author: Grant, J.

text:
    PEOPLE v. GOTSHALL.
    1. Criminal Law — Arson—Evidence.
    Evidence reviewed, and held to be sufficient to support a conviction of arson.
    2. Same — Identification.
    In the absence of evidence that accused, charged with arson, was of uncommon height or figure, it was error to admit as affirmative evidence of identification that witnesses met a man in a public highway, in the evening, shortly after the fire, and from one to two miles from the building burned, of about the same size and height as the accused.
    3. Same.
    In a prosecution for arson, it was error to allow two active young men to testify for the people that they had started from the point where accused was claimed to have been" seen the night of the fire, and had walked in a given space of time to the burned building and back to accused’s home, over the same course he was claimed to have taken, for the purpose of convincing the jury that accused, a man 70 years old, and in ill health, could have made the trip in nearly the same time.
    4. Same — Trial—Impartial Conduct.
    Where the respondent in a criminal prosecution is unpopular in the community where the trial is had and the crime with which he is charged was committed, and there is great feeling and prejudice against him, the prosecuting attorney and circuit judge are under especial responsibility to conduct his trial with fairness and impartiality.
    5. Same — Misconduct of Prosecutor — Attack on Respondent’s Witnesses.
    It was reversible error for the prosecuting attorney to make unwarranted attacks upon respondent’s witnesses, calculated to arouse in the jury an unjust suspicion of their character and truthfulness.
    6. Same.
    It was error for the prosecuting attorney to make the statement, when a witness failed to appear, that he did not know who was “dragging away” the witnesses; it being in effect an insinuation that respondent was trying to keep the witnesses from attendance, for which charge there was no foundation.
    7. Same — Cross-Examination.
    Where accused was charged with arson, it was error to allow the prosecution to ask him, on cross-examination, if he had not set numerous other fires, for the mere purpose of conveying the impression to the jury that the prosecution believed that he had set them, without expectation that accused would give an affirmative answer.
    8. Same — Prior Offenses.
    Where accused was charged with arson, it was error to allow the prosecution to ask him, on cross-examination, whether he had not been threatened with arrest for setting fires in another State, where such questions related to matters occurring more than 32 years before the trial.
    9. Same — Motive—Witnesses—Uncertainty.
    On a prosecution for arson, the testimony of the owner of the building burned, introduced for the purpose of showing a motive for the crime, that he was of the impression that he had a conversation with respondent in regard to the insurance, but was not positive whether he had or not, should have been excluded, as not rising to the dignity of evidence.
    Error to Genesee; Wisner, J.
    Submitted February 1, 1900..
    Decided March 27, 1900.
    John H. Gotshall was convicted of arson, and sentenced to imprisonment in the State prison at Jackson for 10 years.-
    Ee versed.

      Respondent, who is nearly 70 years of age, was convicted of the crime of arson, and sentenced to the penitentiary for 10 years. He had lived in the city and town of Flint for 32 years. He was a merchant. The property destroyed was a barn, its contents, and strawstacks around it, belonging to Lee & Aitken, lawyers, residing in the city of Flint. Respondent also resided in the city. His home was 2£ miles from the burned buildings, and his store 2 miles. The fire occurred September 30th, and was discovered about 7:30 p. m. An auction was held at the farm that day, the sale closing about 5 o’clock. The articles sold were across the road from the barn, and about 30 rods distant. Horses were tied around the barn, and people went in and around it during the day. The weather was hot, and it was very dry. Respondent was ill, and under the care of a physician, who advised him not to attend the sale. He, however, rode there with a neighbor, bought a few articles, and returned home about 5 o’clock. The property was insured in the Genesee Farmers’ Mutual Fire Insurance Company, of which respondent had once been a member. He had difficulty with the company, withdrew from it, and litigation arose between them. In this litigation Mr. Lee was one of the attorneys for the company, and in his argument had severely criticised respondent. There was the usual amount of smoking by those attending the sale. There was testimony of threats made by the respondent against the company. The buildings were situated east of the city. The street — Kearsley street — by which they were reached was one of the principal thoroughfares leading in and out of the city.

      Geer & Williams, for appellant.

      Fred W. Brennan, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). It is the theory of the prosecution that respondent, after returning from the sale, and after the hour of 6:30, walked to the barn, set fire to it, and returned to his home along the public highway and streets of the city. The claimed motive for the crime is his animosity against the insurance company and Mr. Lee. It is strenuously urged by counsel for respondent that the prosecution failed to establish the crime, and that the court should have directed an acquittal. The case for the prosecution rests entirely upon the testimony claimed to show that the respondent was seen going east on Kearsley street, towards the buildings, about 6:30, and about three blocks from Saginaw street, and that about the time the fire broke out he was seen going west on Kearsley street and on Court street, which runs parallel to Kearsley. The witness who testified to meeting him going east said: “It was not dark. It was between sundown and dark.” The streets had not been lighted. The witness did not see his face, and could, therefore, only recognize him by his clothes. He does not, however, state by what means he recognized him other than to tell how he was dressed. He said his clothes were dark. He could not tell whether his coat was long or short. Didn’t pay attention enough to know whether it was an overcoat or a sack coat. He further testified, “I have seen him wear the hat frequently.” This is all the testimony the witness gave in support of his identification. The place where this witness testified to meeting respondent was at least two miles from the fire. Two other witnesses testified to meeting respondent, on Court street, on the west side of Gilky creek, going west into the city, at a point nearly two miles from the fire. Their testimony as to the identification is not very satisfactory. The prosecution also gave testimony of a man coming west on Kearsley street near Gilky creek, who, it is claimed, was (respondent. Two witnesses testified to meeting this man, and that he was about the same size as respondent. They saw the fire about the same time as did the witnesses who went out Court street, one of whom went on a bicycle. The witnesses on Kearsley street had a horse and buggy. If the person seen on Kearsley street was the same man who was seen on Court street, he must have traveled that distance — -nearly or quite 3,000 feet — in an almost incredibly short space of time. Although this testimony of identification is very unsatisfactory, we do not think that we can hold that there was no evidence for the jury to act upon. The verdict, however, based upon this testimony, leads to a careful examination of the errors assigned.

Several witnesses were permitted to testify that they met a man on Kearsley and Court streets, none of whom placed him within a mile of the fire, and that he was about the height and size of respondent. This was allowed to go to the jury as evidence that respondent was seen going towards this farm before the fire, and returning from it after, and thus justify the conclusion, that he set the fire. The value of such testimony will be seen from the cross-examination of one of the witnesses:

‘‘Q. How did the man compare with your size?
“A. Just about my size.
“Q. How would he compare with Mr. Brennan as to size?
“A. I suppose pretty near the size.
“Q. You know 100 men about that size?
“A. Yes, sir.
“Q. So there was nothing uncommon about his size?
“A. Not particularly.”

To casual observers, unless one is so much above or below the ordinary height or size of men as to attract attention, persons, when seen at dusk, or in the evening, or in the light of electric lamps, would appear about the same size and height. When there are hundreds of others in the same community of about the same height and size as the person upon trial charged with a heinous crime, it is not competent to introduce, as affirmative evidence of identification, testimony of witnesses that they met a man in the public highway, in the evening, from one to two miles from the locus of the crime, of about the same size and height as the respondent. Such testimony is merely the'expression of an opinion based upon the most casual observation, and Cannot be used to form one of the important and necessary links to convict a person of crime.

Two active young men, at the instance of the prosecution, started from a point in Kearsley street, where the witness testified he met respondent on the night of the fire, walked thence to the place of the fire, and back to respondent’s home, and were allowed to testify that they made the trip in one hour and ten minutes. This was over the course it was claimed respondent took. This testimony was offered for the purpose of convincing the jury that respondent could have made this trip, entered and fired the barn, and returned home in the same time, or a few minutes longer. The injustice of this procedure is manifest. Had the prosecution selected two men of the age and condition of respondent, there would have been a show of propriety and fairness. There is no logic in the argument that, because these young men walked or ran from four to four and a half miles in an hour and ten minutes, therefore this old man, who was ill, accomplished the same feat.

Dr. Howland, a physician of 28 years’ practice in Mint, testified that he had been treating respondent for a month or more for a trouble of the bladder; that he had treated him that morning before he went to the sale, giving him medicine, and washing out his bladder; that he had urged him not to attend the sale; that he was in the respondent’s store that evening, when they were closing up, at 6 :25 or 6:30 o’clock, and saw the respondent there; that within half an hour, or perhaps a little longer, thereafter, he saw the fire.; and that, in his opinion, respondent was physically incapable of walking to the place of the fire and back within the time claimed by the prosecution. Oh cross-examination he was asked how many, times he had been a witness for respondent, to which he replied, “Once.” The prosecuting attorney then continued:

“Q. Is this the only case you have been a witness for him in ?
“A. Yes, sir.
“Q. Do you recollect the trial of the other case, in which he was charged tuith a fire over in Burton ? Were you not a witness for him then ? '
“A. No, sir.”

A similar course of cross-examination was pursued with another witness for the respondent, named Kelley.

One Mrs. Sweet, a witness for respondent, was formerly a Mrs. Chase, residing in the State of New York. On cross-examination she testified that her husband got a divorce from her in New York. The prosecutor then asked her, ‘ ‘ Don’t you know that they cannot get a divorce in New York on any ground except adultery ?” Objection to this question was sustained.

One Boomer was cross-examined by the prosecuting attorney as follows:

“Q. Did you ever attempt to hang yourself?
“A. No, sir.
“Q. And then didn’t you go back in the house, and whip your wife, because she wouldn’t cut you down ?
“A. No, sir.
“Q. You never whipped your wife ?
“A. No, sir.
“Q. You have never been threatened with arrest for beating your wife ?
“A. No, sir.
“Q. Wasn’t that canvassed at the time you were appointed night-watch on the street, and they didn’t want to appoint you because you were a wife-beater ?
“A. No, sir.
”Q. Do you swear that is true?
“A. I never heard of it before.
“Q. You never beat your wife, did you?
“A. No, sir.
“Q. You never did?
“A. No, sir.
“Q. Do you swear that they didn’t talk about that, and raise that as an objection against you ?
“A. I never heard it mentioned before.”

We think the attempt to throw discredit upon these witnesses by the cross-examination was unjustifiable. It is impossible to read this record without reaching the conclusion that the respondent was a very unpopular man, and that there was great feeling and prejudice in the community against him. Under these circumstances it was the special duty of the prosecuting attorney to see that the respondent had a fair trial, and not to introduce in evidence matters which would permit the jury to entertain an unjust suspicion of the character and truthfulness of the witnesses. It was, moreover, the duty of- the judge to restrain these attacks. Rickabus v. Gott, 51 Mich. 227 (16 N. W. 384).

Another incident occurred in the course of the trial which illustrates the method pursued by the prosecution in order to cast suspicion upon the defense. One Miss Bumps, when called as a witness by the prosecuting attorney, did not respond, whereupon the assistant prosecuting attorney arose, and said, in the presence of the jury:

‘ ‘ I have been informed by the neighbors up there that Miss Bumps has not been seen by the neighbors today. She has been subpoenaed, and we have sent a hack after her. I do not know who it is that is dragging these witnesses away.”

There was no foundation for any such statement. It amounted to a direct charge that the respondent was trying to obstruct the course of justice by keeping the witnesses for the prosecution from attendance.

The respondent was a witness in his own behalf. On his cross-examination the following questions were asked under objection and exception:

Q. Where did you live previous to coming to Genesee county ?
“A. Pennsylvania, — Oil City.
Q. How long had you lived at Oil City before you came here ?
UA. I don’t just remember; say four years; possibly maybe five.
Q. What was your business there ?
‘A. I was engaged as a merchant.
Q. What business ?
“A. As a merchant, wholesale and retail, — flour and feed, groceries and provisions, and crockery store. I had three stores at that time.
“Q. Why did you leave there and come to Michigan?
“A. Why?
“Q. Yes.
“A. I came to change away from Oil City, and I came here to buy a home in the country.
61 Q. Why?
“A. I was tired of the country, and I had traveled south a thousand miles to find a home before I came here.
Q. Were you threatened with arrest for any fires there at that time ?
“A. No, sir.
“Q. You didn’t leave there because of any fires ?
“A. No, sir.
Q. Had you a fire there ?
“A. Not personally; only as the city burned up. On the 26th of May; 1866, we had a fire there that burned the city up.
Q. Where did the fire start ?
“A. In the old Widow Sullivan’s shanty.
Q. How far from your premises ?
“A. I should say the distance was in the neighborhood of a quarter of a mile southeast, I think. * * *
Q. Ho you remember who was accused of starting that fire there at Oil City ?
“A. We knew all about it. It was right in the daytime it commenced, and it commenced in the old Widow Sullivan’s shanty, because of the use of petroleum.
“Q. Do you know who was accused of setting the fire at that time, just before you left there ?
“A. No, sir; I never heard of anybody. I soon went back there. * * *
“Q. Now, you may state whether or not you were accused of burning the Nesbitt barn. Were you not accused of burning the Adams barn ? Did you not burn Adams’ barn? Did you not burn Nesbitt’s barn? Did you not burn Dr. Miller’s barn ? Did you burn Damon Stewart’s barn? Did you burn Pearson’s barn? Did you burn Benson’s barn, Mat Davison’s barn, the Stockdale barn ? These barns I have mentioned are all within a radius of how much from Flint ?
“A. You know as well as I; not far from the city.
“Q. Within a radius of what distance?
“A. Within a radius of two miles, I think, would, cover it. I think one was three or four miles. * * *
“Q. Have you heard of any great losses since your arrest in this case, except the Miller barn ?
"’A. Yes, sir; I think five or six, I was going to say, if I had time to look it up.
‘ ‘ Q. Since your arrest, except the Miller barn, will you tell me of another barn ? * *
“Q. Is it not barely possible that you are mistaken about some of these matters- that you are so positive about ?
“A. Possibly.
“Q. Is it not barely possible that you may have burned Miller’s barn?
“A. No, sir.”

In his argument to the jury the prosecuting attorney used the following language:

‘ ‘ He goes down the Richfield road. Down where ? To Dr. Miller’s barn. There he said he stopped, and went in that yard, and up to the barn, and that he called there for the purpose of looking at some sheep racks. He would not be positive whether he went around into the barn or not; he would not be positive about that. I want you to recollect the fact that soon after that Dr. Miller’s barn burned.”

Other portions of the cross-examination are of a similar character: While it is the well-settled rule that the previous life and character of a witness may be inquired into to elicit facts which may aid the jury in determining what credence they will attach to his testimony, yet it is the duty of the courts to keep such examinations within reasonable bounds. When it is manifest that the design or effect of the questions is not to elicit facts, but to cast suspicion upon the character and credibility of the witness, courts must intervene, or trials will result in a miscarriage of justice. The prosecuting attorney had no expectation that the respondent would admit that he was guilty of arson in the several^ cases inquired about. He had been arrested and tried in one of the cases, and acquitted. The purpose of these questions is too manifest. It was designed to convey to the jury the impression that the prosecuting officer believed he was guilty of them. The books are full of cases condemning such practice. Gale v. People, 26 Mich. 157; People v. Crapo, 76 N. Y. 288 (32 Am. Rep. 302); People v. Cahoon, 88 Mich. 456 (50 N. W. 384); Buel v. State, 104 Wis. 132 (80 N. W. 78); Elliott v. State, 34 Neb. 48 (51 N. W. 315).

The inquiry into the fire at Oil City was too remote to be admissible, under the well-established rule. Greenleaf thus states the rule:

“The examination being governed and kept within bounds by the discretion of the judge, all inquiries into transactions of a remote date will, of course, be suppressed; for the interests of justice do not require that the errors of any man’s life, long since repented of, and forgiven by the community, should be recalled to remembrance, and their memory perpetuated in judicial documents, at the pleasure of any future litigant. The State has a deep interest in the inducements to reformation held out by the protecting veil which is thus cast over the past offenses of the penitent.” 1 Greenl. Ev. (15th Ed.) § 459.

The prosecuting attorney attempts ■ to justify his cross-examination of the respondent in the following language:

“In view of the fact that there was the feeling against respondent among the people from his being connected with the many fires which had occurred, which was shown, by the testimony of witnesses Creque and Willett, and which was admitted by respondent himself on cross-examination, it was in the discretion of the trial judge to permit the questions asked him on cross-examination.”

. If this be. sound, it follows that the prosecution may show strong feeling in the community that a respondent is-guilty of many crimes that have been committed, and thus'tustify asking him if he is not guilty of each and all; and this in the face of the fact that the prosecuting attorney has no expectation that he will admit his guilt. The-statement of the prosecution is its own refutation.

In order to show a motive, Mr. Aitken was called to testify to a conversation with respondent with regard to-j he insurance upon this property: “Q. Did you have any conversation with him with reference to this property? A. My impression is I did; still I would not be positive that such was the case.” The prosecuting attorney then, for the purpose of refreshing the witness’ recollection, called his attention to a conversation with respondent when Mr. Lee was present. The witness replied he did not recollect, and was not positive of any conversation at all with relation to the barn that was burned. Proof of a motive was very important. The mere impression of the witness that he had a conversation with respondent about changing his insurance from the old company to a new one does not rise to the dignity of evidence, especially in a criminal case. This testimony should have been excluded.

We are satisfied that the respondent did not have that fair and impartial trial which the Constitution and law of this State guarantee him. Conviction reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HOFFMAN v. GORMAN.
    Replevin — Discontinuance—Judgment.
    Upon discontinuance of a suit in replevin, defendant, having waived a return of the property, is entitled to a judgment for its value.
    Error to Wayne; Donovan, J.
    Submitted February 2, 1900.
    Decided March 27, 1900.
    Replevin by Charles Hoffman and others against Frank J. Gorman. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      This suit, an action of replevin, was commenced in justice’s court. Plaintiffs obtained possession of the property-under the writ. Defendant pleaded the general issue, and upon trial verdict was rendered for the defendant for $40; the return of the property being waived. Plaintiffs took an appeal to the circuit court. It appears that the circuit court, on motion of plaintiffs, quashed their own appeal, and set aside the judgment in the court below, and, defendant having waived the return of the property, ordered an assessment of the value. For what reason they moved to quash and set aside the judgment does not appear. The jury assessed the defendant’s damages at $37.50.

      William B. Jackson, for appellants.

      Lehman Bros. & F. J. Biggs, for appellee.
   Per Curiam.

It is evident from the briefs and.unsatisfactory record in the case that plaintiffs replevied this property, which was sold on contract for $495, when only $20 remained unpaid. The only error alleged is that the court allowed defendant to take a verdict for the value of the property. In reply to a special question, the jury found that defendant suffered loss or damage, over and above the just amount left due on the contract, to the amount of $37.50. If this was the value less the amount unpaid, appellants are in no position to complain. Upon judgment of nonsuit or discontinuance, defendant was entitled either to a return of the property, or its value, less what was still due.

Judgment affirmed.


author:
Montgomery, C. J.
      Grant, J.

text:
    SCHAUB v. ARC WELDING CO.
    1. Master and Servant — Contract of Employment.
    The use of the term “general superintendent” in a written contract of employment does not render it so ambiguous as to make the contract void, since the parties must be deemed to have used the term in the sense in which it would be understood by those engaged in the same kind of business.
    2. Appeal — Condition of Record — Exceptions.
    Defendant cannot complain because, after the exclusion of the testimony of one of his witnesses, testimony of a like character was admitted on behalf of the plaintiff, where it does not appear from the record that he took an exception to the ruling excluding the testimony, or offered afterwards to recall his witness.
    3. Master and Servant — Wrongful Discharge — Defenses—Res Gestae.
    In an action for the wrongful discharge of an employé, where it was claimed in defense that plaintiff was guilty of insubordination in refusing to execute a sketch when directed to do so, a letter written by plaintiff on the day the order was given, advising defendant of the inclosure of the sketch, was admissible as part of the res gestee.

      4. Same — Insubordination —Provocation—Evidence—Question for Jury. ■
    Where in an action for the wrongful discharge of an employé, the evidence showed that plaintiff, the general superintendent of a manufacturing concern, while laboring under considerable provocation because of the manner in which an order had been given him by the president of the concern to prepare a certain sketch, told the latter that he wanted no more talk with him, and would “see about” making the sketch, but that he immediately afterwards complied with the order, and advised the president of the fact, defendant could not complain because it was submitted as a question for the jury whether, under the circumstances, plaintiff was guilty of insubordination which warranted the president in discharging him.

      Error to Wayne; Lillibridge, J.
    Submitted February 2, 1900.
    Decided March 27, 1900.

      Assumpsit by Julius W. Schaub against the Arc Welding Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Alfred J. Ducharme {Cyrils E. Lothrop, of counsel), for appellant.

      Wells, Angelí, Boynton & McMillan, for appellee.
   Montgomery, C. J.

This is an action of assumpsit, brought to recover damages for an alleged breach of a written contract of employment, which is set forth in full in the declaration. The contract of employment, which is dated September 7, 1897, was entered into between the defendant, a Michigan corporation, and another corporation, as employers, and plaintiff as employé, and was for the employment of the plaintiff for a period of three years from September 1, 1897, as the “general superintendent” of the employing companies, at a compensation of $2,500 for the first year, $3,750 for the second, and $5,000 for the third year, together with a percentage of the annual net profits and income of the companies of 2 per cent, for the first year and 3 per cent, during the remainder of the term, it being guaranteed that such percentage should amount to not less than $1,000 for the first year and $1,500 per year for the second and third years. By the terms of the contract, each of the employing companies was to pay and be responsible for one-half of plaintiff’s salary and percentages, the contract being several, and not joint, in that respect. Plaintiff began work on September 12, 1897, and continued in the employ of the defendant until January 17th following, when he was discharged from the defendant’s service by Mr. C. L. Coffin, the president of the corporation. There is no contention but that plaintiff was paid in full up to the time of his discharge, so far, at least, as the question of his fixed annual salary for that period is concerned. The suit was brought to recover his salary and percentages, or that portion thereof claimed to be due from defendant, for the balance of the term of three years. The defendant’s plea was the general issue, coupled with a notice that defendant would claim plaintiff’s discharge to have been justified on two grounds, viz., incompetency to perform the duties for which he was employed and willful insubordination.

In the course of plaintiff’s employment, he had made a sketch or drawing of a proposed machine for welding shells, which had been on the drawing-board of the company’s factory, but which had disappeared. On the morning of the 17th of January, Mr. Coffin, acting for the company, asked the plaintiff if he had the sketch or drawing. He replied that he had not. According to the defendant’s version, the following conversation then took place:

“Mr. Coffin: Mr. Schaub, I want a sketch now, at once, before anything else is done, of the drawing which was on the drawing-board at the factory, as near as you can reproduce it.
“Mr. Schaub: I’ll-let you know.
“Mr. Coffin: Is there anything to prevent your doing it now ?
“Mr. Schaub: No.
“Mr. Coffin: Then, at once, before anything else is done, I want one.
“Mr. Schaub: I will let you know.
“Mr. Coffin: That is not what I want; I want the sketch, as near as you can reproduce it.
‘ ‘ Mr. Schaub: Mr. Coffin, you are the queerest man I ever saw. I have had trouble enough with you. I do not want anything more to say to you or do with you.
“Mr. Coffin: Mr. Schaub, do you understand my request ? I want a sketch at once, before anything else, as near as you can produce it, of the sketch you referred me to; which was on the board at the factory, and which has disappeared. Will you make that sketch at once?
“Mr. Schaub : Mr. Coffin, you cannot talk that way to me. I will let you know whether I will make it. I want no more talk with you.
11 Mr. Coffin : Mr. Schaub, have you that sketch, or do you know anything about its disappearance ?
“Mr. Schaub: No.
“Mr. Coffin: You made the sketch, and know its details ; therefore you can reproduce, as near as possible, the sketch, can you not ?
“Mr. Schaub: I will see about that.”

The plaintiff states that his vei’sion differs slightly from the version given by the defendant; that he did not say, “I don’t want anything more to do with you,” but stated, “I don’t want to be bothered with you.”

Within a very short time after the conversation, plaintiff did prepare the sketch asked for, and handed it to Mr. Coffin, with the following letter:

“Detroit, Mich., 17th, 1898.
“C. L. Coeein, Esq.,
“President.
“Dear Sir: I beg to inclose you herewith a copy, made from memory, of a sketch made some time ago, previous to January 7th, 1898. This is, I believe, what you requested me to make this morning. Hoping this is entirely satisfactory, I beg to remain,
“Yours truly,
“J. W. Schaub.”

The question of plaintiff’s competency turns somewhat upon the question of what his duties were intended to be. The defendant’s claim was that it was understood that he was to supervise the mechanical part of defendant’s business, and plaintiff’s claim was that he was to act as a business manager.

One of the errors assigned is that the court refused defendant’s sixth request, which reads as follows:

“If the jury find that it was understood on the part of defendant, at the time of signing the contract, that Mr. Schaub was employed for certain specific purposes, and on the part of Mr. Schaub that he was not employed for those purposes, but was employed for other and different purposes, there would have been no proper mutual understanding or agreement between the parties at the time of signing the contract, and consequently the contract of employment would be void.”

We think this request was properly refused. There was nothing so ambiguous about the written contract of employment as to render it void. If the term “general superintendent ” is to be deemed at all ambiguous when used in connection with the kind of business defendant was engaged in, it may be subject to explanation, but the parties must be deemed to have used it in the sense in which it would be understood by those engaged in that business.

Two errors are assigned on the admission of testimony as bearing upon the claim of defendant that plaintiff was incompetent for the work for which he was engaged. It was deemed of importance to show the properties of steel which had been subjected to high heat by defendant’s arc process. Plaintiff, on rebuttal, produced a witness, and asked whether he was familiar with the properties of steel which had been subjected to a high heat. This was objected to unless the inquiry was confined to metal heated by thevoltaic arc, counsel saying at the same time that the court had excluded testimony of Prof. Cooley, offered by the defendant, as to the effect ■ of welding by ordinary forge heat, and, accompanying the statement, “If you will allow me to bring back Prof. Cooley, I will not object.” The court admitted the testimony. We think the testimony was in itself admissible. No exception appears to the exclusion of the testimony of Prof. Cooley, nor does it appear that there was any offer to recall Prof. Cooley. The record is not in condition, to call for a ruling on the exclusion of Prof. Cooley’s testimony.

Another assignment of error on the admission of testimony’is based on the receipt of the letter to Mr. Coffin, written by the plaintiff on the 17th of January, accompanying the sketch. We think this was clearly admissible as part of the res gestee.

The defendant further contends that, upon the undisputed testimony in the case, the insubordination of plaintiff was such as to justify plaintiff’s discharge, and cites Degen v. Railway Co., 118 Mich. 66 (71 N. W. 459). That case differs from this in that it appeared in that case that the employe absolutely refused to obey the instructions of the superior officer. In the present case there was no distinct refusal to comply with Mr. Coffin’s order; on the contrary, the order was complied with very shortly after it was given. It is true the language of plaintiff might be deemed disrespectful, but we are not prepared to say that the language of Mr. Coffin was altogether respectful when it is considered that the plaintiff occupied a position of great responsibility. See Park Bros. & Co. v. Bushnell, 9 C. C. A. 138, 60 Fed. 583; Edwards v. Levy, 2 Fost. & F. 94; Shaver v. Ingham, 58 Mich. 649 (26 N. W. 162, 55 Am. Rep. 712). The charge of the learned judge upon this branch of the case was as follows:

“Now, the question for you in this case is whether, under the testimony, you believe that the plaintiff was guilty of willful insubordination, or a direct refusal to obey the president, and whether his language was insulting or improper to the extent that it would interfere with the intimate relations between himself and the president which were necessary to successfully carry out the business. It is claimed on one side that there was no refusal to carry out the order; there was an evasive answer, but immediately afterwards the sketch was prepared and delivered. On the other hand, it is claimed that there was a direct refusal to obey the orders of the superior officer, and the language of Schaub was insulting, and that justified the discharge. All I can say upon this point or branch of the case is, if you believe from the testimony that the plaintiff was guilty of insubordination, and directly refused to obey the orders of a superior officer within a reasonable time, or if his language was so insolent that it interfered with the intimate relations between himself and the president of the company which were necessary to the carrying on of the business, then the discharge was justified; if it did not, then it was not justified.”

We think this instruction sufficiently favorable to the defendant.

Error is assigned upon the refusal of certain other requests, but we are satisfied that the judge properly put the case to the jury.

Judgment affirmed.

The other Justices concurred.

Grant, J.

(concurring). This case is on the border line. The language of the plaintiff was a practical refusal to obey the order. Had there been no provocation in the language or manner of the president of the defendant, and no prompt obedience of the order before he was discharged, the dismissal would have been j ustifiable. But there is evidence of provocation in the language and manner of the president which may serve as some excuse for the hot words of plaintiff. The case comes fairly within some of the authorities cited. Both were employes of the defendant, and each was in duty bound to treat the other with becoming respect. Plaintiff promptly complied with the order, and the defendant suffered no injury. I do not think there was such a perverse and unreasonable disobedience of orders as to justify the court in taking the case from the jury. I therefore concur.


text:
    HOLMES v. MCALLISTER.
    1. Master and Servant — Accident to Servant — Medical Attendance-Liability op Master.
    The rule of law recognized in reference to trainmen, and to persons employed in other lines of work which are attended by unusual risks, making the employer liable for the services of a physician summoned by the foreman to attend an injured employé in an emergency calling for immediate action, is not applicable to those lines of employment which do not subject the employé to unusual hazards and dangers.
    2. Same — Operating Laundry — Hazards—Presumptions.
    It cannot be presumed, in the absence of evidence, that employment in a laundry is attended by unusual hazards and dangers.

      3. Same — Agency—Scope of Authority.
    A foreman’s implied authority to bind the employer for the services of a physician rendered to an injured employé does not extend to services rendered after the immediate emergency has passed, nor to the employment of additional physicians for assistance and consultation.
    4. Same — Promise to Pay Another’s Debt — Statute of Frauds.
    Where there was no original contract by an employer to pay for medical services rendered an injured employé, his subsequent verbal agreement to pay the bill already incurred is merely a promise to jmy the debt of another, and is void under the statute of frauds.
    Error to Wayne; Frazer, J.
    Submitted February 6, 1900.
    Decided March 27, 1900.

      Assumpsit by Arthur D. Holmes against David J. McAllister and James A. McAllister, copartners as the Siau Laundering Company, for medical services rendered to an employé of defendants. From a judgment for plaintiff, defendants bring error.
    Reversed.
    Plaintiff, a physician, sued the defendants, copartners in a laundry business, for medical services rendered one of their employés, and recovered a verdict of $50. The case was submitted to the jury upon two theories:
    1. That there was an original contract of employment between plaintiff and defendants.
    2. That the act of the forewoman of defendants in sending for plaintiff to attend the employé, if unauthorized by them, was subsequently ratified.
    Defendants insist that there was no original contract, and no ratification of an unauthorized contract. There is little, if any, dispute about the material facts. Plaintiff had no conversation with either of the defendants in regard to the service, and the parties had never met until the trial in the justice’s court. The employé, Augusta Senken, had her hand seriously injured on April 19, 1898. Neither of the defendants was in the laundry at the time. Defendant James usually spent most of his time there. One Miss McGrath, the forewoman, had charge of the work on the four floors of the building; hired and discharged girls when she saw fit; and, when James was not there, acted in case of an emergency. The injury was so serious that Miss McGrath deemed prompt medical assistance advisable. She sent a boy for a physician, not designating any particular one. The boy called plaintiff. He immediately responded, dressed the wound, and ordered her to be taken home, saying that he would have to see her again. She was taken home in a carriage. In the afternoon of the same day she was suffering pain, and sent a note to a store near by to telephone to the laundry. Some one at the laundry telephoned to plaintiff, and he went to see her. Defendants had no knowledge of this. Plaintiff treated her at her home until she was able to go out, and then she went to his office, and there received treatment until the wound was healed. She was under treatment for about three months. The only conversation plaintiff had with any one connected with the defendants was with Miss McGrath, and he does not tell what that conversation was. It was at the house of Mrs. Knack, with whom Miss Senken lived. Miss McGrath testified:
    “The doctor asked me if Mr. McAllister had said anything in regard to him taking care of the girl. I said he hadn’t said anything to me. He says, ‘Well, I would like to make the bill as reasonable as possible for Mr. McAllister, and at the same time take care of the girl properly.’ I said: ‘Well, I don’t know what Mr. Mc-Allister would do in a case of this kind. We have never had an accident before, and it would be better to see him.’ So he said he would call and see Mr. McAllister.”
    Miss Senken testified that she heard this conversation, and states it as follows:
    “Miss Margaret McGrath came to my house several times while the doctor was there. One time he asked her if Mr. McAllistér says anything, and if it was all right about the bill; and she says to him that she thought that Mr. McAllister was a very good man, and that he would pay the bill.”

      Mr. Knack, husband of Mrs. Knack, testified that in June, after the accident, he went to defendant James, and asked him to help the girl; that he declined, and, after a little while, said, “I will pay the doctor’s bill.” Mr. Kissane, one of the attorneys for plaintiff, testified:
    “I went to see James McAllister with a view of collecting the bill in controversy at the request of Dr. Holmes, shortly before the commencement of this suit. I told him the doctor was claiming $104. I demanded the payment of the bill. He declined to pay the full amount, and said that he was willing to pay the first visit, whatever that might be worth, but he didn’t think he ought to pay the entire bill; that the calling of the doctor by the forelady was all right; it was something that he would have done himself, had he been there in the laundry at the time, and that he didn’t go back on that, and whatever was reasonable for that first visit he was willing to pay. ”
    The above is all the testimony bearing upon the liability of the defendants.
    Plaintiff called in two physicians, one for advice and ■ another to assist him in an operation, all of which was unknown to defendants. No accident had ever happened in the laundry before. The first intimation the defendants' had that plaintiff considered them liable was when they received a bill after the services were rendered.

      Ira A. Lieghley, for appellants.

      Thomas Kissane and C. H. Wilson, for appellee.
   Grant, J.

(after stating the facts). Had defendants’ forewoman authority to bind them by sending for plaintiff to attend the injured employé ? She had no general authority to do so. If she was clothed with any authority to do so, it must be because an emergency arose in which it was the defendants’ duty to have some one to act for them. There are authorities which hold parties liable in certain emergencies for the acts of their managers or foremen in employing physicians. These authorities, however, go no further than to hold the parties liable for the immediate services made necessary by a present urgency. Authority to act is implied from the necessity of the case. Chaplin v. Freeland, 7 Ind. App. 676 (34 N. E. 1007); Terre Haute, etc., R. Co. v. McMurray, 98 Ind. 358 (49 Am. Rep. 752); St. Louis, etc., R. Co. v. Hoover, 53 Ark. 377 (13 S. W. 1092); Louisville, etc., R. Co. v. Smith, 121 Ind. 353 (22 N. E. 775, 6 L. R. A. 320); Arkansas Southern R. Co. v. Loughridge, 65 Ark. 300 (45 S. W. 907). Neither the authorities nor reason carry the rule beyond the emergency. Such employment does not make the employer liable for the services rendered by the physician to the employé after the emergency has passed. If the physician desires to hold the employer responsible for subsequent services, he must make a special contract with him.

The cases above cited, and others, are those in which the employment is hazardous, exposing the employés to dangers and risks greater than those in the ordinary, pursuits of life. The ground for such liability is thus stated in Chaplin v. Freeland, supra:

“Eailroad companies occupy a peculiar position with reference to such matters, exercising qu,asi public functions, clothed with extraordinary privileges, carrying their employés necessarily to places remote from their homes, subjecting them to unusual hazards and dangers. The law has, by reason of the dictates of humanity and the necessities of the occasion, imposed upon such companies the duty of providing for the immediate and absolutely essential needs of injured employés, when there is a pressing emergency calling for their immediate action. 'In such cases, even subordinate officers are sometimes, for the time being, clothed with the powers of the corporation itself for the purposes of the immediate emergency, and no longer.”

There is no evidence in this case that employment in a laundry is accompanied by any such dangers. We may infer the contrary, as no accident had ever before occurred in the defendants’ business, an extensive one. An employé in a bank, store, or shop, or upon a farm, may become suddenly very ill, or in some way seriously injured, so that some foreman or other employé might properly deem immediate medical attendance necessary, and, in the absence of the employer, summon a physician. Is the employer liable ? We are cited to no authority which so holds. It is doubtful whether such an employer would be liable if he himself sent for the physician to attend one of his employes. It is unnecessary upon this point to express an opinion. We do not, however, hesitate to hold that, in those avocations of life unaccompanied by dangers, an employer is not liable for the services of a physician summoned by his manager or foreman or other servant to attend an employe in a case of sudden illness or injury, whatever his moral obligation may be. If, therefore, the plaintiff had known that Miss McGrath summoned him, the defendants would not be liable. He did not know and made no inquiries as to who summoned him. He testified, “A boy from their office summoned me from the laundry.” He never informed defendants that he was treating her, or that he expected them to pay him, or presented a bill, until he had ceased, to treat her. He now seeks to bind defendants, not only for his own services, but for the services of other physicians whom he employed to assist him without their knowledge or assent. He could, in no event, recover for the services of the other physicians. Mayberry v. Railroad Co., 75 Mo. 493. We therefore hold that there was no original contract.

There is no evidence of ratification. The testimony of Mr. Knack and the attorney, Mr. Kissane, does not show a ratification. To Mr. Kissane defendant James denied liability, though willing to pay for the first visit at the laundry. As already shown, defendants were not originally liable. The language of Knack and Kissane imports no more than the promise to pay the debt of another, which is void under the statute of frauds.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Grant, J. Montgomery, C. J.

text:
    EXCELSIOR IRON WORKS v. LEE.
    Conditional Sales — Title—Estoppel.
    An electrical company, by contracting with an employé to let him have machinery at a minimum price, and to allow him all he might be able to obtain for it over and above such price, was not estopped to assert title to a dynamo which defendants ordered from the employé, and which was thereafter constructed for him by the company under a special contract reserving title until the price was paid, where the company advised defendants by letter, before the machine was shipped or payments made, as to the .terms of payment (which differed from those agreed upon with the employé), and informed them that the dynamo was the property of the company until fully paid for. Grant, J., dissenting.
    Error to Berrien; Coolidge, J.
    Submitted February 6, 1900.
    Decided March 27, 1900.
    . Replevin by the Excelsior Iron Works against Fred E. Lee and William G. Howard, trustees of the estate of P. D. Beckwith, deceased. From a judgment for defendants, plaintiff brings error.
    Reversed.
    This is an action of replevin to recover possession of one single-phase Mayo alternator and exciter. The finding made by the court covers 14 pages. It is unnecessary to state the findings in full. The court rendered judgment for the defendants. The correctness of the judgment depends upon the determination of one principle of law. If this was correctly decided, all the other questions raised become immaterial. We will state only those of the facts found which are essential to a determination of this question.
    Plaintiff is an Illinois corporation, engaged in the manufacture of electrical and other machinery in Chicago. Defendants, as trustees, are operating certain factories at Dowagiac and Buchanan, in Michigan. In February, 1896, one V. J. Mayo and the plaintiff entered into the following agreement:
    “V. J. Mayo agrees as follows: To give his services as electrical engineer; to design and personally superintend the construction of such electrical apparatus as the Excelsior Iron Works may determine to manufacture; to have entire charge of all correspondence on electrical matters; to advertise, by such methods as he may deem best, the apparatus over which he may have charge; to bear the expense of such advertisement, also the expense of a stenographer, should he at any time deem it prudent to employ one. In consideration of the performance of this, the Excelsior Iron Works agrees to pay to V. J. Mayo twenty-five dollars per week during such time as may be mutually agreeable, and thereafter, during the life of this agreement, to pay V. J. Mayo thirty dollars per week; to make said Mayo, from time to time, a minimum price (which shall be designated as the manufacturer’s price) that shall be paid to the- Excelsior Iron Works for the different types and sizes of machines that may be constructed under this agreement; to give to said Mayo any sum or sums of money that he may be able to obtain over and above the manufacturer’s price, for his own use and benefit. The lifetime of this agreement shall be two years from and after February 15, 1896.”
    Under this contract Mayo sold a number of machines in his own name, concerning which there was no difficulty or dispute. Under it Mayo sold in January, 1897, to defendants, in his own name, a similar machine to the one now in controversy. That contract reads as follows:
    “Memorandum of agreement between Y. J. Mayo, of Chicago, and the estate of P. D. Beckwith, of Dowagiac, Michigan:
    “ Y. J. Mayo agrees to furnish, F. O. B. cars Chicago, one 65 K. W. alternating current Mayo dynamo, to develop 3,300 volts of 16,000 alternations at 800 revolutions per minute, with an efficiency of 93 per cent.; also one direct coupled exciter with same. This machine is to be delivered within sixty days from January 19, or within two weeks after the steel castings for the same are received.

      “ For and in consideration of the faithful performance of this by V. J. Mayo, the estate of P. D. Beckwith agrees to pay eleven hundred and forty-one dollars, as follows: Four hundred dollars cash, the receipt of -which is hereby acknowledged; $200 in fifteen days from date of receipt of machine; $200 in thirty days from receipt of machine; and $341 in sixty days from receipt of machine.
    “The estate of P. D. Beckwith also agrees to accept or reject the above machine within fifteen days from the date of its receipt, and to ship to the Excelsior Iron Works the ¡60 K. W. machine now in operation at their plant.”
    Plaintiff was not known to the defendants in that transaction. Defendants paid Mayo $600 in cash, and the balance was paid by two drafts drawn by Mayo to the order of plaintiff. Plaintiff’s manager wrote these drafts, and the proceeds were received by it.
    On March 1, 1897, Mr. Mayo visited defendants at Dowagiac, and made the contract for the machine in dispute, by which he agreed to sell defendants said machine for $860, and agreed to receive in part payment a secondhand dynamo at the valuation of $500. This contract was dictated by the plaintiff’s manager. The second-hand dynamo was delivered at the date of the contract. On April 7th following, Mr. Mayo wrote to plaintiff as follows:
    “ Gentlemen: I herewith offer you $750 for one single-phase Mayo alternator and exciter complete, with a capacity of 60 K. W. at 1,150 volts, and 884 R. P. M. Terms of settlement, $250 in thirty days, $250 in sixty days, and $250 ninety days after shipment; you to own the machine until fully paid for.”
    To this letter plaintiff replied as follows:
    “V. J. Mayo, Esq.

      “Dear Sir: Your proposition to pay us $750 for 60 K. W. machine, as made by you in letter of April 7, is accepted. It is understood that the machine will be built under your supervision, and in accordance with your instructions, and that our responsibility ceases when we have done so.”
    On July 26th plaintiff wrote the manager of defendants as follows:

      “Dear Sir: At the request of Y. J. Mayo, we will ship to your address, Buchanan, Michigan, one E. W. dynamo, probably on Wednesday or Thursday of this week. We beg to inform you that this machine is the property of the Excelsior Iron Works until fully paid for; the terms of payment being thirty, sixty, and ninety days from date of shipment. Your acknowledgment of the receipt of this communication is solicited.”
    To this letter defendants replied, acknowledging its receipt, and saying:
    “Regarding settlement, would as soon settle all in thirty days if the machine is O. E.”
    Plaintiff did not know that the second-hand machine was received in part payment for the new machine. Defendants knew no more about the relations between Mayo and plaintiff than had been disclosed by their previous dealings. Defendants made other payments to Mr. Mayo, and by October 30th all but $50 had thus been paid. On October 11th plaintiff wrote defendants as follows:

      “Dear Sir: Mr. Y. J. Mayo reports to us this morning that the 60 E. W. dynamo shipped to Buchanan was left by him last night, running, and satisfactory to all concerned. It will be gratifying to be assured of this, and we will feel obliged to you if at your early convenience you will corroborate this information.
    “In settlement of this machine, will it be agreeable to you to accept a draft drawn by Mr. Mayo in favor of the Excelsior Iron Works for a part of the purchase price (approximately $865), leaving the balance to be adjusted as Mr. Mayo and you may determine ? If agreeable, will you kindly designate at what time the draft shall.be made ' payable ? On receipt of your acceptance of this draft, we will release the machine. (See our letter of July 26th.) ”
    To this defendants replied on the 12th that, as all their dealings had been with Mr. Mayo, they thought it best that they continue with him. Other correspondence is set forth in the findings, but we do not deem it material.

      Lawrence O. Fyfe and Thaddeus O. Bunch, for appellant.

      M. L. Howell, for appellees.
   Grant, J.

(after stating the facts; dissenting). Plaintiff’s counsel insist that the contract of sale between it and Mayo on condition that the title remain in plaintiff until the purchase price is paid is binding upon the defendants. They cite authorities from this and Other courts sustaining conditional sales. These decisions are numerous, and need not be cited. The principle is well settled. No prior decision in this court involves facts similar to those of the present case. In former decisions the property had been purchased for use by the vendee under contracts by which he had no authority or right to sell the property. There was always an implied, if not an expressed, agreement that the vendee retain possession. Such are cases of organs, pianos, engines, boilers, reapers, and mowers, and all kinds of machinery designed, intended, and understood to be for the sole and personal use of the vendee until paid for. Ought this rule to be extended to include merchants and manufacturers who sell their merchandise and products to other dealers, who purchase them for the sole purpose of resale ? If it be so held, then no person is safe in buying goods or machinery from retail merchants .and dealers, for he may have his property taken away from him by the wholesale merchants and manufacturers who sold to the retailers. Such a rule finds no support in justice or law. By the contract between plaintiff and Mayo it was expressly understood that Mayo could sell the machines,— that he was to sell them as his own,— and consequently was authorized to receive the purchase price. Plaintiff knew at the time of its contract with Mayo that Mayo had already contracted to sell the machine to the defendants under a contract which, upon its face, showed the right of Mayo 'to sell. If plaintiff fiesired to protect itself from Mayo through the defendants, it should have notified them as soon as it had knowledge of the contract. It had such knowledge at the time the contract was executed. It is now estopped to assert that Mayo had no authority to sell the machine as his own, to receive payment therefor, and to assert as a defense the conditional sale to Mayo. The letter of July 26th contained no direction to defendants not to pay Mayo. The reasonable construction to be placed upon that letter is that plaintiff was seeking to protect itself, not as against Mayo, but as against the defendants. Besides, plaintiff could not thus change the terms of their contract with Mayo, unless all parties assented to it. Defendants refused their assent, and insisted upon their contract with Mayo. The judgment should be affirmed.

Montgomery, C. J.

The contract was clearly good as between the plaintiff and Mayo. In what way has the plaintiff estopped itself to assert it as against defendants ? If we assume that a manufacturer may estop himself from relying upon a reservation of title to property placed in the hands of a middleman, who is expected to make sale of it to purchasers in open market, the question remains whether the facts here will show such a case. When the contract between Mayo and defendants was entered into, the plaintiff was under no obligation to furnish Mayo the machine in question. It was competent for it to contract to furnish such a machine on such terms as were embodied in the contract of April 7th, provided that the plaintiff did no act, and was guilty of no omission, which might mislead defendants. Doubtless, if the plaintiff had permitted Mayo to deal with the machine as his own, it would be estopped. Did it do so? The answer to this question depends upon the construction which we give to the letter to defendants written July 26th. I can discover no ambiguity in 'this letter. Starting out with the understanding that the contract of purchase made by defendants was with Mayo alone, and that such contract contained no reservation of title, the letter is plain. It states that at “the request of Mayo” plaintiff will ship the machine, but adds, “We beg to inform you that this machine is the property of the Excelsior Iron Works until fully paid for; the terms of payment being thirty, sixty, and ninety days from date of shipment.” It was known to defendants that this statement did not accord with the- contract which defendants had made — First, their contract was with Mayo; .second, there was in that contract no reservation of title; and, third, the terms of payment were not those agreed upon with Mayo. It is difficult to see how noticé of plaintiff’s rights could be more plainly stated.

The judgment is reversed, and judgment entered for plaintiff.

Hooker, Moore, and Long, JJ., concurred with Montgomery, C. J.


author: Hooker, J.

text:
    MARKHAM v. HUFFORD.
    Wills — Precedent Conditions — Certainty.
    The condition that a legacy shall be paid to the legatee two years from the date of the testator’s death, provided that the legatee shall be deemed a reformed man, in the judgment of the executors, is not void for uncertainty, and constitutes a valid condition precedent.
    Error to Kent; Adsit, J.
    Submitted February 7, 1900.
    Decided March 27, 1900.
    Almon L. Markham filed a petition in the probate court for an order requiring Silas L. Hufford and William Hoyle Jones, as executors of the last will and testament of Mary C. Jones, deceased, to pay him the amount of a certain legacy. The petition was denied in the probate court, and petitioner appealed to the circuit court. From a judgment for petitioner, defendants bring error.
    Reversed.

      Walker & Fitz Gerald ( Myron H. Walker, of counsel), for appellants.

      Lombard & McAllister, for appellee.
   Hooker, J.

The testatrix, Mary C. Jones, left a will containing the following provisions:

“1. To Almon L. Markham, the son of my daughter, Julia J. Markham, deceased, I give and bequeath the sum of five hundred dollars ($500.00), to be paid, to him at the expiration of two years from the date of my demise: Provided, that he shall be deemed a reformed man, in the judgment of the executors of this will.
“2. To my granddaughter, Mary Maud Markham, I give and bequeath the sum of five hundred dollars ($500), not to be paid to her until she has attained the age of twenty (20) years, unless it be necessary, in the opinion of the exectors, and then not to exceed the sum of one hundred and fifty dollars ($150.00); the balance to be paid at the time specified above, if any disbursement is made.
“3. In the event of the demise of either or both of the aforementioned persons before the time for the payment of the several amounts due them, then I. direct that their shares shall revert to the Society of Women’s Christian Temperance Union, to be paid to the Union of Unions of the City of Grand Rapids, and to be by them used for the advancement of the temperance work, without reservation.”

Several other bequests followed, and then the following:

“8. And all the balance of my estate, both personal and real, or which may accrue or of which I may be possessed of at the time of my decease, I do give and bequeath unto my son, William Hoyle Jones.
“It is my request that the estate be settled up within three (3) years after my demise. I also give the executors the privilege of disposing of any or all of the estate at public or private sale, as they may deem best for the interest of the estate.
“I hereby appoint Silas L. Huff:ord, of Walker, and William Hoyle Jones, both of the State of Michigan, executors of this, .my will.”

The will was duly probated, and the persons named as executors accepted the trust and qualified. The inventory of the estate bears date May 20, 1892.

In October, 1898, Almon L. Markham filed a petition in the probate court, praying an order that the executors pay him his legacy. This was followed by an amended petition. Upon a hearing, the probate court denied the relief, and the cause was tried in the circuit court upon appeal. The.findings of fact and law disclose, among other things, that on January 18, 1896, Almon L. Markham filed in probate court a petition, alleging the will and its admission to probate, and that more than two years had expired, and that he was a reformed man, and was entitled to his legacy. It prayed, that the executors be cited to show cause why they had not paid the legacy, and, in case of their failure to do so, that they be discharged from their office, and petitioner be authorized to bring an action/ upon their bond in the circuit court. A hearing was had, and it was held that the petitioner was not entitled to the relief prayed. No appeal was taken, and such order stands unreversed. In the present proceeding the circuit court failed to pass upon the question of petitioner’s reformation, and in the finding of law held that petitioner took a vested legacy, and that the conditions attached were indefinite, uncertain, and void. It was also found that petitioner ■was entitled to his legacy, with interest at 6 per cent, from May 11, 1896, and costs, all to be paid out of the estate by the executors. The defendants have appealed. They claim:

1. That the legacy was not a vested one.

2. That, regardless of that question, the condition was a valid condition precedent.

3. That the claim is barred by the former adjudication in the probate court.

The intention of the testatrix, if it can be ascertained, must settle the construction to be placed on this bequest. The section, considered by itself, would, in our opinion, impress the average mind as not ambiguous, and would be interpreted to mean that if, at the expiration of two years from the demise of the testatrix, the executors should deem the petitioner a reformed man, they should pay him $500 from the estate; otherwise, not. Yery few would understand from this language that, if not deemed to be reformed, lie should still receive the bequest at a later date, and that distant but a year.

“A conditional legacy is defined to be a bequest whose existence depends upon the happening or not happening of some uncertain event, by which it is either to take place or to be defeated. No precise form of words is necessary in order to create a condition in a will, but, whenever it clearly appears that it was the testator’s intent to make a condition, that intent shall be carried into effect.” 2 Williams, Ex’rs (7th Am. Ed.), 558, and cases cited.

We are satisfied that the intention of the testatrix was that her grandson should not have this money unless within two years after her death he should change his course of conduct, and she selected persons in whom she had confidence to determine the question at the proper time. It was left to their judgment, and the inference is that they knew the petitioner’s faults. Unless at that time the executors should determine that he was a reformed man, the provision would be inoperative. It was unnecessary for her to make a record of petitioner’s faults. It is a valid condition to require the reform of bad habits. Dustan v. Dustan, 1 Paige, 509; Webster v. Morris, 66 Wis. 366 (28 N. W. 353, 57 Am. Rep. 278). A condition which involves anything in the nature of consideration is, in general, a condition precedent. Theob. Wills, 263. In Finlay v. King’s Lessee, 3 Pet. 346, Chief Justice Marshall said:

“It is certainly well settled that there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently, and the question • is always a question of intention. If the language of the ' particular clause or of the whole will shows that the act on which the estate depends must be performed before the estate can vest, the condition is, of course, precedent, and unless it be performed the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it,— if this is to be collected from the whole will, — the condition is subsequent.”

It is in all cases a question of intention, and not of phrase or form. In support of this, see 4 Kent, Comm. 124; Mood, Wills, 283; 2 Redf. Wills, 283; 2 Washb. Real Prop. (5th Ed.) 7 (*446); Nicollv. Railroad Co., 12 N. Y. 121; Barruso v. Madan, 2 Johns. 145; Robbins v. Gleason, 47 Me. 259; Burnett v. Strong, 26 Miss. 116; Ward v. Screw Co., 1 Cliff. 565 (Fed. Cas. No. 17,-157); CreswelVs Lessee v. Lawson, 7 Gill & J. 240; Hayden v. Inhabitants of Stoughton, 5 Pick. 528; Jackson v. Kip, 8 N. J. Law, 241; Bowman v. Long, 23 Ga. 247.

The following have been held precedent conditions: If he lives three years, with limitation over if he dies within that time. Buck v. Paine, 75 Me. 582. If he attains the age of 21 years (Jones v. Leeman, 69 Me. 489; Kelso v. Cuming, 1 Redf. 392; Bowman v. Long, 23 Ga. 247), it being sufficient if he does so before testator’s death (Eisner v. Koehler, 1 Dem. Sur. 277); or although 21, and has in the meantime learned a trade, and is of good moral character, to be determined by executor (Webster v. Morris, 66 Wis. 366 [28 N. W. 353, 57 Am. Rep. 278]); or “shall be desirous and capable of entering into business for himself ” (In re Davidson’s Estate, 17 Phila. 424); or if he withdraws from the Roman Catholic priesthood (Barnum v. Mayor, etc., of Baltimore, 62 Md. 275 [50 Am. Rep. 219]; Kenyon v. See, 94 N. Y. 563, 29 Hun, 212); or releases testator’s note held by him (Howard v. Wheatley, 83 Tenn. 607); or survives testator (Gibson v. Seymour, 102 Ind. 485 [2 N. E. 305, 52 Am. Rep. 688]); orif he aid in the defense of a certain suit, to the satisfaction of the executor (Cannon v. Apperson, 82 Tenn. 553); or to A., for her support, “if she shall lose any part of her own property, and need more ” for her support (Ely v. Ely’s Ex’rs, 20 N. J. Eq. 43); or “when she should be sick and unable to support herself ” (Reynolds v. Denman, 20 N. J. Eq. 218). So, a power to sell “if income be not sufficient for support.” Minot v. Prescott, 14 Mass. 496. In 1 Rop. Leg. 562, it is said:

“A fifth instance of exception must be made out of the positive rule applicable to the vesting of legacies where the gift of the legacy and the time of payment are in terms distinct, when the period for payment is contingent, as upon the marriage or the taking of holy orders of the legatee; for in neither of those instances will the legacy vest before the happening of the contingency, as we have seen it would have done had the time of payment been certain. The distinction is founded upon the following reasoning: It must be inferred that where the time is certain, as when the legatee attains the age of twenty-one, the testator merely postponed the payment of the legacy in consideration of the legatee’s unfitness to manage his affairs prior to that period; but, when the event annexed to the payment may or may not happen, it is to be presumed that the expectation of its taking place was the sole motive, and therefore of the essence of the bequest.”

The provision under discussion was, in our opinion, intended as a condition precedent; and it should not be defeated by the failure to specifically provide for the disposition of the fund, or by an inaccurate use of the word “revert” in the third section of the will.

We think that the bequest did not constitute a vested interest, and that the condition is not any more uncertain than it would have been had the will required payment of the legacy provided the executors should at a given date deem petitioner worthy of it. The provision cannot be distinguished in principle from any other bequest depending upon the happening of an uncertain event.

It becomes unnecessary to decide the third question raised, though there is much force in the claim that this proceeding is barred by the former adjudication.

The order of the circuit court is reversed, and no new trial ordered.

The other Justices concurred.


text:
    CITIZENS' SAVINGS BANK OF DETROIT v. AUDITOR GENERAL.
    1. Taxation — Deed op State Tax Lands — Validity—Rights op Subsequent Applicant.
    A deed of State tax lands is void where the purchaser failed to pay all taxes remaining a lien thereon at the time of his pur. chase, and any other person is entitled to purchase the lands, and to enforce his right to a conveyance thereof by manda* mus.

    2. Same — Redemption prom Sale — Limitations—Constitutional Law — Title to Aot.
    The title to Act No. 229, Pub. Acts 1897, viz., “An act to amend” the general tax law of 1893, entitled, etc., “by adding thereto four sections, * * * providing for the giving of notice by tax purchasers to the occupants or persons having title to or interest in such lands of the fa’ct of such sale, and providing the terms upon which such occupant or other person interested in such lands may obtain reconveyance thereof,” is not broad enough to cover the provisions of section 143, that persons failing to redeem within the six months limited by the act shall be barred from questioning the validity of the sale, and such section is therefore void.

      Mandamus by the Citizens’ Savings Bank of Detroit to compel Roscoe D. Dix, auditor general, to cancel a certain tax deed, and to issue one to relator.
    Submitted January 3. 1900.
    Writ granted March 27, 1900.

      Bacon & Yerkes, for relator.

      Horace M. Oren, Attorney’General (Joseph Barton , and James H. McFarlan, of counsel), for respondent.
   Hooker, J.

The relator purchased certain premises on August 5, 1897, and took possession. They had been previously bid off to the State for the taxes of 1894. On December 9, 1897, McFarlan purchased the land from the auditor general, and on February 7, 1898, he received an auditor general’s deed for the taxes of 1894. At the time of McFarlan’s purchase, the taxes of 1895, 1896, and 1897 were unpaid, and a lien upon the land. Soon after September 22, 1898, McFarlan paid to the auditor general the unpaid taxes for 1895 and 1896, but did not pay the taxes of 1897.. On October 13, 1899, the relator applied to purchase the land for the taxes of 1894, 1895, 1896, and 1897, and paid to the auditor general the requisite amount, and accompanied it with a demand that he cancel the deed to McFarlan. He refused to convey the land to relator, or cancel McFarlan’s deed, upon the ground that he was advised that the statutory notice under Act No. 229, Pub. Acts 1897, had been served, and that the period of six months provided for reconveyance upon tender had expired. We are asked for a mandamus to compel action by the auditor general.

The conveyance to McFarlan was void, because not made in compliance with the requirements of law. Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134); Hubbard v. Auditor General, 120 Mich. 505 (79 N. W. 979); Wilkin v. Keith, 121 Mich. 66 (79 N. W. 887); Cockburn v. Auditor General, 120 Mich. 643 (79 N. W. 931). Under repeated decisions, any other person was entitled to purchase said lands on compliance with the law; and relator is no exception, unless cut off by the provisions of the act cited. The title to this act is ‘ ‘An act to amend an act entitled,” etc., “by adding thereto four sections, * * * providing for the giving of notice by tax purchasers to the occupants or persons having title to or interest in such lands of the fact of such sale, and providing the terms upon which such occupant or other person interested in such lands may obtain reconveyance thereof.” . This is a restricted title, and the act is intended to give the owner or mortgagee a right to redeem lands after a valid sale. Under a void sale he would not ordinarily need such right of redemption. It also provides the terms upon which he may redeem. The title contains no hint that the bill was intended to introduce a limitation, and the act should have been confined to’ the objects stated in the title. Counsel argue that, had this provision been introduced in the original title, this provision would have been germane. We may, for the purposes of the argument, concede this, and add that it would have been so in the amendatory act, had the title ended without attempting to explain the nature of the amendments. But the title was restricted by this language, which cannot, as suggested by counsel, be treated as surplusage. This section 143 contains provisions that are not only beyond the natural limits of the title, but are directly antagonistic to its spirit. The title professes to enlarge the rights of the landowner by allowing a period after sale for redemption, not alone to those who do not need it, but to those who, because of the regularity of the proceedings, do need it. The section attempts to make a short period of limitation against all owners of land sold for taxes, whether the sales are valid or not, and in favor of parties out of possession as well as those in possession. The amendatory act is broader than the title, and the section (143) is therefore void. Cooley, Const. Lim. (6th Ed.) 177.

The writ will issue as prayed.

The other Justices concurred.


author: Hooker, J. Geant, J.

text:
    HEBARD v. SHAW.
    1. Logs and Logging — Towage Contract — Construction. Where defendant contracted with plaintiffs to supply him with a tug and booms for towing logs, representing to them that he had about 500,000 feet of logs, without specifying their size, and plaintiffs furnished under such contract a tug and a boom large enough to raft 500,000 feet of average-sized logs, plaintiffs were not liable for a loss occasioned by overcrowding, due to the fact that defendant’s logs were below the average size.
    2. Same — Principal and Agent — Representations—Authority. Where a tug was hired for towing logs under a contract providing that it should work for the owner of the logs, and that he should assume the risks of loss, the tug-owners were not bound by representations of the captain of the boat to the effect that a boom furnished with the tug would hold all the logs proposed to be rafted, although the log-owner was thereby induced to overcrowd the boom, and, in consequence, lost his logs.
    Error to Marquette; Stone, J.
    Submitted February 7, 1900.
    Decided March 27, 1900.

      Assumpsit by Charles Hebard and another against George W. Shaw for services rendered. From a judgment for defendant, plaintiffs bring error.
    Reversed.

      Hill & Smith (John R. Rood and A. R. Gray, of counsel), for appellants.

      Button & Culver, for appellee.
   Hooker, J.

The plaintiffs are owners of a tug, and contracted to furnish the same for towing the logs of the defendant at a price per diem. The tug was furnished, and this action is brought to recover compensation for its use. The defendant gave notice of recoupment, and obtained a verdict and judgment for upwards of $1,700, and the plaintiffs have brought error.

The contract was made through a series of letters and telegrams, of which we will state the substance. September 14, 1895, the defendant wrote plaintiffs that he had between four and five hundred thousand feet of logs which he wanted towed from Lake Independence to Skanee. He asked a price per 1,000 feet for towing. The letter showed that he expected the tug-owners to furnish booms. September 17th, plaintiffs answered, offering to furnish tug early the next week to tow the logs, but stating that they would not tow by the 1,000 feet, or assume any risk as to the loss of logs, and that they hired their tugs by the hour, and let them work for the man who hired them, and he assumed all the risks. The price named was five dollars an hour working time, and three dollars an hour “laying time.” The letter continued as follows:

“If we furnish booms, the use of them is not included in above, and we shall charge you for any damage they sustain; and, if they are lost, you,are to pay for them, or, if they go on the beach, the time of the tug in recovering them will be charged for at the same rates as for towing logs. If you wish a tug as above,, let us know immediately. Would prefer that you furnish booms.”

Some unimportant telegrams next passed, and on Sepber 18th defendant wrote that he had—

“Decided to take tug Hebard. How soon can I get her? * * * Can you furnish enough booms to go around logs twice ? I could furnish booms, but have no way to get same to Yellow Dog and back again. * * * I would like to know just what time I can expect tug to be at Yellow Dog river, and will be there waiting, so as not to cause any delay at all. Write me fully, and also in regard to booms. * * * Notify me and advise me fully on receipt of this at what time you will be at river with tug and booms (put in largest booms you have), and will be there waiting for you.”

September 19th plaintiffs wrote:

“We will send tug as soon as we can, spare her, which will not be for several days. We will give you ample notice. We will send boom, also. * * * It is not probable that we will send tug before Tuesday or Wednesday. We will do work just as if it were our own.”

On September 20th defendant replied:

“Will have to be notified about two days before tug will be there. * * *. It will be necessary for me to know about what hour and what day you will be there, so I can be down to the lake, and not keep you waiting. Have sufficient boom so we can make a lap around back end of the logs. In all, there is about 500,000 feet. Want to use all the precaution possible.”

September 20th defendant telegraphed: “Will go up Monday if Hebard \i. e., tug] can be there Tuesday morning. Written. Answer letter by wire.” Plaintiffs wired September 21st: “You may expect tug, boom, and two men at Yellow Dog, daylight Tuesday.” The defendant was at Yellow Dog on Tuesday mo/ming at daylight with his men. The tug reached there Wednesday morning about 9 o’clock, plaintiffs having found it necessary to send her to look up some lost cedar logs of their own on Monday. She brought .with her a boom of 28 sticks, each 40 feet long.' It is claimed by the defendant that this was. inadequate to hold the logs, and that, to get them all in, they were piled upon one another until they grounded, and the tug could not draw them out, and that the captain then anchored the boom with a buoy, and went to Marquette for more boom, where he was detained for a time by the weather, and when he returned the boom had gone ashore, and the logs were scattered along the beach. Some, but not all, were recovered and towed to their destination.

The defendant claimed damage for loss of time for his-men while awaiting arrival, of the tug, for logs lost, and for loss from the injury to the logs by abrasion from going on the beach. The plaintiffs claimed that the boom was large enough to accommodate 500,000 feet of logs, which was all the boom they were under obligation to bring, and that the risk of loss was the defendant’s, under the contract. Some other questions will be alluded to as the case is discussed.

"We are of the opinion that a fair construction of the contract was that plaintiffs undertook to furnish a tug and sufficient boom to inclose 500,000 feet of logs, and that they did not assume the risk of weather or accident, unless due to negligence or disobedience of the defendant’s orders, neither of which is claimed. We think the plaintiffs were liable for loss of time occasioned by the delay in her arrival. That is the limit of their liability, if it can be said that they brought as large a boom as the contract required. The jury found that they did not, and this must be final upon that question, unless the undisputed evidence shows the contrary, as is claimed by plaintiffs’ counsel. The defendant testified that there were 492,000 feet of his own logs, consisting of 4,852 pieces, according to the scale, and that some logs (probably about 200) belonging to other people came down with them. The owner of the mill which cut the logs testified that 181 logs bearing the mark of another owner were brought to the mill with the defendant’s logs. These, if of the same average size of the defendant’s logs, would amount to 18,000 feet; and if, as the witness said, they were larger, they would amount to more. His opinion was that they would run 6 to the 1,000, which would make 30,000 of those received and sawed, to say nothing of those lost; for it is improbable that there was not some loss from these logs as well as the others. But, taking defendant’s own estimate as to number, there were from 20,000 to 33,000 feet of those logs, in addition to the 492,000 feet, which defendant attempted to put in the boom. At the very l.owest computation there were 510,000 feet, and at the highest 533,000 feet, of the logs, which defendant attempted to crowd into a boom which was expected to hold 500,000 feet. The defendant’s own brief places the amount at 517,000 feet.

The contract made by these parties was in writing. Its construction, therefore, was for the court. If there was. any ambiguity, it was upon its face; and, if it were not,

no circumstances which would throw light upon it were shown. In construing this contract the court, in effect, said to the jury that the plaintiffs agreed to bring boom sufficient for “a few thousand feet” more than 500,000 feet of logs, and left the jury to determine how much more than 500,000 feet they were under obligation to provide for. The agreement of the plaintiffs is to be ascertained from the whole correspondence. On September 14th defendant wrote that he had between 400,000 and 500,000 feet of logs for which he wanted a boom brought. On September 18th he wrote, accepting an offer on that basis, and inquired if plaintiffs could furnish boom enough to go around logs twice. On September 20th he wrote, asking to he notified when tug would arrive, and said: ‘c Have sufficient boom so we can make a lap around back end of logs. Put in the largest boom you have. In all, there is about 500,000 feet. Want to use all precaution possible.” From this correspondence, we think it cannot be said that plaintiffs did more than promise to provide a boom for 500,000 feet. Indeed, at the time defendant said he would take the tug, he had not intimated that he had 500,000 feet, and even his last letter did not claim more, but gave plaintiffs to understand that it was necessary to provide for nearly 500,000 feet. It is true that he asked for the largest boom they had, but the inference naturally to be drawn was that he wanted it to lap around end of logs, or, as he had previously said, “to go around the logs twice. ” There was never an intimation that he expected them to provide for more than 500,000 feet. They had a right to suppose that a boom that would accommodate 500,000 feet was all that was necessary, and they had no reason to expect that they would be required to put more than 500,000 feet in the boom, and then be held liable for several hundred dollars’ loss because it would not accommodate them. The jury should have been instructed that, if they sent a boom sufficient to accommodate 500,-000 feet of logs, the plaintiffs performed their contract; and, unless there was evidence tending to show that they did not send a boom of that capacity, the question should not have gone to the jury.

There was testimony offered by defendant tending to show that the defendant’s foreman advised him that the boom would not accommodate his logs, and that the captain of the tug assured him that it would, and insisted that they be run into the boom. Exception was taken to the admission of this testimony. If the testimony was to be used for the purpose of justifying defendant in attempting to put in more than 500,000 feet, it was inadmissible, for the captain had no authority to bind his principals; while, if it was merely an ássurance that it would accommodate 500,000 feet, it amounted to no more than a circumstance bearing upon the negligence of the defendant in attempting to put 500,000 feet in the boom after he had been advised not to do so, and was perhaps admissible as part of the res gestee. We think the contract clearly shows that the tug was furnished, with the boom, to be used under the direction of the defendant. The captain of the tug was not authorized to change this relation. The plaintiffs were responsible for any negligent or unskillful performance of his duties, but not' for the consequences of his advising the defendant in his business of rafting, running, or handling the logs; and in no sense can the plaintiffs be said to be wrong-doers. If the defendant was aware, or had substantial reasons for believing, that the boom would not accommodate his logs, he had no right to subject the plaintiffs to the danger of loss by attempting to put in more than he had reason to suppose the boom would hold; but, if he did in good faith believe that the boom would hold 500,000 feet, he had a right to attempt to put that quantity in, and hold plaintiffs liable for the unavoidable loss of such as it would not accommodate. An attempt to put in more than 500,000 feet, or more than he had reason to believe the boom would accommodate, when he started the logs, would be at his peril. If the grounding of the logs was the cause of the failure of the tug to take out the logs after they were inclosed in the boom, the plaintiffs would not be liable, unless it was due to the smallness of the boom; and in such case they would not be liable for the entire loss, if the defendant, knowing the danger, chose to hazard all, rather than to leave a small number of his logs.

The judgment is reversed, and a new trial ordered.

Montgomeey, O. J., Mooee and Long, JJ., concurred with Hooker, J.

Geant, J.

I concur in the interpretation placed upon the contract by my Brother ITookee, and concur in all he has said, except as to the statements made by the captain of the tug. Defendant’s own foreman told him that the boom would not hold all the logs, and advised him not to put them all in it. Presumably, the foreman knew the size of the logs, and knew that a boom which would hold 500,000 feet of average-sized logs would not hold the same number of feet of logs under the average size. The captain was not authorized to make any representations to bind his principals. The contract was in writing. The captain of the tug was not a lumberman or log-driver. His business was to manage the tug. Pie may have known, as the record shows, that over 500,000 feet had been included and rafted in this boom; but this would not give him authority to tell defendant that the boom would hold that number of feet of logs less than the average size. I think it was error to permit testimony of statements of the captain.

I think there is one other error upon the record. Plaintiffs sought to show that these logs were less than the average size. In the absence of any representations as to size, the contract was to send a boom sufficient to hold not to exceed 500,000 feet of logs of the average size. Plaintiffs were entitled to show that the boom was sufficient for that purpose, and to show that defendant’s logs were below the average size.

Montgomeey, G. J., Mooee and Long, JJ., concurred with Geant, J.