author: Montgomery, J.

text:
    BOARD OF CONTROL OF THE MICHIGAN STATE PRISON v. AUDITOR GENERAL.
    Statutes — Enrollment—Variance—Effect.
    Act No. 311, Pub. Acts 1907, appropriates “one hundred seventy-five thousand dollars ” for the purpose of establishing a binder-twine plant at the State prison: “ Provided, that of the one hundred seventy-five [thousand] dollars so appropriated, fifty thousand dollars is ” appropriated for a certain purpose, “andthe remaining sum of one hundred twenty-five thousand dollars is ” appropriated for a certain other purpose germane to the purpose of the bill. The word “thousand” in brackets did not appear in the enrolled act assigned by the governor, though it did in the bill as passed by the legislature. Held, that the omission of the bracketed word was a mere clerical error which corrects itself and leaves nothing doubtful, and that the act is therefore valid.
    Mandamus by the board of control of the Michigan State prison to compel James B. Bradley, auditor general, to draw a warrant upon the State treasurer under the provisions of Act No. 311, Pub. Acts 1907.
    Submitted August 13,1907.
    (Calendar No. 22,424½.)
    Writ granted August 13, 1907.

      John E. Bird, Attorney General, for relator and respondent.
   Montgomery, J.

The legislature of 1907 passed an ■act known as Act No.-311, Pub. Acts 1907, and entitled:

“An act to provide for the installation, maintenance, equipment and operation of a twine and cordage plant to be operated by prison labor at the State prison at Jackson, Michigan, to provide for the sale and disposition of the manufactured product; to define the duties of the warden and board of control of said prison in relation thereto; to make an appropriation for the fiscal year ending June thirty, nineteen hundred eight, to carry into effect the object and purposes of this bill and to provide a tax to meet the same,”

Which said act was approved by the governor, June 24, 1907, and was given immediate effect. It appears that in the original bill, now on file in the secretary of State’s office, the word “thousand” appears in the proviso of section one of the act after the words “one hundred seventy-five,” while in the enrolled act which was signed by the speaker of the house, the president of the senate, and the governor, the word “ thousand ” was omitted. The board of control of the prison has made a regular requisition upon the auditoi general requesting him to draw his warrant upon the State treasurer for one thousand dollars, payable to the warden of the State prison, out of the moneys appropriated by the above-mentioned act. This the auditor general refuses to do, claiming, for the reason above stated, that the bill signed by the governor in which the word “ thousand ” was omitted as aforesaid was not the bill which passed both houses of the legislature. The refusal of the auditor general was based upon an opinion given at his request by the attorney general on the 25th day of July, 1907, in which, after a discussion of the various authorities, the attorney general advised that in view of the defect contained in the act and the consequent doubt as to the validity of its enactment, no money should be paid out until the validity of the act had been judicially determined. Mandamus is now applied for to direct the auditor general to honor the requisition of relator.

Section 1, of the act as enrolled, reads as follows:

“ There shall be appropriated out of any of the money in the State treasury not otherwise appropriated for the fiscal year ending June thirty, nineteen hundred eight, the sum of one hundred seventy-five thousand dollars for the purpose of carrying out the provisions of this act: Provided, That of the one hundred seventy-five [thousand] dollars so appropriated fifty thousand dollars is hereby appropriated for the purpose of purchasing, erecting and equipping the necessary buildings, machinery, boilers and equipment to be used in the manufacture of twine and cordage, together with a warehouse at the State prison at Jackson, Michigan, and the remaining sum of one hundred twenty-five thousand dollars is hereby appropriated to constitute a “revolving fund ” to be disposed of in such manner as is herein provided.”

The word “thousand ” appearing in brackets is not in the bill as enrolled and signed by the governor, but was contained in the original bill. It is obvious that unless it shall be held that there must be absolute correspondence between the bill as enacted and as enrolled and signed by the governor, and that no deviation of a word can be permitted and yet the act stand, this legislation is valid.

It is perfectly manifest that the legislature by this proviso appropriated $50,000 for the purpose of purchasing, erecting, and equipping the necessary buildings, and it is equally obvious that that $50,000 could not be subtracted from $175, and that the $175 was plainly intended to mean $175,000 is again made manifest by the fact that in the same clause after appropriating $50,000 the legislature further appropriated a remaining $125,000 which must be a remainder after deducting $50,000 from $175,000. It is a clerical error which corrects itself and leaves nothing doubtful. Such clerical errors will not be permitted to defeat the plain intent of the legislature.

In 26 Am. & Eng. Enc. Law (2d Ed.), p. 549,. it is said:

“ The omission in the enrolled bill of words not essential to its substance or effect will not render the act invalid,”

Citing among other cases People, ex rel. Gale, v. Supervisor of Onondaga, 16 Mich. 254, in which case it was held by a majority of the court that where there was no error in the title of an act passed by the legislature a subsequent clerical mistake in the title as approved by the governor does not necessarily invalidate the act if it be such as to show by comparison that no one could be misled by it. In that case, as in this, the error was one which upon the whole face of the engrossed bill corrected itself. Again in Stow v. Grand Rapids Common Council, 79 Mich. 595, where, by mistake, the title of an act as adopted by the legislature was an act to amend section 4 of Act No. 282 of the Local Acts of 1887, and where the title also contained further detailed reference to the subject-matter so that there could be no mistake as to the legislative intent in that regard, and where, after the passage of the a'ct, the figures “ 1877 ” were substituted for the figures “ 1887,” it was said:

“ The making of it 1877 was in harmony with the rest of the title, and but the correction of a clerical error — a correction which' would be permissible in a deed or contract, and which the law would make in default of any other action.”

The case is closely analagous to’the case under consideration. See, also, Attorney General, ex rel. Fuller, v. Parsell, 100 Mich. 170; Sharp v. Merrill, 41 Minn. 492.

The writ of mandamus will issue as prayed.

McAlvay, C. J., and Ostrander, Hooker, and Moóre, JJ., concurred.


source: Caselaw Access Project

author: Pee Curiam. Per Curiam.

license: Public Domain

text:
    HELME v. BOARD OF ELECTION COMMISSIONERS OF LENAWEE COUNTY.
    1. Elections — Secret Ballot — Voting Machines — Statutes — Constitutional Law. '
    Section 10, Act No. 287, Pub. Acts 1907, under which a voter at an election at which voting machines are used is required to call for a paper ballot in case he desires to vote for a combination of candidates which cannot be voted on the machine, requires the voter in such case to disclose his intention not to vote his party ticket, and is therefore unconstitutional as violating the right of the elector to vote a secret ballot.
    2. Same — Voting Machines — Secret Ballot.
    Voting machines cannot be used at an election at which the type of machine in use cannot be so arranged as to afford the voter opportunity to vote for any desired combination of the candidates of all parties.
    3. Same — Official Ballot — Special Election — Nomination by Several Parties.
    Act No. 272, Pub. Acts 1907, providing for the election of delegates to the constitutional convention of 1907, makes the provisions of the general election laws applicable so far as the printing of the ballots is concerned, and therefore a candidate is entitled to have his name appear but once on the official ballot, notwithstanding he is nominated by several parties.
    ON MOTION FOR REHEARING.
    Elections — Voting Machines — Secret Ballot.
    Any type of voting machine may be used, or the type in question in this case may be used, at any election in which the choice between candidates can be expressed by the use of the machine, or by any other method which does not disclose to the inspectors or others the purpose of the voter.
    Mandamus by James W. Helme to compel the board of election commissioners of Lenawee county to furnish printed paper ballots.
    Submitted September 11, 1907.
    (Calendar No. 22,465.)
    Writ granted September 11, 1907.
    Rehearing denied October 11, 1907.

      James W. Helme (T. M. Joslin, of counsel), in pro. per.

      John E. Bird, Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, for respondent.
   Pee Curiam.

The relator is a candidate selected by three parties as delegate to the coming constitutional convention. He asks a mandamus to compel the board of election commissioners of Lenawee county to furnish to each voting precinct in the county printed paper ballots containing his name under the party name of each and every party by which he was nominated.

The record shows that voting machines are used in several precincts, and that it is the intention to use such at the election to be held for said office, and that it is impossible to so arrange the names of candidates upon said machines as to permit a voter to vote for certain combinations of candidates, there being three to be elected. It is admitted that this is true in a strict sense, but it also appears that where a voter desires to vote for such a combination or candidate whose name is not on the machine, he may apply to the election inspector for a paper ballot, which, after preparing, he shall fold and deliver to the inspector, who shall place it in a cartridge and introduce it into a receptacle prepared for it in the machine, and through that into a box, to be counted if it shall be found that the persons voted for could not otherwise have been voted for by the use of the machine.

It is obvious that a voter cannot ask for and vote such a ballot without indicating that he does not vote for his full party ticket, and, to the degree that he is reluctant to have his want of party fealty known, it acts as a deterrent to his voting for the persons of his choice, and operates against his independence as a voter. We are of the opinion that the requirements found in section 10, Act No. 287, Pub. Acts 1907, are unconstitutional as applied to this case because they violate the right of the elector to vote a secret ballot. See People v. Cicott, 16 Mich. 283, and City of Detroit v. Board of Election Inspectors, 139 Mich. 548.

It appearing that all of the machines in use in this county are subject to this infirmity, i. e., they do not afford an opportunity to all to vote a secret ballot, they cannot lawfully be used, and it is therefore necessary that paper ballots be furnished by respondents for each precinct.

Counsel for relator contend that Act No. 272, Pub. Acts 1907, renders the general act providing for the printing of ballots, and prohibiting the printing of a name more than once, inapplicable to this election, inasmuch as it provides in express terms that—

“ The names of the three candidates nominated by each or any political party in each senatorial district, * * * shall be printed upon the official ballots of the various political parties.”

We think otherwise. Section 4, Act No. 272, Pub. Acts 1907, provides that—

“ All laws not inconsistent with this act, regulating the printing of the ballots * * * shall be applicable to the printing of the ballots,” etc.

The general law contains a similar provision, with the limitation mentioned, which we think applicable here. Therefore relator’s name can appear but once.

' The writ will issue as above indicated.

ON MOTION EOR REHEARING.

Per Curiam.

A motion for a rehearing of this cause has been made, and it is asked that, in case such relief shall not be granted, we indicate, by an addendum to the opinion filed, that the device shown by an amended return which is said to enable the voter to cast his ballot with absolute secrecy, is not open to the objection stated in the opinion heretofore filed. In view of the far-reaching effect of our decision, and the important interests, both public and private, which might be injuriously affected-by any general misapprehension of its scope, we deem it proper to say that it was not intended to hold or intimate that the voting machine in question was open to objection in any election in which the choice between candidates can be expressed by the use of the machine, or by any other method which does not disclose to the inspector or others the purpose of the voter.

It follows that any device which insures absolute secrecy is not within the mischief condemned by our opinion.


author: Per Curiam.

text:
    POTTER v. DEUEL.
    1. Elections — Nominations—Party Committees — Composition— Control by Courts.
    In the absence of controlling legislation, the composition of a political committee according to the custom and usage of the party, with the sanction of the conventions of the party, will not be disturbed by the courts.
    3. Same — Conventions—Proxies—Statutory Provisions.
    Section 11466, 3 Comp. Laws, forbidding delegates to political conventions from giving proxies, and requiring vacancies to be filled by the delegation, if applicable to a meeting of a district committee called for the purpose of filling a vacancy on the ticket, is not violated where the committee by majority vote seat a citizen of an otherwise unrepresented county, who presents a proxy from the committeeman from that county.
    Mandamus by Ered N. Potter to compel Andrew L. Deuel and Victor D. Sprague, chairman and secretary of the 29th senatorial committee, to certify the nomination of Alonzo B. Green as a candidate to the constitutional convention.
    Submitted September 11, 1907.
    (Calendar No. 22,464.)
    Writ denied September 12, 1907.

      O’Brien & Francis, for relator.

      Frost & Sprague and Halstead & Halstead, for respondents.
   Per Curiam.

A convention of the electors of the twenty-ninth senatorial district on August 13, 1907, at the city of Cheboygan, nominated three candidates for delegates to the constitutional convention, one from Otsego, one from Presque Isle, and the other from Alpena county. The candidate from Alpena county declined the nomination. Thereafter, at a meeting of the senatorial committee, two candidates to fill the vacancy were voted for, and. one of them, A. L. Deuel, of Petoskey, was declared to have been elected. The relator, a member of said senatorial committee, asks for a writ of mandamus to the chairman and secretary, respectively, of the said committee, commanding them to certify the election of Alonzo B. Green, of Alpena, to fill said vacancy, and to the county clerks of the counties composing said district, commanding them to desist from placing the name of said Deuel upon the official ballot; and if it be determined that said Green was not legally elected to fill the vacancy, that the members of said senatorial committee be commanded to assemble and proceed to nominate a candidate to fill the vacancy. It is alleged that said committee consists of six members, one from each of the counties of Alpena, Presque Isle, Montmorency, Otsego, Cheboygan, and Emmet; that Deuel, the acting chairman, and Sprague, the acting secretary, of said senatorial committee, were not-members of said committee; that at the election held by said committee to fill said vacancy there were present the committeemen from Presque Isle, Montmorency, Otsego, Cheboygan, and Alpena; that said Deuel and said Sprague also attended, as did also H. S. Babcock, the proxy of the committeeman from Emmet; that in voting for a candidate to fill said .vacancy said Deuel and the said Bab.cock voted, seven votes in all being cast, of which Alonzo B. Green received three and the said Deuel received four votes.

Upon the petition of the relator and the answer thereto, the parties have proceeded to hearing. The facts set up in the answer, so far as they are responsive to the allegations of the petition, for the purposes of this hearing, must be taken as true. It appears from the answer that the senatorial committee, consists of eight instead of six members, and that for many years it has been, the custom and usage of the republican party of said senatorial1 district to have a committee of eight members, composed of a chairman and secretary and a member from each county; that by a like custom and usage the candidate for senator has been authorized and empowered to appoint a secretary and a chairman of the committee; that at the senatorial convention held on the 31st of May, 1906, at the city of Petoskey, the usual motion was made and carried that the usual committee of eight be appointed, and the candidate nominated for State senator was authorized and empowered to appoint a chairman and a secretary of said committee. Six members of the committee from the different counties were elected and the nominee of the convention appointed as chairman A. L. Deuel, and as secretary Victor D. Sprague. These gentlemen as chairman and secretary, respectively, certified the nomination of said candidate for senator and performed the duties of chairman and secretary of said committee during the succeeding campaign and until now. As chairman and secretary, they called the convention to nominate candidates as delegates to the constitutional convention, and certified the nominations made at that convention to the secretary of State and the probate judges and county clerks of the various counties in said district. When Mr. Babcock presented himself as the proxy of the regular committeeman from Emmet county, relator objected to his being allowed to vote. The chairman ruled that he was entitled to represent Emmet county on the committee,—

“And the committee thereafter approved the action of said chairman in seating said Babcock as a member of said committee and seated Mr. Babcock accordingly; that only two members of the committee voted against Mr. Babcock being allowed to vote. ' * * * Mr. Babcock did not vote, neither did the secretary.”

It appears further that the nomination of said Deuel to fill said vacancy has been certified by the committee to the secretary of State and to the judge of probate and county clerk of each of the counties of said senatorial district, and that ballots have been printed accordingly.

The writ must be denied. In the absence of controlling legislation, the composition of the committee according to the custom and usage of the party with the sanction of the conventions of the party will not be disturbed by courts. We are-referred by counsel for relator to no such statute. See Stephenson v. Election Com’rs, 118 Mich. 396 (42 L. R. A, 214); Jennings v. Election Com’rs, 137 Mich. 720.

Assuming that Mr. Deuel was a member of the committee, a majority of the committee voted to seat Mr. Babcock. We are referred to 3 Comp. Laws, § 11466, which forbids a delegate elected to any city, county, congressional, or State political convention to give a prosy to any person to represent him at such convention, and requiring such vacancies occurring in any delegation in any such convention to be filled by a majority vote of said delegation, etc. The statute does not in terms refer to such a convention as the one whose proceedings are before us. And if it can be said that the senatorial committeemen should be treated as delegates to a convention to elect a candidate, it still appears that there was a vacancy occasioned by the absence of the delegate from Emmet county which was filled by the delegation itself by seating a citizen of that county.


author: McAlvay, C. J.

text:
    DELRAY LAND CO. v. TOWNSHIP OF SPRINGWELLS.
    1. Taxation — State Tax Commission — General Review — Record — Certificate—Sufficiency.
    Where the notice of general and special review, published by the State tax commission under Act No. 154, Pub. Acts 1899, fixed September 28th as the time of the review, and the certificate made October 10th states that the review was had September 28th and 30th and on October 8th and 10th, and both the certificate and the record of the proceedings of the board are silent as to adjournments, the certificate is insufficient for uncertainty, and increased assessments based thereon are void as to the increase, since it cannot be presumed that the review certified to have occurred October 10th was under the notice for September 28th.
    2. Same — Adjournments—Parol Evidence — Sufficiency.
    Testimony by the presiding officer of the board and the minutes of an unofficial stenographer, transcribed long after the record of the action of the board was made, to the effect that at the close of each day’s proceedings an adjournment was publicly announced to the date of the next session, will not serve to validate the certificate and record, in which no adjournments are shown, since such a holding would be permitting the levy arid assessment of taxes to be founded uponparol.
    Appeal from Wayne; Hosmer, J.
    Submitted June 15, 1906.
    (Docket No. 114.)
    Decided September 20, 1907.
    . Bill by the Delray Land Company, Limited, and others, against the township of Springwells, Harry Stansfield, supervisor of said township, and the board of State tax commissioners, to set aside certain assessments. From a decree for complainants, defendant board appeals.
    Affirmed.

      Russel, Campbell & Bulkley and Angelí, Boynton, McMillan & Bodman, for complainants.

      John E. Bird, Attorney General (Charles W. McGill and Fred N. Twiss, of counsel), for defendant board of State tax commissioners.
   McAlvay, C. J.

Complainants, who are the owners of certain real estate situated in the township of Spring-wells, Wayne county, filed a bill in chancery alleging that the action of the defendant board of State tax commissioners by a general review of the assessment roll of said township for the year 1903, in making a horizontal raise upon the entire lands upon said roll (except certain properties specially reviewed) of 125 per cent, over the assessments as made by the supervisor, is illegal and void, a cloud upon complainants’ title, fraudulent and unconstitutional. The bill prays that such assessments so fixed by said board may be decreed void, and all proceedings thereunder, in so far as they purport to create a lien upon complainants’ lands, or a personal obligation against them, be canceled and set aside and the cloud removed from their title; that the assessments of the supervisor be decreed to be the only correct basis for levying taxes upon said lands.

The action of the defendant board was taken under sections 152 and 153 of the general tax law (Act No. 154, Pub. Acts 1899) and the orders and certificates made upon the general and special reviews and the certificates attached to the roll by said board of its action under said sections in form and substance are the same as those considered by this court in Bialy v. Bay City, 139 Mich. 495. In the case at bar the claim is made as is made in the Bialy Case, supra, that the certification by the board was not sufficient, by reason of uncertainty, and that the cases cannot be distinguished. It is urged on the part of defendant board that the cases are distinguishable in that there is testimony in the record in this case which shows that at the close of each day’s proceedings an adjournment was publicly announced to the date of the next session.

The notice published under the statute fixed the review to be held September 28th. The certificate made October 10, 1903, states that the review was had on the 28th and 30th of September and the 8th and 10th of October, 1903. The only notice of this general review was the one pub-fished fixing the review for September 28th. The testimony shows that an oral adjournment was had from time to time until October 10th, when the board finally adjourned. Section 146 of the tax law requires an official record of all the proceedings of the board. This record is silent as to these adjournments, as is also the certification of the board. The proofs of the adjournments rest in the testimony of the presiding officer of the board and the. minutes of a stenographer (not official) which were transcribed long after the record of the action of the board in this matter was made.

We do not think that this case is distinguishable from the Bialy Case, and hold that the certification is not sufficient, by reason of uncertainty. We said in that case:

“We cannot presume that the review certified to have occurred October 6th was under the notice for September 19th. The record made by the board does not warrant such presumption.”

To hold otherwise would be permitting the levy and assessment of taxes to be founded upon parol. This cannot he done. 1 Cooley on Taxation (3d Ed.), p. 576; Moser v. White, 29 Mich. 59; Rogers v. White, 68 Mich. 10, and cases cited.

Other questions of interest and importance which are discussed in the briefs of able counsel need not be considered, except as to the relief to which complainants are entitled. Upon this matter we agree with the learned circuit judge who heard the case, and hold that the tax is void as to the excess created by the action of the board of State tax commissioners over 'and above the original assessment. Avery v. City of East Saginaw, 44 Mich. 591; Bialy v. Bay City, 139 Mich. 495.

The decree of the circuit court is affirmed, with costs of this court.

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


author: Ostrander, J. Blair, J.

text:
    CLARK v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Railroads — Fires—Cause of Fire — Evidence—Sufficiency.
    In an action against a railroad company for damages caused by fire alleged to have been set by its locomotive, evidence examined, and held, circumstantially sufficient to go to the jury on the issue whether defendant’s locomotive set the fire, there being proximity of time and place.
    2. Same — Negligence—Locomotive—Equipment and Management — Unoontradicted Evidence — Effect.
    In an action against a railroad company for damages caused by fire set by its locomotive, testimony for defendant to the effect that the locomotive was properly equipped and managed, if uncontradicted, is conclusive, under section 6205, 2 Comp. Laws, and is not to be measured against an alleged presumption of improper equipment or of improper management arising upon the fact that the locomotive set the fire.
    3. Same — Willful Injury — Cutting Fire Hose — Liability of Company.
    Where a fire hose is necessarily laid across a railroad track 1 r the purpose of extinguishing a fire, and trainmen, with warning of the presence of the hose, unnecessarily run upon and cut it, the railroad company is liable for the property destroyed in consequence of the delay in procuring water caused by that act; but the company’s servants are not chargeable with negligence in not looking for and discovering the hose, and an instruction which bases liability on constructive knowledge of the presence of the hose is erroneous.
    Error to Eaton; Smith, J.
    Submitted October 9, 1906.
    (Docket No. 24.)
    Decided September 20, 1907.
    Case by Sarah P. Clark against the Grand Trunk Western Railway Company for negligently burning plaintiff’s buildings. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    In three counts of plaintiff’s declaration it is charged that fire from one of defendant’s locomotive engines was negligently cast upon and set fire to the premises of plaintiff. In a fourth count the charge is that the same premises being found to be on fire, the fire company of the city had attached a hose to a nearby hydrant, laid the hose across the defendant’s tracks, in a street there crossing said tracks, and was about to and could easily have extinguished the fire but for the act of servants of defendant in negligently running another locomotive engine and cars over and upon the hose, cutting and destroying it, delaying the firemen until the conflagration had reached a stage where it could not be controlled. The plea was the general issue. The case went to the jury upon both, charges and a general verdict for plaintiff was returned, upon which judgment was entered. The substance of all the evidence given upon the trial is returned, and the errors assigned, and relied upon by counsel for defendant, present three principal questions:
    (1) Whether there is any evidence that defendant set the fire.
    (2) Whether the evidence that the engine was in proper condition and properly managed (2 Comp. Laws, § 62'95) required the trial court to withdraw the question of its condition and management, and the one of defendant’s liability for setting the fire, from the jury.
    (3) Whether there is any evidence of negligence in cutting the fire hose, and, if there is, whether there is resulting liability to pay for the damage done by the fire.

      H. Geer, for appellant.

      Barger & Hicks and Frank A. Bean, for appellee.
   Ostrander, J.

(after stating the facts). 1. The fact that the fire was set, as alleged, must be proved; not, necessarily, by the testimony of an eyewitness, but by evidence which reasonably leads an inquiring and unbiased mind to the conclusion that a cinder from the particular engine caused the fire. The evidence is not sufficient if it establishes no more than that the fire might so have been set.

“The origin of a fire under such circumstances must be established so as to produce conviction, to a reasonable certainty, on an unprejudiced mind, the same as any other fact; and, until there is evidence to so establish it, the defendant is not called upon to prove that the fire was not caused as alleged.” Finkelston v. Railway Co., 94 Wis. 270.

The evidence presented to support the inference that the fire was set, as alleged, is in substance here stated, and, where there are variations, in form most favorable to plaintiff. The defendant’s tracks run, at the place in question in the city of Charlotte, from the northeast to the southwest, and plaintiff’s premises are south and east of the tracks. On the morning of November 9, 1903, an alarm of fire was turned in at about 1:48 o’clock, by whom is not shown, and a fire was discovered by those who responded to the alarm in the southwest corner of a shed 70 feet long and from 15 to 20 feet high from ground to peak of roof, running substantially parallel with defendant’s tracks and connected with a larger and main building by a covered passage and a door. There were grass and papers and other debris along the right of way and near the shed which was about 35 feet from the track on which the train, hereinafter referred to, was running. It is not claimed, however, that the fire was set otherwise than by a cinder or spark carried in the air to or upon the shed. The wind was blowing quite strongly from the southwest — that is to say, up the right of way in a direction opposite to the one the train was moving. It was very dry, the shed was built of wood, was old and dry. The shingles were warped.

“I could not tell whether the fire was on the side of the building next to the railroad or whether it was on the top of the building. * * * The blaze was coming from the southeast (probably meaning southwest) corner of my rim shed. * * * It was apparently all on the outside of the building or near the roof or on the roof. * * * It was in the southwest corner of the shed. I first discovered the fire in the southwest corner of the rim shed. * * * It seemed to be in the southwest portion of it. * * * In the .southwest corner of the rim shed. A small blaze was on the outside of the building and seemed to be eating towards the roof. * * * It was in the corner of those sheds. * * * I couldn’t say where the fire was in reference to this building except that I knew it was in the end of the rim shed somewhere. * * * Was on the south and west side of those sheds. * * * There was some fire on top. I didn’t think there was any on the inside. I didn’t go in. * * * In the southwest corner of the sheds. * * * It was on the outer portion of the works next to the track and in the roof. * * * The fire had started in the rear of the building at the southwest corner. * * * The fire was in the southwest corner of the rim shed; apparently on the outside of the building, running up into the roof.”

These are statements of various witnesses for plaintiff, including the owner, her employé, and the firemen, about the position of the fire when first seen by them. About 15 or 30 minutes before the alarm of fire was given, a passenger train .went west on defendant’s road. None of plaintiff’s witnesses saw it. There is testimony to the effect that the engine was puffing very hard and seemed to be going fast; this from witnesses who were, at the time, indoors. No one on the train saw any fire in plaintiff’s shed. No evidence was introduced on the part of the plaintiff to prove the condition, equipment, or management of the locomotive. Plaintiff’s premises, the rear of which abuts upon the railroad right of way, are near the intersection of Sheldon street and Foote street, about 800 feet to the west or southwest of the railroad station.. There are a number of buildings used for residences and for other purposes in the immediate vicinity. No testimony was introduced tending to prove that the fire was set in any way other than as claimed by plaintiff. Counsel for plaintiff argue that the testimony introduced by defendant upon the subject of the integrity and management of the locomotive on the night in question furnished, some of it, support for inference that the fire originated in the manner alleged in the declaration. We need not set it out because we have already made it appear that we should not say there is no testimony upon the subject to go to the jury under proper instructions. The locomotive carried fire. The testimony is that an engine in first-class condition and properly managed will emit sparks. The conditions described were favorable to the setting of ' such a fire as was discovered. There was proximity of time and of place.

2. The testimony for defendant to the effect that the locomotive was properly equipped and managed is not contradicted and is conclusive unless, as counsel for plaintiff insist, it is to be measured against an alleged presumption of improper equipment or of improper management arising upon the fact that the locomotive set the fire. This court has recently construed and applied the statute, 2 Comp. Laws, § 6295, adversely to the contention of the plaintiff here. Dolph v. Railway Co., ante, 278. If upon the whole case there is room for inference, based upon evidence, that equipment was defective or that management was improper, the case is for the jury. Whether in any case the fact of setting a fire would be any evidence of infirmity of apparatus or of improper management, must depend upon other facts and circumstances, in evidence.

In the case at bar, no peculiar conditions calling for any unusual care in managing the locomotive were present. Counsel say a conflict of evidence is made by, or room for inference of defective equipment or improper management found in, (1) the testimony of the fireman that he put in coal while passing through Charlotte, the open door of the fire box tending to increase the draft; (2) the evidence that the engine had not before or after the occasion set fires; (3) because the engineer did not inform the jury about “where were the levers,” how wide open was the throttle, how he was handling the engine, what he was doing to it, were the drivers slipping opposite the premises in question, how heavy was the train, how much steam was used; (4) the testimony of defendant’s experts that an engine in good repair could not throw sparks a distance of 30 feet and set a fire; (5) the testimony of two of plaintiff’s witnesses who heard the train and thought it was going fast, though the engineer said it was running no faster than 12 miles an hour; (6) the evidence that the slipping of the drivers and the weight and speed of the train would be facts indicating whether sparks were given off in greater or smaller quantity. Some of these claims are altogether unsupported by the record, as will be pointed out. Briefly summarized, the testimony on this point is as follows:

The train in question reached Charlotte at 1:27 a. m., leaving at 1:30; its engine, numbered 988, was assigned to the defendant by the Grand Trunk Railway Company of Canada in May, 1903, and had been thereafter used to draw passenger trains between Port Huron and Chicago; the engine had a spark arrester, made of No. 10 wire, with meshes 2£ by 2& to the square inch, which is as small as experience shows can- be used and have an engine steam properly; each engine was washed out after being run 1,000 miles, and a thorough examination made of the fire boxes, netting, smokestack, etc.; there is also a monthly inspection of all engines and the fire boxes and the dampers are examined before every trip. Engine No. 988, according to a record kept by defendant, had her first washout May 17,1903, and was then in first-class condition as to nettings, diaphragm plates, baffle plates, fire box, and smokestack. A record produced at the trial showed an inspection on November 6, 1903, which disclosed smokestack, netting and plates, ash pans and dampers in good condition. A further inspection was made November 16, 1903, at which time it was in good condition. The engineer in charge on the morning of November 9, 1903, testified that on that trip, which began at 9:00 p. m. on November 8th, at Port Huron, the engine was in good condition; that it was running no faster than 12 miles an hour as it passed .plaintiff’s premises, and that he was handling it in a careful manner. His next trip on the engine was on November 14th, and at that time it was in good condition. Meantime, and on the night of November 9th, another engineer took the engine out and found it iñ first-class condition. The fireman testified that on the morning in question, on leaving the station at Charlotte, and following his usual custom in leaving a station, he put in from five to seven shovels of coal, which would have a tendency to smother the fire, cause more smoke to escape, but no sparks.

There is no testimony that an engine in good repair, equipped as this engine was, will not throw sparks 30 or 35 feet and set a fire. The testimony, that of the master mechanic, is:

Q. Do you think an engine on your road, in good repair, properly handled, would emit sparks through this device with sufficient life to set fire ?

“A. I hardly think so.

“ Q. Your opinion is, as a master mechanic, an engine on your road, equipped with this device, in good shape, would not throw sparks of sufficient vitality to cause a fire ?

“A. It is possible that they would in some instances.

‘! Q. What would you say now as to whether an engine upon your road equipped with the spark-arresting device which you have described, in good repair and properly handled, would throw live sparks and cinders a distance of 30 or 40 feet and the cinders retain enough vitality or life to set a building on fire, if dry ?

‘ ‘ Objected to as being guesswork. Ob3'ection overruled. Exception for defendant.

“A. If it would do this I wouldn’t think there would have to be anything the matter with the engine. However, if there was a hole in the screen it would have more of a tendency to emit sparks than otherwise.” •

The undisputed testimony is, too, that this locomotive had, so far as was known, never before and never since •set a fire.

The other contentions noted are disposed of by what has already been said, except, perhaps, the one that the engineer did not, in detail, state how he was managing the engine. He had had 15 years’ experience as engineer, the testimony showing him to be a first-class man. While proper management, to excuse liability, is a fact to be shown affirmatively, the omission to relate some small detail of management will not be regarded when counsel for plaintiff do not call for it and when neither the court nor jury can know or assume that the missing detail is material. He did state the speed at which he was running, said that he was not in haste, having plenty of time, that his engine was all right, and that he was running her in a careful manner, but had no particular recollection what he did on that night different from any other night. Defendant’s evidence is conclusive that machinery, smokestack, and fire boxes were in gooc[ order and properly managed, unless it can be said that the mere fact that a fire was set by the engine in plaintiff’s building 35 feet, from the track is conflicting evidence. For reasons which have been stated, we are of opinion there was no conflict in the evidence.

3. A wagon carrying 800 feet of hose was used by the fire department and driven north on Sheldon street to Foote .street, which makes, with Sheldon, a right angle. On the corner is a hydrant. One of the firemen alighted and connected the hose to the hydrant, the wagon meantime turning west into Foote street, laying the hose behind it and crossing the tracks of defendant’s road, which were laid diagonally across the street. It seems to have been the plan to approach the fire from Foote street and the right of way of defendant. Defendant has more than one track at this point and the hose wagon passed some 15 or 20 feet beyond them before stopping. A freight train was at the moment slowly approaching this crossing from the west and it ran upon and cut the hose before water had been turned on, and before the hose could be disconnected and removed. This cutting of the hose is said to have been an act of negligence, resulting in such loss of time that it may be considered the proximate cause of plaintiff’s loss. As we have con-eluded that the case was improperly submitted to the jury upon the first ground of recovery declared upon, and as it is not possible to tell upon which of the grounds declared upon the jury gave its verdict, the judgment must be, in any event, reversed, and h new trial granted. Leitch v. Railway Co., 93 Wis. 79; Patton v. Wells, 121 Fed. 337. It is proper to say, however, and we are of the opinion, that upon a new trial, if the evidence shall satisfy the jury that there was no other efficient way to procure water to extinguish the fire, the hose was rightfully laid across the tracks. If defendant’s servants, in charge of the freight train, had notice and warning of the presence of the hose on the tracks (they deny having any notice), and had no occasion for haste, and might have stopped the train, instead of doing which they carelessly ran upon and cut the hose, and the cutting of the hose occasioned such delay in procuring water that the destruction of plaintiff’s property was the direct and necessary result of such carelessness, plaintiff may recover upon the second ground set up in the declaration such damages as were consequent upon such delay. Metallic Compression Casting Co. v. Railroad Co., 109 Mass. 277; Little Rock Traction & Electric Co. v. McCaskill (Ark.), 70 L. R. A. 680. Defendant’s servants cannot, however, be charged with negligence in not looking for and discovering the hose. Whatever the true rule may be in this regard in cases of traction companies operating a railway in the streets of a city, it would be a hard rule which required those in charge of trains on steam roads to watch for and discover, especially in the night, such obstructions upon the track. In the cases cited, as in Mott v. Railroad Co., 1 Rob. (N. Y.) 585, in which a different rule is laid down, the hose was, when cut, filled with water and the plaintiff, in each case, immediately deprived of a means of putting out tbe fire. In the present case, the hose was attached to the hydrant and- a man stood ready to turn on the water when he should receive the signal so to do. So far as the question of proximate cause is concerned, the same rule should be applied in both cases. The court was in error in giving the jury the following instruction:

“ To entitle the plaintiff to recover on this branch of the case, you should be satisfied by a preponderance of the evidence that Mr. Martin, the engineer in charge of the freight train, knew or ought to have known that the hose was across defendant’s track, and that such knowledge was brought, or should have been brought, to his attention by reasonable diligence on his part in time for him to have stopped his train before reaching the hose lying across the defendant’s track.”

Objections were made to the argument of counsel for plaintiff to the jury and they are pressed in this court. It is not likely the'same situation will be again presented, and we need make no comment.

The judgment is reversed, and a new trial granted.

Grant, J., concurred with Ostrander, J.

Blair, J.

We concur as to the third point. As to the second point we think there was a question of fact for the .jury.

Montgomery and Hooker, JJ., concurred with Blair, J.


text:
    HOLMES v. LOUD.
    1. Taxation — Tax Titles —Redemption—Persons Entitled — Waiver by Tax Title Holder.
    By accepting from the holder of the original title to lands the-amount of the tax, together with the 100 per cent, and costs, and deeding the land to him, a tax title holder' waives his-right to raise the question whether the holder had a right to redeem on account of the deeds under which he claims not being recorded.
    2. Assignments — Rights Assignable —Action for Trespass — Treble Damages.
    The right of action for treble damages for cutting timber, given by seotion 11204, 3 Comp. Laws, arises from an injury to the estate, and not to the person; of the owner, and would pass to the personal representative of a deceased owner, and is therefore assignable.
    3. Taxation — Tax Title — Redemption — Time — Expiration of Period — Service of Notice.
    Sections 140, 141, and 142 of the general tax law (1 Comp. Laws, §§ 3959, 3960, 8961) are to be construed together, and the periods of six months mentioned in each of them are coterminous, whence it follows that under section 142 a tax title purchaser is not entitled to possession until six months after the return of service oí- the notice to redeem provided by section 140, and a purchaser entering b.efore the expiration of that period is a trespasser.
    4. Trial — Argument of
    Counsel — Prejudice.
    Where plaintiffs counsel, in his argument to the jury, commented upon the wealth, character, and influence of defendants, charged witnesses with holding appointments secured by defendants and with being under defendants’ influence and not daring to testify against them, charged defendants and their employés with coercing a witness with a political job to win, and made many other statements of a like character, the judgment will be reversed.
    Error to Alpena; Emerick, J.
    Submitted October 19, 1906.
    (Docket No. 103.)
    Decided September 20, 1907.

      Trespass quare clausum fregit by George B. Holmes and John Nicholson, copartners as Holmes & Nicholson, against Henry N. Loud, George A. Loud, and Edward F. Loud, copartners as H. M. Loud’s Sons Company. There was judgment for plaintiffs, and defendants bring error.
    Reversed.

      De Vere Hall, for appellants.

      Joseph H. Cobb, for appellees.
   McAlvay, C. J.

Plaintiffs sued defendants in the circuit court of Iosco county to recover damages for injury to the freehold of certain lands asserted to be owned by them, such injury having been caused by defendants wrongfully entering upon said lands and cutting down and carrying away the timber standing thereon. Plaintiffs declared in trespass upon section 11204, 3 Comp. Laws, which provides for the recovery of treble damages. By stipulation the case was transferred to and tried in Alpena county. A verdict was rendered in favor of plaintiffs for $3,461.60. Certain special questions were answered by the jury, by which it was determined that a judgment for treble damages could not be entered, and judgment was duly entered for the amount above given, assessed by the jury.

Upon the- errors assigned by defendants, the first proposition discussed is that plaintiffs could not maintain this action, for the reason that at the time the alleged trespass .and injury were committed they had no such title to the premises, or right under the assignment of right of action, as would entitle them to a recovery. . .

The claim of plaintiffs to the title of these lands was the original title from the United States through regular transfer to Jonathan L. Clutton, and by conveyances from Clutton to Hannah Vaughn, February 9, 1899; from Hannah Vaughn to Fred P. Obenauer October 22, 1902; from defendant H. N. Loud to Obenauer'February 10, 1903; from Obenauer and wife to plaintiffs November 30, 1903. Plaintiffs, also had a bill of sale from Obenauer dated October 3, 1903 (claimed by Obenauer in his testimony this date was an error and should be October 33), of all standing timber on said lands removed prior to April 1, 1906, and also an assignment of all right of action to recover for the timber cut and removed by defendants, and for all damage to the freehold committed by them, dated December 16, 1903.

Defendants, for their right to enter and take timber from the land, relied solely upon a purchase from the State, represented by a tax deed, claiming that due notice had been served upon Jonathan L. Clutton, the holder of the last recorded title, on July 35,1903, and that the statutory six months in which he could redeem expired January 35, 1903. The record shows that the sheriff’s return of such service was duly filed August 33, 1903. The jury, in answer to a special question, found that defendants cut the timber between January 35, 1903, and February 10, 1903. '

Plaintiffs in their declaration set up the assignment of the right of action relied upon. This suit was commenced February 1, 1904. The court held that there was no evidence in the case disputing the proofs of plaintiffs that Obenauer acquired the original title from Hannah Vaughn, the grantee of Clutton, October 33, 1903. The record supports such holding. None of the conveyances to plaintiffs were claimed by them to have been recorded, except the deed from Clutton to Hannah Vaughn, which, on May 13, 1900, at 6 o’clock p. m., was received and entered for record by the register of deeds for Montmorency county, and such receipt indorsed upon the instrument, but the same was not recorded in the books.

To the objection of defendants that, as the law then was, Clutton alone could redeem, the trial judge properly held that by accepting from Obenauer, who in fact was the holder of the original title at the time, the amount of the tax, together with the 100 per cent, and costs, on February 9, 1903, and deeding the land to him on the next day, defendants had waived all right to raise any question as to the regularity of the redemption, and he further held that the time of redemption did not expire until six months after the sheriff’s return of service of the statutory notice had been filed. This, was in accord with the holding of this court. Pike v. Richardson, 136 Mich. 414.

The assignment of the right of action is not attacked as to its form or substance, nor is it contended that a right of action for injury to one’s estate is not assignable; but, that this action is to recover damages which are punitory or exemplary, and the right of action would not pass to the personal representatives of a deceased owner, and is therefore not assignable. We do not agree with the defendants. The injury, if any, was to the estate and not to the person of the owner, and would pass to the personal representatives of a deceased owner. The cause of action was assignable. Gates v. Comstock, 107 Mich. 546, citing Final v. Backus, 18 Mich. 218, 231, and Grant v. Smith, 26 Mich. 201.

Referring to the dates of service of notice and the filing of the return of the sheriff, it appears that the time of redemption would expire February 23, not January 25, 1903. It also appears that defendants entered upon the land January 26, and cut and removed timber until February 10, when they deeded to Obenauer, who had paid the amount required by law to redeem. Defendants, urge that, under the law, section 142 (1 Comp. Laws, § 3961), they were entitled to possession of the land upon the expiration of six months after the service of the notice.

This court has construed sections 140 and 141 of the general tax law (1 Comp. Laws, §§ 3959, 3960), holding.:

“ That these two sections should be construed together, and that, so construed, the time for redemption is coterminous with the period during which the holder of the tax title may not take action^ * * * And that, when personal service is referred to in section 141, a service completed by filing a return is intended.” Pike v. Richardson, 136 Mich. 414.

The provisions of these two sections are set forth at length in the opinion in that case. Briefly quoting from them, we find that section 140 provides:

“No writ of assistance * * * shall be issued until six months after there shall have been filed with the county clerk of the county where the land is situated a return by the sheriff of said county, showing that he has made personal service, or until substituted service * * * has been made,” etc.

Section 141 provides that the person who may redeem — ■

“ Shall be entitled to receive from the person so claiming under and by virtue of such tax deed, at any time within six months after the personal service of such notice, or the date of mailing said notice by registered letter, * * * a reconveyance of such interest in such lands,” etc.

Section 142, relied upon by defendants to support their entry upon the land, provides:

“No purchaser under any tax sale hereafter made, * * * shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections.”

By its terms the construction of this section depends upon the construction already given to the preceding sections in Pike v. Richardson, supra.

Such construction gives harmony to the operation of the provisions of all of these sections, and gives expression to the clear legislative intent that the periods of six months mentioned in each of them should be coterminous. Under this construction defendants were trespassers. Corrigan v. Hinkley, 125 Mich. 125; Huron Land Co. v. Robarge, 128 Mich. 686; Adkin v. Pillen, 136 Mich. 682; Griffin v. Kennedy, 148 Mich. 583. The court therefore was not in error in holding that plaintiffs were entitled to recover and that the only question for the jury was to find the amount of the damages sustained by plaintiffs.

The questions raised upon errors assigned upon the admission or exclusion of evidence bearing upon the question of damages, in view of the fact that a new trial will be granted, need not be discussed. If error in this regard has occurred (which we do not concede) there is no probability that it will be repeated upon a new trial.

During the pendency of this case before this court, application was made by defendants to amend the bill of exceptions in order to show the prejudicial argument of plaintiffs’ counsel on the trial of the case. The court made an order that the argument be printed as part of the bill of exceptions. The portions objected and excepted to cover too much space to be repeated. During the course of the trial the court cautioned plaintiffs’ counsel as to making improper remarks, saying that he would let attorneys of experience take the consequences of such conduct, and that he would not attempt to cure such rank errors and save verdicts. Counsel did not profit by this caution, but in the argument to the jury went to an extreme, in the language used, which this court in its decisions has said cannot and will not be tolerated. This argument seems to have been purposely made to improperly influence the jury. The wealth, character, and influence of defendants were commented upon. Witnesses were charged as being under defendants’ influence and not daring to testify against them. Witnesses were charged with holding appointments secured by defendants and therefore their testimony was unreliable. Defendants and their employes were charged with coercing a witness to do certain things with a political job to win. Many other statements were made of like character, grossly prejudicial to defendants. It is unnecessary to cite the cases where this court has held that such arguments constitute reversible error. All of these comments were uncalled for, and entirely outside of any evidence in the case.

The case is reversed on account of such prejudicial arguments, and a new trial is granted.

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


author: Moore, J. Carpenter, J.

text:
    MEAGHER v. COWING.
    Sales — Action for Price — Passing of Title — Remedies of Seller.
    Defendant ordered of plaintiff ten cars of crushed stone, which plaintiff shipped consigned to himself, and ordered the carrier to deliver to defendant. The cars were placed at defendant’s order and after several days defendant learned that the stone was not suitable for the purpose for which he ordered it, and canceled the order. Plaintiff reshipped the stone to his place of business and sued.for the price. Held, that on delivery of the stone, which conformed to the contract of sale, to defendant, the title passed to him, and that plaintiff had a right to retain the property for defendant and sue for the contract price and the necessary expense of removing same from defendant’s custody. Moore and Blair, JJ., dissenting^.
    Error to Saginaw; Gage (Cbauncey H.), J.
    Submitted February 21, 1907.
    (Docket No. 66.)
    Decided September 20, 1907.
    Assumpsit by Ignatius Meagher, William J. Meagher, and Nicholas Meagher, copartners as Meagher Bros.,, against John P. Cowing for goods sold and delivered. There was judgment for plaintiffs for less than the amount claimed, and they bring error.
    Reversed.

      Albert McClatchey, for appellants.

      Weadock & Weadock (Miles J. Purcell, of counsel), for appellee.
   Moore, J.

This is an action of assumpsit. The declaration was the common counts with a special count setting forth the terms of the contract involved in the cause, the violation thereof by .defendant, and the nature of the damages sustained by plaintiffs. A bill of particulars was demanded and filed as follows:

“Please take notice that the following is a bill of particulars of the plaintiffs’ demand in this cause and for the recovery of which this action is brought, to wit:

' ‘ 352 yards of crushed stone, delivered at Saginaw
.....-......................................- §475 20
Railroad company’s charges for removing 10 car loads of stone from defendant’s siding to
place of unloading--...................... 199 98
Cost of unloading 10 car loads of stone........ 33 65
18 days’ car service............................ 18 00”

The plea was the general issue with notice to the plaintiffs that the defendant would show that the stone was not of the quality ordered, and was not suitable for the work for which it was purchased, and that plaintiffs well knew the work defendant intended to use it in and that it was not suitable.

After the plaintiffs had closed their proofs, the defendant moved for a verdict in his favor. The judge was of the opinion that the cost of unloading the stone was a proper charge against the defendant, and so instructed the jury. He also instructed them the charge of $18 for detention of cars was a proper charge against defendant. While he was doing this, counsel for defendant called his attention to the fact that there was no evidence that Mr. Cowing was in any way responsible for the detention of the cars, or that they were in his possession; we quote from the record:

“ There isn’t a scintilla of evidence as to how many days these cars were in Mr. Co wing’s possession before they were notified to take those cars away. There isn’t any evidence there—

“The Court: Well, the court can correct that after-, wards.

“Mr. Purcell: Very well.

“The Court: Now your verdict should be in favor of the plaintiffs in this case for the sum of fifty-one dollars and sixty-five cents, under the undisputed evidence.”

Counsel for plaintiffs asked the court to instruct the jury that plaintiffs might recover the amount of. tfie freight bill from Alpena to Saginaw, $201.64, and from Saginaw to Bay City, $199.98, and also for 352 yards of stone at $1.35 a yard. The judge held plaintiffs could not recover any of the three items. Afterwards a motion was made to remit from the verdict the $18 for the reason that there was no evidence to support it. Notice of this motion was given to counsel for plaintiffs. He did not appear upon the hearing of the motion and the amount of verdict was reduced $18. The case is brought here by writ of error.

It will be observed .that as to the item of $201.64, it does not appear in the'bill of particulars, and we may dismiss it from further consideration. We think, too, in view of the fact that when the judge suggested that if there was no evidence upon which to base a verdict for the $18 item, he could afterwards correct it, and counsel made no suggestion of disapproval, and the further fact that when the motion was made he did not object, that his objection as to that item will not be heard now.

Counsel now say that, as there was no market for the stone at Saginaw, and they were compelled to take the stone to Bay City, they should have been allowed to recover the contract price of the stone, less its value in Bay City. If there was no other objection to this claim it would be a complete answer to it to say that there is no such claim in the bill of particulars.

The important question in the case is whether the title to the stone passed to the defendant so that plaintiffs are entitled to recover the full contract price therefor. Counsel contend with great earnestness this question should be answered in the affirmative, and cite many authorities which they claim sustain their position. Before the question can be answered intelligently it becomes necessary to learn what the facts are. The defendant was a contractor doing bridge and other work in the city of Saginaw. The plaintiffs live in Bay City dealing in coal, wood, masons’ supplies and are agents for Alpena crushed stone. They received an inquiry by telephone about crushed stone from defendant; they told him they could supply him at $1.35 a yard f. o. b. at Saginaw, but would require a written order. He sent them one reading as follows:

“John P. Cowing, Contractor and Engineer,

“423-427 Citizens’ Building, Cleveland, Ohio.

“ Order No. 2341. Put this number on your invoice.

“Saginaw, 10-18-’05.

“To Meagher Bros.,

“ Bay City, Michigan.

“Please deliver via P. M. R. R. the following articles:

Description Charge to

10 cars crushed stone Contract No. 18.

“ Confirming order by Manary,

“ John P. Cowing,

“PerR. A. CORRIGAN.

“Mail invoice immediately on shipment of goods. For each order render separate invoice, our number must appear on each invoice.”

Upon receipt of the order it was sent to Alpena and the ten car loads of stone were sent forward billed to Meagher Bros., the last car was shipped on the 24th day of October, some of them reaching Saginaw as early as October 23d, upon which date the defendant telephoned the plaintiffs that the stone was'at Saginaw, but the freight agent refused to deliver it to him because it was billed to Meagher Bros. The plaintiff said: “ Why I can fix that all right; I will give the freight agent an order transferring those cars over to you.” The defendant said,. “All right.” The plaintiff telephoned the freight agent to • deliver the cars to the defendant and the freight agent said he would do so at once. The plaintiff also sent the following written order:

“Bay City, Mich., October 23, 1905.

“C. Harsch,

“ P. M. Freight Agent,

“Saginaw.

Dear Sir: Kindly place all cars billed to us at Saginaw (crushed stone loads) on Wall and Webber’s switch on orders of John P. Cowing, contractor.

“Yours very respectfully,

“Meagher Brothers.”

And afterwards the defendant caused the railroad company to place a number of the cars on his siding. The plaintiffs he'ard no more of the matter until they received the following letter:

“Saginaw, Mich., 10-25, 1905.

“Meagher Bros.,

“Bay City, Mich.

“Gentlemen: We have received on our switch at South Saginaw four cars of your stone. However, the stone is such a poor quality that we cannot use it in our construction, so therefore under the condition we will have to cancel our order of Oct. 18, ’05, order number 2341. Please take this matter up as it will be to your interest to do so.

“ Yours truly,

“John P. Cowing.”

After receiving this letter plaintiffs’ bookkeeper telephoned to William J. Meagher, telling him that the ten car loads of stone were at Saginaw and were refused by the defendant, and requested him to look after the matter as Ignatius Meagher, who had charge of the transaction up to this point, was away. William J. Meagher went to Saginaw to learn what the trouble was. On his arrival at Saginaw he talked with the city engineer before seeing the defendant, and was told by him that the specifications barred out Alpena stone. He then went to the defendant’s superintendent, Mr. Manary, and was told by him that it was not crushed stone, but was refuse from the quarry and that they would not accept it. The parties had a quarrel. Three or four days later Mr. Meagher had the stone shipped to Bay City and unloaded. N o effort was made to sell it in Saginaw and no statement was made to defendant’s superintendent that the stone had been delivered and title had passed, nor was he consulted about what should be done with the stone. Upon the trial no proof was made as to the market value of the stone at Saginaw at this time.

Counsel says the stone was shipped to Bay City because the city was the principal user of crushed stone in Saginaw, and the city engineer, who was required to approve of all material used, told William J. Meagher that the specifications called for Bayport stone, and that he would not allow Alpena stone to be used in any city work, that the testimony shows that at the time defendant refused this stone there was no market anywhere for it, owing to the lateness of the season, and that it could not be sold at all unless some one would take it on speculation at 50 or 60 cents a yard for the purpose of holding it over until the nest season, and that plaintiffs did not have any place in Saginaw or down town in Bay City where they could have unloaded and stored it, and for that reason unloaded it where they did.

Upon this statement of facts can it be said plaintiffs were entitled to recover the full contract price ? It must not be forgotten that when the stone was ordered defendant had never seen it. • It was not until it reached him that he refused to take it for the reason stated in his letter. Plaintiffs now claim and claimed upon the trial that the stone was of good quality. If when they received the letter they had informed defendant that they had filled his order and refused to have anything to do with the stone and should look to him for the contract price, a very different question would be presented from the one now before us. They did not do this, but took the stone back into their possession; made no effort to sell it, and at the time of the trial still had it in their possession. The plaintiffs themselves did not treat the transaction as a completed contract and the court cannot do so.

Judgment should be affirmed.

Blair, J., concurred with Moore, J.

Carpenter, J.

The facts in this case are sufficiently stated in the opinion of Justice Moore. The determining question is whether plaintiffs are at liberty to treat the transaction as a sale of the ten cars of crushed stone. When this crushed stone, which conformed to the contract of sale, was turned over to defendant, the title passed. Indeed, I am not sure that it did not pass when it was delivered to the railway company for carriage. See Kuppenheimer v. Wertheimer, 107 Mich. 77; Althouse v. McMillan, 132 Mich. 145. The circumstance that the defendant had an implied right to reject the same because it did not conform to the contract does not affect the principle. If it did conform to the contract — and the testimony shows that it did in this case — the title passed. This is settled by the above authorities.

It is contended, however, that plaintiffs cannot treat the transaction as a completed contract, because they took the stone back into their possession and made no effort to sell it. To this qontention I cannot agree. Mr. Mechem, in his work on Sales (section 1618), quotes with approval from Dustan v. McAndrew, 44 N. Y. 72, as follows:

“ The vendor of personal property in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself: (1) He may store or retain the property for the vendee and sue him for the entire purchase price; (2) he may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) he may keep the property as his own and recover the difference between the market price at the time and place of delivery, and the contract price.”

The plaintiffs in this case chose the first of said remedies. They had a right to choose it and therefore it was error for the trial court to instruct á verdict against them.

If, when the case is tried, plaintiffs continue to hold this property for defendant, they will be entitled to recover the contract price and the necessary expense of removing the same from defendant’s custody.

It follows that, in my opinion, the judgment should be reversed, and a new trial ordered.

McAlvay, C. J., and Grant, Montgomery, Ostrander, and Hooker, JJ., concurred with Carpenter, J.


author: McAlvay, C. J. Carpenter, J.

text:
    MERRILL v. LEISENRING.
    1. Husband and Wife — Alienation of Affections — Issues— Evidence Admissible.
    In an action by a husband for alienation of his wife’s affections by means other than adultery, evidence of facts and circumstances tending to prove adultery is not admissible to show the relations of the parties.
    2. Same — Letters—Admissibility.
    Letters written by plaintiff’s wife before the alleged alienation of her affections are admissible for the purpose of showing that on account of plaintiff’s conduct she had already ceased to care for him.
    Error to Van Burén; Des Voignes, J.
    Submitted February 21, 1907.
    (Docket No. 131.)
    Decided September 20, 1907.
    Case by James A. Merrill against David C. Leisenring for alienating the affections of plaintiff’s wife. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      W. W. Holmes, James E. Chandler, and Harry C. Howard, for appellant.

      H. T. Cook and Thomas J. Cavanaugh, for appellee.
   McAlvay, C. J.

Plaintiff sued defendant for alienation of the affections of his wife and recovered judgment for $4,500. The declaration in the case was in two counts. Thefirst countcharged adultery. The second count charged alienation of affections by means other than adultery. Upon the trial of the case, plaintiff abandoned the count charging adultery and announced that he would rely only upon the second count.

Defendant was the owner of a fruit farm near South Haven, and plaintiff with his family was a tenant of defendant. He was hired November 1, 1901, to work this place for one year with the understanding that after the first year he was to continue for two years more, provided they agreed, and either was to have the privilege on notice in case of disagreement to terminate the relation. Defendant had other land where he raised fruit and was engaged in some other business. He maintained a telephone in the house where plaintiff lived, and during the time plaintiff was employed there frequently took meals With his family, paying his wife for them. The theory upon which plaintiff’s case was tried was that defendant became very friendly and intimate with his wife and frequently went to the house in plaintiff’s absence, thereby alienating her affections; that he met her in South Haven and used to take her there in his buggy; that she would go there often to meet him; that these attentions continued after plaintiff moved to South Haven; that his wife separated from him in October, 1904.

The defense was a complete denial of the claims of plaintiff; that plaintiff had always disagreed with his wife; had accused her several years before with criminal intimacy with his cousin, a young man, and that her affections had been alienated from him on account of his own conduct. The case is here upon writ of error.

It is claimed that the court erred in allowing the plaintiff to testify in the case, by reason of the prohibition of the statute (section 10213, 3 Comp. Laws). Defendant insists that the election to proceed upon the second count was a subterfuge for the purpose of procuring the testimony of the plaintiff in the case; that certain testimony he gave in the case tended to show adultery between defendant and plaintiff’s wife; and that it was so intended. Plaintiff testified to some length as to preliminary matters and as to defendant’s attentions to his wife, and proceeded to state that on March 30, 1903, he went to the house and found defendant in the closet off from the spare bedroom; that he pulled him out. He testified:

“We did not say very much. I was going to have him pulled (arrested). I told him he would pay for this dear ■sometime. * * * It was the closet off the spare bedroom, and when I went in my wife was in that bedroom.”

Counsel for defendant moved to strike out this testimony for the reason that its whole tendency was to show carnal knowledge, and that plaintiff could not testify as to that against his wife. Plaintiff’s attorney stated:

“We do not offer it for that purpose, but simply to show the relationship of the parties.”

The motion was denied and defendant excepted. It cannot be disputed but that the tendency of this testimony was to show adultery between these parties. Coming from a witness other than the husband it would have been admissible in this case under the first count as tending to show adultery. If the case had been tried upon that count the husband could not have testified at all. The proposition is that in a case where alienation of affections is claimed by means other than adultery, the husband, because no adultery is charged, may testify to matters directly tending to show adultery, under an offer that the object of the proof is simply to show the relations of these parties, for the reason that adultery is not the only inference which can be legitimately drawn from this testimony. While it is true that this court has held that testimony cannot be excluded which is admissible to show a certain fact in a case, because it may have a tendency to show other facts for which it would not be admissible, yet this court has not said, nor are we cited to any authority which holds, that this rule would be recognized where the witness is prohibited from testifying at all as to facts which such testimony may tend to prove. If a husband may testify at all as to facts which tend to show adultery on the part of his wife, where will the line be drawn to limit such testimony ? It must logically follow that he may testify to any and all facts except actual intercourse between the parties. Such a result is contrary to the spirit of every decision of this court sustaining the provisions of the statute invoked. This court has frequently approved this statute on the ground of public policy and as a protection to the marital relation. The settled law of this State is that neither husband nor wife may testify against the other in any case instituted by either in consequence of adultery. Plaintiff urges that this is not a case instituted in consequence of adultery. In form, as the case was tried, this may be true, but in fact the testimony of plaintiff tended to show the adultery of his wife. The first count of the declaration in this case was evidently abandoned for the sole purpose of qualifying the plaintiff as a witness. Whatever the form of the action may be, under the statute a husband or wife is prohibited from testifying to facts tending to show adultery on the part of the other, for the reason that the introduction of such proof of itself shows that the case is instituted in consequence of adultery. Upon no other ground could the testimony be material. All the evidence in the plaintiff’s case — his own testimony, the testimony that defendant and his wife were together under the trees in the night, and that defendant went into the wife’s stateroom on the stbamer, where after a time he was seen dressing himself— tended to prove adultery on the part of the wife. To the ordinary mind, but one conclusion can be drawn, and that is, the case was instituted in consequence of adultery. The case is clearly within the statute, and plaintiff was not competent to testify as a witness.

As soon as it developed that plaintiff was testifying as to matters tending to show adultery on the part of his wife, defendant promptly objected. His counsel insist that the objection was based upon the statute and was broad enough to cover all of his testimony. Whether it was or not, is not necessary to decide. From this record it appears that he was not a competent witness. As the case must be reversed for the reason already given, attention is called to the question as affecting a new trial. Carter v. Hill, 81 Mich. 275.

Error is assigned upon the refusal of the court to allow the mother of plaintiff’s wife to testify as to the contents of certain letters written to her by plaintiff’s wife before the alleged alienation of her affections by defendant, for the purpose of showing that on account of plaintiff’s conduct she had already ceased to care for him. These letters were material, but sufficient showing had not been made to allow parol evidence of their contents. The testimony was properly excluded.

Under objection and exceptions by defendant, plaintiff was allowed to introduce proof of facts occurring upon a passenger boat plying between South Haven and Chicago, a year after this suit was brought. It was admitted for the purpose of showing intent on the part óf defendant, and the jury were cautioned that it should be considered for no other purpose. The objection was that it was not admissible under the pleadings, and was too remote from the time of commencement of suit. The material part of this testimony tended to prove that defendant, at an early hour in the morning, entered this woman’s stateroom and remained there alone with her for a long time; that one of the witnesses looked through the window from the outside and saw them in there; that she was putting on her hat and he was dressing himself. Under the pleading, proof of adultery was not admissible, because none was charged. Perry v. Lovejoy, 49 Mich. 529, and cases cited. The reasonable, and practically the only, inference to be drawn from this testimony, is that it tended to show adultery. The court erred in admitting it.

It is not necessary to consider other assignments of error discussed, as the questions are not likely to arise upon another trial.

For the errors pointed out the judgment is reversed, and a new trial ordered.

Moore, J., concurred with McAlvay, 0. J.

Carpenter, J.

I agree with the Chief Justice that the testimony of plaintiff tending to prove the adultery of his wife was inadmissible. I differ with him, however, as to the ground upon which we should place our decision. I think we should place it upon the ground that such testimony does not tend to establish the cause of action— alienation of affections by other means than adultery— set forth in the declaration. In short, under the pleadings, such testimony is inadmissible. This is settled by Perry v. Lovejoy, 49 Mich. 529. Placing our decision upon this ground makes it unnecessary to determine whether the testimony was prohibited by that part of section 10218, 3 Comp. Laws, which reads:

“ In any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.”

Upon that question, therefore, I express no opinion.

Except as above indicated, I approve the opinion of the Chief Justice.

Ostrander and Hooker, JJ., concurred with Carpenter, J.


author: Grant, J.

text:
    BROWN v. EVANS.
    1. Husband and Wipe — Criminal Conversation — Adultery— Evidence — Sufficiency.
    In an action for criminal conversation, an instruction respecting adultery that: “Mere opportunity to commit adultery is not sufficient to establish this offense; there must be evidence of such facts and circumstances, times and places, and association together as would naturally lead a man of ordinary care and prudence to the conclusion that such parties were having illicit sexual intercourse. It is not necessary to prove sexual intercourse by direct evidence; proof that the parties occupied the same bed during a portion of one night would be sufficient” — correctly states the law.
    2. Conspiracy — Evidenoe—Supfioienoy. ■
    An instruction that: “A common design or purpose by two or more persons is the essence of the charge of conspiracy, and this common design must be proved either by direct evidence or by proof of such circumstances as naturally tend to prove it, and sufficient in themselves to satisfy you of the existence of such common design, before you can find a conspiracy ”— is a correct statement of the law.
    3. Evidence — Letters—Copies—Admissibility—Presumption on Error.
    Where a letter was traced to the possession of defendant’s wife, who has since deceased, and defendant was given notice to produce it and denied having it, and plaintiff claims in this court that defendant was her administrator and as such the proper custodian of her papers, which defendant denies, claiming his son was administrator, and neither party points out any testimony in the record to sustain his claim, it will be presumed the trial court was correct in excluding a copy.
    4. Husband and Wife — Criminal Conversation — Evidence — Hearsay.
    In an aotion for alienation of affections and criminal conversation, testimony by witnesses as to statements made by plaintiff’s wife to them, detailing acts of extremely cruel conduct on the part of her husband, is inadmissible, being purely hearsay.

      5. Same — Documentary Evidence — Submission to Jury.
    Where suit was begun by capias .based on affidavits, one of which stated facts conclusively showing adultery between defendant and plaintiff’s wife, and defendant claims that affiant was one of several conspirators who were attempting to blackmail him, and offers a statement purporting to be signed by affiant just before he died, in which he retracted the statements made in the affidavit, plaintiff’s request that the statement be submitted to the jury along with the affidavit for comparison of signatures, plaintiff claiming that the statement was a forgery, should be granted.
    6. Trial — Argument op Counsel — Prejudice—Both Counsel at Fault.
    Improper conduct and argument of counsel cannot be complained of by counsel equally at fault, the court having rebuked both during the trial and instructed the jury not to consider the prejudicial statements.
    Error to Allegan; Padgham, J.
    Submitted June 6, 1907.
    (Docket No. 40.)
    Decided September 20, 1907.
    Case by Harry Brown against Isaac E. Evans for the alienation of the affections of plaintiff’s wife, and for criminal conversation. There was judgment for defendant, and plaintiff brings error.
    Reversed.
    Plaintiff in his declaration charged defendant with the alienation of his wife’s affections and criminal conversation with her. Defendant denied the accusation, and charged that the plaintiff and certain other persons had entered into a conspiracy against him for the purposes of blackmail. The testimony is in very sharp conflict. The jury evidently found it necessary to determine what witnesses had testified falsely. If the jury believed some of the testimony on the part of the plaintiff they would have found the defendant guilty of adultery with plaintiff’s wife, and that he had alienated her affections. Evidently they did not believe it, but did find that defendant was guilty of no improper relations with her, and that a conspiracy to blackmail defendant had been established, or else they believed that plaintiff by his own cruel and brutal conduct towards his wife had alienated all the affections she ever had for him before there was any intimacy between her and defendant. There was evidence to support either finding. The errors assigned relate to the rulings of the court upon the testimony; to the misconduct of defendant’s counsel; to prejudicial remarks by the court, and the instructions to the jury.

      Clare E. Hoffman (Eidus E. Fish and W. J. Barnard, of counsel), for appellant.

      Theiv & Thompson (Wilkes & Stone, of counsel), for appellee.
   Grant, J.

(after stating the facts)-. 1. The learned circuit judge fully and fairly stated to the jury the claims of the respective parties. He then fully and correctly instructed them upon all the questions of law involved. Upon the question of adultery he instructed the jury in part as follows:

“Mere opportunity to commit adultery is not sufficient to establish this offense; there must be evidence of such facts and circumstances, times and places, and association together as would naturally lead a man of ordinary care and prudence to the conclusion that such parties were having illicit sexual intercourse. * * *

“It is not necessary to prove by direct evidence that the defendant had sexual intercourse with Mrs. Brown. If you find from the evidence that Mrs. Brown and the defendant occupied the same bed during the portion of one night, this is sufficient proof — that a man and woman not husband and wife occupied the same bed, would be sufficient to find adultery.”

Upon the question of conspiracy he instructed the jury in part as follows:

“A common design or purpose by two or more persons is the essence of the charge of conspiracy, and this common design must be proved either by direct evidence or by proof of such circumstances as naturally tend to prove it, and sufficient in themselves to satisfy you of the existence of such common design, before you can find a conspiracy.”

No question is raised as to the correctness of the instructions upon the alienation - of the wife’s affections. The above excerpts are a correct statement of the law, and the other parts of the charge were in accordance with them. The correctness of a charge cannot be determined by isolated sentences. Taken as a whole, the charge in this case contains no error.

3. Error is assigned upon the refusal of the court to admit in evidence a copy of a letter claimed by plaintiff to have been written by defendant to his (plaintiff’s) wife. This letter is important, for if it was written by defendant it tended very strongly to show illicit relations between defendant and plaintiff’s wife. Plaintiff gave evidence tending to show that this letter came into the possession of Mrs. Evans, who had died before the trial. Notice had been given to defendant to produce this letter. He denied having such a letter. Tbe theory of the plaintiff was that defendant was the administrator of his wife’s estate, and as such was the custodian of her papers. Counsel for plaintiff assert in their brief that he was the administrator. Counsel for defendant assert in their brief that he was not, but that her son was the administrator. Neither counsel point to any testimony in the record to sustain their assertions. We must therefore assume that the court correctly excluded the copy.

3. Several witnesses for the defendant were permitted to testify to the statements made by plaintiff’s wife to them, detailing acts of extremely cruel conduct on the part of her husband. It needs no argument to show that this was error. The testimony was purely hearsay.

4. This suit was commenced by capias. One of the affidavits filed in the case as a basis for the writ was made by one Albert Jackson, alleged by the defendant to be one of the conspirators, stating facts which would conclusively show adultery on the part of defendant and Mrs. Brown. Jackson died before the suit was tried. It, was claimed that he signed a statement just before he died retracting the charges made in his affidavit This was introduced in evidence. Plaintiff claimed that the statement was a forgery, and asked to submit to the jury the signature of Jackson to the affidavit so that they might compare the two signatures. This was refused. The affidavit was a part of the files in the case. No collateral issue could be raised as to its genuineness. The request should have been granted. Vinton v. Peck, 14 Mich. 292; People v. Hutchings, 137 Mich. 527.

5. While it is. true that counsel for defendant made statements during the trial not justified by the record and undoubtedly intended to prejudice the jury, the court promptly rebuked them, and in his charge instructed the jury not to consider them. It is equally true that plaintiff’s counsel were not free from the same fault. The conduct of counsel was such that it drew from the court, during the progress of the trial, the following rebuke:

“ I want it understood now, from here on, we are going to' try this case according to the rules of law; if we don’t the case is going out of court. Now just let us understand it. I have made up my mind that we have fooled long enough, and you want to try it according to the rules of law on both sides without lugging in matters that are incompetent and immaterial.”

Some 30 other errors are assigned upon the rulings of the court during the trial. The most of them are without merit, and as the others need not arise on a new trial, it is unnecessary to determine them.

Judgment reversed, and new trial ordered.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred'.