text:
    VAN ORMAN v. PUFFER.
    Guaranty — Contracts—Violation—Release.
    Where a brewing company contracted with a hotel company to allow certain rebates in the sale of beer, to apply on the payment of two notes owing to it by the hotel company, in case certain specified brands of its beer were sold exclusively in the saloons of said hotel company, and defendant, on the sale by him of the stock of said hotel company to plaintiffs, guaranteed to make good any deficit in case the rebates were insufficient to cancel the notes, if plaintiffs would faithfully perform the contract, evidence of a wilful violation of the contract, in the substitution of cheaper beer for the higher priced, for four months, thereby materially reducing the sales of beer, held, sufficient to release defendant, although the brewing company did not exercise its option declare said contract violated.
    Error to Jackson; Parkinson, J.
    Submitted October 16, 1918.
    (Docket No. 76.)
    Decided December 27, 1918.
    Assumpsit by Fred Van Orman and another against Elmer C. Puffer for breach of a contract of guaranty. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      Thomas M. Poynton, for appellants.

      Sidney S. Gorham and John F. Henigan, for appellee.
    The Victoria Hotel Company is an Illinois corporation with outstanding capital stock of the par value of $40,000. Under date January 28, 1910, the Victoria Hotel Company, by O. A: McClintock, its president, and O. A. McClintock personally, made an agreement with the Fred Miller Brewing Company, a Wisconsin corporation, in which agreement it .is recited that the hotel company and McClintock, parties of the second part, are jointly and individually the lessees of certain portions of a brick hotel building- in Chicago known as the McCoy Hotel building, and that they have agreed to sell upon said premises domestic draught beer manufactured and sold by the Fred Miller Brewing Company, party of the first part, and to sell no other domestic draught beer upon the premises during the térm of the agreement and upon the terms and conditions therein recited. The agreement on the part of the Fred Miller Brewing Company expressed in the instrument is to advance and lend to the' second parties (the hotel company and McClintock) the sum of $10,000, to take two promissory notes of $5,000 each as evidence of the loan, due respectively May 1, 1915, and May 1, 1920, each of the notes to bear an indorsement to the effect that it is issued subject to the terms and provisions of the said agreement to sell to the second parties all of the domestic draught beer which they “may need, use, sell, consume, or give away upon the above described premises,” at stated prices, the brand known as “High Life” at $8 a barrel, the brand known as Pilsener at $5.50 a barrel, and to sell to them also during the terms of the agreement bottled beer at 75 cents a dozen for small and $1.25 a dozen for large bottles, with the proviso that if at any time during the duration of the agreement the Federal internal revenue tax upon malt liquors is increased the increase shall be added to the said prices. The second parties agree that they will not purchase, use, sell, consume or give away upon the premises during the period of the agreement any domestic draught beer other than that manufactured and sold by the first party, and will purchase from the first party all that they may need, use, sell, consume or give away, and will purchase from the first party at least 60 per cent, of all the bottled beer used, sold, consumed or given away upon the premises. They further agree that from and after May 1, 1910, they will maintain three saloons on the premises, two on the main floor and one in the basement, with the proviso that if any one of the saloons shall be operated at a loss during any six months’ period they may discontinue the maintenance thereof.
    • “Parties of the second part agree that they will use in the two saloons and bars upstairs, exclusively, the grade and brand of beer known as ‘High Life,’ manufactured and sold by the party of the first part.”
    The agreement is to be in force until the second parties have purchased 5,000 barrels of “High Life” and 10,000 barrels of Pilsener beer, but not after the first day of May, 1920. While the agreement calls for payments to be made for beer in cash as it is delivered, it is a part of the agreement that whenever the second parties shall have purchased and paid for 2,500 barrels of “High Life” beer and 5,000 barrels of Pilsener beer, then, if they have also purchased from the first party 60 per cent, of all the bottled beer they have used upon the premises, the party of the first part will deliver up to the second parties the note for $5,000 due May 1, 1915. So it is provided that when the second parties upon the same conditions have purchased an additional 2,500 barrels of “High Life” and an additional 5,000 barrels of Pilsener, the party of the first part will cancel and deliver up. the second $5,000 note due May 1, 1920.' If, however, before May 1, 1915, the parties of the second part, having performed their agreement, have not purchased and paid for enough beer to secure the cancellation of the said notes in either of said periods they shall yet be entitled on the first of May, 1915, and on the first of May, 1920, to a credit of 66 2/3 cents a barrel for each barrel which they have purchased and paid for, said credit to be applied upon the said notes, and to a further credit of a sum equal to 25 cents for each barrel of Pilsener beer in excess of double the number of barrels of “High Life” beer so purchased as aforesaid during the said periods. The parties of the second part agree to pay to the party of the first part the difference between the amount of the credits and the principal sum of each of said notes. If the parties of the second part purchase, sell, handle or give away on the premises domestic draught beer other than manufactured and sold by the first party (except in a case where the first party is unable to supply the beer)—
    “For a period of ten (10) days after written notice from first party to discontinue the sale of such other domestic draught beer, then the notes hereinbefore referred to shall become at once due and payable.”
    The agreement is made binding jointly and individually upon the parties of the second part,—
    “its successors and assigns, and his-heirs, executors, administrators and assigns, and upon the successors and assigns of said first party.”
    A supplement to this agreement was made in another writing, dated the same day, namely, January 28, 1910, by which it is provided that if the parties of the second part sell a total of 7,500 barrels of beer during either or both of the five-year periods named in the original agreement, of which total more than one-third shall be of the brand known as “High Life,” they shall be entitled to a credit of 66 2/3 cents for each barrel of beer sold. It is further agreed that in the event that the first note, due May 1, 1915, shall be surrendered and canceled as in the original.agreement provided for prior to the date of its maturity, the parties of the second part shall be entitled to a credit upon the second note for all beer sold from and after the date of the cancellation of the first note.'
    Pursuant to this agreement, the Victoria Hotel Company and McClintock made two promissory notes, dated January 28, 1910, by the terms of the first of which they promised to pay to the Fred Miller Brewing Company $5,000 May 1, 1915, at its office in Milwaukee, Wisconsin, with interest at 5 per cent, per annum after maturity .until paid. The note is issued subject to the terms and provisions of a certain agreement made between the Fred Miller Brewing Company and the makers, dated January 28, 1910.
    On September 22, 1910, the said Oliver A. McClintock and the defendant, Elmer C. Puffer, entered into an agreement in- writing, in which it is recited that McClintock, the party of the first part, and his associates own the entire capital stock of the Victoria Hotel Company and have agreed to sell it to Puffer upon terms and conditions expressed in said agreement. The terms and conditions, in so far as they need to be stated, are that the party of the first part will transfer and deliver stock certificates representing the entire outstanding capital stock of the corporation and accept as payment $85,000, $40,000 in cash and $45,000 in deferred payments. It is a part of the agreement that the party of the first part, Mc-Clintock, will indemnify and save harmless the party of the second part and the Victoria Hotel Company—
    “against any and all debts and obligations due and owing by said corporation for property or merchandise purchased and delivered, or services rendered or benefits received by said corporation prior to the hour of twelve (12) o’clock midnight on September thirtieth, A. D. 1910, and will pay, or cause to be paid, all such debts and obligations of said corporation; it being the intention of the parties hereto that upon the delivery to the party of the second part, of the capital stock of said corporation, on said thirtieth day of September, A. D. 1910, said corporation shall be free from debt, but shall remain liable upon all contracts made by it prior to said first day of October, A. D. 1910, by the terms of which any moneys shall become due and payable from and after said last named date, for or on account of property or merchandise thereafter delivered or services thereafter rendered said corporation or benefits thereafter received by or accruing to it; provided, however, that all cash on hand, moneys in bank and all sums due and owing to said corporation, or to which said corporation may have become entitled prior to October first, A. D. 1910, shall belong to, and be the property of the party of the first part and his associates, as the owners of the capital stock of said corporation prior to said last named date.”
    The third paragraph of this agreement reads as follows:

      “Third. In case the said Victoria Hotel Company shall faithfully comply with the terms of that certain contract with the Fred Miller Brewing Company, dated January 28th, A. D. 1910, and perform all the obligations imposed upon it by the terms of said contract according to the letter and spirit thereof, and shall be unable to sell such a quantity of draught beer as will, under, the terms of said contract, entitle it to the cancellation of the two (2) notes for five thousand dollars ($5,000.00) each, mentioned in said contract, the party of the first part will, on demand of said Victoria Hotel Company and the party of the second part, pay to said Fred Miller Brewing Company such a sum of money as, added to the amount to which said hotel company shall be entitled as a credit upon said notes under the terms of said contract, shall be necessary to liquidate and pay said notes according to their tenor and effect; provided, however, that in case the said Victoria Hotel Company shall become entitled to the cancellation of said notes (either by partial payment in cash of the nóte first to mature or otherwise), prior to May first, A. D. 1920, the party of the second part shall pay, or cause to be paid to the party of the first part such a proportion of ten thousand dollars ($10,000.00) as the unexpired portion of the term of ten (10) years beginning May first, A. D. 1910, and ending May first, A. D. 1920, bears to the entire term of ten (10) years. To illustrate: if the quantity of beer sold under the terms of the agreement with said Fred Miller Brewing Company, together with any moneys paid on account of the note first to mature, shall entitle the said hotel company to a cancellation of the second of said notes at the expiration of nine years from May first, A. D. 1910, then the amount due the first party hereunder will be one thousand dollars ($1,000.00).”
    Under date September 30, 1910, in another writing, executed by McClintock and Puffer, there is the identical third clause of the original contract above set out.
    By an agreement in writing, dated January 31, 1913, in which defendant Puffer is party of the first part and the plaintiffs parties of the second part, the defendant agreed to sell and sold to the plaintiffs all the issued capital stock of the Victoria Hotel Company, and the parties of the second part, the plaintiffs, agreed to buy said stock in accordance with provisions set out in the agreement, those provisions which are important here being similar to, for the most part identical with, the ones already set out and recited in the agreement by which .the defendant became possessed of the stock and business of said corporation, that is to say: the defendant as party of the first part agreed to indemnify the parties of the second part and the Victoria Hotel Company against any debts or obligations owing by the corporation for property or merchandise purchased or services rendered prior to six o’clock p. m. on January 31, 1913, and to pay all such debts and obligations, and second, agreed that in case the Victoria Hotel Company faithfully complied with the terms of a certain contract with the Fred Miller Brewing Company, dated January 28, 1910, and should still be unable to sell such a quantity of draught beer as would entitle it to the cancellation of the two $5,000 notes, the party of the first part would on demand of the Victoria Hotel Company and the parties of the second part pay to the said Fred Miller Brewing Company such a sum of money as, added to the amount to which the said hotel company was entitled as a credit under the terms of the contract, would be necessary to liquidate and pay the notes according to their tenor and effect. It is a part of said last mentioned provision:
    “Provided, however, that in case the said Victoria Hotel Company shall become entitled to the cancellation of said notes (either by partial payment in cash of the note first to mature, or otherwise), prior to May 1st, 1920, the parties of the second part shall pay, or cause to be paid, to the party of the first part such a proportion of ten thousand dollars ($10,000) as the unexpired portion of the term of ten (10) years, beginning January 31st, 1913, and ending May 1st, 1920, bears to the entire term of 10 years. To illustrate: If the quantity of beer sold under the terms of the agreement with said Fred Miller Brewing Company, together with any moneys paid on account of the note first to mature, shall entitle the said hotel company to a cancellation of the second of said notes at the expiration of, to-wit: seven (7) years from January 31st, 1913, then the amount due the party of the first part hereunder shall be seven hundred and fifty dollars ($750).”'
    Plaintiffs were operating the hotel when the first $5,000 note made to the Fred Miller Brewing Company fell due, that is, on May 1, 1915. A settlement was made between the Victoria Hotel Company and the Fred Miller Brewing Company, according to which a credit was given upon said note for beer purchased, so that the balance due upon the said note was $1,402, and that sum the Victoria Hotel Company paid and the note was canceled. They asked defendant Puffer to reimburse them, and upon his declining to do so brought this suit.
    Their declaration, which was filed August 26, 1916, contains the averment, among others, that the Victoria Hotel Company has faithfully complied with the terms of its said contract with the Fred Miller Brewing Company and performed all the obligations imposed upon it by the said contract according to the letter and spirit thereof, but that the Victoria Hotel Company had been unable to sell such quantity of draught beer as would entitle it to the cancellation of its note, so that there became due and owing on the note on the first of May, 1915, $1,402, whereupon a demand was made upon defendant to liquidate said indebtedness in accordance with his contract with these plaintiffs; that the defendant neglected and refused to settle said indebtedness, whereupon, on the 3d of June, 1915, the Victoria Hotel Company paid the Fred Miller Brewing Company the said sum of money; that by reason of the failure of the defendant to perform his contract the assets of the Victoria Hotel Company have been depleted to the extent of $1,402 and the use thereof from the 3d of June, 1915, re-, suiting in a depreciation in value of the 400 shares of the issued capital stock of said corporation purchased by the plaintiffs, “to plaintiffs’ damage in the sum of two thousand dollars.” To these allegations the common money counts in assumpsit are added.
    The defendant with his plea gave notice of special defenses based upon the alleged violation by plaintiffs of the agreement of the Victoria Hotel Company with the Fred Miller Brewing Company, not all of which seem to have been relied upon at the trial, and only one of which, at the most two, were found by the trial court to have been sustained by evidence.
    It is stipulated by counsel that the period during which the Victoria Hotel Company sold Pilsener beer at the upstairs bar of its premises is correctly shown by the records of the Fred Miller Brewing Company, to wit, from October, 1914, to February, 1915, inclusive.
    Defendant gives notice with his plea that if the contract had been faithfully lived up to, and there was a shortage, he had a contract with McClintock which would authorize him to call upon McClintock to pay the Fred Miller Brewing Company; that the plaintiffs were aware of this fact and, without authority from defendant or McClintock, after violating the. contract with the Fred Miller Brewing Company, elected to pay an alleged claim of the Fred Miller Brewing Company, foreclosing both defendant and the said McClintock, without opportunity for either defendant or McClintock to be heard as against the said claim of the Fred Miller Brewing Company.- One of the alleged defenses is:
    “The plaintiffs, after they came into possession of the capital stock of the Victoria Hotel Company, in conducting the Victoria Hotel Company, without the consent of the said Oliver A. McClintock [or] of this defendant, changed from High-Life Beer to Pilsener beer in one bar, when the revenue tax was raised fifty cents per barrel, they then took Pilsener beer instead of High Life beer.”
    The notice of special defense numbered 3 reads as follows:
    “This defendant will further insist and show in his defense that the Victoria Hotel Company, during the time its stock was owned by the plaintiffs, breached the contract in the particulars hereinbefore mentioned; that the Fred Miller Brewing Company acquiesced in the breaches of the contract, for instance, the contract provided that Pilsener beer would be sold in the corner basement saloon only and High Life would be sold in the two saloons on the street level; instead of living up to this part of the contract, the Victoria Hotel Company, under the management of the plaintiffs, with the consent and acquiescence of the Miller Brewing Company, sold Pilsener beer in the Clark street barroom contrary to the contract, and by its action in this regard the Miller Brewing Company acquiesced in the violation of the contract and estopped itself from asserting the contract against the Victoria Hotel Company and was not legally entitled to be paid the $1,400 which the plaintiffs claimed to have paid it, and for that reason the plaintiffs cannot recover.”
    203 — Mich.—41.

      Other alleged special defenses seem to have been disposed of upon the evidence, leaving the one conceded failure of the Victoria Hotel Company to perform the contract as the sole basis for defendant’s contentions and the court’s conclusions.
    The court as requested to do made certain findings of fact and conclusions of law; Proposed findings were submitted by counsel as well- as points of law under the rule, a large number of exceptions were taken to the findings of the court, various amendments were proposed. There was a motion for a new trial made by plaintiffs, judgment having gone against them, and a new trial was refused. There are 26 assignments of error. It will be sufficient for an understanding of the issue to set out a part only of the findings of fact and the conclusions of law and to refer to the objections made thereto:
    “8. It is conceded by stipulation on file that the Victoria Hotel Company (which is really the plaintiffs in this case), sold Pilsener beer instead of High Life, in the two saloons upstairs-and for a period of about four months, from November, 1914, to February, 1915, both inclusive.
    “9. Defendant contends this is such a breach of the contract with the Fred Miller Brewing Company, which plaintiffs were bound to abide by and perform according to its letter and spirit and for his protection and exoneration, as released him from or precludes plaintiffs from recovering from him any deficiency arising from insufficient sales of beer necessary to entitle him or plaintiffs to a cancellation of this $5,000 note now in question.
    “The plaintiffs deny this contention and say it was not a violation of the real intent or meaning of the contract. That, at any rate, the defendant does not show he was damaged by it; that, in fact, he was not, and that the Fred Miller Brewing Company considered and treated the contract as having been faithfully performed. Plaintiffs’ counsel insist this is, if a breach, one that, as it operated, was immaterial, entailing no loss and that defendant is not discharged by reason of it.

      “10. Passing for the present the question as to whether it was such a breach on plaintiffs’ part as releases' defendant irrespective of proof of damage, and the question as to whom the burden of proof is upon to show damage or want of damage, I find the proofs upon this question, from the testimony of H. W. Borgman, bookkeeper for the Fred Miller Brewing Company, show that for October, 1914, there were bought by plaintiffs from that company, 23 barrels of High Life beer and 2 of Pilsener; in November, 19 barrels of Pilsener and 2 of High' Life; in December, 23 barrels of Pilsener and apparently none of High Life; in January, 1915, 23 barrels of Pilsener and none of High Life; and in February, 1915, 25 barrels of Pilsener and 1 of High Life. The testimony shows that when the Fred Miller Brewing Company learned that plaintiffs were selling the Pilsener .contrary to contract they required the practice to stop and the terms of the contract to be complied with.
    “Following this, the sales of High Life for March were 28 barrels. The same figures are given for April.
    “Preceding this period for months, the monthly sales of High Life have been from 33 to 47 barrels of High Life, except in September, 1914, when they, fell to 24 barrels and in October to 23 barrels.
    “I make the following table from the testimony of the bookkeeper:
    “Sales of High Life beer:
    1913, bbls. 1914, bbls. 1915, bbls.
    Jan................... 33 37 0
    Feb. .................. 34 33 1
    March ................ 30 36 28
    April ................. 36 ‘ 39
    May .................. 33 ■ 40
    June ................. 39 41
    July ...................-51 47
    August ............... 49 41
    Sept.................. 39 24
    Oct................... 47 23
    Nov. .................. 45 2
    Dec...................43
    “Sales of High Life are not furnished after March, 1915.

      “Sales of Pilsener:
    1913, bbls. 1914, bbls. 1915, bbls.
    Jan................... 28 51 28
    Feb................... 27 40 28
    March ................ 27 43 . 29
    April ................. 36 46 36
    May .................. 42 41
    June ................. 42 31
    July ..................36
    'August ............... 42 46
    Sept.................. 56 38
    Oct................... 86 36
    Noy................... 83 32
    Dec................... 77 25
    “No figures are given for 1915 after April.
    “If we consider sales of both kinds for November and December, 1914, and January and February, 1915, the aggregate is: for November, 34 barrels; December, 26 barrels; January, 28, and February, 29. For March, following the change back to contract terms, total sales of both kinds were 57.
    “The only explanation for such diminished sales for these four months is the statement of Stowe that the business fell off; or that upstairs business was injured by the substitution of the cheaper beer, as counsel for the defendant claims; or that other beers not purchased of the Fred Miller Brewing Company were used; and I am not wholly satisfied, from the evidence, as to the real cause except that these diminished sales are coincident with the unauthorized change in handling these beers, and may be owing to that change and the proofs, do not clearly explain them or show they were not due to it.
    “11. I am not able to find, from the testimony, that defendant has not been damaged by the action of plaintiffs in violating the terms of the contract for four months. Not only were total sales diminished, but practically there were no sales of High Life, conditions not found for any similar period, and improved at once following a return to the contract requirements.
    “12. Plaintiffs do not deny that for the four months mentioned, they violated the terms of the Fred Miller Brewing Company contract; that such company, when informed of such violation, required its abandonment and a return to contract requirements, which were then complied with.
    “18. I find, as doubtless already "sufficiently appears, that the contract relations governing the parties and the Fred Miller Brewing Company are set forth in Exhibits A and B, defining their respective rights, duties and obligations.
    “14. The declaration alleges that the Victoria Hotel Company, and meaning the plaintiffs also, has faithfully complied with its contract with the Fred Miller Brewing Company and has performed all the obligations imposed upon it by the terms of said contract, according to the letter and spirit thereof. Plaintiffs fail, by their proofs, to sustain this averment.
    “15. The declaration also alleges that the plaintiffs have faithfully performed all the conditions of their said contract with defendant on their part to be performed. They also fail to prove this averment.
    “16. I am unable to find that the greater weight of the evidence shows that the aforesaid violation of or departure from the terms of the contract as to the handling and sale of the two kinds of beer did not pecuniarily damage the defendant.
    “If either party thinks I have omitted any material or necessary fact, I will supplement this finding of facts, if convinced I should do so.
    “Conclusions of Law.
    “I, therefore, deduce the following conclusions of law:
    “1. That inasmuch as there is no claim or proof that defendant authorized such violations of the contract by plaintiffs, or that he has approved or ratified them or waived his rights to strict performance, the burden is upon them to show that he was not damaged thereby and is not entitled to defend therefor.
    “2. That in the absence of clear and satisfactory proof to the contrary, the presumption is that his rights were thereby adversely affected, or, in other words, damage will be presumed.
    “3. That the case is not different in point of law from what it would have been had plaintiffs and the Fred Miller Brewing Company expressly agreed to change the terms of the contract for the period of four months aforesaid, and permit plaintiffs to sell as they did sell, defendant not knowing of such modification and not assenting thereto.
    “4. That under his contract, defendant was entitled to a strict performance of it on the part of plaintiffs. That plaintiffs have broken the contract on their part, and not having shown, by a fair preponderance of the evidence, that defendant was not injured pecuniarily thereby, they cannot recover.
    “5. Under the contract with defendant, it was the duty of plaintiffs to fully perform for him his contract obligations to the Fred Miller Brewing Company, and so far as such performance could do so, protect and exonerate him from pecuniary liability on account of it. His relation was, in a way, like or analogous to that of a surety for plaintiffs and he should only be called upon by them to make good in case after strict performance on their part the amount of sales or credits thereon should fall short of satisfying the claims of that company. Plaintiffs have paid the Fred Miller Brewing Company, and now seek recovery of such payment for the shortage arising from their failure to sell sufficient quantities of beer to cancel it under the contract. For their failure to carry out their part of the contract by not performing all its obligations according to the letter and spirit thereof, they are not in a position to call upon the defendant to make good the deficiency.
    “6. They cannot ask defendant to be bound when they, themselves, have not been bound, their own delinquency not having been excused or justified or clearly shown to have been harmless.
    “7. I think the same questions would arise and be confronted were it claimed that recovery could be had under the common counts and there is no better reason for awarding judgment for the plaintiffs upon those counts than upon the special count upon the express contract.
    “8. That plaintiffs have failed to sustain their case either under their pleadings or the proofs, wherefore the judgment must be for the defendant.
    “That judgment should be for the defendant for the amount of the set-off as stipulated and found in my opinion on file with some additional interest since May 1st, 1916. It may be computed and here inserted. Three hundred ninety-three dollars and fifty-five cents ($393.55).
    “In part support of these conclusions of law, I call the attention of the parties to 3 Elliott on Contracts, sections 2102 and 2103,, which I believe controlling under the evidence in this case.”
    The amendment to the findings of fact made by the court is to the finding numbered 10, affecting only certain figures, the effect of the amendment not appearing to be of importance as affecting the issue to be determined.
    Nor do criticisms of the findings of fact made by appellants appear to apply to anything which affects the question to be determined. There are some slight inaccuracies pointed out, but an examination reveals nothing requiring comment. What plaintiffs claim is stated in the brief in the following language:
    “It was shown by testimony introduced by plaintiffs, and not disputed by the defendant, that the only time during which the Victoria Hotel Company sold Pilsener beer at its Clark street main floor bar, was during the period from October, 1914, to February, 1915, when it sold 91 barrels of Pilsener beer at its upstairs or main floor bar. Although the contract with the Fred Miller Brewing Company required that the Victoria Hotel Company use only the brand of beer known as ‘High Life,’ at the upstairs bar, yet, the brewing company, in its settlement with the Victoria Hotel Company allowed the hotel company credit of 66 2/3 cents for each of the 91 barrels of Pilsener beer so used at the upstairs bar, and did not consider nor treat this departure from the strict terms of the contract as a violation. However, the defendant insists, and the circuit judge held, that it was such a departure from the terms of the contract as amounted to a breach, even though no damage is shown to have resulted to the defendant.
    “It is claimed by plaintiffs that this slight deviation from the strict terms of the contract with the Fred Miller Brewing Company, which could injure no one but the brewing company, and which the undisputed testimony shows, resulted in benefit and no injury to defendant, on account of the greater quantity of beer for which the hotel company was given credit on its note, was not such a departure from the strict terms of the contract as the parties intended should operate as a forfeiture of plaintiffs' rights to insist upon the defendant paying the $1,402 which became due on the Fred Miller Brewing Company note, in accordance with his contract with plaintiffs when they purchased the capital stock of the Victoria Hotel Company, and that the clear weight of the evidence shows performance of the contract sued upon, by the plaintiffs, in every essential detail, and in accordance with the purpose and intention of the parties, as expressed in the contract and shown by the admitted facts in the case.”
    And the questions involved are stated to be:
    “1. Whether from the language of the contract, as a whole, and the facts and circumstances in evidence, it can be fairly said that it was intended by the contracting parties that the slightest deviation, on the part of the Victoria Hotel Company, from any detail of its contract with the Fred Miller Brewing Company, whether resulting in damage to defendant or not, would operate as a forfeiture of valuable rights which plaintiffs acquired under their contract with defendant, and thereby enable the defendant to reap the benefits of the contract, and yet, through a technicality and unconscionable advantage, escape responsibility for an obligation which he assumed when he sold the property to plaintiffs, and received the benefits of the $85,000 purchase price paid by plaintiffs.

      “2. Whether the common law rule of strict performance or the modern rule of substantial performance is applicable to the situation in the instant case, where it is not disputed that the plaintiffs have substantially, in good faith, fulfilled the obligations of their contract with defendant, in its essential particulars, and where the defendant has brought forward no proofs whatever to show that he has been damaged in any manner by reason of the slight variance from strict performance, upon which he relies to defeat plaintiffs’ claim.
    “3. Whether the court erred in admitting the Mc-Clintock contract in evidence.
    “4. Whether the court erred in placing burden upon plaintiffs to negative an affirmative defense where no evidence was offered in support of such defense.
    “5. Whether the circuit court’s findings of fact and conclusions of law are supported by the evidence.”
   Ostrander, C. J.

(after stating the facts). There is no occasion for considering the fifth question, because the court’s conclusions are based upon a conceded breach of the agreement, nor the third question, unless a new trial is ordered, because the court, although admitting the agreement between McClintock and defendant in evidence, based no conclusion and no material finding upon that evidence. The first, second and fourth questions demand some discussion: although the first two are stated in an argumentative manner, they nevertheless present points upon which appellants rely.

The Victoria Hotel Company was a party to the contract with the Fred Miller Brewing Company, a contract which, by its terms, might run for ten years,. and which, so far as the record discloses, is still in force. The Victoria Hotel Company was a joint maker of the notes given to the Fred Miller Brewing Company. In their agreement they made provision for the contingencies of fire, injunctions, strikes, legal proceedings, restrictions upon the traffic in liquors and “any other unavoidable causes,” and for the®case which might arise if the hotel company premises were destroyed by fire or if, by the operation of a prohibitory liquor law, the selling of beer could not go on. In any event, wilful failure on the part of the hotel company to perform the contract after notice invited liability to pay the notes immediately and unavoidable failure to perform resulted also in immediate payment, but of the balance only after due credits were allowed.

The Victoria Hotel Company is hot a party to any other of the contracts which have been referred to. It has remained, with McClintock, liable, primarily, to the Fred Miller Brewing Company upon the notes. Presumably, it had the advantage of the money furnished by the Fred Miller Brewing Company, or of some of it. But while the outstanding notes evidence a debt of the corporation, an analysis of the agreements clearly indicates that it was not a debt of the corporation which Puffer obligated himself to pay at all events. His undertaking is that if the hotel company shall faithfully comply with the terms' of said contract, performing all of the obligations imposed upon it thereby,—

“and shall be unable to sell such a quantity of draught beer as will, under the terms of said contract, entitle it to the cancellation of the two (2) notes * * * the party of the first part will, on demand of the said Victoria Hotel Company and the parties of the second part, pay to the Fred Miller Brewing Company such a sum of money as, added to the amount to which said hotel company shall be entitled as a credit upon said notes under the terms of said contract, shall be necessary to liquidate and pay said notes according to their ■tenor and effect.”

So, that, while it appears that the Victoria Hotel Company might, at the end of the first five-year period, settle, as it did, with the Fred Miller Brewing Company and pay' it whatever sum was required to pay and cancel the first $5,000 note, and while such settlement would bind the Victoria Hotel Company and the Fred Miller Brewing Company, it -would not necessarily bind the defendant, since the hotel company might be willing to pay cash rather than sell beer, and the Fred Miller Brewing Company be willing to waive strict performance of the agreement.

We are impressed that the parties stipulated for strict performance of the contract of the Victoria Hotel Company with the Fred Miller Brewing Company, although it is not necessary to a decision that-we should go quite so far. It is not necessary because it appears that the breach of the agreement by the Victoria Hotel Company was not inadvertent, did not grow out of any mistake, but was wilful. It continued for a period of four months. There is evidence to support the finding that the result of the breach was diminished total sales of beer and, consequently, of credits to apply upon the note. The effects of the breach cannot be measured, limited, but were plainly considerable. The Fred Miller Brewing Company protested, and the Victoria Hotel Company resumed the sale of “High .Life” beer in its first floor bar. It may be assumed that it was because it is difficult to determine the effects of a breach that the contract was drawn with so much particularity. “According to the letter, and spirit” is the provision.

We think the learned trial judge committed no reversible error, and therefore affirm the judgment.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    STEEL FURNITURE CO. v. PEARCE.
    1. Trial — Opening Statement — Contracts—Acceptance— Rejection.
    In an action on a written contract for the sale of certain seats, defended on the ground that they were not the ones ordered by catalog number, and were not like those shown defendants in another theater, which plaintiff’s agent represented they would be like, defendants’ counsel had the right, in making his opening statement, to state his claim on the law as well as on the facts.
    2. Same — Directed Verdict — Estoppel—Proofs.
    Where counsel stated in his opening that the seats were received and put up, but claimed the evidence would show that they were rejected within a reasonable time, defendants were not estopped from making their proofs, and the court below was in error in directing a verdict for plaintiff without receiving defendants’ evidence, since the question as to whether the seats were rejected within a reasonable time might become one of law for the court, one of fact for the jury, or a mixed question of law and fact, according as the proofs might show. Ostrander, C. J., and Brooke, J., dissenting.
    Error to Wayne; Barton, J., presiding.
    Submitted October 9, 1918.
    (Docket No. 23.)
    Decided December 27, 1918.
    Assumpsit by the Steel Furniture Company against George W. Pearce and another, copartners as Pearce Brothers, for goods sold and delivered. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Reversed.

      Woodruff & Woodruff and Frank W. Atkinson, for appellants.

      Welsh, Bebout & Kahn, for appellee.
   Ostrander, C. J.

(dissenting). Suit was begun November 24,1916. Plaintiff declared upon the common counts in assumpsit. Its bill of particulars is:

“1915. Sept. 17th — Purchase price of 538 No. 155 Bch. Ven. Mahogany fin. chairs at $1.19 each, $640.22. According to contract, interest 5 per cent.”

Defendants pleaded the' general issue with notice of the special defenses that in negotiating for the chairs they were shown a catalog representing No. 155, asked to see a sample chair, were taken to another theater where chairs were being installed and told that they were the same style as said No. 155, and, relying upon the representation, gave their order for the chairs, entering into a written contract therefor; that the chairs furnished to defendants are not the style and make shown in the catalog or in the other theater, are not suitable for the theater business, being lower and of inferior grade, with unfinished corners, and that patrons who used them complained because dresses were torn and injuries received on account of the sharp corners; that they were obliged to remove the chairs and substitute others; that the agent of plaintiff was notified to remove the chairs and the plaintiff notified that it had failed to supply the chairs as represented by its agent and made no reply for months.

The case coming on to be tried, the attorney for the plaintiff stated that the plaintiff would prove that the chairs were sold as stated in the written contract, were style No. 155 shown in a certain catalog at the time of the sale, were shipped according to contract, received by defendants, by them placed in their theater and used by them; that defendants at no time refused to accept them, but did accept them and had them in their possession and had not paid for them. Thereupon the attorney for defendants stated, among other things, that—

“The evidence will show, gentlemen of the jury, that he had a catalog with him, and talked or at least, pointed out to the Pearce Brothers the style and make of the seat that was sold, or that the Steel Furniture Company would deliver to the Pearce Brothers; that they asked him why he didn’t produce a sample so they could look at it.
“The evidence'will show the agent said it was a little expense to carry around, but he would take them up to the Palace Theater in Detroit, where they had installed the same kind of seat that he was to sell the Pearce Brothers, which were manufactured by this company in Grand Rapids.
“The evidence will show, gentlemen of the jury, that after the Pearce Brothers went up to the Palace theater and looked over the seats, relying on the representations that were made by the agent of this company, that they came back to Wyandotte and signed up as Pearce Brothers for the number of seats alleged in this contract, at the price fixed.
“Now, gentlemen of the jury, the evidence will show that after the seats came they were put up; that they were not the seats described in the catalog that was produced by the agent, nor they were not anything like the seat that was exhibited to these men at the Palace Theater in Detroit; that'the corners were such that when people came in to, sit down on them they would tear their clothes; that finally they were compelled to take the seats out themselves; and the evidence will show that the defendants did take the seats out themselves/ We will show you that within a reasonable time after the seats were delivered they notified them to take them away because they were not the seats ordered; that they informed the agent who sold those seats, and he kept telling them he would write to the company, as the evidence will show, for them to take care of the seats.
“Finally, gentlemen, he came over one day, and they had a talk about the seats, and he admitted, as the evidence will show, they were not seats like he had taken them to look at in Detroit. He said he had only received $9.00 for commission, and he would not bother any more to do anything about the seats.
“Now, the evidence will show that the defendants have been repeatedly notified to take their property away, but have refused to take it away, and the seats were put together and put away; and they are now stored at the city of Wyandotte.”

The attorney for plaintiff then asked the court to direct a verdict for the plaintiff. A colloquy followed, during which the contract was offered and received in evidence, and during which, referring to the statement of the attorney for defendants, the court, without being corrected, if mistaken, said:

“He conceded having received them, accepted them, and installing them.”

In the course of the colloquy the attorney for defendants admitted that by the terms of the contract the purchase price of the chairs was due, and further stated:

“It seems to me under the decisions, your honor has not, until the testimony is in, and the circumstances surrounding the transaction, whether or not the seats correspond with the sample showed by the agent at the time the order was given, and before the order was actually entered into, are all matters that should be taken into consideration by your honor before you hold, as a matter of law, that there has been an estoppel. .
“The question of estoppel cannot be decided until the testimony is before the court. Whether or not the seats delivered correspond to the sample from which the order was given; whether the defendants within a reasonable time notified the plaintiff to take them away, and all the facts and circumstances surrounding the whole transaction must be before the court before it can pass on the question of estoppel. The Supreme Court of this State has so decided. I have the citations here. When all the facts are before the court, it may become a question to be submitted to the jury or a question of law for the court, or a mixed question of fact and law for the court and jury.
“We admit that a contract was executed, and that seats were delivered. We deny that the seats delivered were the seats called for by the contract.”

It was admitted also that the chairs were installed on Thanksgiving evening, in November, 1915. No testimony was offered or was received other than the written contract. The court directed a verdict for plaintiff, upon which judgment was entered. It is assigned as error (1) that the verdict was so directed, (2) that the court refused to receive testimony for defendants, (3) that the court decided the question of estoppel without hearing evidence.

An examination of the contract discloses that it is an order for chairs, the number to be according to a seating plan, “about 550 chairs,” style No. 155. Color of wood, of metal standards, etc., are given. Setting .up directions were to be sent to defendants. It contains the provisions that—

“Verbal promises or statements are not binding upon us, and this is made an express understanding of this agreement,”

—and the order was given “subject to your approval.”

In considering whether a sale of personal property is completed, there is, of course, a distinction to be made between delivery of the property sold and acceptance of it by the buyer. The buyer is entitled, in cases like the one at bar, to a reasonable time to inspect the property delivered and to reject it if the seller has not delivered the goods ordered. Patent defects and variations from the agreed upon standard when goods are sold may be waived, and are waived if, after reasonable time for inspection, the goods are not rejected.

Circuit Court Rule No. 42 requires the attorney for defendant to make a full and fair statement of his case and of the facts which he expects to prove. The rule is a salutary one, upon the observance of which the trial court may, in most cases, rely. In this case, it is not claimed that by mistake or inadvertence counsel for defendants omitted to state any fact relied upon. It appears from the evidence and from the statement of defendants’ counsel, assuming that the material statements might have been proven, first, that the defendants ordered certain chairs to be shipped to them, described by a -number. The order sent in for the approval of plaintiff contained no other specification as to style of the chairs and expressly recited that verbal promises or statements were not binding. Chairs were shipped and received. They were not the chairs described (were not style No. 155). Nevertheless, they were installed by defendants in their theater and put to use there. Some time thereafter, but at what time does not appear, the plaintiff was notified to take them away because they were not the seats ordered. Their use demonstrated that clothing was torn on them and they were finally removed by defendants. Testimony to this effect would tend to prove acceptance of the chairs. No reason is given, and none is apparent, for not refusing the chairs upon delivery, and, while counsel stated that within a reasonable time plaintiff was notified that they were not the seats ordered and to take them away, that is not a statement of fact, but or a conclusion. Defendants are here alleging error of law and asking for a new trial of the case, and yet the court below was not advised, nor is this court advised, that defendants can produce any testimony excusing them for installing and using these chairs, or any which will tend to prove their rejection within a reasonable time because they were not the chairs ordered. Under these circumstances, error is not made to appear.

The judgment should be affirmed.

Brooke, J., concurred with Ostrander, C. J.

Fellows, J. I do not agree that the trial court correctly refused to receive any testimony and correctly directed a verdict for the plaintiff. Defendants’ counsel, as will be seen by statement of facts, stated:

“We will show you that within a reasonable time after the seats were delivered they notified them to take them away because they were not the seats ordered; that they informed the agent who sold those seats, and he kept telling them he would write to the company; as the evidence will show, for them to take care of the seats.”

There was no objection made by plaintiff’s counsel that the opening statement was not sufficiently definite upon the question of a reasonable time- for inspection.

The objection being:

“This is a written contract, and even' taking the statement of counsel as true; it is no defense to this action. It cannot vary the terms of this contract. They have admitted the contract, and the amount due, and I think, accordingly, all that is left for the court to do is to direct a verdict for the amount. I don’t think they can put in evidence to show those facts stated by counsel for the defendant.”

The defense that the chairs shipped were not the chairs ordered did not change or vary the terms of the written contract. Had plaintiff’s counsel objected to receiving any evidence because the date of the receipt of the shipment and the date of the rejection were not given, it, is highly probable defendants’ counsel would have supplied the dates; at least he would have had opportunity so to do. The fact that 'the chairs were placed does not in my judgment conclusively establish as matter of law that they were accepted. It is possible that it was necessary to place them in position in order to determine whether they were the chairs ordered, were like those defendants saw placed in position at the Palace, theater.

Defendants’ counsel had the right, in making his opening statement, to state his claim on the law as well as on the facts. People v. Smith, 177 Mich. 358, and authorities there cited. In the case of Marvin v. Hartz, 130 Mich. 26, this court reversed a case brought to recover possession of land under the summary proceeding act where the complainant’s counsel in his opening statement and argument referred to the proceeding as being under the forcible detainer act, and where the testimony did not justify recovery under the latter act. It was held that the plaintiff was not estopped by reason of this statement of counsel from claiming in this court that the proceedings were not under the forcible detainer act, but were under the summary proceeding act. In the instant case there is no question as to the sufficiency of the notice given under the plea of the general issue. I think the defendants were not estopped from making their proofs. When the proofs were in, the question of whether they had rejected within the reasonable time they had for inspection, might become a question of law for the court, a question of fact for the jury or a mixed question of law and fact. I think the defendants are en- • titled to a trial of the ease in the court below and a' reversal here, with costs of this court.

Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred with Fellows, J.


author: Bird, J.

text:
    KENDALL v. CHASE.
    Specific Performance — Land Contracts — Construction—Equity.
    Where plaintiff conveyed 40 acres, and the grantee, in consideration of same and of services rendered, executed an agreement that plaintiff should have her support out of the same during the term of her natural life, in proceedings to enforce said contract after the grantee’s death, held, that the contract is open to the construction placed upon it by the court below that plaintiff is entitled to her support out of the land conveyed, even though it exhaust the value of the land in so doing.
    See notes in 13 L. R. A. (N. S.) 725; 28 L. R. A. (N. S.) 607.
    Appeal from Shiawassee; Collins, J.
    Submitted October 16, 1918.
    (Docket No. 77.)
    Decided December 27, 1918.
    Sill by Adeline Kendall against William Chase and others for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Albert L. Chandler, for plaintiff.

      Austin E. Richards (John T. McCurdy, of counsel), for defendants.
   Bird, J.

Plaintiff has resided in the township of Venice, Shiawassee county, for many years. When she was a girl she married William Kendall. He enlisted in the civil war and while in the service died, leaving plaintiff with two small children. The deceased, John Chase, lived in the same neighborhood, with three small children. His wife was living elsewhere. After plaintiff’s father died Chase made an arrangement with plaintiff to keep his house and she and her children went there to live. This arrangement continued until all the children were grown and until John Chase died in 1916. At the time of plaintiff’s employment she owned 40 acres which joined Chase’s 80 acres. Soon thereafter they moved into her house. In August, 1887, for reasons which do not clearly appear of record, plaintiff and Chase went to Owosso and to the office of Jerome Turner, a well-known lawyer in that vicinity, and plaintiff made a deed of her 40 acres to Chase and as a part of the same transaction he executed the following agreement and delivered it to her:

“OWOSSO, August 18, 1887.
“In consideration of service rendered by Adeline Kendall, and land this day deeded to me, I hereby agree that said Adeline Kendall shall have her support out of the same during the term of her natural life and a home on said farm as she now does, if she chooses.
“John Chase.”

After Chase died his heirs, the defendants, denied that plaintiff had the right of possession and, accordingly, served notice on her to vacate. At this time plaintiff had grown to be an old lady. She was ill, unable to work and required nursing and medical attention, so her daughter, who lived nearby, took her to her own home where she has since been nursed and cared for.

Plaintiff filed this bill praying the court to specifically enforce this contract. At the hearing. counsel were very much at variance over the construction which should be given to it. Plaintiff’s counsel insisted that the contract should be so construed as to give plaintiff not only the income of the 40 acres, but inasmuch as it had already been shown that the income was insufficient to support her, she was entitled to take from the corpus of the estate for her support. Defendants’ counsel contended that a fair construction of the contract was that she should have her support out of the rents or income thereof; that a trust was intended, the income from which was to be devoted, or so much as was necessary, to her support.

The chancellor was of the opinion that the contract imposed no personal liability upon John Chase and, therefore, his estate was not liable. He construed the contract in accordance with plaintiff’s contention. He found that since the death of Chase and up to the time of trial $1,070 had been expended in the care and support of plaintiff and ordered that' sum paid from the proceeds of a sale of the land which he ordered, the balance of the fund to go into the hands of the county clerk. The county clerk was charged with the duty of paying the claims already incurred and with the further duty of seeing that she was reasonably and properly cared for in the future, and if any money should be left unexpended after paying for such reasonable support and her funeral expenses, the same was to go to the heirs of John Chase. The heirs of John Chase, feeling aggrieved at this conclusion, have appealed to this court.

Both counsel make persuasive arguments in behalf of their respective contentions. It is one of those contracts which leaves the full intention of the parties in doubt. Defendants say that the fact she was to have her support for and during her natural life indicates an intention that the corpus of the estate should not be exhausted, because if it were, she could not have her support out of it during her life. The provision that she might have a home on said farm if she chooses also carries a like implication. Both of these provisions make for the contention of defendants that what was. contemplated was the use and income and nothing more.

Plaintiff contends that a direct promise without qualification or limitation was made by Chase that plaintiff should have her support out of the same; that now she is old and ill and the rents and income from the estate will not furnish her a reasonable support and that if compelled to rely on income alone she is not getting what Chase promised her, namely, her support out of the same. This argument is also persuasive.

At the time plaintiff conveyed the premises to Chase she did so subject to a mortgage of $300. If, however, he was indebted to her for services, as he acknowledged in the contract, in any considerable amount, she would have had little difficulty in retaining the land and paying the mortgage. This indicates that Chase paid very little value for the land, although he afterward erected a new house thereon. Whatever the reason may have been for conveying title to Chase, it is quite evident that the agreement was made to protect her from want in her old age. The agreement is open to the construction contended for by plaintiff’s counsel. Had the parties intended her support to be limited to the income, it would have been easy to have so stipulated. Not having done so, we may assume that the intention was to give plaintiff her reasonable support out of the land conveyed even though it exhausted the value of the land in so doing. It having been established by the proofs that it requires something more than mere income to meet plaintiff’s necessities in her present condition, we are inclined to concur in the conclusions reached by the chancellor.

The decree is affirmed, with costs to plaintiff.

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


text:
    OGOOSHEVITZ v. WARIJAS.
    1. Vendor and Purchaser — Specific Performance — Title—Building Restrictions.
    Building restrictions upon land constitute a cloud upon the title.
    2. Same — Default—Duty to Return 'Payment.
    Where defendants entered into a written contract with plaintiff, agreeing to sell him certain land, accepting a payment, and agreeing to furnish an abstract showing clear title, the deal to be completed within 30 days, it was defendants’ duty, upon plaintiff’s refusal to go on with the deal because of defects in the' title, to either return the payment, as plaintiff demanded, or clear the title.
    3. Same — Specific Performance — Defects in Title — Waiver.
    Upon defendants’ refusal to acquiesce in plaintiff’s repudiation of the contract, and return to him the payment, he had the right to waive the defects in the title and demand performance, although the 30 days had expired, since the delay was caused by defendants’ default.
    See notes in 10 L. R. A. (N. S.) 117; 38 L. R. A. (N. S.) 1195.
    Appeal from Wayne; Shepherd, J., presiding.
    Submitted October 23, 1918.
    (Docket No. 11.)
    Decided December 27, 1918.
    Bill by Isaac Ogooshevitz against Martin Warijas and another for the specific performance of a land contract. From the decree rendered, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      William Friedmcm, for plaintiff.

      Felix A. Doetsch, for defendants.
   Bird, J.

Defendants entered into a written contract with plaintiff agreeing to sell to him, upon land contract, certain real estate situate on the north side of Ferry avenue between Hastings and Rivard streets, in the city of Detroit, for the sum of $10,000. Two hundred dollars was paid when the agreement was executed and a further payment of $2,300 was to be made when the land contract was executed. Further provisions of the agreement were:

“Possession of premises to be given only when this deal is closed on or about 30 days from date hereof. Purchaser is to receive a Burton or Union Trust Company abstract, brought down to date, showing clear title extended to date of the present time. This agreement is not assignable. Said deposit to be forfeited if purchaser fails to complete agreement on his part on or before 30 days from .date hereof.”

The agreement was signed on January 6, 1916. On January 18th the abstract was delivered to plaintiff. On January 25th plaintiff advised defendants, by letter, that several defects in the title were shown by the abstract, the principal and serious one being certain building restrictions to which the property was subject. Attention was called to the agreement that he was to have an abstract showing clear title and suggesting that on account of the failure of the abstract to show clear title his payment be returned. Following this, several conversations were had over the telephone by the attorneys representing the respective parties, but at the trial they were not agreed as to what was said. It is sufficient, however, to say that defendants refused to return the $200, but finally offered to return $100, keeping the' balance to cover their expense and trouble. Plaintiff would not agree to this and wrote defendants, on March 17th, that having failed to return his money he assumed they elected to hold him to his contract and, therefore, he would deem himself bound by the terms thereof, and followed this with a demand that the defendants perform the agreement on their part and deliver to him a land contract, at the same time offering to pay the $2,300 in accordanee with the agreement. Defendants, in reply to this letter, then took the ground that plaintiff had repudiated his contract on January 25th and while they would not concede that plaintiff was entitled to the return of his money, they would, in the interest of a settlement, return $100 of it. Plaintiff being unwilling to accept this settlement, on April 27th tendered the defendants $2,500 in cash and requested a land contract in accordance with the agreement. Defendants refused to comply with the request and plaintiff filed this bill to specifically enforce the contract. The chancellor denied the relief of specific performance, but gave plaintiff a decree for $200. the amount of the initial payment.

It does not appear to be denied that the abstract showed that the premises were subject to certain building restrictions. It is undoubtedly true, as plaintiff urges, that building restrictions constitute a cloud upon the title. 39 Cyc. p. 1500, and cases cited.

When this situation developed it was the duty of defendants to do one of two things, either get the building restrictions released or return plaintiff’s payment to him. Plaintiff suggested they return his money but defendants refused to do so and denied that he was entitled to it, thereby claiming, by implication at least, that he was still bound to perform. While matters stood in this wise and before defendants had acquiesced in plaintiff’s election he advised them in writing he would waive the defects and would deem himself bound by the contract. .This then placed the parties back in the position where both were bound to perform the contract. But counsel says that plaintiff repudiated the contract on January 25th and he could not thereafter insist on defendants performing it. True, he elected to have a return of his money as he had a right, as the abstract did not show a clear title, but by reason of defendants’ insistence that he was bound by his contract, he waived the defects and advised them that he would accept a conveyance subject to the defects.

It is also argued that plaintiff did not perform within 30 days and that time was of the essence of -the contract and, therefore, he is not entitled to specific performance. The contract provided that he was to forfeit the payment only in the event that he failed “to complete the agreement on his part within 30 days.” ; The plaintiff was not in default. The defendants were in default. This being true, plaintiff had a right to, and did, waive the defects, and after so doing he had a right to insist upon a performance by defendants. Anderson v. Kennedy, 51 Mich. 467; 36 Cyc. p. 746.

In view of the fact that plaintiff is willing to accept a conveyance of the premises subject to the building restrictions and subject to any other defects, we think • the contract should be enforced as prayed.

The decree will be reversed and one entered in conformity with this opinion, with costs to plaintiff.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit.


text:
    FISCHER v. MICHIGAN RAILWAY CO.
    1. Street Railways — Contributory Negligence — Automobiles— Crossing Accident — Question for Jury.
    In an action against an interurban electric railway company for damage to plaintiff’s automobile, caused by a collision with, defendant’s car, on a public highway at the entrance to a park, which was well lighted, evidence that after the engine of the automobile was stalled while making the crossing, it was there for 10 or 20 minutes before being struck, and that a friend who was assisting to extricate the machine ran down the track about 75 feet and swung his arms, but the motorman paid no attention to him, raised a question for the jury as to whether the driver of the automobile was guilty of contributory negligence in failing to make greater effort to warn the motorman.
    2. Same — Negligence — Operation of Car — Interurban Cars— Rule.
    The rule that it is the duty of a motorman on an electric car to have the car under such control as to admit of its being stopped after he became able to discover an object on the track and before a collision with such object should occur, applies to interurban railways as well as to city street cars. Nissly v. Railway Co., 168 Mich. 676.
    3. Same — Question of Law.
    Where the motorman testified that the speed of his car was such that it could not be stopped within the range of his vision, defendant was guilty of negligence as a matter of law.
    4. Highways and Streets — Use of Highway — Negligence.
    Persons traveling on foot and by vehicle have a right to travel upon the highway, and every part of it, and its use by one mode of travel must not be such as to endanger the safety of other modes of travel.
    See notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 929; 39 L. R. A. (N. S.) 978; 46 L. R. A. (N. S.) 702.
    Error to Kent; Brown, J.
    Submitted October 8, 1918.
    (Docket No. 2.)
    Decided December 27, 1918.
    Case by Lewis C. Fischer against the Michigan Railway Company for damages to plaintiffs automobile. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sanford W. Ladd and Justin R. Whiting (Warren, Cady, Ladd & Hill, of counsel), for appellant.

      Barger & Hicks and Smedley & Linsey, for appellee.
   Bird, J.

On June 29, 1917, at about ten o’clock in the evening, one of defendant’s interurban cars, known as the “steamboat express,” operating between Grand Rapids and the Holland boat dock, collided with plaintiff’s limousine which was stalled on defendant’s tracks between Jenison Park and the Olympia Pavilion at or near Holland. A jury in the Kent circuit court assessed plaintiff’s damages to his automobile at the sum of $990.85. Defendant reviews the proceedings and complains of the refusal of the trial court to direct a verdict in its behalf.

Plaintiff’s contributory negligence. One of the grounds upon which defendant based its motion was the contributory negligence of the driver. Defendant’s double track system extends along the center of an east and west highway at the point where the collision occurred. Jenison Park lies at the north of the highway and the Olympia Pavilion is situate on the south. Plaintiff’s automobile was in the possession of his brother, Ed. Fischer. He had as his guests in the car two ladies and one gentleman. They had visited the pavilion and were intending to cross defendant’s tracks to reach the traveled part of the highway. Just as the front wheels passed over the south rail of the south track Fischer killed his engine. The engine was soon started but the rear wheels settled into the dirt and sand, which had been filled in for a cross-over, and he was unable to start it. While efforts were being made to extricate the automobile the steamboat'express came along and crashed into it. From the time the limousine became stalled until the collision occurred, variously estimated at from 10 to 20 minutes, the driver was actively engaged in trying to release it. Friends came from the pavilion and assisted him. The ordinary difficulties of releasing a 4,000 pound automobile under such circumstances were considerably increased by a heavy rainfall.

Counsel freely criticises the conduct of Fischer and the other occupants of the car, but he does not suggest what further they could have done to avert the collision except to say that Fischer could have made a better effort to flag the car. As Fischer was driving on to the south track the steamboat express from Grand Rapids passed to the west over the north track, and counsel says that he knew it would return from the dock in a few minutes and he should have made a better effort to warn the motorman. The record shows in this connection that one Moran, who Was assisting Fischer in his effort to release the car, upon hearing the whistle of the approaching car, ran down the track about 75 feet and swung his arms, but the motorman paid no heed to it. The location where the collision occurred was well lighted. In front of the pavilion at the south and at the entrance to the park on the north there were many electric lights. It was a place where pedestrians and automobiles were passing frequently in the summer months. Fischer had little reason to expect that a motorman would approach a place of this character driving his car at a rate of speed which would preclude him from stopping it within a limited space if it became necessary, and evidently it was a rule of the company that cars should approach this place with caution, as it had posted warning signs along the track in that vicinity, reading: “Go slow.” “Slow down.” We are of the opinion that the question whether Fischer was negligent in failing to make a greater effort to warn the motorman was under all the circumstances a question for the jury.

The negligence of defendant. The motorman tes-, tified in substance that on account of the storm he did not see the automobile until he. was within two or three car lengths of it, or about 120 or 180 feet; that when he first saw the ear he was running at the rate of 15 or 20 miles an hour, and that running at that rate of speed it would require 400 feet in which to stop.

Based upon this testimony, the trial court instructed the jury that defendant was guilty of negligence as a matter of law because, under the motorman’s own concessions, the speed of his car was such that it could not be stopped within the limit of his vision. This conclusion was rested on the cases of Ablard v. Railway, 139 Mich. 248, and Hibbler v. Railway, 172 Mich. 368.

It was said in the Ablard Case that:

“It was the duty of the motorneer to have the car under such control as to admit of its being stopped after he became able to discover objects on the track and before a collision with such object should occur.”

In the Hibbler Case this rule was quoted, approved and applied to the facts of that case. Counsel recognizes the rule in these cases but seeks to distinguish them from the present one on the ground that these cases arose in a city street where traffic is more or less dense and congested, and he argues that conditions are different with interurban railways and therefore the rule should not apply to them. There is some force in this distinction, but the difficulty of giving it effect lies in the fact that this court has already applied this rule to interurban railways. Nissly v. Railway Co., 168 Mich. 676.

In the case cited a recovery was sought for the killing of a colt which ran onto the track in front of the car. Excessive speed was charged as negligence. It was there said:

“This motorman was not bound to anticipate that plaintiff’s horse would be at large or concealed behind a tree, and therefore owed no duty to reduce his speed of what would otherwise be reasonable. It is undeniable, however, that if his rate of speed was unreasonably great, it would be negligent, and we are of the opinion that if the motorman was running his car so fast that he could not have stopped it within the distance that this colt could have been seen upon a straight track, the jury might have been justified in finding this speed unreasonable. * * *
“This motorman was not bound to anticipate that a colt would be at large and come suddenly upon the track so near that the car could not be stopped in time to avert an accident, and, if his speed was not such as to have precluded the stopping of the car within the distance that such an object could have been seen upon the track that night, there was no negligence. This was, however, a question for the jury.” Citing the case of Gilmore v. Railway Co., 153 Pa. 31 (25 Atl. 651, 34 Am. St. Rep. 682), and 2 Nellis on Street Railways (2d Ed.), § 515.

We must conclude, therefore, that this rule applies to the operation of interurban cars as well as to city street cars. The testimony of the motorman concedes that he violated this rule, therefore'the action of the court in charging the jury that defendant was guilty of negligence as a matter of. law must be sustained. Had any question of fact been involved, as in the Nissly Case, which was necessary to be determined before the rule could be applied, the question would have been one for the jury. When, however, the motorman comes into court and admits that he did an act which this court has said is a negligent act, there is no occasion to submit the question to a jury.

Counsel observes that this rule is a harsh one to apply to interurban traffic in view of the public demaud for rapid transit. The fact must not be overlooked that we are dealing with an interurban railway located in the public highway and not one on a private right of way. Persons traveling on foot and by vehicle have a right to travel upon the highway and every part of it, and its use by one mode of travel must not be such as to endanger the safety of other modes of travel. As long as interurban companies are content to locate their lines upon public highways, they must yield to reasonable regulations for the protection of others who have a right to use them.

The judgment must be affirmed.

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


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    ADAMS v. W. E. WOOD CO.
    1. Master and Servant — Workmen’s Compensation Act — Additional Compensation — Certiorari—Questions Open to Review.
    On. certiorari to review an award of additional compensation to an injured employee by the industrial accident board, where defendant appeared before the board, intro- - duced proofs, argued the case upon the merits, and offered no objection to the practice, its claim in this court that the board was without authority to reopen the case and award additional compensation is without merit.
    2. Same — Settlement—Approval by Industrial Accident Board.
    A settlement receipt obtained by defendant, but not filed and approved by the board, as required by the statute, is not conclusive upon it.
    3. Same — Compensation—Question for Board.
    In the event that an employer» and an injured employee cannot agree as to the length of time the latter is entitled to compensation, it is a proper question for the board to determine.

      See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80. 203—Mich.—43.

      4. Same — Evidence—Finding by Board — Conclusiveness.
    Evidence that while plaintiff, who had suffered a broken arm in defendant’s employ, was on a streét car on his way to see defendant about resuming his occupation as a 'watchman, at the doctor’s suggestion- that if he was careful he might return to work, although he was still under the doctor’s care and his arm in a sling, suffered a second fracture of the same arm, held, sufficient to support the finding of the board that plaintiff had not recovered from the former injury, that the former injury contributed to the later one, and that he was entitled to additional compensation during the time of his disability.
    Certiorari to Industrial Accident Board.
    Submitted October 9, 1918.
    (Docket No. 24.)
    Decided December 27, 1918.
    Merve Adams presented his claim for compensation against the W. E. Wood Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, bring certiorari.
    Affirmed.

      Kerr & Lacey, for appellants.

      Campbell, Dewey & Stanton, for appellee.
   Bird, J.

This is a review, by defendants, of an order of the industrial 'accident board awarding to plaintiff additional compensation for injuries which he received while in the employ of the defendant, W. E. Wood Company.

Plaintiff is a brick mason by trade and is about 37 years of age. He resides and works in the city of Detroit. On March- 7, 1917, at the intersection of Farmer street and Lafayette boulevard he slipped and fell, dislocating his left shoulder. His injury resulted in a partial paralysis of his left hand or fingers. This incapacitated him from following his trade for the time being, so he sought and obtained a position with defendant, W. E. Wood Company, as watchman. He commenced this employment on April 9, 1917. On April 23d, while at his regular work, he had occasion to close a gate or door% which hung on rollers. In doing so, it jumped the track and fell on him, breaking his left arm six or seven inches above the elbow and otherwise injuring him. He demanded compensation from his employer and an agreement was reached whereby he was to receive $10 per week.' This agreement was filed with and approved by the industrial ■accident board. Weekly payments were made under this agreement up to July 17th, at which time the attending physician indicated to plaintiff that he was in a condition to resume his work of night watchman. Acting on this suggestion he boarded a street car and went to defendant’s plant to' make arrangements to take up his work again. In passing out of the car door he was shoved or crowded by fellow passengers against the door casing and suffered another fracture to his left arm. Whether the arm was refractured at the point of the old break or further down near the elbow is in dispute. Plaintiff, being unable to resume his work, requested further compensation from his employer, but this was refused on the ground that he had signed a settlement receipt when the last payment was made to him' in July. On October 31st he filed this application with the board, praying that his case be reopened and additional compensation allowed. At the hearing-the facts were placed before the board and a finding was made, in substance, as follows:

“(a) That at the time of signing said settlement receipt said applicant, had not recovered from the injury sustained on April 23d while employed by respondent.
“(b) That he had not actually resumed his employment.
“(c) That his injuries of April 23d were aggravated by another injury which he received on the street car July 17th while on his way to defendant’s plant to resume his employment, and that this occurrence increased the period of applicant’s disability which he received on April 23, 1917.
“(d) That the injury which he received on April 23d was the proximate cause of the street car injury.
“(e) That the board has serious doubts whether applicant was able to resume his work on July 17th or on September 15th.”

Upon these findings an award was made granting plaintiff compensation at the rate of $10 per week from the time the payments were stopped on July 17th up to and including September 15, 1917, amounting to $86.66, which sum was ordered to be paid presently. It was further ordered:

“That if it should develop that applicant is not able to resume or continue in the employment in which he was engaged at the time of the accident, April 23, 1917, because of physical disability chargeable to said accident, said applicant is to be paid compensation from and after September 15, 1917, according to the terms of the agreement approved by the board May 25, 1917.”

Defendants have assigned error on this order, as follows:

“1. The industrial accident board did not have authority or jurisdiction to enter an order directing respondents and petitioners to pay further compensation to applicant.
“2. There is no testimony upon which the award of the industrial accident board can be based. _
_ “3. The industrial accident board erred in holding that injuries received by applicant as a result of accident of April 23, 1917, while in the employ of said respondents were aggravated by street car accident of July 17, 1917.
“4. The industrial accident board erred in holding that injuries received by applicant while in the employ of the respondents on April 23, 1917, was the proximate cause of the street car accident of July 17, 1917.
“5. The industrial accident board erred in concluding ‘and the board also very much doubts that applicant was on July 17, 1917, or on September 15, 1917, or is now in such condition as to be able to resume his occupation as a watchman.’
“6. The industrial accident board erred in ordering respondents to pay compensation to said applicant from July 17, 1917, up to and including September 15, 1917.”

Counsel argue that the board had no right to consider the merits of plaintiff’s claim in response to an application to reopen his case. The board returns that it is its customary practice to consider the merits upon an application to reopen a case, that it was followed in this case and defendant’s counsel took part in the proceedings, introduced proofs, argued the case upon the merits and offered no objection to the practice. It does not appear that counsel Have petitioned the board to reopen the case to admit further proofs, neither does it appear that they have any further material proofs to submit. Under these circumstances we think the claim is without merit.

It is said there is no testimony upon which the award of the industrial accident board can be based. Under this head it will be proper to consider the other ^questions raised. When the employer and employee agree upon compensation and file their written agreement with the industrial accident board and it is approved, jurisdiction of the parties is thereby conferred upon the board to act in the premises. The method by which the settlement receipt was obtained is questioned by plaintiff, and also by the board. We see no occasion to discuss this question further than to say that inasmuch as the settlement receipt was not filed and approved, the board would be in no wise concluded by it.

It appears to be conceded that plaintiff was injured and entitled to compensation. The disagreement arises over the length of time he was entitled to it. ■ In the event the parties could not agree as to this it was a proper question for the board to determine. This the board did do but counsel argue that its finding is not supported by the testimony.

It appears without question that plaintiff was severely injured on April 23d and that on July 17th he was still under the doctor’s care and his left arm was in a sling, and that he was unable to make any use of it. The doctor advised him, at about this date, that he thought he could resume his work of watchman if he were careful. The doctor does not say he had fully recovered. Acting on the doctor’s suggestion, plaintiff started for his place of employment but was injured before reaching there. He submitted this third injury to Dr. Hall, defendant’s physician, and he remarked “that it was as bad as ever,” and continued to treat him for several weeks thereafter. Dr. O’Donell, who treated him for the injury of March 7th, testified that the numbness of the fingers, was probably due to an injury to the nerves' when the shoulder was dislocated; that at the end of five or six weeks of treatment the injury was progressing nicely with good prospects for complete recovery. He also testified he had examined him within two or three days of the hearing and his arm at that time had lost 100% of its usefulness and, in his judgment, would never be any better. Measuring plaintiff’s condition as described by Dr. O’Donell before his employment with defendant, with his condition as described on July 17th, we think it is open to a reasonable inference that plaintiff had not recovered on July 17th from his injuries of April 23d. Neither do we think the, inference of the board that the injury of April 23d contributed to the injury of July 17th and was aggravated by it is unsupported by the evidence.

Just to what extent plaintiff’s present condition is due to the original injury is somewhat difficult to determine. It may be inferred from Dr. O’Donell’s testimony that the effect of the injuries of March 7th would have disappeared had it not been for the injury of April 23d. This, however, was a question of fact and we must assume that due consideration was given to it by the board.

The order óf the industrial accident board is affirmed.

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


text:
    ENGEL v. TATE.
    Appeal and Ekkok — Exceptions to Findings — Review.
    Where the cause was tried in the court below without a jury, and no exceptions were filed: to the findings of fact, that there was no evidence to sustain such findings, that they are opposed to the weight of evidence, that the facts found do not support the conclusions of law or the judgment that was entered, and no points of law were presented ns upon requests to charge, an affirmance of the judgment in this court is required. Circuit Court Rule No. 45; 3 Comp. Laws 1915, §§ 12586, 12587.

      Error to Kent; Brown, J.
    Submitted January 10, 1917.
    (Docket No. 74.)
    Decided December 27, 1918.
    Assumpsit in justice’s court by Anna W. Engel against Walter F. Tate for breach of a land contract. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Smedley & Linsey, for appellant.

      E. A. Maher, for appellee.
   Bird, J.

The parties to this litigation entered into the following contract on the 26th day of July, 1915:

“Grand Rapids, Mich., 7/26/1915.
“This agreement made by and between Walter F. Tate, of the first part, and Mrs. A. W. Engel; of the second part, witnesseth:
“That the party of the first part agrees to sell and convey to party of the second part, all that piece or parcel of land, to wit, Lot number eleven (11), Block sixteen (16), Ellsworth Addition to city of Grand Rapids, with good title, and second party agrees to pay to first party the sum of fifteen hundred ($1,500) dollars for same, as follows: Fifty ($50) dollars on signing of this agreement, and fourteen hundred fifty ($1,450) dollars on the delivery of good and sufficient deed.
(Signed) “Walter F. Tate,
“Mrs. A. W. Engel.”

Following the making of the contract plaintiff made payment of the $50 which the agreement called for and her counsel examined the abstract. No defects of a serious nature being found, plaintiff advised defendant she was satisfied with the title and ready to close the deal, when the tenant, Mrs. Sayfee, who was in possession of the premises, should vacate the same. Plaintiff claims that defendant agreed to meet her at her husband’s office on August 10th and close the deal. Instead of doing so he sold the premises on that day to Garley & Mydeen for a consideration of $1,625. Later she purchased the premises from them, paying $1,725 therefor, after which she brought this suit to recover the damages which she had suffered by reason of defendant’s failure to convey the premises to her as agreed. The case was tried by the trial court without the aid of a jury and a verdict was rendered for plaintiff for the sum of $275, this being made up of the $50 which the plaintiff paid upon the execution of the contract, and $225 damages. Defendant argues two questions:

(1) That plaintiff breached the contract.

(2) That there was no evidence produced tending to prove plaintiff’s legal measure of damages.

The principal issue of fact in the trial court was as to which party breached the contract. Defendant’s representative, Mr. Adams, claims that he had the deed ready for delivery on August 4th, and that he called plaintiff’s husband and so advised him; that plaintiff’s husband replied that they would pay no more money until the tenant, Mrs. Sayfee, vacated the premises, or until they could have possession. Defendant construed this to be a refusal to go on with the deal in accordance with the agreement and, therefore, felt at liberty to sell the premises to another, which he did within a few days thereafter.

Plaintiff insists that defendant agreed to give them possession of the premises when the deal was closed, and that while waiting for the tenant to vacate defendant sold the premises to other parties. The trial court found with the plaintiff on this issue. After a review of the testimony we are impressed with plaintiff’s claim that defendant agreed to give possession of the premises when the deal was closed. The testimony shows that the tenant was notified to vacate and that she was making her plans to remove from the premises on or about August 10th. It is conceded that Mrs. Sayfee was still in possession of the' premises when Mr. Adams announced to plaintiff on August 4th that he was ready to close the deal. Taking the view that defendant was obligated to deliver possession when the deal was closed it follows that the plaintiff was not in default in refusing to close the deal before the tenant vacated or was removed.

Counsel are agreed that plaintiff’s measure of damages is the difference between the price agreed to be paid and the fair market value at the time of the breach, but defendant argues that plaintiff made no proof of their market value and, therefore, the court’s finding that the value of the premises was $1,725 is unsupported. The testimony discloses that the premises were sold by defendant to Garley & Mydeen for $1,625, and by them to plaintiff for $1,725. Proof of what property sold for is some evidence of its value. Smith v. Mitchell, 12 Mich. 180; Harmon v. Walker, 131 Mich. 540; Barbrick v. White Sewing Machine Co., 180 Mich. 535; Hutchinson v. Poyer, 78 Mich. 337; Davis v. Zimmerman, 40 Mich. 24; Dyer v. Rosenthal, 45 Mich. 588.

While this proof of value is not as satisfactory as it might have been, it furnished some support for the court’s finding. Upon the whole case we think the finding should not be disturbed. The judgment will be affirmed, with costs to plaintiff.

Ostrander, C. J. In this cause the court made a finding of facts, and no exception thereto is put upon the ground that there was no evidence to sustain them. No exception raises the point that any conclusion of fact is opposed to the weight of evidence. Nor is any exception rested upon the ground that the facts found do not support the conclusions of law or the judgment which was entered. No points of law were presented as upon requests to charge. See, Circuit Court Rule No. 45; Judicature Act, chap. 18, §§ 14, 15 (3 Comp. Laws 1915, §§ 12586, 12587).

The assignments of error follow the exceptions. Under the circumstances, an affirmance of the judgment is required.

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