text:
    WEST v. DEMME.
    1. Brokers —Action for Commissions — Evidence—Questions for Jury — Instructions.
    In an action for commission on a sale of mining property, plaintiff testified that he contracted in writing with defendant to find a purchaser for the property, or to effect the organization of a company satisfactory to defendant to take it over, for which he was to receive a specified commission; and that such contract was afterwards delivered to defendant at his request, and not returned. He further testified that it was the understanding that defendant was to realize at least $75,000 in cash out of the transaction. It appeared that plaintiff endeavored to interest C. in the property, and arranged with him to examine it, but took no part in any further negotiations. He testified, however, that C. told him that, if the property should prove to be as represented, he would assist in organizing a corporation to take it on terms as favorable as those proposed by defendant. C. visited the property, and subsequently a corporation was organized, C. subscribing for a large amount of the stock; but both he and defendant testified that such subscription was in the interest of defendant, and that the organization of the company was not brought about by C., but was effected by defendant himself, with the assistance of another broker. Defendant received no cash out of the arrangement. Held :

    (1) That the question whether plaintiff, through C., brought about the organization of the corporation, was for the jury.
    (2) That it was also for the jury to say whether it was a part of plaintiff’s undertaking that defendant should realize $75,000 in cash out of the disposition of the property.
    (3) That, if such was the contract, and defendant was unable to induce O. to proceed on those terms, defendant had the right to abandon the scheme, and to organize a corporation on different lines.
    (4) That, under the circumstances, it was error to refuse an instruction that “the duty of the broker is to bring the buyer and the seller together, and effect a purchase of the property according to the terms agreed upon by the seller and the broker; the broker is not entitled to a commission for unsuccessful efforts to effect a sale.”

      2. Same.
    In an action to recover an agreed commission on a sale of real estate, evidence of negotiations between plaintiff and those other than the purchaser, whom he claims to have procured, is inadmissible.
    Error to Wayne; Frazer, J.
    Submitted February 12, 1901.
    Decided July 19, 1901.

      Assumpsit by George M. West against Rodolpb A. Demme for commissions on a sale of real estate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      S. S. Babcock (Philip T. Van Zile, of counsel), for appellant.

      Edward W. Pendleton (Otto Kirchner, of counsel), for appellee.
   Montgomery, C. J.

The plaintiff recovered a verdict of $55,000, which is the amount of a commission claimed to have been earned on the sale of a mining property owned by the defendant, with interest. The evidence shows that the defendant was interested in mining property in Ontario, known as A. L. 74, 75, and 76, and other claims in the Rainy river district, and also known as the Foley-Weigand prdperty. The property was a gold mine, partially developed. It was not yet equipped with a stamp-mill; and defendant, Demme, had, in the fall of 1895, invested in this property some $75,000. Plaintiff and defendant were then friends. Both were residents of Detroit. Plaintiff was a broker.

In the fall of 1895, defendant told plaintiff of his situation ; that he had invested more in this property than he had expected; that he was very anxious to get out, and had a scheme for organizing a land-improvement company to take over the property, develop it in part, and sell out certain of the claims. With this end in view, he expressed himself as willing to organize a company with a capital stock of $500,000, with shares at $1 each, of which 800,000 should be issued to defendant, and 200,000 left in the treasury, and, of the 300,000 issued to defendant, a sale was to be made of 150,000 at par. The plaintiff, believing that through his Eastern connections he would be able to sell this mine or place the stock, entered into an agreement with defendant with that in view. What the terms of that agreement were rests upon the testimony of the two parties. The plaintiff testified that, in addition to a paper containing an elaborate description of the mining property owned by defendant, and a statement of the terms upon which he was willing to organize a company, an additional paper was given to the plaintiff, which was later returned to Mr. Demme, the defendant, and which is not now produced. He states that the paper authorized him to place the Foley-Weigand property, known as A. L. 74, 75, and 76, upon the market, and to form a land-improvement company to take this property for development, and after-wards take in other property, and that for placing this property upon the market $50,000 commission was to be paid. On further examination, he testifies that this letter contained a proposition to organize a land-improvement company, and, if that could not be done, “to effect the organization of a company which would — to effect the organization of this property.” He further testified as follows:

“Q. Who was to effect the organization ?
“A. I was.
“Q. You were to effect the organization ?
“A. I was to find some one who would effect the organization with me.
“Q. Was that substantially all there was in that paper ?
“A. For the formation of this company, $50,000 commission was to be paid.
“Q. For what were you to receive the $50,000 ?
“A. For placing upon the market this Foley-Weigand property, or to effect an organization to operate it.
“Q. Were you to effect the organization ?
“A. No; not personally.
“Q. Then why do you say to ‘effect an organization ? ’
“A. To help effect one.
“Q. What do you mean by to help effect an organization ?
“A. Find some one in the East who would form a company.
“Q. Is that what you mean by it ?
“A. Ido.”

On cross-examination he testified as follows, referring to the original talk about plaintiff’s going East to sell the property:

‘ ‘ Q. What did you tell Mr. Demme at that time ?
‘‘A. I told him I thought I could sell it.
Q. Were you to sell the mine, — was that the arrangement ?
“A. I was to find a purchaser.
Q. You were to find a purchaser for the mine, — for the whole of the property?
“A. Yes, sir.
Q. Then, in that talk, it was not that you were to organize a company, but you were to sell the mine ?
“A. It was to place the property upon the market; that is what it was.
Q. What do you mean by placing it upon the market, —offer it for sale ?
“A. Yes, sir; or organize a company in any way.
Q. Do you mean organize a company or offer it for sale ?
“A. Both; to place it on the market means both, in the broker’s business.
‘ ‘ Q. Which were you to do, — to sell it, or place it on the market and organize a company ?
“A. That is what I was to do, put it on the market.
Q. What do you mean by putting a mine upon the market ? Do you mean that you were to go down to Boston, and tell the people down there that you had a mine to sell ? Do you call that putting it on the market ?
“A. No, sir.
“Q. Do you call putting it on the market, visiting Head & Co., and showing them that you had got a mine, and a lot of assays and blue prints, and saying that you wanted to sell it to them ? Do you mean that is putting it upon the market ?
“A. No, sir; I mean finding a man who will do that, who will agree to do that, — put it on the market.
“Q. It is not you who were to put it on the market, — it is the other man ?
“A. I was to find a purchaser for it, or somebody who would put it on the market.
“Q. There are two propositions; you are to find a purchaser for it, and a man that will put it on the market. Just what do you mean ?
“A. To put a property upon the market, in a broker’s sense, means to find a customer to buy it outright, to organize a company, or to take it off the hands of the people who want to sell it.
‘ ‘ Q. That is, it means either of those two things ?
“A. Yes, sir.
“Q. Then, if I understand you, you were either to find a man who would take that mine and pay for it in money—
“A. Yes, sir.
“Q. Or you were to find a man who would organize a company who would pay for it ?
“A. Yes, sir.
“Q. I understood you to say on your direct examination that, at the time Mr. Demme sent you there, he was hard up for money ?
“A. Yes, sir.
“Q. Was that the idea of selling his property ?
“A. To a certain extent; yes.
“Q. What do you mean by, ‘To a certain extent?’ Was that the idea, because he was hard up he wanted to sell his mine ?
“A. Well, I don’t know about that.
“Q. You testified something about it. What did you mean by that ?
“Mr. Kirchner: By what?
Judge Van Zile: That Mr. Demme was hard up, and wanted to dispose of his property.
. “The Witness: That is right. That was the»idea of my going East to sell it, — that I could get for Mr. Demme some money.
‘ ‘ Q. How much money were you to get for Mr. Demme ?
“A. No stipulated amount.
Q. Was there not anything said about how much money you were to get for him ?
“A. A company was to be organized—
Q. Not that a company was to be organized. Mr. Demme was hard up, and wanted to sell his property to get some money, and you and Mr. Demme talked that over ?
“A. Yes, sir.
Q. How much money F
“A. At that time he was willing'to take what he put in it.
Q. How much did he put in it ?
“A. He said $75,000. He was willing at that time— between Christmas and New Year’s — to take $75,000. At that time the talk was that I was to go East and find a purchaser, or organize a company so that he would get
$75,000 at least. That was what I was going East for.
* * *
Q. Then, as I understand, you, by this paper, were to form a company to put this mining property upon the market, upon terms acceptable to Demme ?
“A. Yes, sir.
Q. And, if you did that, you were to have your commission ?
“A. It was to form a land-improvement company, to place the property.
Q. To form a land-improvement company; it was not to sell the mine ?
‘ ‘A. He did not want to sell the mine at first, but I told him afterwards a land-improvement company could not be floated.
“Q. Then the agreement you made with Mr. Demme was not to sell this property, but to form a land-improvement company ?
“A. To take this property and develop it as a mine.
Q. To take this property and develop it, and form a land-improvement company ?
“A. Yes, sir.
“Q. This land-improvement company was to take this mine and develop it ?
“A. Yes, sir; that is it.
“Q. Let me see if we understand the matter. You were to go down to Boston, find people there that would organize a land-improvement company, and that land-improvement company was to take this land and develop it. Is that it ?
“A. That is it.
Q. It was not, then, to form a mining company ?
“A. No, sir.
“Q. And it was not a company to sell the mine ?
“A. Not at that time.
t(Q. So the arrangement you made with him here had nothing particularly to do with this mine ?
“A. It had; it amounted to that.
“Q. And he wanted 51 per cent, of the stock of the land-improvement company ?
“A. He did.
“ Q. You told him he could not get it ? '
“A. I told him I did not think it could be done.
‘ ‘ Q. Did you ever form any land-improvement company?
“A. I did not.
Q. There has never been any formed ?
A. Not a land-improvement company.
‘ ‘ Q. He never got any stock from any such company that you know of ?
“A. I don’t know.
Q- You don’t know of any such thing ?
“A. I don’t.
Q. Was he to get his $75,000 out of that deal ?
“A. He had hoped to.
Q. Was that what you went down therefor, to get out of that deal $75,000 ?
“A. Yes, sir.
Q. Then that was one of the stipulations added to the arrangement ?
“A. No, sir.
Q. Not in writing, but understood ?
“A. It was. * * *
Q. How were you to get your commission out of the sale?
“A. When I found some one—
Q. How were you to get it, — out of the sale ? Were you to get it out of the sale of the property ?
“ A. Yes, sir.
Q. How ? In money or in stock ?
“A. It was not stated.
Q. You know, don’t you, from the talk you had ?
“A. I expected to get it in cash.
Q. Then, if I understand you, you were to go down to New York and sell this property so that he could get $75,000 for his property. Out of that he was to pay you $50,000 for your commission ?
“A. To find people who would put—
“Q. Is that so?
“A. Not exactly.
“Q. If you didn’t sell the property, or if you didn’t organize a company that would do these things to the satisfaction of Demme, — and he explained what would be satisfactory, — you did not expect to get a commission, did you ?
“A. Certainly.
Q. You expected to get it anyway ?
A. Certainly.
Q. Then all you had to do was to go down to Boston, speak to the people, and tell them that you had a mine to self, and you would get a commission ?
“A. Provided they took it up. * * *
Q. Is not that the fact, — that you went down there to raise money ?
“A. Yes, sir; if I said so. Mr. Demme was hard up at the time I left, and he sent me down there to sell this property, and raise him some money, and he was willing to take what he had put into the property ($75,000) if he could' get the money for it, provided he got stock in addition to that seventy-five.”

Plaintiff visited Boston, and, later, New York, and had negotiations with various parties, but with none of them did he have any degree of success, except with a Mr. Frederick G. Corning, an engineer and mining expert of New York City. He testifies that Mr. Corning would have nothing to do with the property in its then condition, or until an examination had been made by an Eastern expert, or by an expert named Faj?ish, living in Colorado. But he further testifies that Mr. Corning agreed that in case the property was found, upon examination, to be as represented, he would assist in organizing a company to take the property on terms as favorable as those proposed by defendant. The visit resulted, however, in no other arrangement than the employment of Mr. Corning to visit the mine, and make a thorough examination and report of the same, for which he (Corning) was to be paid $1,500 and expenses by defendant. Plaintiff thereupon came home. Corning visited the property, and made his report. Further examinations and tests were made, and, finally, in the spring of 1896, a corporation was organized, with a nominal capital stock of $1,000,000, of which, however, but $62,000 was paid in by subscribers other than defendant, and this was devoted to clearing up the title to the property and putting in a stamp-mill; and, in addition to this, the defendant was called upon to put in further sums of money in developing the mine.

The plaintiff’s testimony as to the performance of the contract is that already quoted, in substance, and the further statement of a declaration said to have been made by the defendant to him in June, 1896, as follows:

“He told me that a company had been organized; Corning as a director or a stockholder of a 11,000,000 company. He was to receive one-half of the stock, and a certain portion over half was to be put in the name of a man named Hurley, so that it would give Mr. Demme the control. The balance of the stock was to be put on the market. The company was to be 200,000 shares, of $5 each; Mr. Demme getting 100,000 shares. 50,000 of the remaining shares was to be taken at $1 a share, with an •option to these people taking the original 50,000, — an option.given to take the other 50,000 at $1.50 a share.”

The defendant contends that a verdict should have been directed in his favor, as the evidence fails to show that the plaintiff in any way performed his contract. In this connection it should be stated that both defendant and Corning testified that the organization of this corporation was not brought about through Corning, but that the defendant, on visiting New York, found Mr. Corning unwilling to purchase the property, or to recommend it to his particular clients for purchase, and that the defendant himself, through the intervention of another broker and by his assistance, effected the organization. The fact appears that Corning was a subscriber for nearly one-half the stock; but the testimony of both Corning and defendant shows that he became such subscriber for defendant and Foley, his co-owner of the mine, with the exception of a small block, which he was induced to take by Demme, and to become the consulting engineer of the corporation.

There is, certainly, no direct testimony that Corning brought about the organization of this corporation or became the purchaser of the property. It is only by inference from the facts stated that any such conclusion could be drawn by the jury. With some hesitation we have reached the conclusion that this was a question for the jury. But, as will be seen, the case is an exceedingly close one on its facts, and it remains to inquire whether any error was committed either in the instructions or in the admission of testimony.

The court, in stating the plaintiff’s claim to the jury,, charged as follows:

“The plaintiff claims that he entered into a contract with defendant, and that the contract was that he should place this mining property upon the market; and in explanation of what that term means, and what was the substance of their contract, he states that he was to form a land company, according to the original terms of the contract, for the purpose of selling this land to this company, and purchasing other lands for improvement; that that idea subsequently was abandoned, and that he was to place, this property upon the market in such a manner as should be satisfactory to the defendant, Mr. Demme; that he was to find a purchaser, or try to find somebody that would organize a stock company, and take it off the hands of Mr. Demme in such a manner as would be satisfactory to him. He claims also that this contract was in writing; that it was signed by Mr. Demme, and handed to him; and that he, with other instructions that he had received at the time, — papers containing a description of this mine, and other matters which have been fully presented to you, — entered upon what he understood or claims to be his duty, as the agent or broker of the defendant, to carry out the terms of this contract. He claims that he had possession of this written contract for some time, and that he went to Boston and New York, and negotiated with various people there, for the purpose of disposing of this property on terms satisfactory to Mr. Demme; that at some subsequent time the defendant, Mr. Demme, requested of him the loan of these papers — all of these papers — for the purpose of copying them; and that at that %e he turned over to Mr. Demme the contract he claims was made and signed by Mr. Demme, for the purpose of having it copied, and that he never received it back, claiming, therefore, that the contract is still in the possession of the defendant, Mr. Demme. That being the case, according to his story, secondary evidence ■of this contract was permitted. In other words, he was allowed to testify as to what this contract contained. He ■claims that, in accordance with the terms of this contract, he went to Boston, negotiated with a number of people there, and at Boston he met a man named Corning, who was an expert mining engineer, operating for some Boston ■concern, — among the rest, some firm of which Mr. Head was a member; that he received propositions ultimately, from New York, from this Mr. Corning, and that it was subsequently agreed between the parties that Mr. Corning was to be sent to the mine and make an exploration of the mine as a mining expert, and that' it had been agreed by Mr. Corning that he would take hold of the matter, and bring about some arrangement which he agreed to bring .about, and that that arrangement was finally, in substance or in fact, consummated; that Mr. Corning was to do this work for the sum of $1,500 and his expenses; that he subsequently made an exploration of this mine, and reported it; and that, through the intervention of Mr. Corning, a ■company was subsequently formed, which was organized first in the State of New Jersey, and subsequently in the Province of Ontario, and that the terms of the agreement between him and Demme, through the intervention of Mr. Corning, were subsequently carried out, and that, being carried out, as he claims, under the terms of his contract, he would he entitled to recover from this defendant the amount agreed upon in that contract, to wit, the sum of $50,000. This is the plaintiff’s case, and this is the position that he has taken in this case. If you should find that there was a contract entered into between these parties, and that that contract has been carried out by the plaintiff according to .its terms, and that, in consideration •of his carrying out that contract, he was to be paid the sum of $50,000, then he would be entitled to recover that ■amount at your hands.”

The court further charged as follows:

“It is also claimed upon the part of the plaintiff that Mr. Corning was really the man who did this whole work, and that it was through Mr. Coming’s instrumentality that all this subsequent change was brought about; and, for the purpose of establishing in your minds that idea, reference has been made to the fact that Mr. Corning acted as a large stockholder in this matter, and became an interested party in the corporation which was subsequently formed, and which improved and operated this mining-property. This is pointed out to you as evidence that it was through the result of the actions of the plaintiff that this matter was brought about.”

As the case was put to the jury, the idght to recover was made to depend upon the question of whether a corporation was formed by the assistance of Corning; and the fair inference from such charge is that if such a corporation was formed, which was satisfactory to defendant, the plaintiff’s contract was performed. This leaves out of view the question of whether the plaintiff’s undertaking was to make a sale out of which the defendant would realize $75,000, or organize a corporation from which he would realize that sum. If such was the contract, and defendant, on his visit to Corning, found it impossible to induce Corning to proceed on these terms, or to effect the organization of a corporation on these terms, the defendant had the right to abandon his scheme, and to-proceed to organize a corporation on different lines. Satterthwaite v. Vreeland, 3 Hun, 152; Sibbald v. Iron, Co., 83 N. Y. 378 (38 Am. Rep. 441).

Whether the contract, as testified to by plaintiff, included such provisions, was, at least, a question for the jury. The interpretation and construction of oral testimony is, in general, for the jury, particularly where the language used is in any way uncertain or ambiguous. It is true the plaintiff says that the commission was to depend upon his effecting a sale or putting the property on the market on terms satisfactory to defendant; but a jury would be entirely justified in finding that an express understanding as to what these “terms satisfactory to defendant” were had been agreed upon, and that the parties contemplated in any event, and as a first prerequisite, that $75,000 be realized for the defendant before the plaintiff would be entitled to a commission. If this should be so found by the jury, the evidence of performance is lacking; for, admittedly, no such organization was-had. The fact that plaintiff had been in negotiation with Corning did not entitle him to complain, unless he succeeded in inducing Corning to organize a company or make a purchase on terms such as were agreed upon between himself and defendant, or unless Demme, taking up the negotiations where West left off, succeeded in doing so, or faithlessly abandoned the negotiations. See Sibbald v. Iron Co., supra.

There were certain instructions laying down the rule of law as between broker and employer which we think the court should not have overlooked. There was no instruction defining the duty of the broker or his rights. Defendant’s fifth instruction should have been given, or its equivalent, as reduced to a form that would apply to the facts of this case. That instruction was as follows:

“ The duty of the broker is to bring the buyer and the seller together, and effect a purchase of the property according to the terms agreed upon by the seller and the broker. The broker is not entitled to a commission for unsuccessful efforts to effect a sale.”

The action was upon the common counts in assumpsit. The bill of particulars was for a commission for services and expenses in promoting and negotiating the sale of the property mentioned, which, by a more specific bill, was made to include negotiations which resulted in the disposal of the property, the negotiations being referred to as having been with Frederick G. Corning. The plaintiff’s testimony has been quoted quite at length, and it shows that his only claim for compensation was for a commission under a specific contract, for a stated amount. Yet a large amount of correspondence between the parties, not relating to negotiations with Corning, but with others, was received in evidence upon the ground, as stated hy the court, as follows:

“I admitted testimony as to the actions of Mr. West in negotiating the sale of this property for the purpose of permitting him to show, if he could, that he had entered into an arrangement by which this property was to be sold, and that he had done labor in that direction. The •ground upon which that was admitted was that the declaration in this case was upon the common counts. The bill of particulars does not, as I look at it, set up a specific contract, but that the recovery, if any can be had in this case, could be had under the common counts for any service that he might have rendered to the defendant in this suit, whether it was agreed to be $50,000, or whether his services were at any less sum.”

We think that the letters were not admissible upon this ground; nor, except as far as they related to the transactions leading up to the negotiations with Corning, were they admissible as part of the res gestee. It is immaterial what plaintiff may have done with other parties. The question in this case, as he stated it and framed his issue, was whether he had made an ai’rangement with Corning, or had opened up negotiations which were left open for defendant to take up and continue, which resulted in a sale or organization of this corporation upon the terms which the parties had agreed upon; and involved in this is the question of what terms it was agreed that such contract should have as a prerequisite to the plaintiff’s entitling himself to commissions.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    ROBBINS, for Use of WOOD, v. BURRIDGE.
    1. Executors and Administrators — Liability of Bondsmen— Res Judicata.
    ' An order of the probate court requiring an administrator to account for money held by his intestate as executor of another estate, made in the matter of the latter estate, and without notice to the administrator’s bondsmen, is not conclusive upon the bondsmen as to the duty of the administrator in the premises.
    2. Same. ,
    .Nor is an order permitting suit to be brought on the bond because of the failure of the administrator to pay over the money, though entered after notice to the bondsmen and a hearing of their objections, res judicata as to their liability for such default under the terms of'the bond.
    3. Same — Statutory Authority of Administrator.
    Under 3 Gomp. Laws, § 9320, providing that the executor of an executor shall not, as such, have any authority to administer the estate of the first testator, the bondsmen of an administrator of an executor are not liable for the default of their principal in accounting for the proceeds of property belonging to the first estate, of which he assumed control on the death of his intestate.
    4. Same.
    An administrator of an executor has no greater interest in the property belonging to the estate of which his decedent was executor, or duty to perform in regard to it, than any creditor, heir, or other person into whose hands the property might temporarily come.
    5. Same.
    That an administrator’s bond is conditioned for his performance of all orders and decrees of the probate court by him to be performed in the premises does not render the bondsmen liable for his failure to perform an order not relating to the estate of which he is administrator.
    Error to Lenawee; Chester, J.
    Submitted March 7, 1901.
    Decided July 19, 1901.

      Debt by Richard B. Robbins, judge of probate of Lena-wee county, for the use and benefit of Frederick B. Wood, administrator de bonis non, with the will annexed, of the estate of David D. Meeker, deceased, against Walter C. Burridge, principal, and Peter B. Sutfin and John Linton, sureties, on an administrator’s bond. From a judgment for plaintiff on verdict directed by the court, defendant sureties bring error. Reversed.

      Salsbury & O'Medley, for appellants.

      Watts, Smith & Baldwin and Frederick B. Wood, for appellee.
   Montgomery, C. J.

This is an action on an administrator’s bond commenced by declaration; and it appears by the record that on the 7th day of August, 1891, David D. Meeker, of the village of Tecumseh, in Lenawee county, departed this life, leaving a last will and testament, and possessed of real and personal estate in said county, of the estimated value of $11,000 or thereabouts, and, afterwards, Charles Burridge, of said village, was duly appointed by the probate court of said county executor of the will of said deceased, and entered upon the duties of said appointment. On the 3d day of April, 1891, he filed his first annual administration account, and no further account appears to have been filed by him in said estate; and on the 7th day of February, 1897, he died. On the 6th day of April, 1897, upon the petition of the widow of said .Charles Burridge, Walter C. Burridge, his son, was duly appointed administrator of the estate of said Charles Burridge, deceased, and filed his administration bond, with these appellants, Peter B. Sutfin and John Linton, as his sureties, and assumed the duties of said appointment, but did nothing more. No inventory was filed, no commissioners appointed, no debts paid, no accounting had, and no distribution.

On the 7th day of June, 1897, Frederick B. Wood, of the said village of Tecumseh, was duly appointed by said probate court administrator de bonis non, with the will annexed, of the estate of David D. Meeker, deceased, filed his administration bond, and entered upon the duties of his appointment. On the 10th day of April, 1898, the said Walter C. Burridge filed his petition in said probate court in the estate of said David D. Meeker, in which, after reciting, among other things, that he was the administrator of the estate of Charles Burridge, deceased, and that Charles Burridge was appointed administrator (executor) of the estate of David D. Meeker, he states “that he desires to file the final account of said administrator [executor], and prays that a time and place may be assigned for examination and allowance of such final account with said estate.” Said administration account of Charles Burridge was filed by the said Walter C. Burridge in said probate court, which said account was afterwards duly examined and allowed by an order of said probate court; the said Frederick B. Wood, as administrator aforesaid, consenting thereto. On said accounting said probate court found ‘ ‘ that there still remains due from the estate of said Charles Burridge, as belonging to said estate of said David D. Meeker, deceased, the sum of 14,939.69, consisting of money in hand,” and ordered that “the said Walter C. Burridge pay said sum of $4,939.69 to the said Frederick B. Wood, and take his receipt therefor, and that, on filing such receipt in this court, the estate of Charles Burridge be discharged, and his bond as late executor canceled.” And, the said Walter C. having failed to pay over said sum to the said Frederick B. Wood pursuant to said order, said Frederick B. Wood, as such administrator, filed his petition in the probate court, asking said court to make an order granting him leave to sue and prosecute the administration bond of the said Walter C. Burridge, and, after due notice of the hearing of said petition, the sureties of Walter C. Burridge appeared in said court, and filed written objections to the granting of the prayer of said petition; and on said hearing an order was duly made by said probate court granting leave to said Frederick B. Wood, as such administrator, to bring an action in the circuit court for said county on the said bond of the said Walter C. Burridge, and this action is brought against appellants as sureties on said bond. And said cause was thereafter duly brought on for trial before the court with a jury, and by direction of the court the jury rendered a verdict therein in favor of the plaintiff, and against the sureties, for $4,000, being the full penalty of the administration bond of the said Walter C. Burridge.

The contention of the appellants is that the liability of Burridge, for which a judgment has been recovered against his sureties, did not fall within the conditions of the bond signed by them. The appellee contends not only that the obligation is within the terms of the bond, but that the order of the probate court, allowing the final account in the Meeker estate filed by Walter C. Burridge, is an adjudication which binds the sureties, and also that the order permitting suit to be brought upon this bond is res judicata, and determines the liability of the sureties.

The conditions of the administrator’s bond were the statutory ones: That he should, first, make an inventory; second, administer the estate of the deceased; third, render an account of his administration; and, fourth, perform all orders of the probate court by the administrator to be performed in the premises. If the rendering of the account in the Meeker estate, and the payment of the money to the administrator de bonis non of that estate, were not duties of Walter C. Burridge as administrator of Charles Burridge, it seems clear that these sureties are not estopped to assert that fact by an order made in the Meeker estate in a proceeding of which they had no notice. See Wetzler v. Fitch, 52 Cal. 638.

The other question raised by the appellee, namely, whether the order granting leave to the plaintiff to sue the bond is res judicata as to his right to maintain the action, is a question of more difficulty. Reference is had to Clark v. Fredenburg, 43 Mich. 263 (5 N. W. 306), in which language is used which would apparently sustain the appellee’s contention. The language employed was not necessary to a determination of the case, and we think the later decisions of the court have defined the effect of such an order properly. The sureties may appear, it is true, and the question may be open to consideration by the probate judge as to whether there is enough to justify vexing the sureties with an action on the bond. But we think it is not contemplated that the merits of the case. shall there be finally determined, but, on the contrary, that the appropriate forum in which to litigate the question is the circuit court in which the action on the bond is brought. See Perkins v. Cheney, 114 Mich. 567 (72 N. W. 595, 68 Am. St. Rep. 495), and cases cited.

On the merits of the case, the question presented is whether, under the statutes of this State, the executor of an executor, who assumes to take control of the assets of the first estate, renders the sureties on his bond liable for his default in paying over and accounting for the proceeds of such property. Undoubtedly, at common law, the executor owed the duty to administer the estate of the first testator. But the interesting question is presented as to what, if any, control over the assets of the first estate such second executor now has, in view of our statute (8 Comp. Laws, § 9320), which reads:

“The executor of an executor shall not, as such, have any authority to administer the estate of the first testator, but, on the death of the'only surviving executor of any will, administration of the estate of the first testator, nbt already administered, may be granted, with the will annexed, to such person as the probate court may judge proper.”

Statutes with the same purpose in view have been passed in various States. In Wisconsin, the language of the statute is somewhat different. Section 3258 of the Revised Statutes of Wisconsin reads:

“ An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects, or rights of the testator of the first executor, or to take any charge or control thereof as such executor.”

While this language, is more specific than that of our statute, the end in view was evidently the same. In Reed v. Wilson, 73 Wis. 497 (41 N. W. 716), it was held that the executor of an executor could not be 'called upon to render an account of the administration of his testator; and it was said that:

“Under these sections, it appears to us that the executrix of the estate of Alexander Wilson has no duty to perform in regard to the settlement of the estate of Terry merely by reason of the fact that she is the executrix of her husband’s will. She is a stranger to the administration or execution of the will of Terry, and can no more be called upon to settle that estate than if she had not been named as executrix of the will of her husband.”

The case of Quinby v. Walker, 14 Ohio St. 193, also has a bearing on the question. Real estate belonging to the minor heirs had been sold, and bonds given to Nehemiah Scott, as administrator. These bonds came to the possession of James G. Scott, as executor of Nehemiah. An action was brought to recover of the defendants as sureties on the bond executed by them and James G. Scott for the faithful administration of the estate of Nehemiah Scott. The court say:

“ Did, then, the bonds which are claimed to have been collected by James G. Scott, as executor, belong, in any substantial sense, to his testator, at the time of his death ? W ere they goods, chattels, or credits of the testator, which it became the duty of his executor to administer ? We think they are shown not to have been assets of the estate. The testator was, in respect to them, a mere trustee, who had faithfully fulfilled his trust up to the time of his death. The whole beneficial interest in them was in the heirs of William Moore and their assignees; and neither creditors, heirs, nor legatees of the testator could assert a claim to them or their proceeds. If it be claimed that Nehemiah Scott received these bonds as the administrator of William Moore’s estate, and that they were assets of that estate, then, clearly, the executor of Nehemiah could not, as such, succeed to and carry on the former administration. The duty of completing that administration devolved upon the co-administrator, John Moore, who survived Nehemiah Scott.”

We are cited to no case which sustains the contention of the plaintiff as to the right of the administrator, as such, to act in a case like the present, under a statute like ours. The general rule is that the contracts of sureties shall be strictly construed. In the light of this statute, providing, in terms, that the executor of a deceased executor shall not, as such, administer the estate of the first testator, how can it be said that the sureties on this bond understood that they were undertaking for the faithful administration of such estate ?

It is suggested by counsel for the appellee that Walter C. Burridge, as administrator of his father’s estate, had an interest in the assets of the estate of Meeker, and that it became his duty to take charge of them, and see that they were properly turned over to the administrator de bonis non, when appointed; and we were, at first, much impressed with this view. But, upon consideration, we are unable to say that Walter C. Burridge had any greater interest in this property than creditors of the estate might have had. Moreover, it was no more his duty to protect the estate of Charles Burridge by caring for property of this character than it was of the next of kin of Charles Burridge, or of any person into whose hands the property might be temporarily cast by the decease of Charles Burridge. As administrator of Charles Burridge, he had no authority to administer the Meeker estate. We think this statute, properly construed, must limit the obligation of these sureties to an undertaking to see that the estate which came into the hands of Walter C. Bur-ridge, as administrator of his father’s estate, was properly administered, and that the obligation of the bond does not cover the conversion of the property of the Meeker estate by Burridge.

The suggestion is made in the brief of counsel that the obligation of tbe bond is extended by the last clause, which is the condition that the administrator “shall perform all orders and decrees of the probate court by the said administrator to be performed in the premises We think this is no enlargement of the undertaking of the sureties. Unless the order of the probate court is one made in relation to the estate of Charles Burridge, it does not come within the terms of the bond.

The judgment will be reversed, and a new trial ordered.

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


author: Grant, J.

text:
    BERUBE v. WHEELER.
    Notice op Trial — Mandamus Against Highway Commissioner —Parties—Pleading—Construction op Bridge — Necessity-Evidence.

      1. In a mandamus proceeding against the commissioner of highways of a township to compel the erection of a bridge, the case was at issue upon the filing of the answer to the petition, and was not a calendar case, requiring 14 days’ notice of trial.
    2. Resident freeholders are the proper parties to institute the proceeding. The duty of the commissioner is not one due to the government as such.
    3. A statement of fact in the petition must be taken as true, unless denied in the answer.
    4. Under a statute which requires such commissioner to submit the proposed expenditure for the construction of a bridge to, and obtain the approval of, the township board, where the commissioner has done so, and the board has refused its approval, the township board is a necessary party in a mandamus proceeding to compel the erection of the bridge.
    5. It is no defense to such a petition that no money has been voted by the electors to construct the bridge; the statute providing for issuing orders and the method for collecting them. Section 4130, 2 Comp. Laws.

      6. In such proceedings the “ necessity of the public safety” re. fers to the bridge on the highway of which it is a part, and not to a bridge on another highway, several miles distant.
    7. Opinion evidence as to the necessity of a bridge over the stream was not competent. Whether, in these proceedings, the rulings of the circuit court upon the admission and rejection of evidence can be reviewed, — quaere.

      Certiorari to Alcona; Connine, J.
    Submitted April 12, 1901.
    Decided July 19, 1901.

      Mandamus by Amie Berube and others to compel Peter Wheeler, highway commissioner of the township of Mikado, to rebuild a bridge. From an order granting the writ, respondent brings certiorari.

    Reversed.
    August 3, 1900, 23 freeholders of the township of Mikado addressed a petition to the respondent, the highway commissioner of said township, for the construction of a bridge which had been washed away. Respondent returned the petition without comment. It. was returned to him, requesting its consideration. Petitioners received no reply, and thereupon filed a petition in the circuit court for the county of Alcona to compel respondent to construct the bridge. Respondent filed his answer on the 10th of September, and announced himself as ready for trial. The cause was placed upon the calendar for that term, and on September 13th tried with a jury; certain questions of fact being submitted to them. Issues of fact were decided in favor of the petitioners. The court then postponed further proceedings until October, 1900, to permit counsel to prepare briefs and arguments, and then decided the case in favor of the petitioners. Counsel for respondent obtained a stay of proceedings for 30 days in which to remove the cause to this court, during which time nothing was done. On December 17th the peremptory writ was issued, and. served on the respondent. On February 12, 1901, the respondent applied to this court for the writ of certiorari to review the action of the circuit court.
    The following issues of fact were submitted to the jury:

      “1. Was and is there a public highway on and along the section line between sections 23 and 24 in said township of Mikado, over and across Pine river, as described in said petition ?
    “2. Is it necessary for the public safety that a bridge should be built on the highway between sections 23 and 24 where it crosses Pine river, in the township of Mikado, in said Alcona county ?
    “3. Is it necessary that a bridge be built over Pine river on the highway between sections 23 and 24, in said township of Mikado, to render said highway in a condition reasonably safe and fit for travel ?
    “ 4. What will be the cost of building a bridge over and across said Pine river at said point on said highway that will render public travel safe ? ”
    The court also, upon its own motion, submitted the following issues:
    “5. Did the highway commissioner, acting in good faith, present the petition in this case to the township board, and did the town board refuse to approve the building of the bridge at the point in question ?
    “6. Did the town board consider the matter of the petition upon its merits, and consider it fairly and honestly ?
    “7. Did the town board arbitrarily refuse to approve the petition ? ”
    The first, second, third, fifth, and seventh questions were answered, “Yes;” the fourth was answered, “$900;’> the sixth, “No.”

      William H. Simpson, for relators.

      0. II. Smith (De Vere Hall, of counsel), for respondent.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). There are 36 assignments of error. We will dispose of those which we consider important.

This was not a calendar case, requiring 14 days’ notice of trial. Cir. Ct. Rule No. 46 d; Schattler v. Wayne Circuit Judge, 109 Mich. 567 (68 N. W. 1102).

The relators, being parties interested, are entitled to maintain the action. It is not a case where the officers of the State are required to institute the proceeding in order to confer jurisdiction. The duty sought to be enforced is not one due to the government as such. Union Pac. R. Co. v. Hall, 91 U. S. 343.

It is urged that the commissioner decided that it would require the expenditure of more than $1,000, and therefore he could not proceed without the authority of the township board. Section 4131, 2 Comp. Laws. The conclusive reply to this is that the respondent raised no such question by his answer. The petition alleged that it would cost less than $1,000, and the jury determined that it could be built for $900. Had respondent desired to raise this question, he should have set it forth in his answer. He admitted the truth of the petition in this regard by neglecting to traverse it.

In 1899 the legislature amended section 4169, 3 Comp. Laws, to read as follows:

“In all cases involving an expenditure of an amount over fifty dollars in the repairing or construction of roads or bridges in any township of this State, the commissioner shall submit the proposed expenditure to the township board, and, upon the approval of the said board, said commissioner shall advertise for sealed proposals for the doing of such work and the making of such repairs, and together with the township clerk, subject to approval of the township board, shall contract with the lowest bidder giving good and sufficient security for the performance of the work.” Act No. 55, Pub. Acts 1899, § 3.

The court instructed the jury as follows:

“Now, by an amendment passed this last year, — 1899, —it was made the duty of the commissioner, if the expense of building this bridge exceeds $50, to lay the petition before the township board before he proceeds in the building of the bridge. I say, if the expenses, in his judgment, would exceed $50, it was then his duty to lay the petition before the township board; and if he acted in good faith, and if they acted in good faith, and refused to approve it, and did not approve it, that ends the matter.”

Evidently, under this act, it was the duty of the respondent to submit the matter to the township board, and he could not act in the matter without their approval. By this proceeding this board is condemned as acting in bad faith without a hearing. Whether, as the circuit judge held, the refusal of the township board in good faith to approve the construction of this bridge is conclusive, we need not determine. I consider it doubtful. If the judge was correct, then the responsibility in the matter of these repairs and construction of bridges is in the hands of the township board, and not of the commissioner, and it is the party which should appear in court to answer for its conduct, or its exercise of power. We therefore are compelled to hold that the proceeding is fatally defective for want of a proper party.

The fact that no money had been voted by the electors to construct the bridge is not a defense to the refusal to build it. Section 4130, 2 Comp. Laws, provides how the money to construct a bridge under section 4129 shall be raised. The commissioner issues his orders upon the township treasurer, who is required to notify the township clerk of the amount of such orders, and that amount is included by the township clerk in the statement of the amount to be raised for township purposes, and it is the duty of the supervisor to levy it.

Error is assigned upon the refusal of the court to instruct the jury that, if the township was about to construct another bridge upon another road across the river, over which the residents could pass, although they were obliged to travel several miles farther, then no necessity existed for the construction of this bridge. The statute authorizes the commissioner, “ in cases where it shall be necessary for the public safety, to build, rebuild, or repair any bridge,” etc. The decision of this question depends upon the construction to be placed, upon this statute. This highway had been in existence for 16 years. The bridge had been swept away. People might cross this river with safety over a bridge 20 miles away; but the word ‘ ‘ safety” is not used in that sense in this statute. It means, “Is the repair or rebuilding of tbe bridge necessary for tbe safety of the public who have occasion to use the highway where the bridge is located ?” The necessity of the public highway had been settled in the proceeding to lay it out. That decision can only be reversed by the proper proceeding to discontinue the highway. The sole question for determination in this proceeding was, Is the construction of the bridge necessary for the safety of the public using the highway in question ? We do not mean to say that the bridge must be constructed at the same point as the old one; it may be placed farther up or down the stream; but it must be so arranged as to constitute an essential part of the highway in question, so as to accommodate the public living on both sides.

Several questions are raised upon the admission and rejection of testimony. We find no error in the rulings of the court in this regard that requires a reversal of the case. We may, however, say, in view of the probability 'Of another proceeding, that opinion evidence as to the necessity of this bridge for the public safety is not competent.

It is urged that this proceeding is similar to a hearing on petition to dissolve an attachment, in which this court will not review the rulings of the circuit court upon the admission and rejection of evidence. Rickel v. Strelinger, 102 Mich. 41 (60 N. W. 307). It is unnecessary to decide this important question in this case. Counsel have given it but little consideration in their briefs, and evidently have not given it the careful examination which its importance demands.

Order reversed, and proceedings quashed. No costs will be allowed.

The other Justices concurred.


author: Long, J.

text:
    DETROIT SAVINGS BANK v. HAINES.
    1. Interpleader — Appeal—Parties.
    Where the decree on a bill of interpleader brought by a bank to determine the right to a deposit relieves the bank from all liability on payment of the fund into court, and an appeal from the decree is dismissed, the bank is not a proper party to' an appeal from the final decree determining the right to the fund as between the claimants.
    2. Same — Bank Deposit — Right to.
    Money deposited in a bank is prima facie the property of the person in whose name the deposit is made, and an adverse claimant on interpleader must show a clear title thereto.
    3. Benefit Societies — Title to Funds — Transfer to Different Order.
    Where, under the laws of a fraternal beneficiary association, a sick-benefit fund accumulated by a subordinate lodge is the property of the latter body, a receiver of the parent organization is not entitled thereto as against another society te which the fund has been transferred by the local lodge.
    Appeal from Wayne; Donovan, J.
    Submitted April 16, 1901.
    Decided July 19, 1901.
    Bill of interpleader by the Detroit Savings Bank against William A. Haines, receiver of the Supreme Commandery of the United Friends of Michigan, and the Germania • Loge, No. 1, des Deutschen Orden von Detroit, to determine the title to a deposit. From a decree in favor of defendant Germania Loge, defendant Haines appeals.
    Affirmed.

      W. G. Campbell (Thomas Hislop, of counsel), for appellant.

      Otto Kirchner, for defendant appellee.

      Sidney T. Miller and James Qosslett Smith, for complainant.
   Long, J.

On the 6th day of January, 1897, the defendant appellee opened a savings account with the complainant bank by a deposit of $2,804.27. Several sums, in various amounts, were drawn out from time to time, so that on December 31, 1898, there remained a balance due said defendant appellee of $1,512.47. This sum, less $49.20 allowed complainant for costs, is the sole subject of controversy here.

On the 26th day of July, 1898, Ida M. Orout Potter filed her bill of complaint in the circuit court for the county of "Wayne, in chancery, against the Supreme Oommandery of the United Friends of Michigan. The supreme commandery was made the sole defendant. The bill, among other things, prayed for an injunction against E. F. Lamb, William A. Haines, and the Citizens’ Savings Bank, restraining them from paying any money or disposing of any property in their hands belonging to said defendant. On the 26th day of July, 1898, the circuit court made an order appointing Mr. Haines receiver, and also allowed an injunction directed to the complainant bank, in no way mentioned in the bill, restraining it from paying out certain money described in the writ of injunction. After the service of such injunction, complainant bank declined to pay any money to the defendant appellee. Being threatened with suit, leave having been first obtained, the bank, filed its bill of interpleader against William A. Haines, receiver of the Supreme Oommandery of the United Friends of Michigan, and the defendant appellee, as defendants. The bill averred the opening of the account with the complainant bank by defendant appellee, the respective claims of defendants to the fund in controversy, and asked that they be ordered to interplead, and that complainant be permitted to pay the money into court.

The defendant appellee answered that the money in controversy was its sole property; that the defendant Haines, receiver, never had any title to the same; that it was not, and never had been, a subordinate lodge of said Supreme Oommandery of the United Friends, and was not, and never had been, subject to its jurisdiction or control; that it was a subordinate lodge of the Grand Loge of the Deutschen Orden von Detroit, a corporation organized and existing by and under the laws of this State. Mr. Haines, the receiver, defendant appellant, answered that he had no knowledge of the opening of the account in complainant bank by appellee defendant, nor of defendant appellee’s demand for the money upon complainant bank. He admitted the incorporation of the Grand Doge of the Deutschen Orden von Detroit, and that defendant appellee was one of its subordinate lodges. He claimed that the fund in controversy had been the property of Germania Commandery, No. 30, of the United Friends, and had been fraudulently withdrawn and transferred to defendant appellee, an organization not under the jurisdiction of the Supreme Oommandery of the United Friends. By way of cross-bill, the answer claimed that complainant bank had notice of the right and title of the receiver defendant to the fund in controversy, and afterwards paid out part of it to appellee defendant. It prayed that the complainant bank might be held liable for all the money in its hands at the time it received notice of the receiver’s title to the fund. The bank filed its answer to the cross-bill, and a replication to the general answer.

The case came on to be heard on pleadings and proofs by the examination of witnesses in open court. The proofs on' that hearing were not restricted to the right of the complainant bank to interplead, nor to the amount for which it was liable, if at all, to the receiver defendant; but the testimony taken covered all points of difference between the parties. On the 12th day of June, 1899, the court below made a decree dismissing the receiver defendant’s answer in the nature of a cross-bill, and directed the complainant bank to pay into court the sum of $1,531.37, less costs to be taxed, and that, upon making such payment, the complainant bank be discharged from all liability to either of the defendants. It directed the defendants to interplead and settle title to the fund between themselves. From that decree, defendant appellant appealed, and his appeal in that behalf was dismissed by the Supreme Court on October 2, 1900. Thereafter the complainant bank had no further interest in the controversy, and since that time it has not been properly a party to the suit, though it is now here a party to the appeal. The defendants did not formally interplead. They were content with the issue framed by their respective answers, and were content to go to a hearing, and did go to a hearing, upon the issue as thus framed.

The defendant Germania Loge- claimed it was entitled to the fund, and accordingly presented to the court for his signature a decree awarding the money to it. This the court declined to sign, whereupon defendant appellee presented to the Supreme Court a petition praying for a mandamus to compel the lower court to sign such decree. The reasons of the learned judge’s refusal to sign the decree are set up in his answer to the petition. They were, in substance, that the case of Ida M. Crout Potter against the supreme commandery was the principal case; that the interpleader suit was a mere ancillary proceeding; that the main case had not been heard at all, nor had all other claims, one represented by Attorney Stanley, and one by Attorneys Flowers & Moloney, been disposed of, each of whom claimed interest in the outcome and disposal of the funds ordered paid into court on the hearing of the interpleader branch of the case, relating to the bank’s holding of the deposit in question. The appeal of the receiver defendant, already noticed, put an end to all proceedings for a mandamus in this court. After the appeal had been dismissed by this court, and no third person having established claim to the fund in controversy, the court, on the 8th day of October last, made a decree awarding the fund in controversy to defendant appellee. From that decree the receiver has appealed. It is that appeal that is now on hearing.

The complainant bank now comes into this court and claims the right to be discharged from any further liability in the matter, with its reasonable costs. The bank was not properly made a party to the appeal, and that prayer must be granted, with its costs against Haines, receiver.

It is the contention of counsel for defendant appellee that the fund in controversy was deposited in the complainant bank in the name of the defendant appellee, and that prima facie it was its property, and cannot be disturbed until the receiver shows a perfect title to it. We think this statement is correct. It appears conclusively that the fund was originally the property of the Knights of Honor; that that lodge had a sick-benefit fund of $2,525.79; that this money was presented by the Knights of Honor to four gentlemen in various sums, and they in turn made a present of it to the “sick fund” of the Germania Commandery, No. 30, United Friends. $563.79 of that money was paid to the United Friends for assessments. The sick-benefit fund was no part of the general fund. Mr. Schroeder, a witness for defendant appellant, produced the records of Germania Commandery, No. 30. The record there recites that:

“The proposition to change the law respecting the sick fund was read a third time, and then adopted. It was moved and seconded that the sick-fund association — the association for the benefit of the sick of Germania Commandery, No. 30 — do secede or separate itself from Ger-mania Commandery, No. 30, and ally itself with Germania Loge, No. 1, of Detroit; and it was unanimously adopted or carried. It was moved and supported that the trustees be authorized to accomplish this, and it was adopted.”

It appears that all the members of the sick-benefit fund association of the Germania Commandery, except two or three, voted in favor of this resolution to secede, and then allied themselves with Germania Loge, No. 1. The fund was carried over by the same vote. The fund belonged to these members as a sick-benefit fund. It is apparent that the supreme commandery, represented here by the receiver, has no right to or interest in this sick-benefit fund. The funds, and the only ones, to which the supreme commandery is entitled, are prescribed by the laws of that commandery, as follows:

“ The revenue of the supreme commandery shall be derived from charter fees from subordinate commanderies, per capita tax from subordinate commanderies, and from the sale of supplies to subordinate commanderies and other members of the order.”

It was not, therefore, entitled to this sick-benefit fund. That fund belonged to Germania Commandery, No. 30, which, by almost unanimous vote, passed it over to the defendant appellee. It is clear that the supreme commandery has no interest in the fund, and was not entitled to the relief asked. The court below very properly decreed that the moneys belonged to the sick-benefit fund, and that the defendant appellee was entitled to them. That decree must he affirmed, with costs against the receiver.

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


text:
    CHILSON v. LANSING WAGON WORKS.
    1. Injury to Employe — Negligence—Question for Jury.
    Plaintiff:, an employé in defendant’s factory, was injured while operating a double wabble saw, consisting of two saws placed side by side, separated only by a thin washer. The declaration alleged that pieces of timber being worked would become wedged between the saws, thereby throwing the hands of the operator upon the saw, of which defendant had notice, but failed to warn the plaintiff. The evidence tended to show that the saw was dangerous to operate for the reason stated in the declaration, and that plaintiff, while accustomed to work about machinery, had had no experience with such a saw, did not know its dangerous character, and was not informed thereof by defendant. Held, that the cause was properly submitted to the jury.

      2. Same — Assumption op Risk.
    The fact that plaintiff knew that a single saw had at first been used to do the work, and that the double saw had been substituted therefor, did not necessarily show that he assumed the risk of operating the double saw, if he was not aware of its dangerous character.
    3. Same.
    And whether the danger in using the saw was so apparent that plaintiff was chargeable with knowledge thereof, and therefore assumed the risk, was a question for the jury.
    4. Same — Contributory Negligence.
    The fact that the injury was caused in part by the defective condition of the table on which the saw was operated, and that plaintiff had knowledge of such condition, did not conclusively establish his contributory negligence.
    Error to Ingham; Wiest, J.
    Submitted April 17, 1901.
    Decided July 19, 1901.
    Case by.Calvin L. Chilson against the Lansing Wagon Works for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Wilson & Cobb, for appellant.

      Frank L. Dodge (Black & Dolan, of counsel), for appellee.
   Long, J.

Plaintiff was injured by a wabble saw upon which he was working in defendant’s factory. It appears that formerly the defendant had used a single saw for grooving cleats for end boards to wagon boxes. Finding that this single saw did not do the work properly, the foreman of defendant’s shop, one John Belz, devised this wabble saw, which was made by placing’ two saws together side by side. This did not work satisfactorily, as dust got between them; and finally he put a pasteboard washer between the saws, about three-sixteenths of an inch in thickness. The saw thus constructed was run in defendant’s shop occasionally in cutting these grooves, being operated mostly by the foreman and by a workman by the name of Monroe. Testimony was introduced tending to show that saws built in this way are dangerous, as they are liable to make slivers wedge in and throw the board from under the hand; that it has a tendency to wedge splinters between the two saws. The foreman and superintendent of defendant’s shop for 13 years, one Mr. Reed, testified that in all his experience he had never seen a double saw used for grooving; that a single saw was used as far as he knew; that he had worked in shops in Lansing, Jackson, Saginaw, Kalamazoo, Adrian, Tecumseh, and other places, and had there seen wabble saws, but that he never saw one made of two saws thus fastened together. There was some evidence also given by plaintiff tending to show that the table was not properly adjusted; that it was not rigid; that the blocking used at the time of the injury was an unsafe way of adjusting the table.

The plaintiff was a man 51 years of age, who had worked as a carpenter and joiner for about 30 years, and had worked for the defendant, off and on, since 1895. He worked first on a boring machine, then on a planer, and then on a jointer. He had never worked on the wabble saw until the day of his injury, September 12, 1898. The foreman then put him to work on that saw. He testified that the foreman told him how to work it; that he set the saw up for him, and ran a piece over it himself, measured the depth of the groove, and said it was all right, and that plaintiff should go- ahead with the work; that the foreman came back a number of times to measure the groove, and cautioned him to keep the piece against the gauge; that the foreman did not tell him anything about managing the saw; that the table was an-ordinary ripsaw table. He was asked:

“Q. Had you discovered before you were injured that it was possible for a piece to become wedged in there ?
“A. No, sir; I had no idea of such a thing. The thought never occurred to me. I had never seen a saw of this design used for grooving. The larger the saws, the more they would spring out and let a larger sliver get between them, and the liability of slivers getting between them would be increased. The saw was made to wabble by placing a wedge on either side, so as to throw it out of true. It wabbled seven-eighths of an inch.”

It appears that, after plaintiff had been at work for about five or sis hours, a sliver caught in the saw, threw the piece of board upon which he was working back, and, letting his hand drop on the saw, injured it severely, cutting off two fingers and injuring his thumb.

Defendant’s foreman testified that he put the plaintiff at work at the saw; that there was no other man he could spare that could run it; that it required a man of good sense to run it, and that, if he had not got sense, he had better keep away from it. He was asked:

“Q. Did you not always, when you put a man on a dangerous machine, give him instructions with reference to the probable danger ?
A. If a man thinks a machine is dangerous, he must not go near it. If I think a man is not fit for that machine, and does not know the danger, I won’t put him on there.
Q. Then you never instruct anybody that you put on a machine as to its danger ?
A. Well, I do sometimes, if I think it necessary; if I think he don’t know anything about it.”

It is contended by counsel for defendant that the case alleged in the declaration is not sustained by the proofs. The first count of the declaration alleges that pieces of timber being worked would become wedged or fastened between the saws, thereby throwing it from under the hand of the operator and the hand upon the saws; that of all this the defendant had notice, and failed to warn the plaintiff of such danger. There was considerable testimony showing that a saw constructed in the way this one was was liable to hook into the timber, and throw the timber operated on back from under the hand; that the teeth had too much rake and made slivers; that it was a dangerous saw to operate; that, being made of two saws, the saws would spread apart, and thus compel the timber to be thrown back from under the hand. Many witnesses concur in the statement that it was a dangerous saw to operate. It was shown that the plaintiff had had no experience with this kind of a saw, and did not know of its dangerous character. He was not informed that it was dangerous when he was set to work upon it, though most of the witnesses, who were men employed about the building, testified that it was a dangerous machine to operate. The plaintiff had a right to rely upon the defendant’s foreman to furnish him with not only a safe place to work, but also a safe machine to work with. We think there was some testimony to sustain the allegations of the declaration, and that the cause was properly submitted to the jury.

It is claimed that the plaintiff assumed the risk in engaging to work on this saw. We cannot concur in this. It is true that he knew before that they had been using a single saw to do this kind of work, and knew when he went to work that they had changed it to a double saw. He had seen the foreman grooving cleats upon this saw before he went to work, but he testified that he did not know of its dangerous character.

The testimony of the plaintiff tended to show that the table was defective, in that it was not firm and rigid; that it was supported by strips, with no device to hold them in position, and that they would work out, and permit the top of the table to drop down; and plaintiff testified that, when these strips would drop down, it would cut the grooves too deep; that, when it occurred, he would put the strips back in place; that, if he saw a piece coming out, he would put it back in place. It is the contention of counsel for defendant that plaintiff was guilty of contributory negligence in using this table knowing its defective condition. We think the question of the negligence of defendant and of the contributory negligence of the plaintiff was fully and fairly submitted to the jury under the charge of the court.

It is contended that the testimony offered by the plaintiff showed conclusively that it would be apparent to any man used to saws that pieces would lodge in a saw of this construction, and that the submission of the question to the jury whether the plaintiff knew, or ought to have known, by the exercise of care and the knowledge he had acquired by his experience, of this danger, was error. The court, we think, very properly charged the jury upon this question as follows:

“It was the plaintiff’s duty to exercise care to avoid injury. He was under as great obligation to provide for his own safety from dangers known to him or discoverable by ordinary care on his part as the defendant was to provide for him. It was his duty to learn the danger. He could not go blindly to his work where danger existed. He was bound to inform himself and observe and take such knowledge of danger as could have been attained by observation. If he failed to do so, the risk was his own. And, although you find that the saw and table referred to were improperly constructed or adjusted, your verdict must be for the defendant, unless you find by a preponderance of the evidence that such defective construction or adjustment would not, by ordinary, careful observation, have been discovered.”

Upon an examination of the whole record, we are satisfied that the case was fairly tried and submitted to the jury. We find no error. The judgment below must bo affirmed.

The other Justices concurred.


author: Long, J;

text:
    ANDERSON CARRIAGE CO. v. PUNGS.

    Deeds — Reformation—Evidence.
    Defendant conveyed a parcel of land by metes and bounds, the deed reciting the same to be about an acre in quantity. He subsequently platted the tract embracing said parcel, the land conveyed forming a part of lot 21 as platted, which lot was about an acre in size. Complainant purchased from the grantee, supposing that it was acquiring title to the whole of lot 21, and afterwards filed a bill to enforce a conveyance of the remainder of the lot, claiming that the entire lot was intended to be conveyed by the original deed; and, it appearing from the direct testimony on the subject, the after-occupancy of the land, the payment of the taxes thereon, the subsequent conduct of defendant, and his various dealings in relation to the remaining property, that such was the intention of the parties, relief was granted accordingly.
    Appeal from Wayne; Rohnert, J.
    Submitted May 8, 1901.
    Decided July 19, 1901.
    Bill by the Anderson Carriage Company against William A. Pungs and Addie L. Pungs to reform a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Russel & Campbell, for complainant.

      Barbour & Rexford, for defendants.

       Rehearing denied November 4, 1901.

   Long, J;

This bill is filed to compel defendant Pungs to convey to complainant the full quantity of land which it is claimed was purchased from him by the Michigan Railway-Supply Company, the predecessor of the complainant corporation. The bill sets out, substantially, that prior to September 23, 1891, the said defendant William A. Pungs and Cyrenius A. Newcomb were owners in common of property now known as lot 21, Pungs & New-comb’s subdivision of part of outlots 7 and 8, quarter section 58,10,000-acre tract, according to the plat of said subdivision recorded August 21, 1895, in the office of the register of deeds for the county of Wayne, said lot being approximately one acre in extent; that on said 23d day of September the said defendants, William A. Pungs and Addie L. Pungs, his wife, and Cyrenius A. Newcomb, for the consideration of $3,500, conveyed to the Michigan Railway-Supply Company, a corporation organized and existing under the laws of the State of Michigan, property described as follows:

“Land in the city of Detroit, Wayne county, Michigan, described as all that part of lot 7 lying north of the Detroit & Bay City Railroad of the subdivision of section 58 of the 10,000-acre tract, commencing at the intersection of the northerly line of the Detroit & Bay City Railway right of way and the westerly line of said lot 7, and running thence northerly, on said west line of lot 7, 375 feet; thence easterly, at right angles to said westerly line, 100 feet; thence southerly, parallel to said west line, to the north line of said Detroit & Bay City Railway; and thence westerly, along the said line of said railway, to the place of beginning; the parcel hereby conveyed containing about one acre of land.”

That in and by said conveyance all parties thereto supposed and intended that said conveyance should include all of what is now known as said lot 21; that, immediately upon the execution and delivery of said conveyance, the said Michigan Railway-Supply Company took possession of the whole of the property included in said lot, and thereafter treated it as its property; that afterwards, and on the 26th day of December, 1895, the said Michigan Railway-Supply Company, acting through said Newcomb as its president, and said William A. Pungs as its treasurer, conveyed a right of way along the easterly part of said lot 21 to the Anderson Manufacturing Company, a corporation owning the property adjoining said lot 21 to the north, and which corporation has since conveyed its said right in said lot 21 to the complainant.

That on March 2, 189?, the complainant, whose name was at that time the Pungs-Anderson Manufacturing Company, purchased all the property of said Michigan Railway-Supply Company, and, among others, the property known as lot 21; that it was represented to the complainant by said defendant William A. Pungs, who conducted all the transactions and was the principal managing officer of both corporations, that the said Michigan Railway-Supply Company was in fact the owner of all of said lot 21; that in estimating the value of the assets of said Michigan Railway-Supply Company, purchased by complainant, the whole of said lot 21 was included, in accordance with the representations and at the instance of said ■defendant William A. Pungs, and said assets were paid for on that basis; that, after said purchase was completed, the complainant took possession of all of said lot 21, — the same being in the occupation of said Michigan Railway-Supply Company, — and constructed a fence around the same, and used it for the purposes of its business, and has ever since continued to do so; that said Pungs participated in, and had general charge of, said purchase, and directed the transfer of said land and the occupation of it by complainant.

That afterwards the said Pungs severed his connection with the complainant, and his stock in complainant corporation was purchased by other parties interested in the same; that during the month of May, 1899, the complainant filed an amendment to its articles of association, in pursuance of and in compliance with the provisions of law, changing its name to the Anderson Carriage Company, by which name the complainant is now known in law; that, in the course of this change in its business affairs, it became necessary to examine the conveyances of the property held by complainant, all of which had been theretofore managed by defendant William A. Pungs, and upon such examination it was discovered for the first time that the whole of said lot 21 had not been properly conveyed by said William A. Pungs and said Newcomb to said Michigan Railway-Supply Company, but that only the westerly 100 feet in width of said lot had been conveyed, leaving unconveyed the easterly portion of said lot, about ii feet in width; that, upon discovering the said error, complainant applied to said William A. Pungs and said Newcomb to correct the description so as to make the samo conform to tho transfer actually made; that said Newcomb at once complied with this request, and conveyed by deed all his right, title, and interest in and to the unconveyed portion of said lot 31 to complainant; that said defendant William A. Pungs, notwithstanding tho premises, and in fraud of complainant’s rights, has refused, and still refuses, to correct said error, and now claims to own all that portion of said lot 31 which was omitted from said conveyance, and has caused a building to be put up on adjoining land owned by him which projects over upon said unconveyed portion of said lot 31, and has leased the same to a tenant, and is attempting to withhold from complainant the ownership and possession of said land.

Complainant avers that it was at all times intended that the entire property now known as said lot 31 should be conveyed to said Michigan Railway-Supply Company, from whom complainant derives title; that a full consideration was paid for the entire lot, and that both said William A. Pungs and said Newcomb have alwayg acted upon the supposition that such conveyance had been made; that said defendant William A. Pungs was at all times, up to and until after the purchase of said property by complainant, in the control and management of said Michigan Railway-Supply Company and of complainant, and was intrusted by all persons interested in said corporations with full management and control; that by his repeated representations and his acts in actually causing said property to' be occupied and used by said Michigan Railway-Supply Company, and by complainant after it purchased tho same, and further by causing the aforesaid right-of-way deed to be executed by the Michigan Railway-Supply Company, and himself signing the same as treasurer, and in numerous other ways, the said defendant William A. Pungs has recognized the actual ownership of this unconveyed portion of said lot 21 to have been in said Michigan Railway-Supply Company, and the complainant, as its assign, and in equity is bound to make the legal title thereto good, and that his refusal to do so is a fraud upon the complainant.

Defendant Pungs filed an answer in the nature of a cross-bill, setting up that prior to the 4th day of September, 1895, defendant and Cyrenius A. Newcomb were owners in common of lots “A” and 1 to 20, both inclusive, and lots 22 and 23, and lot 21, except that part thereof conveyed by defendant and his wife and Cyrenius A. Newcomb to said Michigan Railway-Supply Company September 23, 1891; that on the 4th day of September, 1895, Cyrenius A. Newcomb, in consideration of $ 100 and other valuable considerations, by quitclaim deed conveyed to defendant all of the above-described property, except that part of lot 21 then owned by said Newcomb and defendant; that, immediately after the execution and delivery of such deed, he, the said defendant, took possession of that portion of said lot 21 which had not been conveyed to the said Michigan Railway-Supply Company, and thereafter regarded and treated the same as his property ; that defendant was not informed, and did not know until after the filing of the bill, that the deed from New-comb to himself of the other property of Pungs and New-comb did not include that portion of said lot 21; and he avers that the said part of.lot 21, which was not included in said Newcomb’s deed to himself, was omitted from said deed unintentionally, by the mutual mistake of Newcomb and himself. He therefore prays in his cross-bill that he may be decreed to be the owner of all that part of said lot 21 which was not included in the deed of September 23d. He further prays that said Newcomb and his wife, who are made parties defendant to the cross-bill, may be decreed to convey to him all that part of said lot 21.

The testimony in the case was taken in open court, and tho court decreed that defendants, Pungs and wife, convey to complainant all that part of lot 21 not contained in. the deed of September 23d; that, in default of the execution and delivery of the deed by said defendants, a copy of the decree be recorded in the office of the register of deeds in lieu thereof, and have all the force and effect of said deed; and that complainant recover its costs.

There is little dispute about the facts, except as to the intent of the parties to the original deed. The court below was of the opinion, evidently, that the parties intended to sell to the Michigan Railway-Supply Company one acre of land, as stated in the deed; and it is shown conclusively that one acre of land would include all the land in said’lot 21. Mr. Newcomb testified that he was joint owner with, defendant Pungs, and that:

“We agreed to sell the new corporation one acre of land, and the price was fixed at $3,500.”

He was asked:

“Q. At the time you signed that deed, did you make any particular examination as to whether the description by metes and bounds carried with it the entire acre of land ?
“A. I did not. I referred the matter entirely to Mr. Pungs. He was the manager.”.

Mr. Pungs was asked:

“Q. You heard Mr. Newcomb’s testimony. Do you recollect any conversation with him with reference to buying an acre ?
“A. No, sir.
“Q. What conversation do you recollect that you had with him about buying an acre, or about the amount of land that was to be deeded ?
“A. When I had the conversation, — the only conversation that I recollect, — the records show that is what land we needed. We bought just what we needed, and no more. We needed just that piece, and no more. We had a building 300 by 75 feet, and that is five times the size of the building that they had before that. It was ample for our use in every respect.”

On his cross-examination defendant was asked:

Q. Isn’t it true in the conversation that you had with Newcomb, and the others at the time interested in the company, that your talk was that you would sell them one acre ?
“A. No, sir; if there had been, we would never have said so many feet. * * *
‘ ‘ Q. There was no such talk about an acre at all ?
“A. I do not think so. We might have said that it was about an acre, and gave them the dimensions.”

He was then examined upon the statement in the deed that the property contained about one acre. He was asked:

Q. What do you mean by the statement in the deed that the parcel hereby conveyed contained about one acre of land ?
“A. I did not put it in. I asked Mr. Post [the attorney], and he said it was customary when it was anywhere near an acre.”

It appears to us that the facts of this case all teüd to show that the whole of lot 21 was intended to be conveyed by the deed of September 23d. The testimony shows that, after this purchase by the Michigan Railway-Supply Company, it paid the taxes on the entire acre of land, and that Pungs and Newcomb, who owned at that time the balance of the tract, paid the taxes on the rest of the property, Pungs being at the time treasurer of the Michigan Railway-Supply Company, and paying the taxes on the lot out of the company’s money; that, at the time of the consolidation of the companies, defendant was general manager; and that, within 30 days thereafter, a .fence was built along the easterly line of lot 21, inclosing the entire property, and the whole lot continued to be used without any claim of ownership by defendant. A shed along the easterly line of lot 20 was extended onto lot 21 under his direction, and other structures were built on the property. It is admitted by both Pungs and Newcomb that, when Pungs purchased all of Newcomb’s remaining interest in the property, the intention was to buy all of that interest, aside from what had been transferred to the Michigan Railway-Supply Company; and yet in the deed from Newcomb to Pungs this part of lot 21 was not included. Defendant testified that he raised the money for the original purchase by mortgaging all of the property, except that which was sold to the Michigan Railway-Supply Company. The first two mortgages covered all of the property, except that described as conveyed to the Michigan Railway-Supply Company. The two subsequent mortgages described the property as lots 18, 19, 22, and 23, omitting the property sold to the Anderson Manufacturing Company and lot 21. Mr. Anderson, of the Anderson Carriage Company, testified that, when his company was organized, lot 21 was occupied by the Michigan Railway-Supply Company; defendant being at that time connected with that company, and also with the Anderson Manufacturing Company. Mr. Anderson stated that defendant told him that the Anderson Company had lot 20, and that the Michigan Railway-Supply Company owned lot 21; that they were of the same size, each consisting of an acre of land. Mr. Newcomb testified that it was agreed to sell the corporation an acre of land, and the deed recites that the parcel conveyed contained about one acre of land. We are satisfied from the whole record that the court below very properly decreed that Mr. Pungs convey to complainant the balance of lot 21 not conveyed in the deed of September 23d.

The decree below will be affirmed, with costs.

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


author: Hooker, J.

text:
    LONG v. PRUYN.
    1. Sale of Fruit Trees —Breach of Warranty — Pleading — Evidence.
    A declaration alleging that plaintiff purchased Fox Seedling peach trees of defendant on the latter’s representation that they would bear “a large white, bright peach, good sellers,” but that defendant furnished such seedlings of an inferior and worthless variety, justifies proof that, though Fox Seedlings were delivered, they bore a worthless peach.

      2. Same.
    A contract to furnish fruit trees of a certain variety, or another variety equally good, is broken where an inferior variety of trees is substituted, and their acceptance induced by misrepresentation.
    3. Judicial Notice — Good Husbandry.
    Judicial notice cannot be taken that it is not good husbandry to plant crops in a young orchard.
    4. Witnesses — Competency—Value of Lands.
    A witness, otherwise competent, is not disqualified to express an opinion as to the value of fruit lands by the fact that he knows of no sale of such lands having been made.
    5. Sale of Fruit Trees — Breach of Warranty — Damages.
    Where fruit trees are purchased and set out, and, on commencing to bear, are found to be of a variety inferior to that contracted for, the measure of damages is the value that would have been added to the land if the trees had been of the variety ordered.
    6. Same — Evidence.
    On the question of the extent to which lands would have been enhanced in value if set out to fruit trees of a given variety, it is competent for witnesses to testify as to what such trees ordinarily produce, and also to estimate such enhanced value by the tree or by the acre.
    7. Same — Damages—Instructions.
    Where, in an action to recover damages for furnishing fruit trees of a variety inferior to those ordered by plaintiff, it appeared that after the trees began to bear, and before the commencement of suit, some of them were killed and others injured by the cold, an instruction that such fact might be considered by the jury as bearing upon the value that the trees would have been to the premises if of the variety ordered, and as therefore affecting the damages sustained, was sufficiently favorable to defendant.
    Error to Kent; Perkins, J.
    Submitted May- 10, 1901.
    Decided July 19, 1901.

      Assumpsit by Peter D. Long against John Pruyn for breach of warranty on a sale of fruit trees. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Crane, Norris & Drew, for appellant.

      McKnight & McAllister, for appellee.
   Hooker, J.

The plaintiff, a far’mer, bought peach and apple trees from the defendant, and set them upon his farm. This action is brought to recover damages arising from the delivery of trees of different variety and inferior quality to those contracted for. From a verdict of $9?5 in favor of the plaintiff, the defendant has appealed.

Among the trees contracted for were 25 Fox Seedlings and 50 Canada Reds. The testimony showed that the former were represented to “bear a large white, bright peach, good sellers,” but that, although Fox Seedlings were delivered, they did not bear such, but bore an inferior and worthless peach. As to the Canada Reds, it showed that trees labeled “Smith Cider” were substituted under a ’clause in the contract permitting other trees of equally good variety to be substituted where trees ordered could not be furnished, and that the fruit borne by these was inferior and worthless. It is claimed by appellant’s counsel that the declaration does not contain allegations justifying this proof; but we find in the declaration the allegations that it was represented that the Fox Seedlings would “bear a large white, bright peach, good sellers,’’ and that “in place of the 25 Fox Seedling trees, standard, defendant delivered Fox Seedling trees of a poor variety,” and “that all of said trees were inferior and worthless varieties, and absolutely of no Value,” etc. It was proper to prove these allegations, and the evidence fairly tended to do so. The proof of a substitution of an inferior quality for Canada Reds, and their acceptance under misrepresentation, showed a breach of the promise to furnish “ Canada Reds or an equally good variety.”

There is no occasion to discuss the proof tending to show care in the setting and attending said trees. There is sufficient proof upon the subject to make it a question for the jury. We cannot take judicial notice that sowing oats or planting corn in the same field was not good care, nor can we decide how far, if at all, proper care would make poor varieties bear good fruit.

Counsel make a wholesale assignment of error in the “ admission of the testimony of each and every witness as to the value of the land, inasmuch as they did not show that they were qualified to express an opinion of the value of lands.” We think the testimony was admissible, under the authorities cited in plaintiff’s brief, although witnesses testified that they knew of no sale of fruit lands. Stone v. Covell, 29 Mich. 359; Carter v. Carter, 36 Mich. 207; Enright v. Hartsig, 46 Mich. 469 (9 N. W. 496); City of Detroit v. Robinson, 93 Mich. 428 (53 N. W. 564); Heilman v. Pruyn, 122 Mich. 301 (81 N. W. 97, 80 Am. St. Rep. 570); Angell v. Pruyn, 126 Mich. 16 (85 N. W. 258).

In the case of Heilman v. Pruyn, supra, the court instructed the jury that “the measure of damages was the value that would have been added to the premises if the trees had been of the varieties ordered.” This was sustained as a correct rule by this court, and it is the rule laid down by the learned circuit judge in the case now before us.

It is said that there was no evidence to enable the jury to find the value of the land. There was testimony of some witnesses as to their opinion of the value of the land, and how much it would be enhanced by the addition of such trees. Some estimated by the tree; others, by the acre. There was also testimony as to what such trees would ordinarily produce. All could be made use of by the jury to perform their function of determining the added value. It is said that the witnesses were asked to state the value of the trees; but the record shows that they were asked and gave the added value at so much per tree, and we do not find the testimony complained of.

Testimony was offered to show that, after these trees came into bearing, a hard winter killed many of them, and it is claimed that the same fate would have befallen them had they been good varieties, and that the fact was important by way of mitigation of damages. No exception appears to have been taken to the ruling. The same question arises upon the charge. The charge was as favorable to the appellant as it should have been under the testimony. See Heilman v. Pruyn, supra; Angell v. Pruyn, supra.

Some minor points are raised relating to the cross-examination of the defendant, which we think do not call for elaboration.

We find no error, and the judgment is affirmed.

The other Justices concurred.

       The error assigned was on a remark of the court; the testimony was admitted.