author: Moose, J.

text:
    J. W. WELLS LUMBER CO. v. MENOMINEE RIVER BOOM CO.
    Injunction — Comity of States — Logs and Logging — Boomage Charges — Equity.
    Defendant, a boom company incorporated in both Michigan and Wisconsin, operating on the Menominee river, sued plaintiff, a Michigan corporation, in the Wisconsin courts, to recover boomage and rafting charges upon logs delivered during the seasons of 1908 to 1913, inclusive. Plaintiff answered, setting up alleged excessive charges under the Wisconsin statute upon logs delivered during 1904-1907, by way of counterclaim, to which defendant pleaded the statute of limitations. While said suit was pending plaintiff filed its bill to enjoin defendant from further prosecuting its action in the Wisconsin suit, alleging that its counterclaim is barred in Wisconsin but is not barred in Michigan. Held, that plaintiff had failed to show excessive charges for booming and rafting* when proper allowance was made for sorting its logs and other legal charges, and that there were no such, compelling equities requiring the court to break, over the rule of comity and policy which, forbids the granting of an injunction to stay proceedings in a suit already begun in a court of competent jurisdiction of a sister State.
    Appeal.from Menominee; Flannigan, J.
    Submitted April 24, 1918.
    (Docket No. 111.)
    Decided September 27, 1918. .
    Bill by the J. W. Wells Lumber Company against the Menominee River Boom Company to enjoin an action at law, and for an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Sawyer & Sawyer (Martineau & Martineau, of counsel), for plaintiff.

      Fred H. Haggerson (Upham, Black, Russell & Richardson, of counsel), for defendant.
   Moose, J.

This is an appeal by plaintiff from a decree of the circuit court for Menominee county, dismissing the plaintiff’s bill of complaint in a suit to permanently enjoin the defendant from further prosecuting an action begun by it against plaintiff pending in the circuit court for Marinette county, Wisconsin, and for an accounting. The instant case was heard on its merits before Richard C. Flannigan, circuit judge, who filed a written opinion which reads as follows:

“For the purpose of improving the - Menominee river and its tributaries, and the driving, sorting, holding and delivery of logs and timber thereon, the Menominee River Boom Company, a Michigan corporation, was organized -November 8, 1887, under the provisions of Act No. 91 of the Public Acts of Michigan of 1887. On the same day, and for the same purposes, the Menominee River Boom Company, a Wisconsin corporation, was organized under the provisions of chapter 86 of the Revised Statutes of that State and the acts amendatory thereof. On December 27, 1887, the defendant was organized by consolidation of the Michigan and Wisconsin corporations mentioned, agreeable to the provisions of the Michigan and Wisconsin statutes referred to.
“The defendant has been engaged in the driving, sorting and delivery of logs on the Menominee river continuously since the consolidation. Its principal office was located by its articles at Marinette, Wisconsin, where it has since remained. With the exception of a director, who resided at Menominee, all of its officers and directors reside at Marinette, Wisconsin.
“The defendant succeeded, presumably by purchase, to the river rights and property of the Menominee Manufacturing Company, which theretofore conducted boomage operations on the river.
“The complainant is a Michigan corporation organized for the manufacture of lumber. Its saw-mill is situated on the shore of Green Bay within the_ limits of the city of Menominee, at' which place its principal office is located. The mill of the complainant has been in operation for a long period of years. Practically all the pine logs sawed at its mill and all the cedar and other floatable timber cut by it in the woods came down the Menominee river and through the boomage ground of the defendant. The acquaintance of its officers with the manner in which the boomage operations have been conducted on the river has been long and familiar. Mr. J. W. Wells, its president, testified to his connection with lumbering operations on the river and familiarity with the booming operations thereon since 1869.
“The boomage grounds of the defendant extend from, near the mouth of the river upstream in the neighborhood of a mile. Saw-mills were located at different points on both banks of the river within the limits of the boomage ground, and various other mills, including the complainant’s, which received their log supply from the river, were located on the shore of Green Bay.
“When the logs of the various owners, intermingled, reached the head of the boomage ground, it was the practice of the defendant, which is not criticized, to stop them at the mill first encountered, and from the mass separate and deliver into a floating pocket the logs belonging to that mill. As the pockets of the other mills were reached in succession, the same process was repeated, until all logs belonging to the river mills were separated from the mass and delivered. The logs belonging to the shore mills were continued on down to what is called the rafting gap, where they were separated. Afloat on the river below the rafting gap were various pockets, called rafting pockets, into one of which the logs going to a particular shore mill would be run. From these so-called rafting pockets the logs were then taken by the defendant and delivered to each shore mill proprietor, made up in rafts of a size, and so built and secured as to insure their convenient and safe transportation by means of a tug out of the river and over the bay to the mills to which they respectively belonged.
“Previous to 1890, a uniform price, called a ‘boom-age charge’ was made against all logs going through the booming ground, irrespective of the mill to which t'hey were delivered. In that year the uniform rate was abandoned and a rate was made for each point of delivery. The new rate, which was lowest against the logs first separated and delivered, increased as deliveries were made lower down, until the rafting gap shore mill delivery point was reached, where the price was highest.
“It was the practice of the defendant, in keeping its accounts of the expense attending the separation and delivery of the logs, to pro rate the cost of the delivery of the logs of each proprietor upon all logs in the mass from which they were taken. The removal of the logs of the first proprietor did not, it would seem, materially lessen the expense of separation at the next lower gap, and such expense being pro rated on a less number of logs, it followed necessarily that the charges for the second separation increased, which increase was augmented as the number of logs in the mass was reduced by each successive separation.
“The rates charged by the defendant for delivery of the logs at the various gaps did not necessarily, and were not supposed to, represent the actual cost of the delivery ascertained in the manner mentioned, but were fixed rates for the years in which they were made, which might prove bo be more or less than the actual cost of handling the logs in that year. But in arriving at the rates for a given year, the cost of handling the logs at each delivery gap during the preceding years was largely a controlling factor and was taken into account, together with the labor conditions, the estimated number of logs to come down and all other matters bearing on the cost of handling the logs. The practice of discriminating between the different delivery gaps in making up the boomage charges, and its method of arriving at the rate for each gap, was continued by the defendant from 1890 until the decision by the Wisconsin supreme court of Menominee River Boom Co. v. Spies Lumber & Cedar Co., October 24, 1911, 147 Wis. 559 (132 N. W. 1118), and without disclosed objection on the part of the complainant or other mill proprietor, until the spring of 1908.
“Notification of the rates for each year was communicated to the log owners by a circular letter signed by the secretary of the defendant. The circular letter sent out in each of the years to which this controversy relates was the same except as to the rates charged, which differed in different years. Respecting the complainant’s logs, the letter proposed, for the charge specified, to separate them from the logs of the other owners and deliver them to the complainant, or its authorized agent, ‘at the rafting gaps, made up in ordinary sized rafts.’ On’ the back of the secretary’s letter was a printed letter addressed to the defendant, requesting and authorizing it to drive, boom and handle all the logs therein referred to, concurrently with the logs of other owners, upon the terms and stipulations set forth in the secretary’s letter, and to deliver the same as the log owner had already directed or might thereafter direct. In blank spaces which were provided the owner was requested to fill in the number of logs banked by him on the Menominee and its tributaries, and then to sign, swear to and forward the letter to the defendant.
“The complainant received from the defendant the usual circular letter specifying the rates to be charged for delivery of its logs in rafts in 1904, 1905,1906 and 1907, whereupon the number of 'logs banked by it for floatage to Menominee was filled in, and the printed letter requesting the defendant to sort and deliver them ‘on the terms and stipulations’ set forth in the defendant’s letter, was signed, sworn to and forwarded to the defendant by an authorized officer of the complainant.
“The rate charged for the delivery of the 1904 logs was 58 cents; for the 1905 logs, 68 cents; for the 1906 logs, 80 cents, and for the 1907 logs, 76 cents. The logs which came down in each of those years were sorted and delivered in the manner described, and the rates charged therefor not only were paid by the complainant without protest or objection of any sort, but it took advantage of a 2 per cent discount proposition which the defendant offered its patrons as an inducement to quick settlements.
“The logs owned by the complainant were pine and eédar. The number of each was not given accurately by any witness, but as compared to the pine the number of cedar logs was small. In each of the years mentioned the complainant requested the defendant to separate its cedar from its pine logs and deliver them separately. With this request the defendant complied. For making the extra separation which compliance with such request entailed no extra charge was made. The right of the complainant to such extra work without extra .charge seems to have been considered as cover'ed by the stipulation of the letter mentioned, that delivery was to be made as directed by the complainant.
“In the spring of 1908 the complainant and the Spies Lumber Company, another shore mill proprietor whose logs were delivered as were the complainant’s, objected to the rate which was fixed for that year at 80 cents. A large quantity of logs were handled through the rafting gaps that year for the Spies Lumber Company, for whdch it made payment of the defendant’s charges in part, but refused payment of the remainder. To recover the remainder of its charges the defendant brought its suit in Wisconsin, which, as has been related, was finally decided by the supreme court of that State. (Menominee River Boom Co., v. Spies Lumber & Cedar Co., supra.)
“Briefly stated, the Wisconsin court held the charge for sorting and delivery was limited by the Wisconsin statute to fifty cents per thousand feet; that the charge, whether fifty cents or under, must be uniform, and that uniformity required that the charge be the same against all logs handled in the boomage ground, whether delivered at the first or last gap, or at any gap between.
“The Wisconsin court held further, and correctly, that the obligation placed on the defendant by the statutes of both States, to sort and deliver, for a reasonable and uniform rate, does not require the defendant to raft the logs for transportation on Green Bay, and does not require it to sort a particular kind of logs from the other logs of an owner; and in addition to the fifty-eent rate for sorting and delivering the defendant was entitled to charge a reasonable amount for making the logs up into rafts, and unless it appeared it did the same thing for the other owners without extra charge, it would_ be entitled to a further additional charge for separating the cedar from the other logs of the same owner.
“The defendant does not claim it is entitled to charge for its services in sorting and delivering the complainant’s logs, during any of the years in dispute, more than fifty cents per thousand feet, and therefore this case does not present the question whether, where it appeared the actual cost of sorting and delivery exceeded fifty cents, the defendant, in a Michigan court, would be entitled under the Michigan law (Act No. 91, Pub. Acts 1887), which requires only that the charge be reasonable and uniform, without other limitation, to exact at least the actual cost of the work, notwithstanding the Wisconsin limitation of fifty cents.
“The complainant conceded a boomage charge of fifty cents a thousand upon all of its logs delivered in 1904-7 was earned, and was reasonable and lawful, and also that the defendant is entitled to charge in addition for rafting and for any extra sorting not done for the other owners.
“The controversy between the parties is, it will be seen, narrow, and presents practically the single question whether the amounts received by the defendant in those years beyond fifty cents was a reasonable charge for rafting.
“April 17, 1914, the defendant commenced a suit in the circuit court of Milwaukee county, Wisconsin, against the complainant, to recover boomage and rafting charges upon logs delivered during the driving seasons of 1908 to 1913, inclusive. The suit was commenced by attachment which was levied on certain lands owned by the complainant in Wisconsin. The complainant appeared in that suit and answered, setting up the alleged excessive charges upon the logs delivered in 1904-1907, by way of offset, or, as it is called in Wisconsin, counterclaim, against the demand of the defendant. In bar of the counterclaim the defendant pleaded, among other matters, the statute of limitation. The cause being at issue, it was, by stipulation of counsel, for the convenience of witnesses and parties, transferred from the circuit court of Milwaukee county to the circuit court of Marinette county, which is a court of original, general, common law and equity jurisdiction. After the case against the complainant reached the Marinette circuit court, where it is now pending, and on October 23, 1914, the bill of complaint by which this suit was commenced was tiled.
“The bill of complaint sets up the commencement and pending of the Wisconsin suit; the complainant’s claim for excess charges in 1904-5-6-7, and that it is barred in Wisconsin and is not barred in Michigan by lapse of time from offsetting the amount of such alleged excess against the claim of the defendant. The bill prays for an injunction restraining the defendant from further prosecution of the Wisconsin suit and for an accounting of the amount due the defendant for delivery of logs in the year 1908 to 1913, inclusive, and of the amount of the alleged excess charges upon the logs delivered in 1904 to 1907, inclusive, and that the amount of such excess be offset against the defendant’s claim.
“Upon the filing of the bill an order was made requiring the defendant to show cause why a temporary injunction should not issue restraining it as prayed. In opposing the issue of a temporary injunction the defendant insisted, the alleged excessive charges being assumed, the court was without jurisdiction to restrain the prosecution of a suit already commenced and pending in a court of another State. With leave to the defendant to save it by answer and present it again at the hearing, the point was overruled and the temporary injunction issued. Thereupon the defendant answered and the case was heard at due course on proofs taken partly before a commissioner and partly in open court.
“To entitle the complainant to any consideration, it must first show, of course, that the charges alleged by it to have been excessive were so in fact. Further than the testimony of the president of the company, Mr. J. W. Wells, and of Loe Bolanger and Mitchell Collette, no evidence was offered touching the cost of rafting, excepting certain figures taken from the books of the company, which will be noticed later.
“Mr. Wells testified that for three or four years previous to 1880 he rafted his own logs. ‘For a year or so,’ he said, all the logs sent down to the rafting gaps were owned by him, ‘so that there was no sorting.’
‘“Then Ramsey & Jones (also store mill proprietors) came on the river. Their logs were sorted by the boom company to the same pocket with ours, and we took the logs they" ran into this pocket and rafted them, up and handled them in that way.’
“The rafting was done by Mr. Wells at about the same place, with substantially the same facilities and under practically the same conditions as in 1904-7. It was necessary to separate from his own logs such of the Ramsey & Jones logs as were run into the common pocket, in order to raft his and theirs separately. Whether the amount of the Ramsey & Jones logs was large or small no attempt was made to show.
“In reply to the question, ‘What was the total cost of rafting, including sorting?’ Mr. Wells answered from 91/2 to 11 cents. He was not asked to and did not give the cost of .rafting alone, but it is evident he intended the lesser figure, 9*4 cents, as the cost of rafting during the 'year or so’ he rafted his own logs only, and when there was no sorting. Finding the rafting cost, when conducted by Mr. Wells in 1877-9, to be 9% cents per thousand feet, does not, unfortunately, aid the court in arriving at the rafting cost in 1904-7. Mr. Wells said, and every one having the slightest familiarity with the floating of saw-logs knows it to be a fact, that the cost of rafting large logs, or a large number of logs, is less than the cost of rafting smaller logs or a smaller number of logs.
“From a record of the run of the river, which was introduced, it appeared that in the first year’s operations, which was 1868, 62,809,804 feet came down. Thereafter,the amount gradually increased from year to year until the maximum of 642,137,318 feet was reached in 1889. From that year forward there was a gradual decrease, until the low mark of 24,231,208 feet was reached in 1913. The record for 1914 or 1915 was not introduced, but that the decline has continued may be gathered from the common report that the drive going down as this is written will be the last, or the last but one, of the river..
“The run of the river when Mr. Wells was rafting was 137 million in 1877; the same in 1878, and 181 million in 1879, against 124 million in 1904, 91 million in 1905, 88 million in 1906, and 82 million in 1907. The fact that the run of the river was greater in 1877-9 than in 1904-7 does not necessarily mean that the number of logs in the Wells raft was greater in the former than in the latter years. Whether Mr. Wells intended to be understood as saying the number of logs in the rafts of 1877-9 was the same or less than the number of the rafts of 1904-7, is not clear when his direct and cross-examination are compared, but he frankly admitted the run of the logs was materially larger in 1877-9 than in 1904-7.
“A record of the number and size of the logs that passed through the booming ground previous to 1878 was not kept, but was kept in 1878 and all subsequent years. According to the record kept from 1878 forward, the size of the logs dropped from an average of 161 feet in 1878, when Mr. Wells was rafting, to an average of 47 feet in 1907. The logs handled by Mr. Wells during the three years he was rafting averaged about six to the thousand, while the logs rafted in 1904-7 averaged about 20 to the thousand.
“Resulting from his 40 odd years’ experience in river operations, Mr.' Wells was able to say the handling of a large log is no more difficult than the handling of a small log and that the expense of handling increases as the size of the log diminishes..
“If it cost 9% cents to raft six logs in 1887-9, what shall we say it cost to raft 20 logs in 1904-7, at the same place, with the same facilities and under the same conditions, except as to labor cost, which was higher? Figuring at the rate established by Mr. Wells, it would cost over 31 cents to raft 20 logs or 1,000 feet of timber.
“Joseph Bolanger, who was the defendant’s foreman at the rafting gap since 1882, said seven or eight men could make up a raft of from 75,000 to 100,000 feet of logs in two hours. Mitchell Collette, who had no experience in making up rafts, but saw them made during his seven years’ service on the river, gave it as his opinion that seven or eight men could make up a raft of about 75,000 feet in one hour. By spreading the labor cost of eight men for two hours, against the number of feet of logs in the raft, complainant’s counsel finds the average cost of rafting logs to be from 3 to 5 cents per thousand feet. There would be force in the testimony of these witnesses was it not that the other testimony in the case shows their conclusions to be ill-considered and unreliable. The complainant will not expect the court to disbelieve the testimony of Mr. Wells, and that the court would have to do to give the opinions of B danger and Collette the construction and effect claimed for them by counsel. If their estimate is taken, it would put the rafting cost in 1904-7, when the logs were smaller and labor cost higher, much less than Mr. Wells said he found it, and many times less than the actual figures on the defendant’s books show it to have been. Both these witnesses said that adverse winds made rafting more difficult and expensive and that the time for completing a raft, which they specified, contemplated ideal weather conditions.
“These rafts were not haphazard affairs. They had to be built on certain lines. They might be as long as the capacity of the tug admitted, but they must not be above a certain width to let them through between the piers of the drawbridge in their course out of the river. To that end it was not admissible to run the logs from the pocket into the raft booms hit or miss, but with deliberation and care, to see that each log was, as it is termed, ‘ended up,’ so as to keep the raft to the necessary width. When the raft was formed in that way ropes and chains were fastened across the booms to keep it in proper shape and intact while in transit.
“The record is silent on the subject, but it may perhaps be assumed as an incident of the business, that more or less time of the men was lost in waiting for the logs to come down, or through the failure of the owner to promptly remove a completed raft out of the way of constructing another. ■ Counsel did not take those matters into his calculation, nor did he take into account the loss of a pike pole here and of a cant hook there, of a rope from one raft and a chain from another, or any other of the innumerable little but frequent happenings which, at the end of the season, foot up to a large figure to be added to the cost of rafting logs. In other words, counsel overlooked the fact that there are expenses incident to the rafting of logs besides the labor cost measured by the hours of men who were actually' engaged in making up the rafts.
“It appears that since the defendant has been operating the booms it has kept a detailed account of the number, average size and scale of all logs that went through the booms, and of the actual cost of separating and delivering them into the various mills and rafting pockets, and also of the cost of rafting such of the logs as were delivered in that way. For the information of the directors, when the fixing of boom-age rates was under consideration, these accounts were drawn off the books, classified, compiled and charted, so that the cost and net results of the operations for the year covered by the chart could be seen at a glance.
“The charts so made up for 1904, 1905 and 1907 were offered in evidence by the complainant, generally so far as the record discloses, and may be resorted to for such help as they offered in arriving at the cost of rafting in those years. Their accuracy or the accuracy of the books from which they were taken is not challenged.
“They show the actual rafting cost (not including rent of pockets or booms) for 1904 to have been .1686, for 1905, .1798, for 1907 (found by approximation for which the sheet furnishes a basis), .2029 per thousand feet. The chart for 1906 was not at hand, and unfortunately for exact figuring, both sides neglected to go to the books for the rafting cost of that year. There is no testimony on the subject to which attention has been called, except that of the witness Burke, at present secretary of the defendant, but who was its bookkeeper in 1906 and subsequent years. In reply to an inquiry by .complainant’s counsel, he placed the rafting charge for that year at 25 cents. The answer may, but does not appear to have been based on an examination of the books for that year. By comparison of figures found in the exhibits, defendant’s counsel finds the 1906 cost to be .2409, but the exhibits do not, nor does the record of the case as a whole, furnish a certain basis for the result found by him. While the run of the river does not serve to fix with certainty, or even approximately, the amount of logs rafted in a given year, it may not, perhaps, be extravagant to presume, the run of the river being over three million feet less in 1906 than in 1905, that the logs rafted in 1906 did not exceed the amount rafted in 1905. This presumption is materially aided by the fact that in 1906 there were rafted for the complainant alone 7,376,999 feet, against 4,928,598 feet in 1905. It appears the cost gradually increased from year to year. The charts show an increase in 1905 above 1904 of .0107, and an increase in 1907 above the cost in 1905 of .0236, and perhaps, also, it is not unreasonable to indulge the further presumption that the actual cost in 1906 at least equaled the cost in 1905. On the basis of these figures the defendant collected from the complainant in 1904 and 1905 less, and in 1906 and 1907 more, than the actual cost of rafting, not including rent of facilities. The amount paid above the cost in 1906 would be $742.86, and in 1907, $147.94, or a total for the two years of $917.70.
“The- charts show a pocket rent charge which, when multiplied by the quantity of logs. rafted for the complainant in 1904, 1905 and 1907, amounted to $749.51. This rent was applied only against logs rafted, and evidently was for the use of the rafting pockets, since the rafted logs were not pocketed except below the rafting gap.
“It was the privilege of the defendant to deliver the logs afloat and it was the duty of the log owner to provide a pocket or other contrivance for their reception at the point of delivery. The shore mill proprietors did not provide such pockets. For their use the defendant constructed various pockets and kept them in good repair and safe condition. . It did not charge the log ownér rent for such pockets in addition to the fixed rate for sorting and delivery in rafts, but the use and wear and tear thereof was taken into account as an item of expense in making the rate, and, under the designation ‘pocket rent/ it will be found listed against all logs rafted, in addition to all other items of expense.
“When the logs were run through the rafting gap and into the pocket set apart to their owner, the services of the defendant, covered by the terms, ‘holding, sorting and delivering’ terminated. Any ‘holding’ of the logs above the rafting gap — the point of delivery by means of booms or otherwise, would be compensated for by the legal rate for ‘holding, sorting and delivery/ But that rate would not compensate for, and was not intended to cover, the rental value of a pocket set apart by the defendant, for the exclusive use and convenience of a log owner, in the holding of his logs, until at his leisure, he saw fit to provide a tug to take them away. The holding which the law contemplates as covered by the fifty cent rate, is only such holding as is ordinarily incident to the sorting and delivery of logs. It is always necessary to hold the logs to make a delivery, and it is commonly necessary to hold them on account of water conditions, and possibly for other reasons. For any other holding or sorting the defendant is entitled to be compensated. Otherwise an owner might allow his logs to remain in the booms an entire season. No such unjust result was intended by the legislature of either State.
“If it was concluded that storing in the rafting pocket was an incident of booming and not of rafting nevertheless the complainant should not escape accounting for the rent. It saw fit to sweep aside the written contract covering all these matters, and invoke the law which declares for a reasonable and uniform rate. Having invoked the principle of uniformity it must expect to have it applied against it-as well as in its favor.
“Uniformity is not accomplished by making the same rate for the same service, to all log owners. It requires also that no valuable service be rendered to one log owner without charge, that is not rendered to all log owners without charge. To compel one log owner to construct and maintain a reception pocket, at his own expense, and give the same facilities free to another owner, would be discrimination. Such free use of the pocket would amount to a rebate of a por■tion of the boomage charges, and what amounted, directly or indirectly, to arrebate of any portion of such charges, the defendant has no right to give or the complainant to receive. That the collection of the pocket rent, if classed as an incident of booming might increase the boomage rate beyond the legal limit, would be no objection. The complainant had a right • to allow matters to remain as they were or invoke the rule of uniformity. Having invoked the law he will not be allowed to claim its benefits and disregard its • obligations. Whether the rent is properly considered a boomage charge or not, the defendant as against the complainant, is entitled to credit for it. If it is found to increase the boomage rate beyond the legal limit, it will become a matter of adjustment between the defendant and all the log owners. Any boomage charges collected by the defendant above the legal rate belongs to the log owners and should be pro-rated among them.
“Crediting the defendant with the pocket rent will serve to reduce the apparent excess rafting cost paid by the complainant, to $168.19. But the defendant is also entitled to credit for the use of its towing booms employed in conveying the logs from the river to the mills. That use was stipulated for in the written contract ten cents per hour per set, to be charged for from the time they were put in use until returned to the rafting gap empty. The 1904-7 accounts paid by the complainant do not include a charge for the towing booms. The record does not show, exactly or approximately, the number of hours the towing booms were employed but, when it is considered that over 21,000,000 feet of logs were transported in the booms; the leisurely way on which log rafts necessarily proceed, the delays resulting from adverse winds and other difficulties naturally associated with the business of towing and it will be appreciated that the booms must have been in service a considerable time, and that the use of them at the ten cent rate, or even half that amount would aggregate a substantial sum.
“At the request of the complainant its cedar logs were separated from its other logs.,; This was extra sorting. The complainant [defendant] may have done similar sorting for other owners, but did not do it for all the other owners. The amount of cedar sorted cannot be definitely stated from the testimony. It may not have been a large amount. But, whether the services occupied much or little of the time of the defendant’s employees, it was, to- the extent it was given, a valuable service put on the logs of the complainant and not on the logs of all other owners. The defendant not only is entitled, but the observance of uniformity requires that it exact credit for such extra sorting.
“The defendant’s credit must also include a reasonable profit on its business. Whether we may take into account the risk of injury to employees, the work is extra hazardous — and of the breaking up of rafts and the loss of logs through the carelessness of employees, of imperfection of appliances, against which even the prudent cannot always guard, as well as a fair rate of interest on the money invested, or are confined to a fair rate of interest on the money employed on the work (outside the investment on pockets and booms which are taken care of by rents) the allowance would represent a considerable sum.
“And what shall be said of the under charge in 1904 and 1905? The total amount paid for booming and rafting in 1904 was 56 cents and in 1905 was 66 cents. It is admitted the boomage cost in both years was fifty cents. The charts show the cost of rafting, outside the rent of facilities, to have been .1686 in 1904 and .1793 in 1905. The result was that, in the two years, the complainant paid for the service on its logs $557.39 less than what it actually cost the defendant.
“It must be clear that the complainant cannot, in a court of equity, have these accounts, which were supposed to be concluded by contract, re-written upon the basis of a reasonable charge for the service, without being compelled to pay, at the time it receives, what is reasonable. The complainant may not demand equity and at the same time refuse to do equity. In any equitable adjustment of these accounts, every under charge, as well as every over charge, must be considered.
“The object of this review is not to show an indebtedness from the complainant to the defendant, but the failure of the complainant to show by a preponderance of the evidence as it is required — an indebtedness from the defendant to it.
“The question in this case which especially challenges interest, is whether, under any circumstances, and if so, whether under the circumstances disclosed by the proofs, this court would be justified, by the indirection of its injunction, to the defendant in restraining the trial of, and rendition of judgment in, the suit pending in the Marinette circuit court.
“It was held in Carroll v. Mechanics’ Bank, Har. Ch. (Mich.) 197, that injunction will not issue from the courts of this State to enjoin the plaintiff from prosecuting a suit commenced and pending, in a court of a sister State. On dissolving -such an injunction it was there said:
“ ‘It has been repeatedly decided that courts of chancery will not sustain an injunction bill to restrain a suit or proceeding previously commenced in a court of a sister State. *• * * The affidavit discloses the fact that the' injunction allowed in this cause purports to restrain the proceedings of a cause not only at issue, but pending in the court of another State. * * *
This being apparent there can be no room for doubt as to the duty of the court, so far as to modify the injunction to divest it of this anomaly. * * * The prompt correction of this error is called for by a decent regard for the reputation of the court and the judicial proceedings of the State.’
“The doctrine of that case, which was decided about 1840, has never been questioned before the Supreme Court of this State and is supported by the decisions of other courts. Mead v. Merritt, 2 Paige (N. Y.), 402; Harris v. Pullman, 84 Ill. 20; Lockwood v. Nye, 58 Am. Dec. 76 (2 Swan [32 Tenn.], 515) ; 11 Cyc. p. 1018, note 49.
“A line of decisions will be found which hold that when the parties reside in the same State, equity will interfere to restrain one of them from prosecuting a suit commenced by him in the courts of another State, when it clearly appears the prosecution of such suit to judgment or decree would result in oppression or fraud. But running all through those cases, will be found the determination of the courts, not to break over the rule of comity and policy which forbids the granting of injunction to stay proceedings in a suit, which has already been begun in a court of competent jurisdiction of a sister State, except where the circumstances are very special, where there exists, not ordinary, but some peculiarly equitable grounds for so doing. Burgess v. Smith, 2 Barb. Ch. (N. Y.) 276; Bank of Bellows Falls v. Railroad Co., 28 Vt. 470.
“Situations will arise where litigations between residents of the same State, conducted to a conclusion in the courts of another State, will operate so oppressively as to shock the conscience of equity. To prevent such results courts of equity should have power. But the only satisfactory doctrine, because the only doctrine compatible with the dignity of the courts of the country and the orderly administration of justice everywhere, would be to hold the court in which the objectionable suit was commenced, and that court only, entitled, at the instance-of the aggrieved party, to refuse to proceed further with the suit, where it appears the object of the plaintiff was to evade the law of the State of his residence, and upon view of the facts and the laws of the State of the residence of the parties, applicable thereto, the court is convinced the prosecution of the suit pending before it, to judgment or decree, would result in giving the plaintiff an unconscionable advantage. The only situation which would seem to justify a court of one State, in stopping by its writ of injunction, the prosecution of a case pending in a court of a sister State, would be where the equitable considerations are plain and compelling, and the aggrieved party, through poverty, is utterly unable to present his equities to the foreign court.
“If the rule of the Carroll Case is not, and the more liberal rule contended for by the complainant is, applied to the facts of this case, the complainant is in no better position.
“In an effort to bring itself within the rule of the line of cases referred to, the complainant claims the dealings were, and the Wisconsin suit, to all intents and purposes, is, between Michigan corporations; and that the service involved in the controversy were put on the logs in Michigan, under an applied contract which arose in Michigan. In none of these claims is it supported by the proofs, and, if they were all true, it' has failed to prove a case showing any equities in its favor, much less a case justifying the exercise of the extraordinary jurisdiction involved in this application.
“Respecting the domicile of the defendant the situation is unusual. The effect of the consolidation of the Michigan and Wisconsin corporations was not to create a single corporation in both States but to create a separate corporation in. each State, owing its existence to the law of that State and that State only. In Michigan the defendant is regarded as a_ corporation of, and as having its existence and domicile in Michigan where in Wisconsin it is regarded as a corporation of and as having its existence and residence in that State. Chicago, etc., R. Co. v. Auditor General, 53 Mich. 79; 2 Clark and Marshall Private Corp., § 362 and notes. The decisions, both State and Federal, are numerous, and, as far as observed, unanimous, to the conclusions that, for all purposes of jurisdiction the consolidated corporation is to be considered a corporation and citizen of the State where it is found, or where it sues. 1 Clark & Marshall Private Corp., § 117, note 14. While, therefore, the corporation before this court is a corporation of, and is domiciled in, this State, that fact furnishes no ground for the position that the complainant is being proceeded against by a Michigan corporation, in the courts of Wisconsin.
“In legal effect the consolidation of these companies amounted to no more than permission to have the same membership, to be controlled and managed by the same officers, and to pool their earnings coupled with the duty to respond to the extent of their property and resources, in discharge of all obligations contracted by either. Each corporation is entitled to exercise in the State of its creation the powers there granted to it, but it is not entitled to exercise these powers or any power in the State which created the corporation with which it has consolidated. The authorized activities of these corporations stop with the boundary line between the two States. ‘The corporation before this court did not commence, cannot discontinue, or act, in relation to the Wisconsin suit, in any way. The effort of the complainant, if successful, would not be to restrain the corporation before the court, from prosecuting the Wisconsin suit, but to compel the Wisconsin corporation to forego the prosecution of a suit lawfully commenced by it in the State of its creation.
“Wherever it is sought to enjoin a suit commenced in the State of its creation, by a corporation which has lawfully consolidated with the corporation of another State, and the domicile of the corporation bringing the suit is important, its domicile must be held to be in the State of its creation, regardless of the court or State where the question is raised.
“Both parties accede to the ruling in the Spies Case that, for want of lawful authority for the rates therein specified, the written acceptance by the complainant of the rates and terms set forth in its letter of the defendant, did not constitute a contract for the driving, sorting, rafting and delivery of the logs. There was an implied contract to that effect which arose by the delivery to, and acceptance of the logs, by the defendant. The place where the contract was made was the place where the logs were delivered and accepted. They were delivered afloat and partly in Michigan and partly in Wisconsin and, in being passed through the boomage ground, as well as in transit down the river, they were first on one side of the river and -then on the other. This we know of common knowledge. If, therefore, the place where the contract was made or performed, has a bearing it appears that the contract, as to some of the logs was made in Wisconsin and the service upon all of them was performed, partly in Wisconsin.
“By pleading the alleged excess as an off-set or counter-claim, in the Wisconsin suit, the complainant in effect, commenced, in that court, a suit to recover such excess, which has not been discontinued. That course should be reason, sufficient in itself, to deny the injunction sought in this case.
“The Wisconsin court has not passed on the question, but it is conceded by counsel, and for the purposes of this decision it will be assumed, that the claim for the excess, having accrued six years before the commencement of the Wisconsin suit, is barred by the statute of limitations of that State. The claim did not, however, accrue six years before the defendant’s right of action accrued, and, consequently, had the defendant sued on its demand in Michigan, lapse of time would not have been a bar to the presentation of the complainant’s claim by way of off-set. 3 Comp. Laws, § 9746 (3 Comp. Laws 1915, § 12337); Busch v. Wilcox, 106 Mich. 514.
“The purpose of this suit is to give the complainant the same advantage it would have if the Wisconsin suit is discontinued and a suit is brought by the defendant, on its. demand, in Michigan. To that end, and on the naked proposition that the complainant has a claim which, it could have, but failed to sue, in Michigan or Wisconsin, any time during six years, and which it cannot now enforce unless the defendant is coerced into bringing an action on its demand in Michigan, this court is asked to interfere with the orderly progress of a suit pending in a court of another State, without showing the defendant, in any way, responsible for the situation; or that the situation has not /arisen through the neglect of the complainant.
“It is well settled that where an adequate remedy at law has been available and has been lost by negligence, or merely failure to seek it at the proper time, equity will not interfere to grant relief. 16 Cyc. pp. 38-40.
“Equity is not solicitous for those who sleep on their rights. An appeal to equity cannot be made on the ground that the complainant has lost its right to sue in Michigan or Wisconsin, unless,, at least, it was prevented from suing by accident or fraud. And where relief is permissible on the ground of accident or fraud, to obtain relief the complainant must affirmatively show that the loss of legal remedy was occasioned by such matters of equitable excuse, unmixed with negligence on its part. 16 Cyc., pp. 39-40.
“In the spring of 1908 the complainant protested against the rate for that year, which was the same as the rate for 1906, and within 4 cents of the rate for 1907. It retained an attorney to appear, and who did appear at a meeting of the directors of the defendant and gave emphasis to such protest. The objections which were presented at that time were equally applicable to the 1904-7 rates, although no request was then made to disturb 1904-7 settlements. Whatever may have been the fact earlier, that its attorney and officers did not then know all the material facts, including the Wisconsin statutes on the subject of rates, is not seriously claimed. They knew of, and practically joined in, the protest of the Spies Lumber Company, and of the suit of that company and the claims upon which it was based. Plainly, ignorance of fact or law, played no part in the failure of the complainant to earlier enforce its alleged claim. Except to* mail a letter to the defendant February 24, 1912, over six years after the last of the 1904-7 payments had been made, requesting credit for alleged excessive charges in those years, no effort of any sort to collect, and no attempt of any sort to enforce the demand, was made until after the commencement of the Wisconsin suit. The record is barren of any evidence upon which to found a claim that the complainant was induced to non-action by any promise, representation, or conduct of the defendant or its officers. The secretary of the company gave as a reason for the defendant not suing earlier, a supposed understanding that the boomage and rafting charges entered against the complainant in 1908 and subsequent years, would be settled upon whatever basis was held proper in the Spies suit. But he did not, nor did the complainant’s officers say there was any such talk or understanding regarding the 1904-7 accounts, concerning which no question was raised at any time until the mailing off the complainant’s letter of February 24, 1912.
“With the exception of a director or two, the officers of the defendant resided at Marinette. Let it be assumed without deciding the question,- that service could not have been made on a director. Service of process does not require the residence, but the presence, of the proper officer in Michigan. An attempt to make that showing would have failed. Menominee and Marinette, separated by a narrow stream, are connected by two bridges. In a business way and socially they are practically one town. The business of the defendant was largely with Michigan mills. Its operations necessitate the frequent presence of its officers, agents and superintendent, on both banks of the river. Bent on business or social affairs, their officers and agents were a familiar sight on the streets of Menominee. If the complainant encountered difficulty in serving the process in this case there were special reasons for it.
“Furthermore, the claim which totals about $3,800, could have been enforced by attachment. The record is undisputed that in and ever since 1904, the defendant has owned real estate in the city of Menominee, subject to levy and sale on execution, and valued on the assessment roll of the city of $30,000.00.
“The foregoing, or any, discussion of the complainant’s ability to get service or enforce its claim is idle. The complainant is estopped from denying it could have obtained service. That the statute of limitations has run against a suit at law, by the complainant in Michigan, is the theory of the bill. It is. the sole foundation of the bill. It is the only excuse which the complainant could possibly offer, and the only excuse which it does offer, for the commencement of this suit.
“It is objected that .the complainant would not, in any event, be entitled to offset its claim because it is not liquidated. Its claim, if it has any, is unliquidated. This point was good when this suit was commenced, but, should the defendant be now enforced to sue in Michigan, the unliquidated condition of the claim would not prevent the off-setting thereof. Cummins & Beecher Judicature Act, § 591 (3 Comp. Laws 1915, § 12468).
“The defendant takes the further position that the payment of the 1904-7 accounts were voluntary and are not recoverable, in whole or in part, for that reason. The complainant contends they were not voluntary because of its ignorance of the material fact that a maximum boomage rate was fixed by the Wisconsin statute.
“In dealing with this question it is necessary to keep in mind that the services rendered by the defendant were of two kinds, viz.: the sorting and delivery, otherwise called the 'booming/ of the logs and the rafting of the logs. The boomage rate is limited to what is reasonable by a Michigan statute and to 50 cents per thousand feet by the Wisconsin statute. There is no statute in this State or in Wisconsin, limiting the rate to be charged for rafting. The defendant is not required by its charter to raft the logs. That was a service which it was at liberty to render or refuse to render. That service which is voluntarily assumed it was authorized to discontinue whenever it sees fit, or perhaps on a reasonable notice to its patrons to avoid losses. The parties had a right to contract for that service and a contract rate would stand, whether it represented more or less, than a reasonable return to the defendant for its investments, expenses and risks. The defendant is held here to a reasonable rate for rafting not because any statute says a reasonable rate must be applied, but because, finding no contract covering a rafting charge specifically, compensation can be measured only by what the service is found to have been reasonably worth. The complainant is not seeking to recover back overpaid boomage charges, but overpaid rafting charges. If the rafting charges had been separate from the boomage charge when paid, so that the complainant knew the amount of rafting charge, there would be no difficulty, under the facts of this case in holding the complainant to a voluntary payment. And this would be so, even if, growing out of the situation of the parties, the common-law duty rested on the defendant to raft the logs and for a reasonable compensation.
“The argument is that, being ignorant of the Wisconsin limit respecting boomage charges, the officers of the complainant did not know the charge beyond fifty cents was for rafting and they were, therefore, unable, at the time of payment, to judge whether the rafting charge was reasonable or otherwise.
“The officers of the complainant were familiar with the operations conducted by the defendant in the boom-age ground, and the nature and the extent of the work put on the logs of the complainant and on those of all other owners. The complainant knew the Michigan law, at least, required that the boomage rate be both reasonable and uniform; and that the rates, from year to year, were not uniform. It contracted for the defendant’s services on that plan, and paid the rates without objecting for a long period of years. Such a length of acquiescence justified the defendant in assuming the plan was satisfactory and no doubt had its effect in leading the defendant to deal with others along the same lines. That when it paid the 1904-7 accounts, it knew all it was necessary to know to safeguard its rights, except Wisconsin rate statute, is not denied. It does not claim it supposed the boomage rate which entered into the total charge for either of those years exceeded fifty cents. Without it entertained that belief, it is difficult to fathom how its want of knowledge of the Wisconsin statute affected' the situation.
“The Wisconsin statute was not hidden by the defendant. Ordinary business prudence would have prompted the officers of the complainant to have them examined for what they provided regarding rates. If they were not at hand in Menominee, they lay at the other end of the bridge which the complainant’s officers frequently crossed.
“Whether a party should be held relieved from the effect of payment, by setting up- ignorance of a material fact, which was discoverable on slight effort, and which the ordinarily prudent, in his situation, would be expected to investigate, is a point which the authorities presented do not quite cover. How the point would be ruled in an action at law, or in a court of equity where the common jurisdiction of equity was only involved, it is unnecessary to speculate. Culpable ignorance of a material fact should not avail as a basis for the exercise of the jurisdiction of equity herein invoked. That the complainant paid an account in ignorance of a fact which was open to the light-of day during the fifteen years or more, in each of which it paid similar accounts, and which, if common prudence had been exercised, it would have known, would be a poor excuse to give a foreign court for the reflection on its integrity, or on the justice of the laws of its State, with which an injunction staying its proceedings, unavoidably, would be tainted.
“A decree will be entered dismissing the bill of complaint with costs in favor of the defendant, to be taxed.”

Counsel have filed very elaborate briefs. In appellant’s brief we find the following criticism:

“Referring to the opinion of the learned circuit judge, in whose opinions we usually find great force and logic, we must say in this case we are baffled at both his arguments and conclusions, and can find no other explanation therefor than that, from some cause, he overlooked much in both pleadings and evidence. We therefore refer to his opinion in confidence that this court will conclude that in many features thereof it is erroneous.
“The opinion seems, at almost the outset, to show the court did not have in mind the location or identification of the rafting gaps. This error alone is sufficient to rend asunder his whole treatment of the subject of ‘rafting/ ”

Following this criticism, counsel quote the testimony of two witnesses, one of whom places these gaps between figures 9 and 10 of the blue print, and the other between figures 10 and 11. The last of these witnesses explained in detail the work of separating the logs and an examination of the record we think justifies the description of the judge of the operation pursued. Other criticisms of the statements of the judge as to what the evidence shows have been examined, and we do not find them justified by the record, but even though the trial judge was mistaken as to some of the unimportant details it is evident he was not mistaken as to the essential and controlling facts.

A careful examination of the somewhat voluminous record and the reading of the able briefs of counsel satisfy us that the case presented by the plaintiff would not warrant the interference of a Michigan court of equity, with the law case in Wisconsin and the granting of the relief prayed, for the reasons stated by the trial court in his opinion.

The decree is affirmed, with costs to the defendant.

Ostrander, C. J.,'and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. POWERS.
    1. Criminal Law — Burglary—Leading Questions — Cross-Examination — Evidence—Witnesses.
    In a prosecution for burglary, where defendant was a witness in his own behalf, held, no such abuse of discretion as to constitute reversible error for the trial court to, permit leading questions to be put to him, on cross-examination.
    2. Same-Witnesses for Prosecution — Indorsing Names on Information — Appeal and Error.
    In such prosecution, the court below was not in error in permitting the indorsement of the names of two witnesses upon the information after the trial began, where the prosecutor stated he had just learned of the witnesses, and no claim for a continuance was made.
    3. Same — Indictment and Information — Sufficiency — Statute —Burglary.
    Although a “garage” is not one of the buildings mentioned in the statute (3 Comp. Laws 1915, § 15292) under which the prosecution was brought, an information describing the place of the offense as “the shop, to wit, the garage,” etc., was sufficient.
    4. Same — Trial—Instructions—Reasonable Doubt.
    It was not error for the court below to refuse a requested instruction as to reasonable doubt, where there can be no doubt that, from the charge as a whole, the jury understood the burden which was put upon the people and what constituted a reasonable doubt.
    5. Same — Argument of Counsel.
    Argument of the prosecutor in reply to defendant’s attorney and justified by the testimony of defendant was not prejudicial error.
    6. Same — Trial—Misconduct of Jury — Affidavits.
    Where, if the affidavit of the officer in charge of the jury is believed there was no misconduct on the part of the jury or the officer in charge, alleged error based thereon was not prejudicial; the trial judge having the advantage ' of knowing the affiant.

      Exceptions before judgment from Barry; Smith, J.
    Submitted June 14, 1918.
    (Docket No. 104.)
    Decided September 27, 1918.
    Leslie Powers was convicted of burglary.
    Affirmed.

      James M. Powers and Frank A. Dean,'tor appellant.

      Thomas Sullivan, Prosecuting Attorney, for the people.
   Moore, J.

An information was filed against respondent, which, omitting the formal parts, reads—

“that one Leslie Powers, late of the city of Battle Creek, in the county of Calhoun and State of Michigan, heretofore, to wit, on the 9th day of September, 1916, at the township of Assyria in said Barry county, about the hour of twelve o’clock in the nighttime of said day, with force and arms, the shop, to wit, the garage of one Frank Schroder, there situate not adjoining to or occupied with a dwelling house, feloniously and burglariously did break and enter with intent the goods and chattels'of the said Frank Schroder in the said shop, to wit, garage; then and there being found, then and there feloniously and burglariously to steal, take and carry away, * * * gives the court further to understand that the said Leslie Powers on the 9th day of September, 1916, at the township of Assyria in said Barry county, did break and enter the garage of one Frank Schroder and one automobile of value of $350.00, of the goods and chattels of said Frank Schroder, then and there being found, feloniously did steal, take and carry away; contrary to the form of the statute in such case made and provided.”

The case was tried before a jury which returned" a general verdict of guilty.

Sixteen of the assignments of error relate to the admissibility of the evidence. They have all been examined with care. Some of the questions to which answers were permitted were leading. Some of them were put to the respondent, who was a witness on his own behalf, on the cross-examination. There was no such abuse of discretion on the part of the trial judge as to any of these questions and answers as to constitute reversible error.

Under one of the subdivisions of this head it is urged as error that the trial judge permitted the indorsement of the names of two witnesses upon the information after the trial began. The prosecutor stated he had just learned of the witnesses. There was no claim that if the indorsement was made and the witnesses were sworn that a continuance was desired. The trial judge did not err in this regard, see People v. Durfee, 62 Mich. 487; People v. Perriman, 72 Mich. 187; People v. Mills, 94 Mich. 630; People v. Machen, 101 Mich. 400; People v. Moore, 155 Mich. 107.; People v. Bollman, 178 Mich. 159.

Fourteen assignments of error relate to the refusal of the court to give respondent’s written requests to charge, and seven assignments relate to the charge as given. We shall not discuss each of these assignments of error, but will refer to those which seem to have most merit.

The second request on the part of the respondent reads:

“The warrant and information in this case by which the charge against the respondent is made, contain two counts: The first count charges the breaking and entering the ‘garage’ of Frank Schroder, not adjoining to or occupied with a dwelling house, in the nighttime, with intent to "commit the crime of larceny. I instruct you that a ‘garage’ is not one of the buildings mentioned in the statute under which this prosecution is brought, and consequently the respondent cannot be convicted of the charge of breaking and entering as set forth in the first count of the information and that charge must be dismissed entirely from your consideration.”

The court charged the jury upon that subject as follows:

“I instruct you, gentlemen of the jury, if you find from the evidence that these three were acting together for the purpose of breaking and entering this building and taking this car therefrom, then if you should further find from the evidence only one of the parties broke and entered the building and took the car therefrom, while the other two remained by the roadside for the purpose of aiding and assisting the one who entered the building, either in making his escape or in conveying away stolen property taken therefrom, then all of said parties would be guilty of burglary and larceny.
“I instruct you further, gentlemen of the jury, that if you should find from the evidence in this case, that any one of the defendants broke and entered this building in the nighttime with the knowledge, consent and co-operation of the other two, with the intent to commit larceny therein, then the crime of burglary would have been committed and all are equally guilty, provided this building is not adjoining to or occupied with a dwelling house.
“I instruct you further, gentlemen of the jury, that if you find from the evidence that Leslie Powers, the respondent, broke and entered this building in the nighttime with intent to commit the crime of larceny, then he should- be convicted under the first count of the information.
“Should you find further, from the evidence in the case, that after breaking and entering this building with the intent hereinbefore mentioned, he committed the larceny intended and took the car, then he should be convicted under the first and second counts of the information.”

It will be observed that the request to charge ignored the fact that the place of the offense was described as “the shop, to wit, the garage, of one Frank Schroder.” See People v. Wyeoff, 150 Mich. 449; 8 Comp. Laws 1915, § 15292.

The following request was preferred:

“By the term reasonable doubt, as I have used it in these instructions, is meant a fair doubt, growing out of the testimony in the case or the lack of testimony. It is not a- mere imaginary, captious or possible doubt, but a fair doubt, based upon reason and common sense; it is such a doubt as may leave your mind, after a careful examination and consideration of all of the evidence in the case, in that condition that you cannot say that you have an abiding conviction to a moral certainty of the truth of the charge here made against this respondent.”

The court said to the jury in part as follows:

“Another rule is that the burden of proof rests with the people and the people must prove by legal testimony and beyond a reasonable doubt a state of facts which will justify a conviction. Guilt is not to be lightly assumed from the proof, but it is to be clearly established, or as the law says, beyond a reasonable doubt. In other words, the proof in the case must be such as to clearly show the guilt of the respondent and not be reasonably consistent with any other theory than that of guilt. In criminal cases, full and satisfactory proof of guilt is required. No mere weight of evidence will warrant a conviction unless it be so-strong and satisfactory as to remove from your minds all reasonable doubt of the guilt of the accused. In considering this case, you are not to go beyond the evidence to hunt for doubts, nor should you entertain such doubts as are merely fanciful or based upon groundless conjecture. A doubt to justify an acquittal must be reasonable and must arise from a candid and impartial consideration of the evidence in the case, and it must be such a doubt as would cause a reasonably prudent and considerate man to hesitate and pause, before acting in the grave and more important affairs of life. If, after a fair and impartial consideration of the evidence in the case, you can say and feel that you have a firm and abiding conviction of the guilt of the respondent and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt and in such case your verdict would be guilty. (In other words a reasonable doubt must be a doubt which arises from the evidence in the ease), not a doubt which is mere conjecture, not a doubt having its origin in something else than the evidence, not from a desire to acquit or from sympathy, prejudice or favor, but in the language of a law writer, ‘A reasonable doubt is a fair doubt growing out of the testimony in the case.’ It is not a mere imaginary, captious or possible doubt, but a fair doubt based upon reason and common sense; it is such a doubt as may leave your minds, after a careful examination of all the evidence in the case, in that condition that you cannot say that you have an abiding conviction of the truth of the charge made against the respondent.”

The criticism is that the judge omitted the words “to a moral certainty” and used the sentence “In other words a reasonable doubt must be a doubt which arises from the evidence in the case.” When the charge is read as an entirety there can be no doubt the jury understood the burden which was put upon the people and what constituted a reasonable doubt. Hall v. People, 89 Mich. 717; McGuire v. People, 44 Mich. 286; People v. Davis, 171 Mich. 241; People v. Lalonde, 171 Mich. 286; People v. Kreidler, 180 Mich. 654; People v. Coulon, 151 Mich. 200.

The argument of the prosecutor is criticised. Part of it as appears by the record was in reply to the argument of one of the attorneys for defendant, and the other part was justified by the testimony of the respondent who was sworn as a witness.

Many pages of the brief of respondent are devoted to an argument that the court erred because of the misconduct of the jury and of the officer in charge of the jury. This argument overlooks the affidavit of the officer as to what was done and said. If his affidavit is believed there was no misconduct that calls for a reversal of the case. The trial judge had the advantage of knowing the affiant.

The remaining assignments of error have had our careful consideration though we do not feel called upon to discuss them. The respondent had the advantage of able and vigilant counsel. His case was carefully tried. We find no reversible error.

The conviction is affirmed, and the case is remanded for further proceedings.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    COUNTY OF SAGINAW v. McKILLOP.
    1. Waters and Watercourses — Drains — Rights oe Riparian-Owners — Question oe Law.
    The right of large numbers of people, some of whom are riparian owners and some of whom are not, to drain into the upper reaches of a river not in its natural state, but by proposing to change the river bed itself in a very marked degree.to the alleged great harm of lower riparian owners and others, by greatly increasing the flow of water, particularly in time of high water, should not be disposed of as a question of law.

    2. Same — Damages—Hearing Upon Merits.
    The elements that enter into the question of damages are so many that the case ought not to be disposed of upon the averments of plaintiffs’ bill to restrain the construction of said drain and the motion to dismiss.
    Appeal from Saginaw; Mayne, J., presiding.
    Submitted June 19, 1918.
    (Docket No. 75.)
    Decided September 27, 1918.
    Bill by the county of Saginaw and others against Alexander H. McKillop, drain commissioner of La-peer county, and others, to enjoin the construction of a drain. From an order denying a motion to dismiss, defendants appeal.
    Affirmed.

      John F. O’Keefe, Prosecuting Attorney, and Robert T. Holland, City Attorney (Miles J. Purcell, of counsel), for plaintiffs.

      Theo. D. Halfin, Walter S. Wixson, and Charles F. Gates, for defendants.

      See note in 24 L. R. A. (N. S.) 903.

   Moore, J.

The bill of complaint has the following averments:

“That each of the said plaintiff townships, as well as the plaintiff city of Saginaw, are located upon or adjacent to the Saginaw river and the Flint river in Saginaw county, and the said Flint river and Saginaw river traverse the said plaintiff county of Saginaw. That the said plaintiff the Henry Passolt Company is the owner of property adjacent to the said Saginaw river, as above described, and the said plaintiff Horace E. Sloan is the owner of property lying adjacent to the said Flint river, as above described.
“8. The plaintiffs further allege that the Saginaw river is formed in Saginaw county a short distance above the city of Saginaw, by the confluence of the Cass river, Flint river, Shiawassee river and the Tit-. tabawassee river, and that said Saginaw river thereafter traverses Saginaw and Bay counties to Saginaw Bay, a distance of about 17 miles, and that said Saginaw river, together with the rivers above named and their respective tributaries, drain the watershed in the eastern part of the lower peninsula of Michigan, containing upwards of 6,000 square miles. That the Flint river, one of the streams forming the said Saginaw river, traverses the counties of Saginaw, Genesee, Lapeer, Tuscola, and Sanilac. That the said Saginaw river, which is the outlet of the system above referred to, runs through a flat territory so that the bottom of the river throughout the whole length of 17 miles or thereabouts is practically level. Said river, however, during normal periods of the year affords an adequate outlet for the waters naturally and normally flowing therein from the streams and tributaries whose confluence .form said river. * * *
“11. These plaintiffs allege that on- February 5, 1914, a petition bearing date July 9, 1913, was filed in the office of the drain commissioner of Lapeer county, petitioning and applying for the construction of a drain to be known as 'Flint river drain’ and providing for the deepening, widening and improvement of the north branch of the Flint river, a distance of, to wit, 24 miles. That the first order of determination upon said application was entered October 19, 1914, and filed on the same date; that the final order of determination was entered on February 4, 1916, and filed on the same date; that said final order of determination was signed by Mr. Alexander H. Mc-Killop, county drain commissioner of Lapeer county, who is made defendant herein; by Albert Hunter, drain commissioner of Tuscola county, who is made defendant herein; and by Stewart D. Nicol, county drain commissioner of Sanilac county, who is also made a defendant herein. That on said February 4, 1916, by action of the said county drain commissioners in joint session, the expenses of the construction of said. 'Flint river drain’ were apportioned between the three counties alleged to be interested therein as follows : * * *
“That the width of ground proposed to be condemned for the excavation of said drain and the deposition of earth is 200 feet along the course of said drain, being 100 feet on each side of the center line thereof. That the total length of said drain as proposed is 7,568 rods, or 23 miles and 208 rods. That beginning at station O, or the outlet, so-called, of said drain, the width of bottom excavation is 40 feet, and the width of surface excavation is 60 feet. That said dimensions are the same until station 322 is reached. Beginning with station 323, the width of bottom excavation is 40 feet, and the width of surface excavation .is 50 feet, which dimensions continue to station 616. Beginning with station 617 the width of bottom excavation is 30 feet, and width of surface excavation is 40 feet, which dimensions continue to station 650. Beginning with station 651 the bottom excavation is 20 feet, and surface excavation is 30 feet, which dimensions continue to station 915. Beginning with station 916 the width of bottom excavation is 16 feet and width of surface excavation is 26 feet, which dimensions continue to station 946 which is the beginning of upper end of said proposed drain. That the depth of actual cut in feet and inches ranges throughout said drain from 15.6 feet through the length of the drain.
“13. These plaintiffs further allege that the territory proposed to be drained by the construction of the aforesaid ‘Flint river drain’ and which territory is proposed to be assessed for benefits for the construction of said drain, embraces 132,000 acres. * * *
“15. These plaintiffs further allege that if said ‘Flint river drain’ is allowed to be constructed, that it will greatly increase the flow of water onto these plaintiffs, particularly in time of high water. That the construction of said drain will increase the amount of flood waters poured upon these plaintiffs and by thus raising the amount of water will increase the size of the district flooded in time of high water and will extend the length or period of the flood in point of time by adding to the water thereof. That the construction of said drain will not only increase the amount of water coming down the Flint river, but by reason of the deepening, widening and straightening of the channel of the Flint river within the limits of said drain proposed to be constructed, will greatly increase the rapidity of the flow thereof, thus increasing the height of the flood upon these plaintiffs. That if said drain is constructed it will cause these plaintiffs great, untold and irreparable damage by tearing out and destroying the county roads and county bridges of said county of Saginaw, adjacent to the said Saginaw and Flint rivers; by washing out and destroying the highways, bridges, and culverts owned by the plaintiff townships adjacent to the said Flint and Saginaw rivers, and by washing out and destroying and injuring the bridges and approaches thereto, the streets, pavements, sewers, gutters, water mains and water works and appurtenances thereto owned by the said city of Saginaw across, adjacent to, and in the vicinity of the said Saginaw river; by flooding' and destroying the farm lands, buildings, and property of the said Horace E. Sloan, and by flooding and destroying the property, buildings, machinery, and merchandise of the said the Henry Passolt Company.”

The defendants answered the bill of complaint admitting that the proposed drain was to be constructed as stated, but denied that any such disastrous results as were averred in the bill of complaint would follow.

Accompanying the answer was a motion to dismiss the bill of complaint for many reasons; the important ones stated are:

_ 1. That there is no right of priority in the use of a river for drainage purposes, plaintiffs gaining no rights over defendants by first constructing their sewers, drains and ditches.
2. That plaintiffs have no right that any court should protect in the construction of bridges, sewers, and highways which interfere with the passage of the waters from above, either at normal or flood times.
3. The prime natural use of a river is a carrying away of the water from the higher parts of the country, and not for bridges and highways which may serve to impede the natural use of such streams.
4. That the attempted monopolization of the Saginaw river by plaintiffs is not only an interference with natural and legal rights, but conflicts with sound public policy.
5. The Saginaw river is a navigable stream, so recognized by the Federal government and this Commonwealth, with established dock lines, floating large freighters and traversed by steamships of thousands of tons burthen, and having capacity in depth to accommodate all craft afloat upon the Great Lakes.
6. The capacity rule does not apply' to Saginaw river.

The motion to dismiss was overruled and the case is brought here by appeal.

We quote from one of the briefs:

“Inasmuch, therefore, as the bill of complaint in this case cannot be amended, any new original bill drafted, or any proofs given that will entitle plaintiff to any part of the relief sought, it would be useless to put the parties to the needless expense of long weeks of taking testimony to make volumes of matter to cumber the records of this court in useless litigation.”

This position is taken upon the theory that the proposed improvement is a lawful one, and if, as a result of the making thereof, harm comes to those individuals or municipalities situated on the lower reaches of the river, that they are remediless. Counsel cite and quote' from many cases, among them Crawford v. Rambo, 44 Ohio St. 282 (7 N. E. 429); Eastern Oregon Land Co. v. Irrigation Co., 201 Fed. 203 (119 C. C. A. 437); Cairo, etc., R. Co. v. Brevoort, 62 Fed. 129; New York, etc., R. Co. v. Hamlet Hay Co., 149 Ind. 344 (47 N. E. 1060, 49 N. E. 269) ; Kankakee, etc., R. Co. v. Horan, 131 Ill. 288 (23 N. E. 621); Chicago, etc., R. Co. v. People, 212 Ill. 103 (72 N. E. 219); Mason v. Fulton County Com’rs, 80 Ohio St. 151 (88 N. E. 401, 24 L. R. A. 903, and note); Mizell v. McGowan, 129 N. C. 93 (39 S. E. 729); Waffle v. Railroad Co., 53 N. Y. 11, counsel quoting from the last named case as follows:

“This gave no right of action to the plaintiff. The defendant had an absolute right to drain the surface water upon its land into the stream which was its natural outlet through ditches constructed upon its own. land, although, the quantity of water in the stream was thereby increased in times of high water and diminished at other times (Angelí on Watercourses [6th Ed.], §§ 108a to 108s). The authorities of this country and England upon this subject are collected and revised by the author, and clearly establish the right claimed by the defendant. (Goodale v. Tuttle, 29 N. Y. 459; Rawstron v. Taylor, 11 Exch. 369; Gannon v. Hargadon, 10 Allen [Mass.], 106; Miller v. Laubach, 47 Pa. 154.) A proprietor having the right to reclaim his land by draining the surface water therefrom by ditches discharging into a stream running thereon which is the natural outlet for the water, the object of doing so, whether for the erection of buildings, agriculture or constructing a railroad thereon, is wholly immaterial. He may so drain whenever disposed to do so, irrespective of the object.”

Counsel say Michigan is in harmony with these cases. We quote from the brief of counsel:

“Michigan has adopted this rule, as appears from Boyd v. Conklin, 54 Mich. 583; Leidlein v. Meyer, 95 Mich. 586; Horton v. Sullivan, 97 Mich. 282; Launstein v. Launstein, 150 Mich. 524, as have also the States of Alabama, California, Illinois, Iowa, Louisiana, North Carolina, Ohio, Pennsylvania, South Carolina, and Tennessee, and some other States.
“The application of the rule was early applied in Michigan in the case of Treat v. Bates, 27 Mich. 390, where Judge Campbell in the opinion said:
“ ‘There can he no doubt of the right of the riparian owner to drain his own land through his own land into the adjoining stream. And it is equally clear that unless he has parted with it, he has the right to the stream in its natural flow, and a right to prevent any such interference with the natural flow as will work material injury to any of his legal privileges. It can make no difference whether the injury to his premises will he greater or less than if he had chosen to leave them in a state of nature if the encroachment is not warranted. He has a full claim to be protected in any lawful use of his own possessions.’
“The court applied the rule as heretofore stated in Leidlein v. Meyer, supra, wherein it is stated in the opinion:
“ ‘As already intimated, we think the proofs hardly sustain the allegation of a well-defined watercourse. If there was such a watercourse then the plaintiff’s right to its use under all the authorities would be undoubted. * * * Under it (the declaration) a recovery could be had whether the proofs showed a natural watercourse, well-defined, or whether it was an artificial one to which the plaintiff had obtained a right by user, or whether there was a natural flow over land without a channel, natural or artificial.’ ”

An examination of these cases will show that they do not meet the case stated in the bill. If the defendants were riparian proprietors who were simply draining their lands for purposes of agriculture, health, or other lawful purposes into a natural stream there is no doubt the authorities would justify them in doing so. In the instant case large numbers of people, some of whom are riparian owners and some of whom are not, are proposing to drain into the upper reaches of a river not in its natural state, but they are proposing to change the river bed itself in a very marked degree, and, the plaintiffs say, to their great harm. We do not think such a situation can be disposed of as a matter of law. At least we have had no authority called to our attention that warrants such a disposition of the case.

Counsel say there is another proposition that will sustain the motion to dismiss; we quote from the brief:

“Less than three per cent, of the flood waters at Saginaw come from the Flint river drainage district. The improvement could not possibly increase the flow more than two per cent., and in all probability the increase, if any, would be much less than one per cent. To say that such a small per cent, will cause a merciless devastation and utter destruction of large portions of the city and county of Saginaw goes far beyond the bounds of reason, and such assertions are not facts which bind the defendants or the court on this hearing. The bill alleges that 132,000 acres are to be drained by the proposed improvement. It also shows that the watershed draining through Saginaw river comprises upwards of 6,000 square miles. It thus appears that the drainage district is only about one-thirtieth of the watershed of the Saginaw river. The natural flow of Flint river in normal times and in times of freshets is now running into the Saginaw river, and it is only the increased flow over and above what it now is, that is, or can be, involved in this litigation. No inference of more than nominal damage can reasonably be drawn from the facts alleged.”

There are so many elements that enter into the question of when damage will be caused by an augmentation of the flow of water or what will be the effect of changed conditions, that we are not inclined to dispose of the case upon the averments of the bill of complaint and the motion to dismiss, but think the case should be heard after the proofs are taken.

The order overruling the motion to dismiss is affirmed, with costs, and the case will be remanded for further proceedings.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Mooke, J.

text:
    GAFFNEY v. BLIVEN.
    Cancellation of Instruments — Deeds—Undue Influence.
    On a bill by the daughters of grantor to set aside a deed of a farm, to defendant, their sister, on the ground of-false and fraudulent representations and undue influence on the part of defendant, testimony held, insufficient to establish plaintiffs’ case.
    See note in L. R. A. 1916B, 18.

      Appeal from Wayne; Mandell, J.
    Submitted June 13, 1918.
    (Docket No. 39.)
    Decided September 27, 1918.
    Bill by Clara S. Gaffney and others against Josephine Bliven to set aside a deed. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Charl&s C. Conklin and Edward C. Moran (Thomas A. E. Weadock, of counsel), for plaintiffs.

      Walter Barlow and Leon D. Barlow, for defendant.
   Mooke, J.

From a decree dismissing the bill of complaint this case is brought here by appeal. Catherine Shefferly, a widow, died on the 27th day of October, 1904. She was the mother of Charles Shefferly, Mary Keenan, Josephine Bliven, Catherine Sheehan, Lena Sheehan, and Clara Gaffney, all of whom survived her. She owned a farm of 38 acres, on which there was a mortgage which, principal and interest, amounted to about $2,500. On October 24,1904, Catherine Shefferly made a quitclaim deed of the farm to Josephine Bliven. The bill of complaint in this case was filed October 22, 1915. We quote from the brief of appellant:

“The bill of complaint was originally filed to declare the deed a trust deed and the defendant Josephine Bliven, .a trustee, holding a deed of the farm owned by Catherine Shefferly during her lifetime in trust for the benefit of her sisters, the other daughters of Catherine Shefferly, and that an equitable division of the farm be made between all the daughters of Catherine Shefferly.
“An amended bill of complaint was filed during the progress of the trial in the court below, praying that the deed dated on the 24th day of October, 1904, executed by Catherine Shefferly conveying the property to Josephine Bliven be set aside and held for naught, because of the false and fraudulent representations made by defendant to Catherine Shefferly by means of which defendant obtained title of said farm.”

The case is discussed in this court at considerable length under the following heads:

1. The effect of the so-called oral “family compact” alleged in the original bill upon the validity of the deed in question.
2. The subject of fraudulent representations and undue influence, if any, alleged by the two remaining plaintiffs in the case to have been practiced by the defendant to induce Catherine Shefferly, her mother, to convey the lands in question to said defendant.
3. The laches of the plaintiffs in filing their bill herein.
4. The validity of the amended bill of complaint allowed by the court on the hearing in the court below.

Without following this order of discussion we think the question of fact will decide the case. The scrivener who drew the deed testified in part as follows:

“I knew Mrs. Catherine Shefferly as long as I can remember. That is the deed, Exhibit 1, dated October 24, 1904, which I made for her. I had known her practically all of my life up to the time this deed was made. We were young together and lived in the same vicinity. After she was grown up and married we lived in the same neighborhood. * * *
“Q. What was the condition of her mind on the day this deed was made?
“A. Well her mind was— I think she was very sick all right, she was very sick. She was in bed and she was very sick, but I found her in her mind just about the same as she was right along every time I met her. I met her occasionally off and on. And I asked her when I first came in, I asked her how she was and she says, T am very sick.’ I says, ‘Did you send for me?’ She says, ‘Yes, I did.’ ‘Well,’ I says, T came, now anything I can do for you I will do it.’ Then I told her, ‘Don’t get excited, if you want to say anything keep very quiet.’ She says, T will, I can talk’— and she went on and told me that she wanted me to write out a deed. She said she wanted to deed her place to Josephine. (Objected to.)
“A. And she said, ‘Josephine had no home, never had a home, her other children all had homes, and I always wanted to give her a home. I want to deed her my place here. I am sorry I can’t deed her a home without debts but I have got to do the best I can.’ And I told her not to feel that way and whatever she wished to do and all that she could do and it was all right. And I stepped into the other room and drew up the deed and asked Mrs. Gaffney if she would sign as a witness.
“Q. That is one of the complainants in this case that Mrs. Gaffney?
“A. Yes, sir.”

There was testimony offered on the part of the plaintiff to the effect that the deed was made to Mrs. Bliven upon the agreement that she was to divide the property with her sisters. This is denied by Mrs. Bliven.

The record fairly shows that Mrs. Shefferly was competent to make the deed. It shows the land conveyed was worth in the neighborhood of $4,500, incumbered with a mortgage, principal and interest, of about $2,500. It shows that Mrs. Bliven has paid debts of her mother and funeral and other proper expenses amounting to about $800, and reduced the mortgage to about $1,000. It shows that the son had already had 20 acres of the home farm and that each of the daughters had comfortable homes except Mrs. Bliven. The disposition of her small property by Mrs. Shefferly evidenced by the deed is a natural one. When the testimony, which is incompetent because equally within the knowledge of the deceased, Mrs. Shefferly, is eliminated, there is a failure to establish by a preponderance of evidence the case stated in either of the plaintiffs’ bills of complaint.

The decree is affirmed, with costs.

Bird, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Moore, J. Ostrander, C. J., and Brooke, J., concurred in the result.