text:
    FARNSWORTH v. FRASER.
    1. Bills and Notes — Consideration—Moral Obligation.
    Where decedent induced claimant to remove from his farm and reside with her by a promise that she would see that he did not lose by it, and the change in residence proved unsatisfactory to her, whereupon she agreed with him that she was under a legal obligation to compensate him for his loss incurred in moving, and gave him her note therefor, such satisfaction of his claim was an adequate consideration for the note.
    2. Same — Value of Consideration.
    It was not necessary that a claimant should show that the value of the consideration was equal to the face of the note, it being sufficient to show the parties agreed it was of that value.
    3. Same — Partial Failure of Consideration.
    Where there was no evidence that the consideration of a note was worth less than its face value, it was pot error to refuse to submit to the jury the question of a partial failure of consideration.
    4. Same — Want of Consideration — Burden of Proof.
    The duty of introducing proof to show want of consideration for the note of a decedent is on the administrator, but he does not have the burden of proving by a preponderance of testimony that there was no consideration.
    5. Same — Invited Error.
    Where the court, at the request of defendant, an administrator, charged the jury that the fact that the deceased signed the note would not authorize a recovery provided that the defendant showed the note was given without consideration, the defendant cannot complain of a further charge that the burden of showing there was no consideration for the note rested on the defendant.
    6. Executors and Administrators — Admissions — Rules of Practice.
    While an administrator may not admit á liability against the estate, he must, in the trial of a case, be bound by the rules of law which regulate the practice in court.
    7. Trial — Arguments—Two Counsel — Harmless Error.
    It was not prejudicial error to refuse to permit one of defendants counsel to argue a particular question to the jury, where the other counsel was subsequently permitted to argue the question, and it did not appear that the question was not fully argued, or that the defendant asked to have the particular counsel argue it.
    8. New Trial — Misconduct of Jury.
    A mew trial will not be granted because the jury took less than five minutes to reach a verdict.
    Error to Ingham; Wiest, J.
    Submitted June 16, 1904.
    (Docket No. 30.)
    Decided July 16, 1904.
    Asa Farnsworth presented a claim against the estate of Lucy M. F. Seely, deceased, for the amount of a promissory note, which was allowed by the commissioners. The administrator, William A. Fraser, appealed to the circuit court, where there was judgment for the claimant, and the administrator brings error.
    Affirmed.

      William A. Fraser (Black & Beasoner, of counsel), in pro. per.

      White & Cramton, for appellee.
   Carpenter, J.

Claimant presented against the estate of Lucy M. F. Seely a negotiable promissory note purport-' ■ing to be signed by decedent, dated September 23, 1893, whereby she. promised to pay Asa Farnsworth or bearer the sum of f500, with interest, on or before three years, from date. It was contended that deceased did not sign, this note, and that the note was given without consideration. Both of these issues were submitted to the jury, who rendered a verdict for the claimant. We are asked to reverse the judgment for several reasons.

It is insisted that the testimony shows that the note was given without consideration, and that, therefore, a. verdict should have been directed for the defendant. The testimony respecting the consideration of the note is this: In January, 1893, claimant was living on his farm in the county of Lapeer. Decedent wrote him:

“ Rent your farm, and come and live with me for a year and try it. * * * I will give you all you can make and pay you what you think is right, two dollars a week, if that will do. * * * If you think favorably of this, you can say you do and come out here and make arrangements.”

Subsequently claimant visited decedent, and made some arrangements; precisely what, we do not know, as the> claimant was not sworn as a witness, his testimony respecting such arrangement being inadmissible (section 10212, 3 Comp. Laws), and no writing evidencing said arrangement is produced. He then returned to his home in Lapeer, rented his farm for three years, sold his effect» at auction, and on the 15th of March, 1893, moved to decedent’s farm near Mason, Ingham county. The decedent, Mrs. Seely, resided in claimant’s family, and matters, did not move smoothly. About July 1, 1893, according to the testimony of claimant’s wife, claimant said to decedent :

“ ‘ Aunt Lucy, things are not going here to please you/ and she said ‘she didn’t know as she said anything.’ He says, ‘ You act as though you were dissatisfied, and I am very sorry, for I made a great sacrifice to come out here to try and please you, and it is anything but pleasant for us, and it seems to be very unpleasant for you;’ and he said ‘ it is quite a damage to me.’ She spoke up and said, ‘ What is the damage ?’ My husband [claimant] says, ‘ I would not have sold my stuff, and rented my farm, and come here, leaving everything.’ He says, ‘$500 would not make me good.’ And she says, ‘ I will pay it.’ * * * That was all I heard. * * * We moved back to our farm March 16, 1894. * * * I first saw this note in the spring of 1894. * * * I understood from my husband, when he told me of the note, that it was for what we had lost in moving there by letting our farm.”

It may be inferred from this testimony that the note was given in satisfaction of any claim that claimant might have against deceased for compensation for his loss in removing from his farm in Lapeer county to her farm in Ingham county.

It is contended that decedent, by the letter heretofore quoted, at most only morally obligated herself to compensate claimant for this loss, and that this moral obligation furnished no consideration for the promise evidenced by her note. It may be that, if it were left to a court to construe the language of said letter, the conclusion might be that decedent had not legally obligated herself to make such compensation. But under the circumstances of this case I do not think that the question depends upon the court’s construction of that letter. By executing the note in suit decedent admitted that her promise was supported by a legal consideration. See Rood v. Jones, 1 Doug. (Mich.) 193. I think, too, it may be inferred from the testimony above quoted that both decedent and claimant conceived that the former was under, not merely a moral obligation, but a legal obligation, to compensate the latter for his loss. They may have agreed that the language, “ I will not let you lose if I can help it,” contained in the letter, imposed upon decedent a legal obligation to make such compensation. If they did, thereby agreeing, as they had a right to agree, upon the construction of this language, a court — certainly in a case as doubtful as this — 1 will accept that construction. See District of Columbia v. Gallaher, 124 U. S. 505 (8 Sup. Ct. 585); Childers v. First National Bank of Jeffersonville, 147 Ind. 430 (46 N. E. 825); and numerous other' authorities cited in the 9th Cyclopedia of Law and Procedure, p. 589. According to that construction, it is clear that the satisfaction of claimant’s claim was an adequate consideration for the note. See Kennedy v. Shaw, 43 Mich. 359 (5 N. W. 396).

It may also be said that the precise arrangement under which claimant moved from his farm in Lapeer county to decedent’s farm in Ingham county is not shown by the testimony, but it was known both to claimant and to decedent. It may be that that arrangement legally obligated decedent to compensate claimant for the loss under consideration. As it may be inferred that decedent, by the execution of the note, admitted that she was under a legal obligation to compensate claimant for that loss, we cannot say that the jury were not warranted in inferring that the terms of this arrangement imposed that obligation upon her.

Neither is it true, as defendant contends, that the claimant was bound to show that the value of his claim was $500. It was sufficient for him to prove that he and decedent agreed that that was its value.

Nor did the trial court err, as defendant contends, in refusing to submit to the jury the question of partial failure of consideration, for there was no evidence that the consideration — the claim of claimant for compensation— was worth less than $500.

It is contended that the court erred in charging the jury that “the burden of showing that * * * there was no consideration for the giving of the paper ” rested upon the defendant. We shall not stop to inquire whether by this the court meant that the duty of introducing testimony to show want of consideration, after the note had been properly put in evidence, rested upon defendant, in which event the instruction was correct (see Rood v. Jones, supra; Young v. Shepard’s Estate, 124 Mich. 522 [83 N. W. 403]), or whether he meant that the duty rested upon defendant to prove by a preponderance of testimony that there was no consideration, in which event the instruction was wrong (see Manistee National Bank v. Seymour, 64 Mich. 73, 74 [31 N. W. 140]). (The phrase “burden of proof” is often used in these different senses. See Thayer’s Preliminary Treatise on Evidence, p. 355.) Assuming that the trial court used the phrase in the latter sense — and only in that event was the charge erroneous — we are bound to say that defendant cannot ask that the judgment be reversed on that ground. He requested the court to charge and the court did charge “that, if the jury shall find from the evidence that the deceased did actually sign the note, this in itself will not authorize him to recover, provided that the defendant shows from the evidence that the note was given without consideration.” This request certainly indicates just as clearly as did the charge of the court that the burden to prove want of consideration by a preponderance of testimony rested upon defendant] This was the only request touching the subject preferred by defendant. If, therefore, the charge under consideration was erroneous, the error was due to the fact that the trial court adopted the theory urged by defendant. Appellant cannot ask a reversal for such an error, if error it was. See Adkin v. Pillen, 136 Mich. 682 (100 N. W. 176).

Defendant urges that the foregoing principle has no application to this case, because this is a suit against an estate, and that the defendant administrator “could not have agreed that the burden of proving consideration for the notes could be shifted from the claimant to the estate.” The question under consideration is not whether the administrator can agree to assume the burden of proof which rested upon the opposite party; the question is whether in trying his suit he must regard the rules of law which regulate the practice in court. We think it settled that he must. See Barbier v. Young, 115 Mich. 100 (72 N. W. 1096).

Defendant was represented in the court below by two counsel, each of whom árgued the case before the jury. The court refused to permit the counsel who made the first argument to discuss the question of want of consideration for the note, because he was then of the opinion that there was no evidence tending to prove want of consideration. Afterward the court reconsidered this ruling, and permitted this issue to be argued to the jury by the other counsel for the defendant, as well as by counsel for claimant. It is urged that this was error. The only way in which this ruling injuriously affected defendant was to prevent a particular counsel from arguing this question When he was making his opening argument. We do not think this constituted reversible error. We cannot infer from the record before us that the question was not fully argued. We cannot say that defendant was prejudiced because he was denied the right of having it argued by a particular counsel, because he did not — as he should have done had he desired that privilege — ask for it when the trial court decided to submit the question to the jury.

It is contended that the trial court should have granted a new trial because it took the jury less than five minutes to reach a verdict. In disposing of this question the trial judge used the following language, which we approve:

“If the. jurors were unanimous in opinion, and ascertained that fact, as they must have done to return a verdict, then there was no necessity for them to remain any longer in their room. Discussion among them was only necessary in case of a difference of opinion, and they are rather to be commended for their promptness than condemned.”

No other question demands consideration.

The judgment of the circuit court is affirmed, with costs.

■Q-rant, Montgomery, and Hooker, JJ., concurred. Moore, C. «£., did not sit.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    PEOPLE v. POSSING.
    1. Criminal Law — Intoxicating Liquors — Sunday Closing — Acts of Agents.
    In a prosecution for keeping a saloon open on Sunday, it is no defense that the saloon was opened hy respondent’s bartender without authority and contrary to his instructions.
    3. Intoxicating Liquors — Information—Language of Statute.
    An information in the language of the statute for violating the liquor law is sufficient.
    S. Indictments and Informations — Variance—Sunday Closing —Acts of Agents.
    Evidence that respondent’s saloon was kept open by his agent was not at variance with an information charging, in the language of the statute, that he “ did not then and there keep his saloon closed, but, on the contrary, he did then and there keep his said saloon open,” as respondent was held responsible, not for the act of his agent in opening, but for his own neglect to keep it closed.
    Exceptions before judgment from Leelanaw; Mayne, J.
    Submitted June 17, 1904.
    (Docket No. 190.)
    Decided July 16, 1904.
    Joseph Possing was convicted of violating .the liquor law.
    Affirmed.

      A. F. Bunting, for appellant.

      O. L. Dayton, Prosecuting Attorney, for the people.
   Carpenter, J.

Respondent is a saloon keeper. He was convicted of keeping his saloon open on Sunday, August 10, 1902. He contends that a verdict should have been directed in his favor, because his bartender opened, the saloon without authority and contrary to his instructions. People v. Lundell, 136 Mich. 303 (99 N. W. 12), People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270), and People v. Welch, 71 Mich. 552 (39 N. W. 747, 1 L. R. A. 385), are authorities against this contention.

It is also contended that there was a variance between, the information — which charged that respondent “did not then and there keep his saloon closed, but, on the contrary, he, the said Joseph Possing, did then and there keep his saloon open” — and the evidence, which shows, that the saloon was kept open, not by respondent personally, but by his bartender, his agent. This contention cannot prevail. The information is in the language of the statute (section 5395, 2 Comp. Laws), and is therefore sufficient. See Tiffany’s Criminal Law (4th Ed.), 463. The statute, as we have held (see People v. Lundell, supra), “imposes upon' the keeper of a bar or saloon the affirmative duty to see that it is closed, * * * and that the neglect of this duty is an offense.” The theory of the law as thus shown is that the respondent is held criminally responsible, not for the act of his agent in opening the saloon, but for his own neglect to keep it closed.

The conviction is affirmed.

The other Justices concurred.


author: Moore, C. J.

text:
    LOCKWOOD v. TENNANT.
    1. Master and Servant — Injuries to Servant — Fellow-Servants.
    If, without fault on his part, an employé is injured, he may recover against the master who is negligent, even though the negligence of a fellow-servant contribute to the injury.
    2. Same — Appliances and Places to Work — Safety—Master’s Duty.
    The master is not obliged to make his premises perfectly safe, and furnish the best material, but his duty is discharged if he make the premises reasonably safe.
    3. Same — Defective Scaffold Material.
    The furnishing by a master of inch instead of two inch planks for a scaffold is not of itself negligent, where enough are furnished, and the scaffold may be made reasonably safe by doubling them.
    4. Same — Substituting New Material — Master’s Duty.
    Where, on complaint being made, the master orders such material as is bn hand for scaffolding to be used until suitable material can be procured, and afterwards furnishes suitable material, he is not obliged to specifically order its substitu* tion in order to relieve himself of liability.
    Error to Saginaw; Beach, J.
    Submitted January 5, 1904.
    (Docket No. 4).
    Decided July 27, 1904.
    Case by Mary A. Lockwood, administratrix of the estate of Charles W. Lockwood, deceased, against James H. Tennant for the negligent killing of plaintiff’s intestate. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Weadock & Purcell, for appellant.

      Keena & Lightner, for appellee.
   Moore, C. J.

The plaintiff sues as the administratrix of the estate of Charles W. Lockwood, her husband, who died from injuries received as a result of a fall from a high scaffold while in the employ of defendant, who had a contract to do the mason work on a large building to be used as a beet sugar factory. The case was tried by a jury, who returned a verdict in favor of defendant. The case is brought here by writ of error.

Upon the day of the accident, several hundred men were at work building scaffolds, and tearing down others, placing steam pipes and machinery, building walls, and many other things incidental to the construction of a large manufacturing plant. It was the claim of plaintiff that her intestate had been employed for about 11 days prior to the accident in and about the beet sheds and boiler room, as a common laborer. That up to a few hours prior to the accident, he had never been upon the scaffolds or runways in the building, and had no experience in that sort of work; that, in pursuit of his work, he had occasion to go from a higher platform to a lower runway, made of two planks, two inches thick, and an inch board; that the board broke, and Mr. Lockwood received injuries which resulted in his death; that the inch boards were unsuitable for the purpose for which they were used; that the defendant directed their use with full knowledge of the danger; that sufficient two-inch planks, suitable for such purpose, were not provided at the time of the construction of this runway. This defendant denies, and maintains that after the construction of the runway, and before the accident, sufficient two-inch planks were at hand, which could have been utilized in replacing the inch boards referred to. He also claims that, if the boards which were at hand had been properly used, the board would not have broken. Defendant also claims that no part of the runway broke, but that plaintiff stepped outside of the runway and fell.

The plaintiff’s claim as to the direction of the master to use the boards, and his knowledge of their unsuitability, is based upon the following testimony:

“I says, ‘Mr. Tennant, we ought to have some plank here,’ I says, ‘to use instead of these boards.’ ‘Well,’ he said, ‘we will get a car load,’ he said; ‘they will be here in a couple more days.’ Well, in a couple of days they hadn’t come, and then I spoke to him again, and then they got a couple of wagon loads from some mill.
“Q. Was that sufficient to go on constructing the scaffold ?
l‘A. No; wasn’t enough.
“Q. Did you have any subsequent conversation in reference to it ?
“A. Yes, sir.
i(Q. To the one-inch boards?
“A. Yes; I did.
“Q. How long was that before Mr. Lockwood’s death ?
“A. I should say about a month.
“Q. What did he say to you then ?
“A. He said he would get some more plank.
“Q. What did you say to him about the insufficiency ?
“A. I went to see him, and I said: * There isn’t plank enough. We have got to use these boards, and they’re liable to break.’ And he said to use them until we got •some plank.
“Q. What did you say, if anything, about men likely to be injured on these boards ?
“A. I said the boards were liable to break through, and he said the boards would hold.”

No assignments of error are made upon'the introduction or rejection of evidence. They all relate to the charge of the court, and to his failure to charge as requested.

The plaintiff claims the master must use due care in furnishing proper materials, and whether he did so is a question for the jury, under proper instructions; citing many cases. This claim is conceded by defendant, but he insists, first, that, under plaintiff’s own showing, defendant met this requirement, and a verdict should have been directed in his favor; and, second, that, conceding there was a question for the jury, it was properly submitted to them. It is not necessary to decide whether a verdict should have been directed for defendant, as the judge submitted the case to the jury.

Complaint is made of the following and other portions of the charge of a similar nature:

“ If you are satisfied from the evidence in this case that inch boards could have been used in constructing the runway, and the same would have been safe and proper, and. Albright and the others failed to place two boards where’ they only placed one, then, if you find that it would have been safe to construct the runway in this way, and they failed to do it, then the plaintiff cannot recover. This is a question of fact for you to consider with the rest of the testimony in saying whether it is sufficient or not.”

It is urged that this is, in effect, saying that, though, the master supply unsuitable and defective material, he may be relieved of liability if, by some other manner of use than the usual way of using suitable material, the unsuitable material may be made safe.

It is claimed by the plaintiff, and it may be conceded,, that it has been repeatedly held in this State that if, without fault on his part, an employé is injured, he may recover against the master who is negligent, even though the negligence of a fellow-servant contribute to the injury. See Hunn v. Railroad Co., 78 Mich. 513 (44 N. W. 502, 7 L. R. A. 500), and the many cases there cited. See, also, McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597), and cases cited therein; Cone v. Railroad Co., 81 N. Y. 206 (37 Am. Rep. 491). We think, however, this is not a case for the application of that doctrine. It has been repeatedly held that the master is not obliged to make his premises perfectly safe and furnish the best material, but his duty is discharged if he make the premises reasonably safe. Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336); Lamotte v. Boyce, 105 Mich. 548 (63 N. W. 517). While we all understand that twounch planks are better material for the erection of such scaffolds as were used here, we do not think it can be said that if, by the use of two or more boards in the place of one plank, the scaffold would be made reasonably safe, still there would be liability on the part of the employer.

After the jury had been out for a time, it came in, and several inquiries were made of the judge. Some of his •answers have been covered by what we have already said. It was the claim of defendant that on the morning of the day of the accident there were plenty of planks on hand •and unused. A juror inquired if it was the duty of the contractor to replace the boards with planks, and the judge .said:

“ In that view of the case, it is the duty of the parties to use the material that they had, and, if Mr. Albright and the other men there constructing the platform failed to use the plank that they had then in constructing this platform after it was constructed with boards, and they knew that fact, that it was constructed with boards, and they failed to use the planks they had on hand on the day of the accident, or just before the accident, when they could lave used them, then the contractor is not liable.”

This is said to be error. The only witness who testified that the alter ego directed the use of the boards stated that he was told “to use them until we got some plank.” This being so, we think the judge was right in his answer to the question of the juror.

Judgment is affirmed.

The other Justices concurred.


text:
    WOLCOTT v. CONNECTICUT GENERAL LIFE-INSURANCE CO.
    1. Insane Persons — -Conveyances—Validity.
    A conveyance by an insane person not under guardianship is not absolutely void, but merely voidable.
    ■.2. Same — Ratification—Evidence.
    Evidence examined and held to show that an assignment of a land contract by a lunatic was ratified by him after his restoration to reason.
    Appeal from Jackson; Peck, J.
    Submitted January 12, 1904.
    (Docket No. 16.)
    Decided July 27, 1904.

      Bill by Thomas C. Wolcott against the Connecticut General Life-Insurance Company, Edwin W. Abbott, and' others, to set aside certain conveyances, and for an accounting. From a decree for complainant, defendants-insurance company and Abbott appeal.
    Reversed.

      William E. Ware and James A. Parkinson, for complainant.

      Wilson &. Cobb, for defendant company.

      Tarsney & Fitzpatrick, for defendants Abbott.
   Moore, C. J.

This is an appeal from the decree of the' circuit court for the county of Jackson, in chancery.

On the 18th of September, 1895, the Connecticut General Life-Insurance Company entered into an executory contract for the sale and conveyance to Thomas C. Wolcott of certain lands. The consideration was to be the sum of $2,600. Appellee went into possession at or about the dato of the contract. On the' 21st day of January, 1899, complainant was adjudged by the probate court to be insane. The following day he was committed to'the asylum, where he remained until the 19th day of April,. 1899, when he was discharged as cured. On the 23d day of August, 1899, he was returned to the asylum, and remained there until the 2d day of April, 1900, when he was again discharged, and returned to his family. He paid during the three years that he was in possession of the premises under the contract but $50 on the principal.

On March 2, 1899, appellee’s wife, Carrie G. Wolcott, in company with an attorney, went to Kalamazoo, and secured from complainant an assignment of his interest in the contract; and at the same time, and as a part of the same instrument, he consented that the insurance company might convey the premises to the said Carrie G. Wolcott. On or about the 27th day of March, 1899, the insurance company conveyed the premises to her, and at the same time took back her purchase-money mortgage to secure the sum of $1,600, being the balance of the actual consideration. Her deed and mortgage were promptly put on record. No record was made of the original contract with appellee, nor of his assignment to his wife.

During the period of appellee’s first incarceration, and from the time of his first return to about the 20th of August, 1899, appellee’s wife and family, consisting of one son, resided on the premises. When appellee was released from the asylum on the 19th of April, 1899, he returned to his family, and resided with them until on or about the 20th of August, 1899, when his wife leased the premises for three years to the defendant Charles Pickett. After the leasing of the premises, appellee and his wife and boy removed to a farm belonging to one of appellee’s brothers, in Eaton county.

The defendants Abbott, residents of the city of Detroit, became the purchasers of the Jackson county lands on the 6th day of February, 1900, under a warranty deed from Carrie G. Wolcott; the consideration being the sum of $3,000, $1,600-of which was the mortgage from Carrie G. Wolcott to the insurance company, which the Abbotts assumed and agreed to pay. On or about the 1st of September, 1901, the bill in this case was filed by Thomas C. Wolcott to set aside the assignment of March 2, 1899, the deed and mortgage from Carrie G. Wolcott to the insurance company, the deed from Carrie G. Wolcott to the Abbotts, and the lease from Carrie G. Wolcott to the defendant Charles Pickett — all upon the ground of Wolcott’s mental incapacity at the time of the making of the assignment of the land contract to his wife. The relations of appellee and his wife not being congenial, they separated on or about the 1st day of April, 1901, and on the 29th day of October, 1901, articles of separation were executed by them, which will be referred to later in this opinion. Defaults were taken against the defendants Carrie G. Wolcott and Pickett for nonappearance. The other defendants answered. Proofs were taken in open court, excepting the testimony of several witnesses which was taken by deposition, and read upon the hearing. A decree was entered in favor of complainant. The insurance company and the Abbotts have each taken appeals.

Counsel for the Abbotts say the questions arising on this record may, for the purposes of argument, be conveniently grouped under three heads:

1. Was Thomas C. Wolcott of sufficient mental capacity to understandingly execute the assignment of March 2, 1899?'

2. Has he approved and ratified the transaction ?

3. Hid the defendants Abbott have actual knowledge of complainant’s interest in the lands, or were they put upon inquiry ?

The defendant insurance company contends, in addition to the foregoing:

First. That the complainant was not insane at the time he executed the assignment, in the sense that he was incapacitated for business; that long before this transaction took place, and at a time when there was no question as to his sanity, it was arranged between himself and wife and brother William Y. Wolcott that the title to the farm in question should be placed in the wife’s name, and the execution of the assignment was but the consummation of this arrangement.

Second. That the making of the assignment, whereby the title to the farm was placed in the wife, was a transaction in the interest of complainant, and for that reason not void, regardless of the question of complainant’s insanity.

In our view of the case we deem it necessary to discuss but two questions: First. Was the assignment by the complainant to his wife void, or simply voidable ? Second. If voidable, has he ratified it ?

No guardian was appointed for complainant, though it has already appeared he had been adjudged insane at an earlier date than the assignment. As to the first of these questions, it must be conceded, the authorities are not harmonious. The case of Riley v. Carter, 76 Md. 581 (19 L. R. A. 489, 35 Am. St. Rep. 443), is a well-considered case. Justice Roberts, speaking for the court, said in part:

“ In this case a serious question attaches to the right to assign, which involves the right of a lunatic to execute a deed. The pleadings in the cause concede that Johns H. R. Nicholson at the time of the execution of the two deeds was non compos mentis. It is contended on the part of the appellants that Owing’s Case, 1 Bland, 390, and Corrie’s Case, 2 Bland, 490, have determined that the deed of a lunatic is not voidable, but absolutely void; and they ■cite Dexter v. Hall, 15 Wall. 9, as affirming the doctrine of those cases. But we cannot concur in this view, nor has this court ever so decided. The Supreme Court, in passing upon the questions under consideration in Dexter v. Hall, did not have before them the validity of a deed of conveyance, but of a power of attorney. Infants and lunatics stand very much upon the same plane, so far as courts of equity are concerned, and it has been universally .held that the power of attorney of an infant is absolutely void; and so the Supreme Court, in Dexter v. Hall, held that the power of attorney of a lunatic was void, and rested their decision on the analogy existing between the rights of infants and those of lunatics, and say:
‘In fact, we know no case of authority in which the letter of attorney of either an infant or a lunatic has been held merely voidable.’
“This they could not have said respecting deeds of conveyance, as the reports of the State court contain numerous decisions affirming the view that the deed of a lunatic is not void, but only voidable. The firm of J. J. Nicholson & Sons had been for a long series of years engaged in the business of banking in the city of Baltimore. A member of the firm having died, a dissolution of the partnership was the consequence. Business complications soon ■followed, and, for the purpose of settling up the affairs of the firm, the surviving partner executed the deeds in question. In this State it has never been doubted that a debtor in failing or embarrassed circumstances had the right to execute a deed of trust for the benefit of creditors, when he dedicated all his property and estate to the payment of his debts. The question of a lunatic’s authority, under certain circumstances, to execute a valid deed, has on more ■¿han one occasion received judicial interpretation by this court. In Evans v. Horan, 52 Md. 610, this court,, speaking through the late Justice Miller, said:
‘ ‘ ‘ The exact question which the record presents is this: Is a deed' of bargain and sale of real estate, made upon a valuable consideration, duly acknowledged, and duly enrolled or recorded under our registry acts, void, or merely voidable, by reason of the fact that ah the time it was executed the grantor was non compos mentis?' Without advancing or at all sanctioning the broad doctrine that every act of a lunatic or infant is voidable, and not void, we are of' opinion that the deed in question does not belong to that class which the law deems absolutely void. This we think has been established as the law of this State, whatever may be the conflict of' authority elsewhere. We refer to the cases of Key v. Davis, 1 Md. 32, and Chew v. Bank of Baltimore, 14 Md. 299, and the reasoning, and authorities cited and relied on by the court in these decisions. The cases of Wait v. Maxwell, 5 Pick. 217 (16 Am. Dec. 391), Jackson v. Gumaer, 2 Cow. 552, and Breckenridge v. Ormsby, 1 J. J.. Marsh. 236 (19 Am. Dec. 71), are directly in point. Many other more recent decisions of the State courts to the same effect might, be cited, but it" is unnecessary, inasmuch as we consider the decisions of our predecessors as having settled the law of Maryland, on this subject. A few brief quotations from the opinion in Key v. Davis will show the grounds upon which the doctrine is rested, and how cautiously it is guarded and limited.
‘ “ “ In England, ” say the court, ‘ ‘ it appears to be well settled as it is in this country, where the common law has not been abrogated by statutory enactments, that the feoffment of a lunatic or idiot, in person, is only voidable, and not void. The reason assigned for this, is that the solemnity and formalities attendant upon livery of seisin, together with the necessary participation of others in the act, and its notoriety, presupposes that the incapacity of the party was not-apparent.”
“ ‘For this reference is made, among other authorities, to the. case of Thompson v. Leach, Carth. 435. The court then adds:
“ In this State it has been adjudged by the court of appeals, in, Matthews v. Ward, 10 Gill & J. 443, that livery of seisin has been abolished, and that enrollment is equivalent to it and has been substituted in its place. Indeed, the act of 1766 provides for recording, deeds of feoffment, as well as other deeds, and the act of 1715 declares that livery shall not be necessary where a deed is enrolled. The propriety of this decision, and the results to which it leads, no one can controvert. If the acquiescence of those whose presence and participation, which are necessary to constitute a good livery of seisin, are sufficient to rescue the act of the lunatic from the presumption of being totally void, much more ought the attestation of the magistrates who took the acknowledgment, and the clerk’s certificate of enrollment, which accompanies the deed of bargain and sale of the present day, have a similar effect. From this doctrine it; would seem to follow, as a necessary consequence, that in this State the deed of bargain and sale of a lunatic, where it has been executed with all the usual formalities required by law, and duly enrolled, would in any case, like a feoffment in person, be only voidable, and not void.” ’
“ The view adopted by this court is in accordance with the generally accepted doctrine of numerous decisions of other States. Riggan v. Green, 80 N. C. 236 (30 Am. Rep. 77); Miles v. Lingerman, 24 Ind. 387; Wait v. Maxwell, 5 Pick. 217 (16 Am. Dec. 391); Hovey v. Hobson, 53 Me. 451 (89 Am. Dec. 705); Dennett v. Dennett, 44 N. H. 538 (84 Am. Dec. 97); Eaton v. Eaton, 37 N. J. Law, 108 (18 Am. Rep. 716); Blakeley v. Blakeley, 33 N. J. Eq. 508; Snowden v. Dunlavey, 11 Pa. St. 525; Ingraham v. Baldwin, 9 N. Y. 45; Breckenridge v. Ormsby, 1 J. J. Marsh. 236 (19 Am. Dec. 71); Fitzgerald v. Reed, 9 Smedes & M. 94; Allis v. Billings, 6 Metc. 415 (39 Am. Dec. 744); Allen v. Berryhill, 27 Iowa, 540 (1 Am. Rep. 309); Elston v. Jasper, 45 Tex. 409; 1 Chitty, Cont. (11th Am. Ed.) 188; 1 Parsons, Cont. 384, 385.”

In a note to 19 L. R. A. 489, it is said:

.-..“It is the settled law in nearly all American courts that the deed of a lunatic who has not been placed under guardianship is not absolutely void, but merely voidable. Hovey v. Hobson, 53 Me. 451 (89 Am. Dec. 705); Hovey v. Chase, 52 Me. 304 (83 Am. Dec. 514); Arnold v. Richmond Iron Works, 1 Gray, 434; Wait v. Maxwell, 5 Pick. 217 (16 Am. Dec. 391); Allis v. Billings, 6 Metc. 415 (39 Am. Dec. 744); Howe v. Howe, 99 Mass. 98; Seaver v. Phelps, 11 Pick. 304 (22 Am. Dec. 372); Den v. Moore, 5 N. J. Law, 470; Breckenridge v. Ormsby, 1 J. J. Marsh. 245 (19 Am. Dec. 71); Gribben v. Maxwell, 34 Kan. 8 (7 Pac. 584, 55 Am. Rep. 233); Riggan v. Green, 80 N. C. 236 (30 Am. Rep. 77); In re Desilver’s Estate, 5 Rawle, 111 (28 Am. Dec. 645); Yauger v. Skinner, 14 N. J. Eq. 389; Copenrath v. Kienby, 83 Ind. 18; Freed v. Brown, 55 Ind. 310; Crouse v. Holman, 19 Ind. 30; Somers v. Pumphrey, 24 Ind. 231; Fay v. Burditt, 81 Ind. 433 (42 Am. Rep. 142); Schuff v. Ransom, 79 Ind. 458; Musselman v. Cravens, 47 Ind. 1; Boyer v. Berryman, 123 Ind. 451 (24 N. E. 249); Jackson v. Gumaer, 2 Cow. 552; Ingraham v. Baldwin, 9 N. Y. 45; Key v. Davis, 1 Md. 32; Eaton v. Eaton, 37 N. J. Law, 108 (18 Am. Rep. 716); Pearson v. Cox, 71 Tex. 246 (9 S. W. 124, 10 Am. St. Rep. 740); Canfield v. Fairbanks, 63 Barb. 461; Cook v. Parker, 4 Phila. 265.”

See, also, sections 395, 396, Buswell on Insanity.

Counsel for complainant insist the assignment was void, and cite Rogers v. Blackwell, 49 Mich. 192 (13 N. W. 512). It is true, the case decides that Blackwell’s deed was void, but at the time the bill of complaint was filed Mr. Blackwell was dead. It does not appear that after making the deed he recovered his reason, but it does appear from the opinion that there was no act of his at any time ratifying this conveyance. In disposing of the case, it was said:

“ It is next claimed that the deed from Blackwell to his wife was not void, but voidable; that such conveyances are on the same footing as those of infants. It is undoubtedly true that, had Blackwell recovered his reason, he might have so conducted himself as to have given force and effect to the deed as a valid conveyance. And so he clearly could have taken the requisite steps to have it declared a nullity.”

Clearly recognizing, as we think, the doctrine that the deed of an insane man is voidable, but not void.

In the case of Moran v. Moran, 106 Mich. 8 (63 N. W. 989, 58 Am. St. Rep. 462), Justice Long, speaking for the court, said:

_ “ The sole reason for avoiding the deed is that, at the time it was given, the plaintiff was incompetent to make it. No guardian had been appointed over him at that time, and none was appointed until 1887. As a record title, the deed of defendant is perfect; but plaintiff’s counsel insists that, while a court of equity might set aside the deed, yet the question is one which is triable in a court of law, before a jury, as well. We cannot agree with this contention. The record shows conclusively that no adjudication was had upon the incompetency of the plaintiff until after the deed had been executed. The deed was not, therefore, absolutely void, but voidable. Wait v. Maxwell, 5 Pick. 217 (16 Am. Dec. 391); Ingraham v. Baldwin, 9 N. Y. 45; Carrier v. Sears, 4 Allen, 336 (81 Am. Dec. 707); Hallett v. Oakes, 1 Cush. 296; Chew v. Bank of Baltimore, 14 Md. 299; Hovey v. Hobson, 53 Me. 453 (89 Am. Dec. 705); Breekenridge v. Ormsby, 1 J. J. Marsh. 236 (19 Am. Dec. 71); Nichol v. Thomas, 53 Ind. 42; Eaton v. Eaton 37 N. J. Law, 108 (18 Am. Rep. 716).”

We think the assignment was voidable.

Has the complainant ratified the assignment ? At this point we desire to suggest what we deem to be somewhat significant — that, though this bill is filed by the complainant, who is still conducting the litigation, and must possess much information in relation to the important questions involved, he was not a witness in the case. He did not see fit to contradict any of the testimony to which we shall refer later. He was discharged from the asylum as cured April 2,1900, when he returned to his family. The record shows that he knew he had made the assignment of his interest in the contract to his wife, and of the deed from the insurance company to her. He did not bring this suit until September, 1901. We cannot set out all the testimony, but refer to some of it. Mr. Pringle testified that he had a talk with complainant in April, a little over a month after the assignment was executed, in which the complainant talked fully of the assignment, and that it was all explained to him; that he acted on his own judgment; that his brother wanted him to put it in his wife’s name, and offered to advance the money to save the farm, and he thought it the best thing to be done. Mr. Hewett substantiates this testimony. The Mr. Wolcott who advanced the money which was paid to the insurance company when the deed was made was dead when this case was commenced.

Mr. Charles Pickett testified that:

Complainant and his wife came over to my house to get me to enter into the lease. Complainant said at that time that everything belonged to his wife — even the personal property on the farm. As far as I could see, he was perfectly rational at that time. Have known him since he came onto the farm in 1895. He was just as sane at that time as he ever was since I have known him. * * * He remained on the farm until August 10, 1899. Up to that time he appeared all right. I saw nothing out of the way with him. They had, before I went there, made arrangements to leave the place and go to Onondaga. The complainant stated at the time the lease was made that the property had been conveyed to his wife. When Mr. Hewett came down to prepare the lease, complainant took part in the negotiations with reference to the lease. When there was any dispute with reference to the lease, the complainant came in as a third man.”

He told Mr. Pickett, during the negotiations leading up to the making of the lease, “that he wanted the lease drawn up with the privilege of selling it, because they wanted to get rid of it as soon as they could. Said he was going to Onondaga. His brother was going to give him that place, or going to let him live there.” After the lease was made, he did what he told Pickett they intended to do — moved to the brother’s farm, in Onondaga. Mr. Hewett, who went to the farm to prepare the Pickett lease, testified in relation to the preparation of such paper:

“I talked with Mr. and Mrs. Wolcott some, with Fred, and with Mr. Pickett — not very much with the latter. Mr. Wolcott seemed to do most of the talking with Mr. Pickett, and would report what the arrangements were— what Mr. Pickett wanted. * * * Mr. Wolcott appeared to be interested in the matter. He made suggestions with reference to how the lease should be drawn. * * * I discovered nothing in his talk or manner indicating that he was in any way irrational. His suggestions and talk with reference to the matter and the drawing of the lease were pertinent and intelligent.”

Mrs. Pickett corroborated the testimony of her husband. Mrs. Wolcott received in the neighborhood of $1,000 in money. It appears from the testimony of the son that much of it was used on the farm in Eaton county for the support of the family, including the complainant, and for expenses, and that some of it was paid to complainant. After this bill was filed, and on October 29,1901, an agreement in writing was drawn, signed by complainant and his wife, in which it was agreed, among other things, as follows:

“Now, therefore, on account of such separation and •disagreement, it is hereby mutually agreed, by and between the parties hereto, that said Thomas C. Wolcott does hereby release the said Carrie G. Wolcott from any and all claims or demands, either at law or in equity, which he may now have or hereafter may have against ■said Carrie G. Wolcott, and the said Carrie G. Wolcott •does hereby release and relinquish to the said Thomas C. Wolcott, any and all claims or demands which she now has or may hereafter have as the wife of the said Thomas ■C. Wolcott, in any lands heretofore or hereafter purchased •or owned by him, or any personal estate which he has or may hereafter acquire, and does also release him from all ■obligations to maintain and support her while she remains his- wife.”

Without going further into the details, we think the ■evidence abundant to show ratification.

The decree is reversed, and one will he entered here dismissing the bill of complaint, with costs of both courts.

The other Justices concurred.


text:
    BEATTIE v. CITY OF DETROIT.

    1. Highways and Streets — Safety—Injury to Pedestrian— Duty of Municipality.
    Where a street undergoing repairs by a contractor is left open for travel, the city must see that it is and remains reasonably safe for travel, notwithstanding the efEect of storms that may reasonably and ordinarily be expected at that season of the year.
    2. Same — Notice of Claim for Injury.
    Evidence examined and held to show that notice of claim for injury was served upon the corporation counsel.

      3. Instructions — Construction as Whole.
    In order to determine whether an instruction is misleading, the charge must be considered as a whole.
    4. Damages — Personal Injury — Future Surgical Operation.
    Plaintiff in a personal injury case may recover for the expense- and pain attendant upon a future surgical operation if under the evidence one is deemed necessary to effect a cure.
    Error to Wayne; Mandell, J.
    Submitted January 13, 1904.
    (Docket No. 30.)
    Decided July 27, 1904.
    Case by Annie Beattie against the city of Detroit for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      P. J. M. Hally and A. B. Hall (T. E. Tarsney, of counsel), for appellant.

      Orla B. Taylor, for appellee.

       Rehearing denied October 27, 1904.

   Moore, C. J.

This action was brought to recover damages for injuries sustained by reason of the unsafe condition, of the street at the corner of Jefferson and Field avenues on. the evening of July 26, 1901. There is a street-car track upon Field avenue, over which the cars of the cross-town line are operated, the cars coming from the north and turning westerly on Jefferson avenue. The usual and ordinary-place for stopping the cars to let off passengers was upon Field avenue, just before the cars turned westerly. For-some time prior to the night of the accident, the portion of Field avenue between the west track and the west curb had been in process of repavement with cedar blocks upon concrete foundation. The method of laying this pavement is as follows: After excavating to the proper depth, the concrete is laid. Upon this is placed a thin cushion of sand, upon which round cedar blocks, from four to nine inches in diameter, are placed. A binder course of gravel, is then thoroughly tamped into the interstices between the-blocks, and hot tar is poured over the gravel. The tamping is to make them solid, so that the blocks won’t raise. The tar is supposed to stop the water going through, and hold the blocks together. The work is completed by a top dressing of sand. For several days the work had been progressing in a southerly direction toward Jefferson avenue, and on the day preceding the night of the accident, according to the witnesses for defendant, the bloeks were all laid, up to the line of the asphalt pavement on Jefferson avenue. On account of a street-car parade, which was to start from near this point that evening, the blocks were laid temporarily; the contractor not having gravel enough to complete the last 10 or 15 feet. It was the claim of plaintiff, and is not seriously disputed, that this portion, 10 or 15 feet from the corner, was not tamped, the gravel and the tar were not in, and the top dressing was not on; that no attempt was made to barricade the street and prevent travel over this unfinished pavement — on the contrary, travel was invited; that no lights-were placed there to guard the place.

The plaintiff, accompanied by her son, aged six years, arrived at the corner in question, upon a cross-town car, shortly before 12 o’clock at night. The car stopped at the usual place, and plaintiff alighted, carrying her child in her arms. The car immediately started forward, and proceeded down Jefferson avenue. It was the claim of plaintiff that the pavement looked all right; that the car passed on, and she was left in total darkness; that she started toward the westerly curb, but her feet became tangled in the blocks, which were all afloat because of a rain which had fallen earlier in the evening, and she stumbled and fell, sustaining serious injuries. The claim of plaintiff is the defendant was guilty of negligence in leaving the paving in this incomplete condition, so that a dangerous condition of the street was inevitable in case of rain, the weather being threatening, and in not providing proper lights and barricades to protect the public from the danger. The case was submitted to the jury, and a verdict rendered for plaintiff. The case is brought here by writ of error.

The counsel for appellant discuss five propositions:

1. The storm and condition of the highway.

2. Service of notice on the corporation counsel.

3. The sufficiency of the notice.

4. Damages and the mortality table.

5. Operation and cost of operation.

For convenience, we will consider these in the same order.

Counsel for the city insist that the rule requiring either actual or constructive notice of a defective street, in order to hold the defendant liable, has not been met. His position, quoting his own language, is:

“The statute permitting this class of actions does not contemplate that a pavement of any particular character shall be laid, but only that it shall be reasonably fit and safe for travel. While it is admitted that the pavement, for the space of ten or fifteen feet, had not been finished as it was intended to permanently remain, yet it had been laid for the very purpose of accommodating the crowd that was expected to be drawn by this street-car parade. These being the conditions, we insist that, before the city can be held liable for any damages resulting from an accident caused by any subsequent defect in this street, that it must have had actual notice, as the time was too short, under all decisions, for constructive notice.” Citing Wakeham v. Township of St. Clair, 91 Mich. 15 (51 N. W. 696), and other cases.

An examination of the cases cited shows they relate to finished roadways in which a defect afterwards occurred, except Beattie v. City of Detroit, 129 Mich. 20 (88 N. W. 71), where temporary plank bridges were used. In •that case the city was held liable for the negligence of the contractor. Justice Hooker, speaking for the court, said:

“The law imposes upon the city the duty of keeping its ways in a condition reasonably safe for public travel. Necessarily there must be times when they cannot be in good condition — as when they are undergoing repairs— and at such times travelvers must heed the obvious dangers. But the city is not absolved from all care and responsibility at such times, nor can it absolve itself by turning the highway over to a contractor. As between it and the public, it must see that such portion of the way as is open for use — at least where it is so under the terms of its contract with the contractor — is kept in a condition reasonably safe under the circumstances; and, if it should be kept open under the contract, it should see that the ■contract is performed in that respect. In other words, a ■city cannot, by merely contracting with somebody that he will keep the street in a condition reasonably safe (whether the contract specifies the method or not), relieve itself from the statutory liability, and impose it upon another. Thus a contractor may promise to keep a trench fenced, or signal lamps in it at night, and do neither. One injured in consequence is not without remedy against the city, for the statutory responsibility rests there. Pettengill v. City of Yonkers, 116 N. Y. 558 (22 N. E. 1095, 15 Am. St. Rep. 442); Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574); Baker v. City of Grand Rapids, 111 Mich. 447 (69 N. W. 740); 2 Dill. Mun. Corp. § 1027, and note; City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118).”

In order to suspend the duty imposed by statute to keep its streets which are open to public travel in good repair for that purpose, a city, while grading and paving a street under the power conferred by its charter, must close to public travel that portion thereby rendered unfit or unsafe. Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118); Alexander v. City of Big Rapids, 76 Mich. 282 (42 N. W. 1071); Walker v. City of Ann Arbor, 111 Mich. 1 (69 N. W. 87).

Upon this branch of the case the judge, charged the jury:

“ If the city of Detroit left the street at 6 o’clock in the evening in a condition that was proper and fit to be traveled over by horses, bicycles, wagons, and such, at that time, it does not necessarily follow that it was left in a •reasonably safe condition. Something more, in my opinion, is required of the city. The city is required to leave that street in such condition that it will remain in the condition in which it was put; that is, if it was put in a condition at 6 o’clock reasonably safe and fit for public travel at that time, then the further duty falls, upon the city to ■consider what the elements are, and to consider what is likely to occur during the night; and they are required by law, in my opinion, to put it in such a condition that it will stand or withstand the elements or conditions that might reasonably and ordinarily be expected at that season of the year. So, gentlemen of the jury, the principal fact in this case left for you to determine is, Did the city leave that street in a condition in which it would be expected it would remain in a condition that was reasonably safe ? Did they do all that prudence and foresight would demand of them ? In other words, if the rain and storms, that might be expected, if you believe that they might be-expected at that time of the year, would put that street out of repair and render it dangerous, then, gentlemen of the jury, in my opinion, negligence would be chargeable against the city; but if you find that a storm of unusual severity, or a storm that might not be expected under ordinary circumstances and conditions at that time of the year, came up, then it is something human foresight cannot see or prevent, and that would be an extraordinary visitation of the elements, and the city of Detroit would not be, in such a case, chargeable with negligence.”

We think this a proper instruction, under the facts disclosed by the record.

The service of notice and its sufficiency may be considered together. The accident occurred July 26, 1901. The statute (Detroit Charter 1895, Act No. 463, Local Acts 1895, § 46) provides that “notice shall be given in writing within three months from the time of such injury, to the head, of the law department or to his chief assistant.” The corporation counsel is the head of the law department of the-city. At the time of the accident, Mr. Tarsney was corporation counsel. On August 3, 1901, Conely & Taylor wrote the following letter to Mr. Tarsney, addressing him in his official capacity, as corporation counsel:

“ On the evening of July 26, 1901, Mrs. Annie Beattie,, No. 30 Garland avenue, was injured at the corner of Field and Jefferson avenues, and we expect to file a claim for damages on her behalf against the city. We are waiting to determine the exact extent of her injury, as we do not wish to ask for any more than she is fairly entitled to, if the city is liable. I am informed this morning that her injury is more serious than we anticipated at first, and thought possibly you would like to have her examined by your own physician. You are at liberty to do so if you desire.”

This letter was placed in the hands of the office boy, Matthew Murphy, for delivery at Mr. Tarsney’s office. Murphy swears that he knew the location of Mr. Tarsney’s office, and that he delivered the letters at his office, and, while he could not swear to the delivery of a specific letter, that none were ever given to him to deliver that he did not deliver.

On October 14, 1901, another letter was addressed and delivered in a similar manner to Mr. Tarsney’s office. This letter read as follows :

“We desire to again call your attention to the accident to Mrs. Annie Beattie to which we called your attention on the 3rd day of August, 1901.. The accident occurred at the corner of Field and Jefferson avenues on July 26, 1901, at about 11 o’clock p. m. The cause of the injury was the unsafe and improper condition of the street and the absence of warning lights and signals. Mrs. Beattie ¡suffered a very severe injury to the spine and is otherwise injured internally. Her physician states that the injury is probably of a permanent nature.”

Mr. Taylor’s testimony is that, from the day of the delivery of these letters to the office boy, they were never seen by him until delivered to him upon the trial by Assistant Corporation Counsel Hally. No one from the office of the corporation counsel testifies they were not received. Tt is a presumption under such proof, that the notices were received by the corporation counsel. But this is not all. The record of the - proceedings of the common council, under date of October 15th, shows that the petition was received, and referred to the committee on claims and accounts. Mr. Taylor also testified — and this is not disputed — that, after the petition was presented to the common council, he was told by the clerk, and also by Mr. Hally, that he would be notified when the committee would take up the claim; that he afterwards was notified in writing; .that he appeared before the committee, and Mr. Hally also appeared before it, representing the corporation counsel’s-office, and the plaintiff and two or three witnesses were-sworn. In March the committee to whom the claim was referred reported to the common council, among other things:

“We beg leave to report that we have carefully considered same, and, after listening to the testimony of the-claimants, as well as that of several witnesses, and after' consultation with the corporation counsel, have come to> the conclusion that there is no legal liability against the city in either case. We therefore recommend that the prayers of the petitioners be denied.”

This report was adopted by the council — all indicating; the receipt of the notice in proper time.

Did the court err in his charge as to the effect of the mortality tables and in relation to damages? Complaint is made of the following:

“ She is also entitled to compensation for all of the pain and suffering which she has endured since the time of the accident, and that she is likely to endure in the future.. In considering these questions, you have a right to consider her age. At the time of the injury, she was 36. years of age, and, in accordance with the mortality tables of the State of Michigan, she has an expectancy of life of' 31 years and upwards. In computing the amount which, she would earn during that period, it is your duty to give her the present worth or value of what she would earn.”"

It is. said:

“The charge allows the jury to assess damages for pain, and suffering which the plaintiff ‘may endure hereafter,’ and for the loss of time ‘ as the evidence convinces you she will be likely to suffer hereafter.’ The ruléis that the alleged permanent disability, in order to be a ground for damages, must be one that is reasonably certain to result from the injury complained of.”

The testimony of the plaintiff and her father was that previous to the accident she was in perfect health. There was also testimony that the injury was a permanent one. No request was made that the court should give a fuller charge as to the use to be made of the mortality tables, or what constituted present worth or value. This portion of the charge should be considered in connection with what followed it. The jurors were instructed:

“I might add that, in computing the damages that a person is entitled to for pain and suffering, the law has no standard by which to go. It is left to the sound judgment and discretion of the jury. It is not an arbitrary power left to the jury, to be exercised arbitrarily. * * * You have no right to award anything in the nature of punishment. You must try and make the person injured through the negligence of the defendant whole, so far as money consideration can do so, but you should give nothing further than compensation.”

Taking the charge as a whole, we do not think the jurors were misled. See Bailey v. City of Centerville, 108 Iowa, 20 (78 N. W. 831). As to the use of the mortality table, see Nelson v. Railway Co., 104 Mich. 582 (62 N. W. 993).

Testimony was allowed to be given as to the cost of an operation. The judge charged the jury that she was entitled to compensation ‘ ‘ for the pain she may suffer from an operation, if an operation is deemed necessary.” It is said this is error, because whether an operation is necessary is purely a matter of judgment. At best, it is a conclusion as to what is the best thing to be done. Counsel' say:

“ Nature in many instances may be able to assert itself and become master. Health may be regained and strength may return without an operation. The patient might continue to refuse to submit to an operation. The experience of ordinary individuals proves that there are in this world any number of physical cowards, and this mental temperament of the individual might forever prevent the patient consenting to the physician’s plan. So that the giving of damages for the pain incident to an operation, or for pain which would result from an operation, is clearly the giving of damages which rests in an uncertainty, and for a consequence which is not reasonably certain to follow an injury sustained. It is a mere speculation, for which damages cannot be given.”

The physician who gave testimony for the plaintiff was of the opinion that the injury would not yield to medical treatment, and, without surgical treatment, would remain as it is. Dr. Weber, who examined the plaintiff, and was a witness for the city, though he did not agree with the witnesses of the plaintiff as to what caused the condition the woman was in, testified:

“This condition that I find in this woman will last forever if she never has anything done in the way of treatment. An operation will cure it.
i‘Q. All these operations are serious, are they not?
‘A. Laceration of the neck of the womb is considered a slight operation. I never knew of a case terminating seriously or fatally.”

He agreed with the witnesses for the" plaintiff as to what the cost of an operation would be.

In 1 Joyce on Damages, § 196, it is said:

£ £ It may in some cases of injury be necessary to perform a surgical operation in order to effect a cure. Where such an operation is required in order to give relief or to bring about a cure, and it is attended with slight inconvenience and no danger, it is held that if a person, under such circumstances, refuses to submit to an operation, there can be no recovery of damages attributable to such failure.”

In Blate v. Railroad Co., 44 App. Div. 163 (60 N. Y. Supp. 732), it is said:

“ It is quite evident that the damages which were given by the jury were based, in a very considerable amount, upon this rupture. The evidence of surgeons was given not only as to the existence of the rupture as the result of this accident, but also as to the probability of its cure if the plaintiff would submit to a surgical operation. The defendant’s expert testified that such an operation would almost certainly result in a cure; but the physicians sworn on behalf of the plaintiff, while admitting that such an operation would probably result in a cure, said that it was by no means certain. It was stated by the plaintiff’s witnesses that such an operation would be dangerous to life, but the expert surgeon sworn on behalf of the defendant said it was not now really dangerous to life, although six or eight years ago it was considered a dangerous operation. In view of that condition of the evidence, the defendant insisted that it was the duty of the plaintiff to submit to an •operation, which would be practically certain to result in a cure, and, because he did not do so, he was not entitled to recover damages for a permanent or continuing rupture. On that branch of the case the learned trial justice charged -the jury:
“ ‘Something has been said to you regarding the possibility of the plaintiff having had a radical cure effected by submitting him,self to a surgical operation. I charge you upon that subject that a ■person who has been injured by an accident of this kind is bound to use the usual and reasonable remedies which are appropriate to alleviate or cure such an accident as he has suffered. He is not permitted to increase and enhance the damages which he has suffered by negligently or carelessly or willfully permitting his condition to get worse than it would be if properly treated. At the same time, no man is bound, for the purpose of reducing the amount of damages which he may be entitled to recover from a person who has done him wrong — no man is bound to submit himself to a surgical operation which may, even in the remotest degree, be an operation attended with danger. That is a matter which he must determine for himself; and if he, through apprehension, or for any other ■cause, has determined that he will not submit himself to such an •operation, the defendant is not entitled to take advantage of his •failure to do so. At the same time, you are to take into consideration, determining the amount of injury which this man has suffered, and the permanency of his injury, all the testimony that you have heard from the experts upon the subject of the possibility of •curing a disease of this kind by a surgical operation, and the slight inconvenience which is said to result from such operation in most ■cases.’
“ To this charge as an entirety an exception was taken. ■Counsel for the defendant insists that the charge was erroneous, but he made no request to the court to modify it, or to charge more fully upon any proposition contained in it, so that, if the propositions charged are correct, defendant cannot complain that the court should have charged more fully in regard to them. The rule of damages in such cases is not at all doubtful. It is that the party who claims to have suffered damage by the tort of another party is bound to use reasonable and proper efforts -to make the damage as small as practicable, and that he is not entitled to recover for any damage which by the use of such efforts might have been avoided, because they are-not to be regarded as the natural result of the tort. 8 Am. & Eng. Enc. Law (ad Ed.), p. 605. The question in every case is whether the plaintiff has used such means as were at hand to reduce his damages as a reasonably prudent man would have used. It cannot be said, as a matter of' law, that he is bound to use any particular means or to do any particular thing, unless that thing is one which would, necessarily result in reducing the damage, and which a. reasonable and prudent man would use. If in any given case it appears that the particular means which may be-used to effect a cure would or might cause greater injury or produce serious results, quite clearly the injured person, would not be called upon, as a matter of law, to take the chances of suffering more serious injury or death for the?, purpose of reducing the damage. While the person who-inflicts the damage has the right to say that sure and safe means to diminish the evil results of the accident, if any such exist, must be used, yet that is the extent of his. right. Whether further means should be resorted to is for the plaintiff to determine. In making that determination the plaintiff has the right to consider the nature of' the means used to effect a cure, and a possible or probable effect upon himself. He has to determine for himself whether he is to resort to those means in view of those considerations. In any given case it may be that the-treatment which is given to the plaintiff is not the best that, could be devised, but the plaintiff is not the less entitled to-his damages on that account, if, in taking that treatment, he has consulted such a physician as a reasonably prudent man would consult. The jury, in getting at the damages, are to say not only what they are, but whether the means, used by the plaintiff to reduce the damages were such as an ordinarily prudent man would use. They cannot say that, he should or should not have taken the advice of any particular physician, nor that he should have obtained any particular kind of treatment. As to that, he must himself be-the judge. But when he has determined what treatment-to take, it will yet be for the jury to say if, in making that determination, he used the means that a reasonably prudent man would take to cure himself of his injury. If he-did, he is entitled to recover for his damages as they are presented to the jury. If he did not, and the jury can say that some other treatment would have brought about a cure, and that treatment was one that a reasonably prudent man would have submitted to, then they must say that ho has not used the care which a reasonably prudent man would use to reduce the damages, and must take that into consideration in reaching their verdict. That is what was substantially said to them by the learned trial justice. The law lays down no hard and fast rule as to the duty of the plaintiff under such circumstances. Whether an operation for his ailment, which might endanger his life in any degree, must be submitted to, is a question which the law cannot answer; nor does it lie in the mouth of a jury to say that the plaintiff should or should not do any particular thing. They are concerned simply with the affairs presented to them at the trial, and whether the damages then appearing to exist are the natural and probable result of the injuries, diminished by the efforts for a cure which a reasonably prudent man would have made.”

See, also, Bailey v. City of Centerville, 108 Iowa, 20 (78 N. W. 831).

The case was carefully tried, and, we think, is free from reversible error. Judgment is affirmed.

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


text:
    DECKER v. WIDDICOMB.
    1. Brokers — Commissions—'Undisclosed Principal.
    By completing the sale to a customer first introduced by plaintiff, a real-estate broker, to whom defendant had given authority to find a purchaser, after notice that the broker will claim commissions in case of sale to that customer, defendant becomes liable for plaintiff’s commissions, though the negotiations that culminate in sale are begun by an agent of the purchaser who does not at first disclose his principal.

      2. Same — Action eor Commissions — Evidence. ■
    In an action for broker’s commissions, a newspaper advertisement, published by plaintiff, is admissible as showing what was done by plaintiff in pursuance of his contract to sell the property.
    Error to Kent; Perkins, J.
    Submitted January 14, 1904.
    (Docket No. 40.)
    Decided July 27, 1904.
    Assumpsit by Peter W. Decker and Ered R. Jean, co-partners as Decker & Jean, against John Widdicomb for commissions on the sale of certain real estate. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Knappen, Kleinhans & Knappen, for appellant.

      jSmedley & Corwin, for appellees.

       As to when real-estate broker is considered as the procuring, cause of a sale effected, see note to Hoadley v. Savings Bank, (Conn.) 44 L. R. A. 132.

   Moore, C. J.

Plaintiffs are real-estate men. They sued defendant to recover commissions amounting to #212.50. The case was tried by a jury, which rendered a verdict for that amount. The case is brought here by writ of error. The errors relied upon are a failure to direct a verdict because i

1. The undisputed evidence shows that the agency upon which plaintiffs relied was a special one for the sale of a certain amount of property to Mr. Wilcox at a certain price, and that plaintiffs did not succeed in carrying out their part of the contract.

2. The undisputed evidence shows that the agency was terminated before the property was sold to Mr. Doty, and after the failure of plaintiffs to carry out their part of the contract.

3. The undisputed evidence shows that the defendant sold to Mr. Doty without knowledge that he was acting for any one else in the transaction. That he was secretly acting for Wilcox was therefore immaterial.

The other error relied upon is the admission by the trial court of a newspaper advertisement reading as follows:

“ 100 feet near the corner of College and East Fulton; ,a very choice situation for a choice home.”

In support of the first proposition, counsel cite Mechem on Agency, § 611; Antisdel v. Canfield, 119 Mich. 236 (77 N. W. 944), and other cases. In support of the second proposition counsel cite Mechem on Agency, § 210; Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544); Antisdel v. Canfield, 119 Mich. 229 (77 N. W. 944), and other cases. As to the third proposition counsel cite Mechem on Agency, § 113.

The trial judge, in his charge to the jury, after stating the claims of the parties to the litigation, charged them, among other things:

“ There are three questions of fact which I will submit for your consideration under the evidence in this case: First. Was there a contract, as the plaintiffs claim? If you find that there was, then, second, Was that contract terminated before the sale of this land, as the defendant claims ? If you find that there was a contract, and that it was not terminated, or not terminated at the time of this sale, then, third, Were the plaintiffs the procuring cause of this sale ? The other question that is raised by the claims of the parties, and which is not included in the questions which I will submit for your determination, is the one in relation to whether or not the sale was to Mr. Doty. As to that question, the fact that the defendant, after he discovered that Mr. Doty was acting for and in behalf of Mr. Wilcox, continued his negotiations and completed the sale to Mr. Wilcox, must be construed as a ratification oru the part of the defendant of Mr. Doty’s agency for Mr. Wilcox, and I so instruct you. So that phase of the question is out of the case, so far as it bears upon the question as to whether the sale was to Mr. Doty alone or to Mr. Wilcox. Unless you are satisfied by a fair preponderance of the evidence that the contract of agency for the sale of the land was entered into, as the plaintiffs claim, the plaintiffs cannot recover, and your verdict must be ‘No cause of action.’ If you are satisfied that such an agreement was made, then consider the next question: Was it terminated, as the defendant claims ? Now, there can be no doubt as to the right of the defendant to terminate this agency, if any was so created, at any time he chose. The question for you to determine is, under the evidence in this case, Was it terminated ? If it was, and you so find, the plaintiffs cannot recover, and your verdict must be for the defendant. * If you are satisfied that there was a contract, as the plaintiffs claim, and that it was never terminated, then consider the question as to whether the plaintiffs were the procuring cause of this sale to Mr. Wilcox; that is, Were they the moving cause in the transaction? Was it through their efforts that the sale was made ? Were they the ones who set on foot the negotiations which eventually resulted in the defendant’s selling the property to Mr. Wilcox ? * * * Should you not be satisfied upon each of the questions named, your verdict must be for the defendant, ‘ No cause of action. ’ I will read the defendant’s tenth request:
‘ ‘‘ Defendant claims that he made no contract with plaintiffs to pay them commission, but understood that he was dealing with plaintiffs as the agents for Mr. Wilcox.’ If you find this to be the fact, your verdict will be ‘No cause of action.’ ”

Counsel for plaintiffs insist counsel for defendant are in error in their first three propositions; that, instead of the testimony being undisputed as to each of those propositions, there is a sharp conflict in it, and that the judge very properly left the questions of fact to the jury, under Heaton v. Edwards, 90 Mich. 500 (51 N. W. 544), Wood v. Wells, 103 Mich. 320 (61 N. W. 503), and Brooks v. Leathers, 112 Mich. 463 (70 N. W. 1099). It would profit no one to insert the evidence here. The defendant denied he ever agreed to pay commissions, and insisted he supposed plaintiffs would get their commission from Mr. Wilcox, if a sale was made to him. An examination of the record satisfies us the plaintiffs made a prima facie case, and that the trial judge would have erred had lie taken the case from the jury.

It is insisted the sale was made to Mr. Doty before any knowledge came to defendant that he was acting for Mr. Wilcox, and that this is a complete defense, and that the court erred in his instruction to the jury upon that branch of the case. The record discloses that when the price was agreed upon Mr. Widdicomb signed with his initials a brief memorandum of the transaction, and it is said there can be no doubt such a contract could be enforced by Doty. The memorandum did not show to whom the deed was to run. The record discloses that Mr. Doty did not seek to ■enforce the contract, but before the deed was made informed defendant he was acting for Mr. Wilcox, and that at least two weeks before the deed was made to Mr. Wilcox the defendant was informed plaintiffs would claim their ■commissions. After this information came to him, he joined in making a deed to Mr. Wilcox. The newspaper advertisement was competent as showing in part what was •done by plaintiffs in pursuance of what they claimed they were expected to do.

Judgment is affirmed.

The other Justices concurred.


text:
    NEWLAND v. FIRST BAPTIST CHURCH SOCIETY OF BELLEVUE.
    1. Reformation of Instruments — Mistake of Sorivener.
    Equity has power to correct a written conveyance so as to carry out the intention of the grantor where a mistake has been made by the scrivener.
    3. Evidence — Presumptions—Erasures in Conveyances.
    Where nothing suspicious appears on the face of a deed beyond the fact that an erasure is manifest, the presumption commonly is that the alteration was made before the deed was executed.

      :3. Reformation of Instruments — Mistake of Sorivener — Evidence.
    Evidence examined and held sufficient to support a finding that the grantor in a deed intended to convey a life estate only, and that the deed failed of such purpose by mistake of the scrivener.
    Appeal from Eaton; Smith, J.
    Submitted February 2, 1904.
    (Docket No. 60.)
    Decided July 27, 1904.

      Bill by Charles A. Newland and others against the First Baptist Church Society of Bellevue and another to reform and set aside certain deeds. From a decree for complainants, defendant church society appeals.
    Affirmed.

      Thomas Sullivan, for complainants.

      J. M. & J. L. Powers, for appellant.
   Moore, C. J.

This is a litigation between the First Baptist Church Society on the one side and the other parties to the case, who are the heirs of Albert M. Newland,, deceased. June 6, 1885, Albert M. Newland and wife made to his • daughter, M. Helen Newland, a conveyance of 50 acres of land, " the said party of the second part to have possession of the above granted premises on the* death of both of the parties of the first part.” The consideration was stated to be "the sum of one dollar and the interest of the party of the second part in the estate of the; parties of the first part.” The scrivener, in making the* conveyance, used a short form of warranty deed. We have the original before us. In it the words "and assigns”’ are erased in the two places where they appear in the deed by having a broad pen mark run through them. This; deed was recorded in the office of the register of deeds; May 3, 1894. The record in the office of the register shows the words "and assigns,” where they first appear in the-deed, have the pen run through them, but it was not run through them where, they last appear in the deed. Mr. Albert M. Newland died in August, 1894, and his widow in the following February. April 26, 1899, M. Helen Newland conveyed the premises by warranty deed to the-First Baptist Church Society, reserving a life estate to herself. The consideration named was $1.

The complainants filed their bill of complaint, claiming t

First: That the deed from Albert M. Newland and. Martha A. Newland to M. Helen Newland created only a. life estate in her, that being the purpose and intention of' the grantors; and that the scrivener, believing that he was carrying out that purpose and intention, struck out the words “and assigns,” and that the paper drafted, through the mistake of the scrivener, does not properly express the purpose and intention of the grantors in making it.

Second. That the deed made by M. Helen Newland is void for the following reasons: (a) That M. Helen New-land had no estate in fee to convey. (b) That the said M. Helen Newland was incompetent at the time the said deed was made and executed, and was not of sufficient mental capacity to make and execute a deed. (c) That the deed was procured through fraud and undue influence.

The case was tried in open court. The record contains nearly 450 pages. The circuit judge filed his conclusions in writing. He was of the opinion he would not be justified in setting aside the deed on either the ground of incompetency or undue influence, but he did set it aside because he was “satisfied from the proof in the case that it was the intention of her father to convey to her only a life estate, and that the conveyance to her, with the light thrown on it by the proof in the case, only gives her that.” The case is brought here by appeal.

The important question in the case is one of fact: Did Mr. and Mrs. Newland intend to convey to their daughter a title in fee to the land, reserving to themselves a life estate, or did they intend to give to her simply a life estate to the land ? Counsel for the defendant make a very elaborate legal argument as to the effect of the conveyance should it be found that the words “and assigns” were stricken out when the complainants claim it was done, but we do not think that discussion is germane to the question involved. The right of a court of equity to correct a written conveyance so as to carry out the intention of the grantor, where a mistake has been made by the scrivener, is well established. 1 Story, Eq. Jur. (12 Ed.) §§ 153-155; Canedy v. Marcy, 13 Gray, 373; 15 Am. & Eng. Enc. Law, p.673. Was there a mistake made? This is a troublesome question. It is insisted upon the part of the defendant that Mr. Newland made conveyances to his other children of their proportion of his real estate, reserving to himself and wife a life interest therein, and that when he made this deed to his daughter he intended to convey a title in fee, subject to a life interest for himself and wife. It is their further claim that when Miss Newland made her deed to the church society the pastor of the church, the attorney who drew the deed, Mr. Sweet, and others saw the deed from her father to her, and that they did not see that the words “and assigns” were stricken out of the deed, and that they would have been likely to have observed it if it had been done. It is their further claim that Miss Newland retained the deed given to her by her father, and that after her death some person, whose interest it was to do so, drew a pen through the words “ and assigns ”in the deed — they having possession thereof — and that the same thing was done with the record in the office of the register of deeds. On the other hand, there is considerable testimony that Mr. Newland, after he made the deed, told several parties that his daughter could not convey any title to the land. There is testimony of several witnesses who claim to hafie seen the deed with the erasures before it was recorded. The scrivener says the erasures were made by him at the time he prepared the deed. Speaking of Mr. Newland and the drafting of the deed, he testified:

He said he wished that she should be provided for if she should outlive him, and talked with me about the way to do it. I suggested a will. He objected, but wished me to make a deed to her in such a way that she could not dispose of it — dispose of the property which he designed to convey to her for her support. * * *
“Q. In pursuance of that conversation, with the purpose of carrying out his desire, you drew this paper marked Exhibit A?
“A. I did.
“Q. I call your attention to the fact that in the first clause, where the word ‘ assigns’ appears, it seems to have been erased, and also lower down in the deed, in the second clause, that the word ‘ assigns’ appears to be erased. I ask you if you erased those words at the time you drew the deed ?
“A. I am sure that I did, in accordance with his wish.
“Q. Was it your intention and his understanding that hy erasing the word ‘ assigns ’ that it restricted her title to a life estate in the premises ?
“A. It was. After this deed was drafted, it was signed hy the parties, and acknowledged, and carried away by Mr. Newland. * * * My memory is clear, and it is my recollection that he wanted to give her this property for and during the term of her natural life in such a way she could not deed it away or dispose of it.”

This testimony was not substantially weakened by the cross-examination. This witness seems to be a man of character and standing, his business being that of a banker. The presumption commonly is, where nothing suspicious appears on the face of the deed beyond the fact that an erasure is manifest, that the alteration was made before the deed was executed. 1 Cooley, Black. Com. (4th Ed.) 682, note, and cases cited; Munroe v. Eastman, 31 Mich. 283; Sirrine v. Briggs, 31 Mich. 443, and the cases there cited. This presumption is supplemented by the testimony to which we have called attention. If these erasures were not made by the scrivener, as testified to by him, then some one has committed the grave offense of forgery, and has followed that act by changing a public record. The trial judge saw and heard the witnesses. We think his estimate of the character and weight of the testimony is fully justified by the record.

The decree is affirmed, with costs of this court.

The other Justices concurred.


author: Grant, J.

text:
    CRANSON v. SNYDER.

    1. Surface Waters — Dominant Estate — Rights.
    The lower and servient estate must receive the surface waters; which flow naturally from the dominant estate.

    2. Same — Improvement of Land.
    The husbandman may improve his farm by filling up sag holes', pools, and basins to prevent water accumulating or remaining thereon, although the result is to cause the water to flow upon the land of an adjoining owner.
    3. Same — Artificial Drains.
    • A landowner cannot, by artificial' drains or ditches, collect waters from natural receptacles and cast them in a body upon the land of an adjoining owner.
    4. Same — Cultivation.
    A landowner is entitled to cultivate his land in the manner usual in good husbandry, though the result may be to leave furrows which will cause the water to move off more rapidly than it would were the land in its natural state.
    5. Same —Drains —Prescription —Right to Maintain and Repair.
    Complainant, who has acquired a prescriptive right to maintain tile ditches and drains over defendant’s land by defendant permitting them to exist and cast water on his land for 20 years, is entitled to maintain them and to enter on defendant’s land for the purpose of repairing or relaying them with tile of no greater capacity than that originally laid.
    Appeal from Washtenaw; Kinne, J.
    Submitted February 5, 1904.
    (Docket No. 93.)
    Decided July 27, 1904.
    Bill by Edgar Cranson against Gardner W. Snyder to.restrain the obstruction of certain tile drains. From a decree for complainant for* less than the relief prayed for, he. appeals.
    Affirmed.

      Complainant and defendant are farmers owning adjoining lands. Complainant owns the upper or dominant estate; defendant, the lower or servient estate. Complainant had three tile drains extending from his land into that of the defendant. In the latter part of 1902, defendant closed up the mouth of these tiles where they emptied upon' his land, and the complainant filed this bill to restrain the maintenance of this obstruction. The location of the drains and of the lands, and the questions involved, will be better understood by an examination of the following

    Between drains No. 1 and 2 is a natural divide, .as shown by the plat. Between the upper part of drains Nos. 2 and 3 is another divide. The arrows upon the map indicate the natural flowage of the surface water towards •the drains. The profile of drain No. 2 shows that it extends a distance of 3,600 feet, with a fall of 40 feet, which is practically continuous and uniform; being about 1 foot to every 90 feet. The profile of drain No. 3 shows, commencing at the head, that for the first 150 feet there is a fall of 1 foot; that for the next 300 feet there is no fall, and then a rise in the next 50 feet of 7 inches; and that from the apex of that rise to the mouth, a distance of 1,000 feet, there is a continuous and uniform fall of about 11 .feet. The depression near the upper end of; drain No. 3 is about 400 feet wide and 7 inches deep. The drains follow the natural depression in the land. After crossing the boundary line, the water -naturally flows to point D, and thence westerly to point E. The slope across the defendant’s land is 15 or 16 inches to the 100 feet. Complainant-had maintained drains Nos. 2 and 3 with 3-inch horseshoe tile since 1865. In the year 1895 he supplanted drain No. 2 with 4-inch round tile for 30 rods from the south end, and 3-inch tile for the remainder of the distance; and drain No. 3 in 1896 with 6-inch round tile for 40 rods from the south, and 3-inch tile the remainder of the distance. Complainant and his grantors had for more than 30 years cultivated this land, and open furrows had, to some extent, facilitated the flow of the surface water.
    The case was heard upon pleadings and proofs. The learned circuit judge found that the complainant had acquired a right by prescription to maintain drain No. 1.. From this the defendant has not appealed. It was also» established by the proofs that the complainant acquired a right by prescription to maintain drains Nos. 2 and 3 with 3-inch horseshoe tile. As to these the circuit judge found that—
    “ Complainant had no right to construct drains and lay tile through his lands in such a manner as will cause the surface water thereon to flow in larger quantities or more rapidly upon the lands of the defendant, or to so drain or tile his lands that surface water which would otherwise evaporate or sink into the soil shall be facilitated and caused to pass along and flow upon the lands of the defendant. In other words, I do not think that the defendant is bound to receive any surface water from the complainant which would not naturally flow from the lands of the complainant, were the same in a natural state, and not changed by husbandry. * * • * It follows, therefore, that as to drains Nos. 2 and 3 the claims of the complainant cannot be sustained; that, in removing the old tile of three inches in size, and substituting or placing thereon a four and a six inch tile, he exceeded his own rights; and, if the defendant embanked upon his own land against this increased flowage, he did that of which the complainant cannot complain, until the rights of the parties are placed in statu quo. When the complainant shall have restored the drainage as originally made upon his lands*, the defendant should not obstruct the natural flowage of the surface water from the lands of the complainant upon the lands of the defendant, either by embankment or the filling of natural watercourses. The parties to the suit should be governed by the well-recognized maxim, ‘ Sic utere tuo ut alienum non lsedas.’ ”
    The court below dismissed the bill as to the obstructions to drains Nos. 2 and 3.

      B. M. Thompson and W. D. Harriman, for complainant.

      Alex. T. Hurst (Cavanaugh & Wedemeyer, of counsel), for defendant.

       Rehearing denied October 27, 1904.

       For rights as to surface waters, see note to Chay v. McWilliams (Cal.) 21 L. R. A. 593.

   Grant, J.

(after stating the facts). The case involves only surface water. The rights of the owners of dominant and servient estates are well settled in this State, and there is no occasion to refer to authorities elsewhere. They have not been in unison upon the question of surface water. Justice Campbell, in Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831), entered into a learned and exhaustive discussion of the subject. It was there held that the lower and servient estate must receive the surface waters which flow naturally from the dominant estate. This case was followed in Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797). It was there held that the husbandman might improve his farm by filling up sag holes, pools, and basins to prevent water accumulating or remaining therein, although the result would be to cause the water to flow upon the land of the adjoining owner. It was also held that he could not by artificial drains or ditches collect waters from, these receptacles and cast them in a body upon the adjoining land. These cases were cited and approved in Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367). It was also there held that, where the owner of the lower estate permits a ditch or drain to exist for 20 years and cast the water upon his land, the right to maintain the ditch was acquired by prescription.

Complainant has acquired the prescriptive right to maintain the old horseshoe tile ditches, and may relay them or their equivalent in round tile. In addition, complainant is entitled to cultivate his land in the manner usual in good husbandry, although the result may be to leave furrows which will cause the surface water to pass off more rapidly than it would were the land in its natural state. This was held to be the husbandman’s right in a case where a sag had been cultivated for 20 years, and the water had been turned therefrom by a furrow into a ravine. It was held that the complainant cannot complain of such drainage in the natural and usual course of husbandry. Gregory v. Bush, 64 Mich. 42 (31 N. W. 90, 8 Am. St. Rep. 797).

There is no evidence in this case from which it can be determined that a three-inch round tile will carry more water than the old three-inch horseshoe tile did, or that it will increase the rapidity of the flow. Manifestly a four-inch and a six-inch tile will carry more water, and carry it more rapidly, than a round or horseshoe three-inch tile. It is conceded that the purpose of putting in the larger tile was to carry the water off more rapidly, and that it accomplishes the purpose. We think it is clear, from the cases above cited, that the owner of a dominant estate has not the right to collect the water upon his land by means of drains or ditches and empty it in a body upon the servient estate. Complainant, therefore, in doing this, exceeded his right acquired by prescription, and his right to drainage in the usual course of good husbandry.

Complainant had maintained for more than 20 years a tile drain extending upon and emptying into the lands of defendant. He was entitled to maintain this drain, and to enter upon the defendant’s lands to relay it. When the new drain was laid, complainant, by defendant’s permission, entered upon his land, and made gradual slopes on the sides of tbe shallow gully through which the water xan from the drain. For 6 years defendant made no complaint of injury to his land. In the summer of 1892 the rainfall was excessive and torrential. The most of the water, as it fell, would find its way speedily from the surface of the complainant’s land to that of defendant. It is very doubtful whether the larger tile increased the flow of water to such an extent as to increase the damage. The damage, in any event, is insignificant. Under these circumstances, no costs were awarded to defendant by the court below. Defendant will recover the costs of this court.

Decree affirmed.

The other Justices concurred.