consistent with the humane purpose of the law. The patient is not required to be present at the inquest, provided it is considered unsafe or unwise for him to be there. The probate court, upon an ex parte showing, may order the patient to be taken to the asylum, and there remain pending the hearing and decision. From this order, it is conceded, there is no appeal.

Her counsel appear to be alarmed at the result of holding that this inquest is final, and speak of the result of “confining the person [who is sane] to a living grave within the walls of an asylum.” Such an argument has no merit. Such a result is scarcely possible, under the humane provisions of the law of this State, which are ample to prevent it. Neither the court nor the physicians have any object in adjudging a sane person insane, nor have the skilled and learned physicians in our asylums any object in keeping any sane person within their walls. Prior to the enactments providing for inquests, private persons might be confined and treated in the state asylum upon the application of relatives or friends, and no question was ever raised as to the legality of such confinement, provided that such persons were in fact insane, until the case of Van Deusen v. Newcomer. That case was of great public interest, and it is fair to assume that the legislature were familiar with it, and framed the subsequent enactments with reference to it. The inference is therefore natural that the legislature, as well as this court, recognized the propriety and necessity of providing a method of procedure which should be speedy and effective, and avoid the tedious delays in appellate courts. .

Furthermore, the authority conferred upon the probate judge is not found in a statute providing for the organization and prescribing the jurisdiction and duties of judges of probate and probate courts. The title of the act in which it is incorporated relates to the organization of asylums for the insane, and the regulation of their care and management. The legislature might, with equal propriety, have provided for a board of physicians, or authorized any other officer or tribunal to hold the inquest. This has been frequently done. Where a person has escaped indictment, or been acquitted of a criminal charge, on the ground of insanity, the court is required to make a further examination, and, upon ascertaining that his insanity continues, may order him sent to an asylum. So if a person is in confinement under indictment or sentence of imprisonment on a criminal charge, or on civil process, the circuit court commissioner of the county, or, in his absence, the judge of the circuit court, is charged with the duty of holding the inquest. 1 How. Stat. §§ 1908-1910. The statute makes no provision for appeals in these cases, and none has ever been supposed to exist.

One of the humane provisions of this statute is that it permits the person who has been adjudged insane to apply to the probate court to determine whether he is healed. If the court, upon the hearing, adjudges that his sanity is restored, may his relatives or friends take an appeal to the circuit court? Such a course would be cruel, and, we may safely assert, was never intended by the legislature.

Counsel for the respondent state in their brief that no right of appeal is' given in condemnation proceedings authorized to be instituted in probate courts, and that many appeals have been taken. In this, counsel are certainly mistaken. The law expressly provides for appeals in these proceedings. Sess. Laws 1855, Act No. 82; Sess. Laws 1873, Act No. 198, 1 How. Stat. § 3337. Counsel are also mistaken in their assertion that numerous appeals have been taken from decisions of the probate court under the drainage law, while the act itself does not provide for an appeal. It is true that the various drainage acts do not provide for an appeal upon the merits, nor have I been able to find a case where such an appeal has been attempted. The cases involving proceedings under the drain law are very numerous. The regularity and validity of these proceedings have always been raised in this court by petitions for the writ of mandamus to compel or restrain action, or by bills in equity to restrain the collection of the tax imposed, or to remove a cloud from title, or by the writ of certiorari. In the case of Tucker v. Drain Commissioner, 50 Mich. 5, this court refused the writ of certiorari to review defects in drain proceedings; holding that the party aggrieved should seek redress by appropriate proceedings in the circuit court, whence the appellate jurisdiction of the Supreme Court may be resorted to. In 1885 the legislature provided that such proceedings should b® the subject of review upon certiorari. 3 How. Stat. § 17á0ei. It is certainly significant that the legislature should provide for an appeal in condemnation proceedings, and that no right of appeal has ever been supposed to exist in the drain law. It seems a fair conclusion from the various acts providing for condemnation proceedings, and from the interpretation placed upon the drain law, that in these special proceedings, which are ancillary to some main purpose, and are committed to the probate judge or probate court for determination, no right of appeal is intended. This is especially true where the humane purpose of the statute would evidently be thwarted if the right of appeal existed.

There is no sound reason for an appeal. This statute accords a public hearing, the benefit of learned and astute counsel, examination by two disinterested physicians, and in addition, if desired, the determination of a jury of 12 freeholders. What greater safeguards could be provided? Upon what theory can it be claimed that another court or another jury would be better qualified to determine one’s mental condition, or more liable to arrive at a correct conclusion? Is it a wise policy to keep persons, who are alleged to be insane, before the courts, year after year, before they can receive the skilled treatment provided by a humane law? It would require clear and explicit provisions in the law to convince us that the legislature so intended.

We have been able to find but one case in point, and that is so clear and full in its reasoning that, if we were in doubt ourselves upon the question, we should feel inclined to adopt and follow the decision and reasoning of he court of last resort of a sister State. That case is People v. Gilbert, 115 Ill. 59. The statute of Illinois is, in all essential particulars, the counterpart of ours. The point raised there was the same as that here. The relator relied upon the right of appeal given by a prior statute, but the court held that no right of appeal in these proceedings was conferred. The following is the reasoning of the court:

“The taking an appeal would suspend the proceeding, and leave the insane person at large until the appeal, and, perhaps, further successive appeals, could be decided, while there might be necessity, for the person’s own safety and benefit, as well as the safety of others, that he should be immediately placed in an insane asylum for confinement, and to receive medical treatment there. In the case of an appeal there is always an appeal bond provided for, which is supposed to be a full indemnity against all the inconvenience of delay from the appeal. But an appeal bond would be utterly useless in the way of obviating, or in any way indemnifying against, the mischief of the delay which would be caused by the taking of an appeal in such a case as this. An appeal would frustrate the object of the proceeding,—the immediate commitment of a person deemed to be insane to an institution for the insane for safe-keeping and treatment. The act makes provision for the temporary detention of the person alleged to be insane, if deemed necessary, pending the proceeding and previous to the verdict, and after verdict, and pending admission to the hospital, by providing that the court may make such order in that behalf as the case may require, and that a certified copy of the order shall authorize the person to be temporarily detained by the sheriff, jailer, or other suitable person to whom the order shall be directed. But no provision is made for any such temporary detention pending an appeal,—a manifestation that no appeal was intended to be given. It is true that, notwithstanding the contrary finding of the jury, the alleged insane person might be sane, and the ill consequences supposed might not result from the allowance of an appeal. But, if the appeal lies, it lies in all cases equally, whether the person be a raving maniac, mildly affected with insanity, or be in fact sane. There can be no distinction made. The finding of the jury and the order of the court, at least, must be taken as presumptive evidence that the person alleged to be insane is insane, and that his case renders proper his immediate commitment to the state hospital for the insane, and that the delay of an appeal might be fraught with injurious consequences. ”

The writ must issue as prayed, but without costs.

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


author:
Long, C. J.
      Hooker, J.

text:
    MORAN v. SCHMITT.
    Building Contract—Extras—Estimate oe Arbiter—Right op Action.
    tion of the work under a contract which provided that the work should be performed under the direction and to the satisfaction of the government engineer or his agent, that alterations should be made in the work as required by the contractor, and that the value of extra work should be fixed by the engineer, or some competent person appointed by him. The engineer named in the contract was at no time present, but the contractor instructed the subcontractor to do whatever the government inspector, appointed by the engineer, wished him to do. The subcontractor performed additional work under the direction of such inspector, but the latter, on application, refused to make any valuation thereof. Held, that upon such refusal the subcontractor was entitled to maintain an action for the extras so furnished. Hooker and Montgomery, JJ., dissenting, on the ground that the contract expressly required the valuation to be made by the engineer, or by some person appointed by him, and that the appointment of the person to whom application was made, as inspector, did not necessarily authorize him to represent the engineer in making such estimate. Á contractor for the erection of a lighthouse sublet a por-

      Error to Wayne; Lillibridge, J.
    Submitted January 8, 1896.
    Decided May 19, 1896.

      Assumpsit by Ered T. Moran against John P. Schmitt for extras furnished under a building contract. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Frank A. Noah and John G. Hawley, for appellant.

      George Gartner (Fred A. Baker, of counsel), for appellee.
   Long, C. J.

This is an action of assumpsit brought by the plaintiff as assignee of Ferdinand Scheibner.

The defendant had a contract with the United States government to build a lighthouse, tower," keeper’s dwelling, and outbuildings, at Old Mackinac Point. He was a carpenter, and not a mason, and he sublet the mason-work to Scheibner. The contract between them was in writing, in which defendant is named as party of the first part, and Scheibner as party of the second part. The contract provides as follows:

“1. The said second party shall and will well and sufficiently do and finish, under the direction and to the satisfaction of William Ludlow, or his agent, all of the works included in the drawings and specifications, and which are subjects of the tender, for the excavations, drains, stone masonry, damp course, and asphalting, ashlar stone work, cut stone work, brickwork, and concrete floors required to complete a certain lighthouse, tower, keeper’s dwellings, and outbuildings, to be built at Old Mackinac Point light station for the United States government, under William Ludlow, lighthouse engineer for the Ninth and Eleventh districts, to be erected for the said first party in strict accordance with the drawings and specifications furnished therefor by William Ludlow, engineer, according to the true intent and meaning of the same; and whenever it appears that the work intended to be done, or any matters relative thereto, are not fully detailed or explained in the said drawings, but are mentioned in the specifications, or vice versa, the said second party shall apply to the said first party for such further drawings or explanations as may be necessary, and shall conform to the same, as part of the contract.
“2. Should any difference exist between the drawings and the specifications, the decision rests with the engineer, whether more or less expensive to the said second party. No alleged admission or inadvertent neglect on the part of the engineer will be taken as an excuse for bad work.
“3. The said first party may require alterations in the work shown or described in the said drawings or specifications, which the said second party agrees to do according to the directions which may be given, and in every such case the price hereby agreed to be paid for said work shall be increased or decreased, as the case may require, according to a fair and reasonable valuation of the work added or omitted; the value of such work to be fixed by fair admeasurement- and valuation, to be made by the engineer, or by some competent person appointed by him. Such alterations or- variations shall in no way render void this contract, and no claims for such alterations or variations, or the increased or decreased price therefor, shall be valid, unless founded upon written agreement. •
“4. No deviations whatever are to be made in the execution of the works, from the drawings and specifications, without consulting the said first party for his approval.”

No difference between the drawings and specifications existed, and no questions arose under the provisions of the contract above set forth. But, in the construction of the work provided for by this subcontract, certain alterations were made, necessitating a large amount of additional work not shown or described in the drawings and specifications.

The defendant, the general contractor, was there at the commencement of the work, but after a time was there only occasionally, as the work progressed. Mr. Scheibner entered upon the work under his subcontract, the defendant being there at the time; and, when he was about to leave, he said to Scheibner to go on and do whatever Mr. Overton wanted him to do. Mr. Overton superintended the work for the government. He was sent there by Mr. Ludlow, the lighthouse engineer, for that purpose, and was the only government inspector at the work, and as such, under the contract, was the agent and appointee of Ludlow, Mr. Ludlow not being there at any time during the progress of the work. In the construction of the work by Scheibner under his contract with defendant, and under the directions of Overton, alterations were required which greatly added to the work specially provided for in the subcontract. This additional work was done by Scheibner, and materials were furnished by him, under the directions given him by Overton, in accordance with the terms of the contract. After the work was completed, everything was settled between the defendant and Scheibner, except for the extra work and material. This suit is brought to recover from the defendant the value of these extras and material, Mr. Scheibner’s account having been assigned to the plaintiff in this case. These extras, Scheibner claimed, amounted to $2,589.65. Defendant pleaded the general issue, and gave notice thereunder that he would claim damages for noncompletion of the contract within the time specified, and also filed a bill of items as set-offs against plaintiff’s claim. On the trial, plaintiff had verdict and judgment for $2,300.

It will be observed that the first section of the contract provides that the second party shall and will well and sufficiently do and furnish, under the direction and to the satisfaction of William Ludlow or his agent, all the work provided for in the contract, including the extra work that was to be done; and by section 3 the valuation thereof was to be admeasured by the engineer, Ludlow, or by some competent person appointed by him. The trial court directed the jury that the defendant was liable for all the extras furnished by Scheibner, under the direction of Overton, in doing this work. It is contended by the defendant that the value of this work was never fixed by a fair admeasurement and valuation made by the engineer, or any competent person appointed by him, and that, therefore, the court was in error in directing the jury that a recovery could be- had by the plaintiff for these extras.

Mr. Scheibner was called as a witness upon the trial, and testified that the defendant gave him the plans and specifications from which the work was to be done, and that he went there and commenced work in May, 1892, and continued until all the work was done; that Mr. Overton was the inspector, and inspected the work, and was the only man he saw there in charge; and that Mr. Schmitt, the defendant, told him that Overton was employed by the government. The witness was then asked:

“What did Mr. Schmitt state to you about Mr. Over-ton,—about his control of the work ?
“A. He said I should go on and do whatever Mr. Overton wanted me to do,—I should do it. Mr. Schmitt was there about four or five times during the whole summer. As soon as he left— He was there for a day or so, and took a boat and rowed off on the lake, and never showed up. He had no other agent there besides Mr. Overton. 1 did go on and follow the directions of Over-ton. I performed my contract there so that it was accepted by the engineer. It was turned over to the government. I did some extra work at Mr. Overton’s direction.”

After .stating what this extra work consisted in, he stated:

“ Right at the start, I spoke to Mr. Overton about my extra work. I was to work about a day and a half, and I asked him to give me a statement of the extra work. Of course, I had to go down deeper with my foundation; and I told him to give me a paper in the evening, but he would not do it. I took down the number of cubic feet, but he never gave me a paper.”

He was then asked:

“ Did he ever give you an estimate on it ?
“A. No, sir; he said he could not do it; he had no power to do it. I did go on and do the work.”

The defendant was called as a witness, and was asked in reference to the directions which he had given Scheibner:

“So far as the examining any of the work was concerned, of Mr. Scheibner, the only boss outside of yourself was Mr. Overton, the superintendent ?
“A. Yes, sir; he was superintendent.
Q. And you relied upon Mr. Overton to see that that was done ?
A. Yes, sir; I was working under him.”
Witness was then asked:
“ And Mr. Overton was there. Of course, you wanted to satisfy him, because he was the government inspector ?'
“A. Certainly.
Q. And you told Mr. Scheibner to do as Overton told him?
“A. May be I did.”

Mr. Overton was called as a witness, and testified that Gen. Poe appointed him as inspector on this work; that he received his papers from him, and was sent there by Ool. Ludlow to do the superintending on the job; that he was there all the time, and was the only government inspector there; that he had the authority of United States government lighthouse engineer, and was there to superintend this construction; that he remained until its completion. It appears from his testimony, also, that he compelled Scheibner to take out a part of the work and relay it, and that all the work done by Scheibner was under his direction; that the government paid,him three dollars per day for his services, and he received no pay from the defendant; and that he never made any estimate of the value of the work done by Scheibner.

We think, upon the evidence given by the plaintiff, the court was not in error in submitting the question to the jury.

The court instructed the jury, substantially, that the contract price had been paid, but that the contract provided that there might be changes and alterations in the work, and that the plaintiff’s claim was based upon the valuation of services and material for the additional work. The court then stated:

“Now, you will see that the provision here is that these alterations must be directed by the party of the first part, Mr. Schmitt, and that the valuation of them shall be fixed by the United States engineer, or his authorized agent. It is undisputed that Mr. Overton was the inspector of the United States government appointed to superintend that work. It is claimed on the part of the plaintiff in this case that early in this work, when the work was first considered, Mr. Schmitt told Mr. Scheibner that Mr. Overton was superintendent there, and he had to do, in this work, what Mr. Overton told him to do. You will recollect that there has been testimony to that effect; that Mr. Schmitt told Mr. Scheibner that Overton was superintendent of this work, and, in the matter of changes, whatever Overton told him to do, to do. Now, you will remember that testimony, gentlemen. Then Mr. Overton became agent of Mr. Schmitt, and whatever he told Mr. Scheibner to do, dr whatever he approved of Mr. Scheibner’s doing, was binding upon Mr. Schmitt in this case. I believe Mr. Schmitt said the other day he did not recollect stating it to Mr. Scheibner; but if you find he did tell Scheibner that Overt on was superintendent there, and to do as Mr. Overton wished, then Mr. Overton’s acts bound Mr. Schmitt. He was his agent, and Schmitt is liable for such extras as you believe Overton directed or approved. Now, in regard to this latter clause: He could not bind him to build an entirely different lighthouse, but any legitimate changes from the plans would be binding; and, in regard to this last clause, that these alterations shall not in any way render void the contract, it is perfectly proper for these parties to waive a part of the written contract. They can waive the stipulations in this contract, and I charge you, as I am requested, that the provisions of the contract as to alterations and variations to be founded upon a written agreement might be waived by the parties to the contract; and if directions were given by the agent, Mr. Overton, involving so much extra work, and such were furnished with the knowledge and consent of the defendant or his agent, then the provisions as to the requirements were waived, and the defendant is liable for the extras so furnished. That is all I need to say to you on the extras.”

Defendant requested the court to charge the jury:

“By the terms of the contract, plaintiff could not recover for extras without applying to Engineer Ludlow to have them allowed, and could not recover, in any event, anything more than thus allowed.”

This was refused, and the court charged the jury, as requested by the plaintiff, as follows:

“If extras were furnished, and Scheihner applied to Overton for an estimate, and Overton either neglected or refused to make or give such estimate, then.the plaintiff is entitled to recover for the extras so furnished.”

The only contention in the case arises over the refusal of the court to charge as requested. It is contended by counsel for defendant that, under clause 3 of the contract above set forth, the plaintiff would have no cause of action against the defendant until the value of the extras had been fixed by the engineer, or by some competent person appointed by him; and counsel rely upon Hanley v. Walker, 79 Mich. 607, and Guthat v. Gow, 95 Mich. 527. We think these cases are not decisive of the present. The contracts in these cases had somewhat similar provisions. In Hanley v. Walker it was said:

“ It is claimed by defendant’s counsel that the failure of plaintiffs to complete the work to the satisfaction of the architects, and procure their certificate, is a complete defense to this action. I think the point is well taken. There is no claim upon this record that the architects have been guilty of any fraud, or that there has been any collusion between them and the defendant. There is no pretense that the plaintiffs have applied for or requested the certificate required by the contract.”

In Guthat v. Gow no request was made of the architect to fix the value of the extra work, and no showing was made to the architect as to what the extra work consisted of; and this court, in passing upon that question, followed the rule laid down in Hanley v. Walker.

In the present case it clearly appears, and without dispute, that whatever extra work and extra materials were furnished by Scheibner were all done and furnished under the direction of Overton. Overton, therefore, stood, as to Scheibner, in the place of the defendant, and Overton’s acts would bind the defendant in all respects.

The third clause of the contract is the one providing for the valuation of the extra work. This valuation was to be made, by the terms of the contract, by Mr. Ludlow, or “by some competent person appointed by him.” Mr. Overton’s testimony clearly shows that he was the agent appointed by Ludlow. He was the only government inspector there, and was acting in the place of Ludlow, and by Ludlow’s directions. He was therefore the proper person, and the only person, to whom Scheibner could apply to have the valuation fixed for these extras. Mr. Scheibner testifies that he did make application to Overton to have these extras valued and admeasured, but that Overton refused to make the valuation. Some contention as to the exact time when Overton refused to fix this valuation is made, but it is apparent from the testimony that Overton was asked to make the admeasurement and fix the value, and upon one occasion refused; and it also appears that though he was there at the time of the completion of the work, and accepted it on behalf of the government, yet he neglected to make the admeasurement of the value of the extras, although he had been asked by Scheibner to do so. Under these circumstances, we think the case is clearly distinguishable from the cases cited by counsel for the defendant. It is well settled that an estimate or certificate of the arbiter is a condition precedent to the right of action under a contract conditioned as is the present one. But it is also well settled that such condition may be waived. This rule was recognized in Hanley v. Walker, supraj and it was the decisive question there, as it is stated that “there is no pretense that the plaintiffs have applied for or requested the certificate required by the contract.” Speaking of the waiver of the condition, it was said:

“The waiver may be express, or it maybe implied from facts and circumstances, as where the party relying upon the condition has accepted or appropriated the property or fruits of the labor of the other party. There is no evidence in the record before us that can be construed into a waiver of the conditions precedent contained in the contract on the part of the defendant.”

In the present case it is not disputed that the defendant accepted the work with all the extras. Overton was the superintendent of the work, and agent of Schmitt; and it was his duty, under the contract, to make the estimate. Schmitt cannot now take advantage of the failure of Overton to do what the contract required.

In Smith v. Railroad Co., 36 N. H. 458, it was said:

‘ ‘ If the party sued has, by his own act or neglect, prevented the performance of a condition precedent, he cannot take advantage of his own wrongful act; * * * and for this purpose the acts of his agent, and of persons for whose conduct he is responsible, will have the same effect as his own.”

The case of Herrick v. Belknap’s Estate, 27 Vt. 673, arose upon a contract to construct a railroad, and in which the engineer of the road was made the sole arbiter of the work, as to quantity and quality, and from whose judgment there was to be no appeal. An estimate was made by the engineer, and one of the contentions of the plaintiff was that this engineer, without the fault of the plaintiff, failed to make an estimate within the fair import of the contract. Mr. Justice Redfield, in speaking for the court, said:

“We need, perhaps, spend no time upon the question what would be the rights of the defendants if no estimates-of the plaintiff’s work had been made by the company’s engineer, for the plaintiff bases his claim upon no such state of facts. * , * * If the plaintiff’s work had failed to be estimated through the fault of the engineer, or the company, or Belknap, it does not now occur to me that there would probably be any difficulty in obtaining a recovery at law.”

In Smith v. Brady, 17 N. Y. 173, where a certificate was held a condition precedent, it was said:

“ Had it been shown by the plaintiff that he had made application to the architects for the requisite certificate, and that they had obstinately and unreasonably refused to certify, it might have been proper, perhaps, for the plaintiff to establish his right to recover by other evidence. ”

The rule is well settled that an award or estimate, if made, can be impeached for fraud, or such gross mistake as would necessarily imply bad faith, or failure to exercise an honest judgment in the premises. Kihlberg v. U. S., 97 U. S. 398; Martinsburg & Potomac R. Co. v. March, 114 U. S. 549; Sweeney v. U. S., 109 U. S. 618. The case here, however, is one where the arbiter chosen by the contract absolutely refused to make an estimate. What his reasons were, are not stated or explained. He was there in charge, and it is conceded that he was the authorized agent of Ludlow. Ludlow knew nothing of the work. These foundation walls were down deep in the ground, and Overton was the only one who knew the extent of the work, or its amount and character. He was also the agent of Schmitt, and, if he had made the estimate, Scheibner would have been bound by it, unless there was something to impeach it, or to show bad faith in making it. It is equivalent to bad faith for him to refuse to make it, under the circumstances. The plaintiff, under such facts, cannot be held to have lost his action because of such refusal to act. As was said by counsel for plaintiff: “Supposing the arbiter should die, or for any reason become incapacitated, can it be contended that a party who had done work in reliance upon a fair estimate, and which could not be procured, would be left remediless?”

The court properly instructed the jury, under the facts shown in the case.

The judgment must be affirmed.

Grant and Moore, JJ., concurred with Long, C. J.

Hooker, J.

(dissenting). Schmitt, a government contractor upon lighthouse work, let a subcontract to Scheibner, the plaintiff’s assignor. The first clause of the contract provided that Scheibner should “well and sufficiently do and finish, under the direction and to the satisfaction of William Ludlow, or his agent,” the work contracted. The following provision relating to extras was made a part of the contract, viz.:

“The said first party may require alterations in the work shown or described in the said drawings or specifications, which the said second party agrees to do according to the directions which may be given, and in every such case the price hereby agreed to be paid for said work shall be increased or decreased, as the case may require, according to a fair and reasonable valuation of the work added or omitted; the value of such work to be fixed by fair admeasurement and valuation, to be made by the engineer, or by some competent person appointed by him. Such alterations or variations shall in no way render void this contract, and no claims for such alterations or variations, or the increased or decreased price therefor, shall be valid, unless founded upon written agreement.”

Ludlow was the government engineer, and Overton, an appointee (i. e., an agent of Ludlow), had the supervision of the work. Schmitt directed Scheibner to follow Overton’s instructions as to extras, and he did so; and this action is brought to recover upwards of $2-, 500 for such extras. The defendant claims that no such ad-measurement or valuation as is required by the contract has been made. Scheibner testified that at the start he asked Overton to give him a statement of the extra work, but he refused, and told him that he had no power to do it; yet Scheibner says that he went on and did the work as directed. The circuit court held that the inspector, Over-ton, was the authorized agent of Ludlow, the engineer; and as he was the only one representing Ludlow, who was at no time present at the scene of the building, application to Overton was all that was necessary.

The contract expressly provides for an inspection by Ludlow, or his agent, but it requires the estimate and valuation to be made “by Ludlow, or some competent person appointed by him.” A reasonable interpretation of this last provision is that, if Ludlow was unable or indisposed to make the estimate, he might appoint some one for the purpose, upon application. If, on application, he had refused to do either, and Schmitt had thereupon refused to adjust the matter, it is probable that the courts would relieve the plaintiff; but, in my opinion, we cannot say that the appointment of Overton as inspector authorized him to make estimates and valuation. Plaintiff shbuld have made an effort to comply with the contract, before bringing an action against the defendant.

I think the judgment should be reversed, and a new trial ordered.

Montgomery, J., concurred with Hooker, J.