author: Carpenter, J.

text:
    McCALL CO. v. JACOBSON.
    1. Sales — Contracts — Enforcement — Actions — Burden of Proof.
    In an action by the seller to enforce a contract for the sale of goods the burden is on plaintiff tó show that the goods tendered complied with the contract.
    2. Appeal and Error — Questions Review able — Discretionary Questions.
    ■ Where there are no circumstances better known to the trial court than to this court, it is the 'duty of this court to review a decision that a notice to take depositions was insufficient.
    3. Depositions — Notice to Take — Sufficiency.
    Four full secular days’ notice at Reed City to take depositions at Cleveland, Ohio, is sufficient.
    4. Same — Filing—Time.
    The statute (§ 10139, 3 Comp. Laws) requiring certain objections to depositions to be made within three days after they are filed in the case does not require that they be on file three days before being used.
    Error to Osceola; McAlvay, J.
    Submitted February 17, 1905.
    (Docket No. 182.)
    Decided March 21, 1905.
    Assumpsit by the McCall Company against Moses I. Jacobson and others for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Charles A. Withey (O. H. Rose and J. E. Richardson, of counsel), for appellants.

      B. N. Savidge, for appellee.
   Carpenter, J.

Plaintiff and defendants entered into a contract whereby the former agreed to sell, and the latter to buy, certain paper patterns, fashion sheets, and fashion magazines. Defendants refused to accept the goods tendered by plaintiff. Plaintiff thereupon brought this suit. The controversy turned upon the question whether the goods tendered and refused complied with the contract. The issue was left to a jury, who found for the plaintiff. Defendants ask us to reverse the judgment entered on said verdict, on grounds which will appear in this opinion.

The trial court, acting under the mistaken belief that this case was governed by the principle of law applicable when one asserts a failure of consideration (see Bulen v. Granger, 58 Mich. 274), charged the jury that the burden rested upon defendants to prove that the goods tendered did not comply with the contract. This was clearly erroneous. It was an essential part of plaintiff’s case to prove that the goods tendered complied with the contract. See Simons v. Paper Co., 77 Mich. 185; Stahelin v. Sowle, 87 Mich. 134.

It is claimed that the trial court erred in refusing to permit defendants to read on the trial a deposition of Alice Lusk. In support of the ruling of the trial judge, it is urged that the deposition was inadmissible on two grounds: First, that the notice under which it was taken was insufficient, being unreasonably short; second, that the deposition was not on file for three days before the commencement of the trial.

First. As to the sufficiency of the notice: The deposition was taken in Cleveland, Ohio, March 18,1904. Proper notice that it would be so taken was served on plaintiff’s counsel, in Reed City, in this State, March 14th. The days between March 14th and March 18th were all secuT lar. To excuse taking this deposition on the eve of the trial — the trial commenced March 21st — defendants’ counsel offered to show that the whereabouts of the witness was not ascertained until just before the notice was given. It is to be assumed from the record that, at the time this notice was given, plaintiff’s counsel made no objection to its sufficiency, and did nothing at that time to apprise defendants’ counsel that he would thereafter claim that it was insufficient. The sufficiency of this notice depends upon the proper construction of the following portion of Section 10136, 3 Comp. Laws:

‘ ‘ Seasonable notice must first be given in writing by the party * * * proposing to take such deposition, to the opposite party or his attorney of record.”

This is a comparatively new statute in this State, having been adopted in 1895 (see Drosdowski v. Order of Chosen Friends, 114 Mich. 180); but before we adopted it it was an old statute in other States, and had been judicially construed.

As it is idle to consider what constitutes reasonable notice, under this statute, unless we have a right to review the decision of the trial court, we must first determine whether or not we have that right. While in these cases “ something may properly be left to the wise legal discretion of the trial court” (see Sing Cheong Co. v. Yung Wing, 59 Conn. 535; Harris’ Appeal, 58 Conn. 492)— that is, as I understand it, this court will not review decisions of the trial court as to the sufficiency of the notice, in so far as they rest upon facts and circumstances known to the trial judge and not known to the appellate tribunal —(see Drosdowski v. Order of Chosen Friends, supra), it is settled that, as a general proposition, the decisions of a trial court as to what constitutes a sufficient notice are re viewable by an appellate court (see Sing Cheong Co. v. Yung Wing, supra; McGinnis v. Washington Hall Ass’n, 12 Grat. [Va.] 602; Trevelyan’s Adm’r v. Lofft, 83 Va. 146; American Exchange Nat. Bank v. First Nat. Bank, 27 C. C. A. 277; Carlisles. Tuttle, 30 Ala. 613; Hipes v. Cochran, 13 Ind. 175; Manning v. Gasharie, 27 Ind. 399). This accords with sound reason. Otherwise a statute of the State which it must be presumed was intended to establish a uniform practice has possibly established a different practice in each of our many courts, if not in each case tried in those courts. As there were not in this case, as in Drosdowski v. Order of Chosen Friends, supra, any circumstances better known to the trial judge than to this court, it is our duty to review the decision holding that the notice under consideration was insufficient.

‘ ‘ What is reasonable notice is nowhere defined in the law, and cannot well be defined, but must depend on the circumstances of each case.” McGinnis v. Washington Hall Ass’n, supra. See, also, Sing Cheong Co. v. Yung Wing, and Drosdowski v. Order of Chosen Friends, supra. In determining whether notice is reasonable, courts give weight to the exigency which requires a short notice, viz., that the witness is about to leave the State. See McGinnis v. Washington Hall Ass’n; Harris’ Appeal, supra. In the latter case it was intimated that the objection that the notice was insufficient was more likely to be upheld if brought to the attention of opposing counsel when the notice is served. See, also, American Exchange Nat. Bank v. First Nat. Bank, supra.

“What is reasonable notice is a question dependent upon the peculiar circumstances of each case, the principal of which are the distance, traveling conveniences, condition of the roads, and other such matters as affect the ability of the party to attend personally or by counsel, and to return in time for trial.” Trevelyan’s Adm’r v. Lofft, supra.
“ When depositions are to be taken in this State or in any of the United States, the length of time that notice should be given before the taking, in order to be a reasonable notice, can be fairly determined by the length of time required to reach the place of the taking by the ordinary modes of travel, because all the things necessary to be done by way of preparation are pretty certainly known, and a proper allowance of time can be made for them.” Sing Cheong Co. v. Yung Wing, supra.
“The chief features to be considered in determining whether a certain notice is or is not reasonable are distance, number of witnesses, and facility of communication and to obtain proper representation.” American Exchange Nat. Bank v. First Nat. Bank, supra.

See, also, Carlisle v. Tuttle, Hipes v. Cochran, and Manning v. Gasharie, supra.

It results from these cases, and it accords with our judgment, that, as a general rule (it is possible that exceptional cases may not be within this rule), the notice of taking depositions, under our statute, is sufficiently long if it gives time to counsel to prepare for the taking, and by the ordinary means of travel to reach the place where they are to be taken. In the case at bar the notice gave counsel in Reed City four days to attend the taking of the deposition in Cleveland, Ohio. As we may take judicial notice that it takes less than 24 hours, by the ordinary means of travel, to go from Reed City to Cleveland (see Hipes v. Cochran, supra), the remaining question is whether three days was a sufficient time to prepare for the taking of the deposition. We are bound to say that it was. See Harris’ Appeal, supra. American Exchange Nat. Bank v. First Nat. Bank, supra. We feel constrained therefore to say that the notice was reasonable.

Second. Was the deposition inadmissible because it had not been on file three days before it was offered in evidence ? This depends upon the construction to be given the following portion of section 10139, 3 Comp Laws:

“Objections to notices of, or objections to the manner of taking the testimony, or of certifying or returning the deposition, shall be regarded as waived unless made in writing within three days after knowledge or notice of the return thereof.”

This language does not require the deposition to be on file three days before it is offered in evidence. It only limits the time for taking certain objections. As this time had not elapsed, plaintiff had the right to make these objections when the deposition was offered in evidence. The construction urged by plaintiff’s counsel would prevent a party litigant from availing himself of the right of taking depositions on the eve of or during trial. This right is sometimes essential (see Deming v. Foster, 42 N. H. 165), and we cannot believe that the legislature intended to take it away. We are therefore compelled to say that the learned trial judge erred in refusing to permit defendants to read the deposition under consideration.

Defendants’ brief complains of remarks of plaintiff’s counsel made during his closing argument to the jury. These remarks were not justified by the testimony, but we are not sure that they were not excused by remarks of a similar character made by defendants’ counsel. As the judgment is reversed for other reasons, and as it is not to be presumed that these remarks will be repeated on another trial, we do not consider it necessary to determine whether or not they constitute ground for reversal.

We find no other error in the record, and no other complaint which merits discussion.

The judgment is reversed, with costs, and a new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    FRYSZKA v. PRYBESKI.
    Landlord and Tenant — Liability for Rent — Substitution of Lessees.
    Where plaintiff leased from defendant property which was “ afterward, without any arrangement releasing plaintiff from liability, occupied by a firm composed of plaintiff and another, plaintiff continued to be responsible for the rent, and the fact that defendant purchased goods from the partnership from time to time, and did not pay for them, did not, in the absence of any finding that the indebtedness was to apply on the rent, make the partnership directly responsible, and show that plaintiff had ceased to be so responsible.
    Error to Bay; Shepard, J.
    Submitted February 17, 1905.
    (Docket No. 188.)
    Decided March 21, 1905.
    Assumpsit by Stanley Fryszka against William V. Prybeski for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Lee E. Joslyn, for appellant.

      Isaac A. Gilbert (James Van Kleeck, of counsel), for appellee.
   Carpenter, J.

This case was tried by a referee, who reported his findings of facts and conclusions of law. It appears from those findings that defendant owed plaintiff a balance on an account -between them which, together with interest, amounted to $744.63; that there was due defendant for rent of a building occupied by a partnership composed of plaintiff and one Richard Champagne $648. This, with interest thereon at the date of the referee’s report, amounted %to $793.18. Defendant claimed in the court below, and claims in this court, that plaintiff was responsible for this rent, and that he was entitled to have it applied to set off plaintiff’s claim, and to have judgment entered in his favor for the balance. This claim was denied by the court below, and judgment rendered for plaintiff for the full amount of his claim. It appears from the finding of facts that plaintiff alone originally leased defendant’s property, and that no arrangement was made by which he was released from his obligation to pay the rent. Under these circumstances, plaintiff continued to be responsible for the payment of the rent, and defendant is therefore entitled to set off the same in this suit. See Brooks v. Allen, 146 Mass. 201; Doty v. Gillett, 43 Mich. 203; Williams v. Railroad Co., 133 Mich. 448.

We were urged by plaintiff, in deciding this case, to give weight to the circumstance that defendant has not paid for goods purchased from the partnership from time to time during their occupancy of his premises. There is no finding of fact from which we may infer that this indebtedness was to apply on the rent, or that the partnership had been substituted for plaintiff as defendant’s tenant. According to the principles of the foregoing authorities, the circumstance under consideration would not make the partnership directly responsible to defendant for his rent. That circumstance is not, therefore, a finding of fact which we can regard. It merely proves that defendant continues to be a debtor of the partnership to the extent of his purchases.

It results from this opinion that the judgment of the lower court should be reversed, and a judgment entered in this court in favor of defendant and against plaintiff for $47.56, with interest from March 24, 1904. Defendant should have costs of both courts.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Grant, J.

text:
    SMITH v. KENT CIRCUIT JUDGE.
    1. Clerks op Courts — Duties.
    Since the duties of the clerk of the circuit court are defined neither in the statutes nor the Constitution, he is subject to all the legitimate orders of the court.
    2. Costs — Security—Form.
    The form of the security for costs which may be required of the plaintiff in a civil action under section 9992, 3 Comp. Laws, rests in the sound discretion of the court.
    3. Same — Certificate op Deposit.
    The clerk of the circuit court cannot refuse to obey an order for the filing with him of a certificate of deposit as security for costs in a pending case.
    Mandamus by Connor H. Smith, county clerk of Kent county, to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order receiving a bank certificate of deposit as security for costs.
    Submitted March 7, 1905.
    (Calendar No. 20,987.)
    Writ denied March 21, 1905.
    In a suit pending in the circuit court for the county of Kent, the respondent, on motion of the defendant, made an order requiring the plaintiff to give security for costs by filing a bond in the sum of $150. Plaintiff, failing to obtain a bond, stipulated in writing with the defendant to deposit $150 in the Grand Bapids National-Bank, obtain a certificate of such deposit, and file the same with the clerk of the court in lieu of the bond; the certificate to be indorsed payable to the clerk of the court upon the order of the court; the clerk to keep such certificate until the further order of the court. This stipulation was presented to the court, and an order made in compliance therewith. The relator moved to set the order aside, which motion being denied, he applied to this court for the writ of mandamus to compel the vacation of such order.

      Ward & Brown, for relator.

      Jesse F. Orton, for respondent.
   Grant, J.

(after stating the facts). The relator insists that he cannot be compelled to receive property of any kind or description, and hold it as a bailee, in lieu of a bond. In other words, he insists that a bond is the only security for costs contemplated by the statute.

The county clerk is a constitutional officer (Const. § 12, art. 6), and is by that section made the clerk of the circuit court of such county. Section 221, 1 Comp. Laws, requires him to attend every term of court; gives him the care of all the records, seals, books, and papers pertaining to the office of the clerk of such court, and filed or deposited therein. Neither the Constitution nor the statute prescribes his duties. He is therefore subject to all the legitimate orders of the court of which he is clerk. There are several provisions of the statute in regard to security for costs in suits — sections 713, 9990-9993, 10353, 10958, 11282, 11285, 11287, 11288. Some of these require the writs and declarations in certain cases to be indorsed by some one as security for costs; others require a bond; while still others simply require-security for costs without specifying in what manner it shall be given.

The section here involved is 9992, reading as follows:

“The court in which any civil action shall be pending, may, in all cases, when it shall appear reasonable and proper, require the plaintiff to give sufficient security for all such costs as may be awarded against him therein.”

The statute in question does not provide that the security shall be a bond. The form of the security therefore rests in the sound discretion of the court. Skinner v. Lucas, 68 Mich. 424, 434; Gifford v. Roberts, 125 Mich. 408. Under a similar provision in New York it was held that “the nature of the security is not designated, and there can be no good reason why the deposit of money should not be deemed competent security.” Wheelock v. Brinckerhoff, 13 Johns. (N. Y.) 481. See 11 Cyc. 183. Other citations are not necessary.

The statute in many cases provides for the deposit of money with the clerk of the court, who is also register in chancery. 1 Comp. Laws, §§ 425, 504. The deposit of money or a certificate of deposit imposes no hardship upon the clerk, and gives him no more trouble than does the care and keeping of a bond. The relator in this case is put to no liability as bailee. Compliance with the order of the court would be a complete defense to any claim made against him. If the legislature had intended that a bond should be the only security, it would evidently have so provided, as it has in other provisions of the law. In’ civil cases the sole object of the security is to indem- . nify the defendant against costs. A stranger or one without property might be unable to give a bond, but could make a deposit of money, or, as in this case, deposit a certificate as security. We think it manifest that the purpose of the law was to leave the matter entirely in the discretion of the court. It by no means follows, as counsel for the relator suggest, that a clerk could be compelled to accept diamonds or horses or other chattels as security, and be compelled to act as bailee.

Where the plaintiff was ordered to give security for costs, he deposited with the clerk $50, and it was held to be a compliance with the order. Fenet v. Wilson, 3 Hill (S. C.), 340. There are good reasons why the deposit of money, or, as in this case, a certificate, is better than a bond. It saves the trouble of a suit, and places under the control of the court the money with which to order the costs to be paid.

The writ is denied.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    BOARD OF SUPERVISORS OF BAY COUNTY v. EDMUNDS.
    Counties — Reduction oe Territory — Constitutional Provisions.
    Section 2 of article 10 of the Constitution prohibits the reduction of the territory of a county below 16 townships without a vote of the people as well by attaching the territory to an existing county as by using it to form an entirely new one.
    Certiorari to Bay; Shepard, J.
    Submitted November 3, 1903.
    (Calendar No. 20,216.)
    Decided March 28, 1905.
    Mandamus by the board of supervisors of Bay county to compel Peter Edmunds, supervisor of the township of Gibson, to appear with his assessment roll and act as a member of said board. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      T. E. Webster (James Van Kleeck and Chester L. Collins, of counsel), for relator.

      John J. McCarthy (E. A. Cooley, J. C. Hewitt, and Ashley Pond, of counsel), for respondent.
   Hooker, J.

In' 1883 the legislature organized the county of Arenac from territory theretofore included in the county of Bay, leaving the latter county reduced to 16 townships. ’ See County of Bay v. Bullock, 51 Mich. 544. At its last session the legislature passed an act providing that the township of Gibson be taken from Bay county and attached to the county of Arenac. This act was approved May 27, 1903 (Act No. 496, Local Acts 1903). On October 15, 1903, a petition was filed in the circuit court for the county of Bay, asking a writ of mandamus to compel the supervisor of Gibson township to appear with his assessment roll and act as a supervisor, with the board of supervisors of the county of Bay, in the equalization of the rolls of said county. UpoD a hearing a peremptory writ was issued, and the respondent has brought the proceeding to this court.

Section 2 of article 10 of the Constitution provides :•

“No organized county shall ever be reduced by the organization of new counties to less.than sixteen townships as surveyed by the United States, unless in pursuance of law a majority of electors residing in each county to be affected thereby shall so decide. The legislature may organize any city into a separate county, when it has attained a population of twenty th'ousand inhabitants, without reference to geographical extent, when a majority of the electors of a county in which such city may be situated, voting thereon, shall be in favor of a separate organization.”

It is contended by the relator that this provision forbids such action as was taken in this instance, and that the act is void, for the reason that its effect is to reduce Bay county to 15 townships, without a vote of its electors authorizing it. Upon the part of the respondent it is said that the act does not infringe the section cited, for the reason, that although said section forbids such a reduction by the organization of a new county, it does not prohibit any change that the legislature may see fit to make, where the change adds the territory taken to a county already established, and, as Arenac was organized in 1888, it was competent for the legislature to increase it 20 years later by taking territory from Bay county, although the effect be to reduce Bay county to less than 16 townships.

In our opinion, this construction does violence to the spirit of the Constitution. At the time that the Constitution was made and adopted, the State was young, and several of the counties, especially of the Upper Peninsula, comprised large areas, and new counties have since been organized from such. By reference to the earlier histories and maps, and the acts of the governor and judges to be found in the Territorial Laws, this will be seen, e. g., in a map published in 1839, and found in Lanman’s History of Michigan, “Civil and Topographical,” Sanilac county comprised the territory south and east of Saginaw Bay, lying north of Lapeer, as it then existed, and a. county lying to the east of Lapeer called Desmond, while all north of Oceana (which then appears to have embraced Muskegon and Newaygo), Montcalm, Isabella, Gladwin, and Arenac was called the township and county of Michillimackinac. The entire Upper Peninsula was included in Chippewa county. The territory afterwards constituting Bay county was divided between Midland and Arenac counties. It was an early practice to include 16 townships in the establishment of a county, and the Territorial Laws contain many such instances where the governor and judges took such action. This practice was generally followed after the State was admitted to the Union, since which time many new counties have been organized from the large counties referred to. It is reasonable to suppose that, previous to the time when the Constitution of 1850 was formulated, changes in counties had consisted for the most part in reduction of the area of large counties, for the purpose of erecting new counties, rather than to add to* counties already established, and it is probable that the language used was suggested by existing conditions and practices.

In ascertaining the intent of this constitutional provision, we may consider the object to be accomplished, and the consequences that will follow a given construction. It is conceded that, had Gibson township been included in Arenac by the act of 1883, the act would have been void; yet, if the act of 1903 is valid, the legislature can do by indirection a thing which it cannot do directly, and accomplish by two bills what it could not by one. It is suggested that the bona fides of the legislature may be made a test of the validity of such an act, but this cannot be so. The good faith of the legislature must be presumed, and it is unseemly for one branch of the government to exercise the power of trying the good faith of another, and nullifying its acts on such a ground, if it is not more than doubtful if any such power exists. We must therefore hold, either that the legislature can never reduce any county below 16 townships without the consent of its inhabitants, or that it may make changes between existing counties at will; and that the territory of the State having now been fully divided into counties approximating 16 townships, so that changes are hereafter to be limited to additions and subtractions to and from existing counties, there is little . or no further chance for an application of the constitutional provision in question, and that under respondent’s contention it has already become, or must soon become, practically obsolete.

If respondent’s contention is right, the provision of the Constitution was never an impediment to the reduction of an existing county to less than 16 townships, so long as it was not done for the purpose of using it in the erection of an entirely new county, either by itself, or together with land taken from another county. To illustrate, while Lapeer county, which consisted of but 16 townships, could not be reduced by using it, with other territory to be taken from the adjoining large county of Sanilac, to erect a new and distinct county without a vote of its inhabitants, it would not have been an infringment of this provision for the legislature to attach any portion of Lapeer to the already existing county of Sanilac without such vote. The object that the constitutional convention must have had in view seems apparent. It was to protect existing counties, and such as should be thereafter created, from reduction below 16 townships without the consent of the inhabitants thereof. There is nothing to indicate an intention merely to place an obstacle in the way of creating altogether new counties, and leave the way open to the .reduction of existing counties by giving their territory to •other existing counties. The proceedings of the convention indicate a practically unanimous sentiment against the reduction of counties to less than 16 townships, and the provision in question in terms, says, “No county shall ever be reduced,” etc.

Keeping in view the evident design to protect the inhabitants of counties from undesirable changes in county lines, and the absence of any. reason for discriminating between instances where an altogether new county is to be erected from territory taken from an existing county, and instances where it is to benefit an existing county territorially at the expense of another, and the improbability of an intention to make a rule by which the legislature was to be at liberty to reduce Bay county below 16 townships by attaching some of its territory to Midland, a pre-existing county, but not to do a similar thing by attaching the same territory to Arenac, a county organized after the Constitution was adopted, we are justified in looking for a more reasonable construction than that contended for by the relator. Bearing in mind the rule upon which this contention mainly rests, i. e., that all of the language of the provision must be given effect, if possible, and the further principle that the Constitution js to receive a strict construction in its limitations upon legislative power, we must still find a reasonable construction, if possible. This is done, without violence, either to the rules stated, by finding that the term “new counties” should not be limited to such as had previously in no part formed a complete county by itself, but was intended to include all counties resulting from changes in pre-existing county lines. When a county is changed in its territory by the addition of territory, it becomes a “ new county,” although the name be unchanged, and although it be accomplished by a law which in terms attaches the territory to the old county. By this construction we find no difficulty in carrying out the manifest intent of the convention, and adhering to the opinion heretofore announced by this court, through Mr. Justice Cooley [County of Bay v. Bullock, supra], that “the object [of this provision] was to prevent the unreasonable reduction of oounties in size,” and that the act is invalid.

The order is affirmed.

Moore, C. J., and Carpenter, Grant, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    PALMER v. CITY OF PORT HURON.
    Municipal Corporations — Street Improvements — Notice op Assessment.
    Under that section of the charter of Port Huron which provides that the city engineer shall give notice when assessments for street improvements are completed, the notice need not he addressed to individuals by name, but it is enough that it is addressed “To all owners and other persons interested in’’the lots abutting a certain avenue between certain streets.
    Appeal from St. Clair; Tappan, J.
    Submitted October 6, 1904.
    (Docket No. 31.)
    Decided March 28, 1905.
    Bill by Thomas W. Palmer against the city of Port Huron and others to set aside a paving assessment. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      A. E. Chadiuick (Chamberlain & Guise, of counsel), for complainant.

      Joseph Walsh and G. A. Wagner, for defendants.
   Montgomery, J.

Complainant owns certain vacant land, which has been subdivided into lots, in the city of Port Huron. On the west this land abuts a highway known as “Gratiot Avenue.” The city has paved said Gratiot avenue, and has assessed against complainant’s property a portion of the expenses of said pavement. This suit is instituted for the purpose of' setting aside said assessment. The case was heard in the court below on pleadings and proofs, and a decree granted to complainant on the ground that legal notice was not given of said assessment. The material question raised by this appeal relates to the correctness of this decision.

Complainant had no personal notice of the assessment, and did not, in fact, know that the improvements were made or contemplated. The notice of assessment was given by publication. The material part of the notice published was as follows:

“To all owners and other persons interested in the several lots, blocks, and parcels of land described as follows, to wit: All those lots, blocks, and parcels of land lying on, and fronting, touching, or abutting that portion of Gratiot avenue lying between the south curb line of Garfield street and north line of Holland avenue in the city of Port Huron.
“Take notice: * * * You are hereby notified that an assessment has been made on all the lots, blocks, and parcels of land lying within said assessment district and liable to be assessed for said improvement under the provisions of the charter and ordinances of said city, and that a roll of said assessment is now complete, and will remain in the office of the city engineer from the date hereof until the twenty-sixth of July, 1900, for the inspection of any person or persons concerned therein, and duringsuch time any person or persons considering him, her, or themselves aggrieved by such assessment may file in writing in said city engineer’s office his, her, or their objection to said assessment roll.”

The charter provision for this notice reads:

“ The city engineer shall give notice that such assessment has been completed and will remain in the city engineer’s office for ten days from the first publication of said notice for the inspection of all concerned.”

Manifestly the notice contemplated by this provision was a notice by publication. It would appear, also, that a specific notice to named individuals was not contemplated, as it is notice that the assessment will be open to inspection by “all concerned.” The notice conformed to the charter, unless we are to read into the latter a provision that the notice shall be addressed to the respective owners of the property subject to assessment by name. We do not think this charter subject to that construction. Similar charter and statutory provisions for a general notice of a review of assessments have been in force and have been acted upon for many years. See 1 Comp. Laws, § 3195. In other States similar provisions have been construed, and notices quite as general in terms as the one before us sustained. Williams v. Viselich, 121 Cal. 314; Kansas City v. Ward, 134 Mo. 172; 1 Cooley on Taxation (3d Ed.), 630, and note.

The notice in this case was sufficient, if it came under the eye of the owner, to challenge his attention to the fact that his property was being subjected to assessment. That the assessment based upon the frontage of lots was authorized, see City of Kalamazoo v. Francoise, 115 Mich. 554. The contention that the street-railway company should have been assessed for a portion of the benefit is answered by Boehme v. City of Monroe, 106 Mich. 401. The question raised as to the sufficiency of the certificate attached to the roll is sufficiently answered by Walker v. City of Detroit, 136 Mich. 6, and Auditor General v. Calkins, 136 Mich. 1.

The decree will be reversed and the bill dismissed, with costs of both courts to defendants.

Moore, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.


text:
    NOWACK v. LEHMANN.
    Bills and Notes — Consideration.
    Where a trustee, on paying money to another as a gift from his beneficiary, takes a promissory note to keep as a voucher, the note is without consideration and unenforceable.
    Error to Menominee; Stone, J.
    Submitted January 5, 1905.
    (Docket No. 15.)
    Decided March 28, 1905.
    Assumpsit by Ferdinand C. Nowack against William Lehmann upon a promissory note. There was judgment for defendant, and plaintiff brings error.
    Affirmed.
    This suit is brought to recover upon a promissory note dated December 4, 1893, executed by the defendant, payable on or before two years from date, to plaintiff, trustee, with interest at 6 per cent, per annum. With the plea of the general issue defendant gave notice of want of consideration, and that the note was executed for a special purpose, set forth in the notice, to the effect that plaintiff and Robert Nowack are sons of Gottlieb Nowack, deceased ; that plaintiff liad full charge of and transacted his father’s business; that the father had $6,000 in cash, which plaintiff had loaned to the Menominee River Brewing Company; that.Robert Nowack is the son-in-law of the defendant; that in 1893 Robert and his wife desired to purchase a home, so that Gottlieb might live with them; that Gottlieb agreed to give his son Robert $1,000 for the purchase of said home, and would pay the same in October, 1893, when the money was due from the brewing company; that Robert informed the defendant of this agreement; that it was then agreed between Robert and defendant that defendant should purchase the home, take the deed in his own name, convey the same to Robert, and that as soon as Robert obtained his money from his father he would pay it to defendant; that said brewing company paid the money to the plaintiff, as trustee for his father; that on December 4, 1893, plaintiff delivered to the defendant said $1,000, saying: “ Here is the money for Robert. I want a note for this, so that I can show my father in settlement with him what I have done with the money; ” that Robert was then away from home, working in the woods; that it was agreed that defendant should sign the note, and that Robert’s wife should indorse it, which she did; that the note so indorsed was delivered to the plaintiff, to be used by him for the specific purpose of showing his said father what he had done with the money, and that it was not executed and delivered as a promissory note.
    This suit was brought in April, 1901. The father died January 9, 1897. The defendant gave evidence to sustain his claim. Plaintiff gave evidence in denial. The court instructed the jury that the defendant could not show that this was not a promissory note, but could show what, as between the original parties, the understanding at the time was as to the consideration, and whether it was given for the specific purpose mentioned. The evidence on behalf of defendant shows that the father intended to give to each of his sons $1,500 and to each of his daughters $1,000; that he had given $500 to Robert before the execution of the note, and that the money paid the defendant by plaintiff was the money of the father.

      B. J. Brown, for appellant.

      W. H. Phillips, for appellee.
   Grant, J.

(after stating the facts). If the instruction of the learned circuit judge could be fairly construed as holding that it was competent for the jury to find that a promissory note delivered and received as a promissory note was in fact intended as a receipt, we should doubt the soundness of the instruction. Billings v. Billings, 10 Cush. (Mass.) 178; Dickson v. Harris, 60 Iowa, 727; Phelps v. Abbott, 114 Mich. 88. But the instruction, which is necessarily somewhat lengthy, read as a whole, informed the jury that it was competent to show a want of consideration, and that they must find that there was no consideration in order to find for the defendant. Under the instruction the jury could not have reached the conclusion they did upon any other basis than that the plaintiff delivered the money to the defendant not as his own money nor as a loan for his father, for whom he was trustee, but under the instructions from the father to pay it over to the defendant as a gift to his son Robert. This was the sole claim of the defendant. There was ample evidence to sustain it. If this was the true state of affairs —and the jury must have found that it was — it follows that there was no consideration for the note. The case falls within the principle laid down in Lovell v. Willard, 28 Mich. 346; Macomb v. Wilkinson, 83 Mich. 486; Kelley v. Guy, 116 Mich. 43; Graham v. Alexander, 123 Mich. 168.

Judgment affirmed.

Moore, C. J‘., and McAlvay, Blair, and Hooker, JJ., concurred.


text:
    RANDALL v. DETROIT & NORTHWESTERN RAILWAY.
    Dismissal and Nonsuit — Papers—Order to Produce — Enforcement.
    It is error to direct a verdict for defendant because plaintiff, suing for services, refuses to produce papers in his possession ' belonging to defendant, and not shown to be relevant to the . case on trial.
    Error to Wayne; Donovan, J.
    Submitted January 10, 1905.
    (Docket No. 36.)
    Decided March 28, 1905.
    Assumpsit by James A. Randall against the Detroit & Northwestern Railway for services rendered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      James A. Randall, in pro. per.

      Thomas A. JSJ. Weadock, for appellee.
   Montgomery, J.

This action was brought to recover attorney’s fees for services claimed to have been rendered for defendant. It appeared by the cross-examination of plaintiff that he had in his hands some papers, consisting of agreements to convey rights of way, deeds, etc., which belonged to the defendant. Defendant’s counsel thereupon served oral notice on him to produce these papers in court. The court so ordered, and thereupon the plaintiff declined to produce the papers, for the reason that they had no reference to the case being tried.

The position taken by the court is best stated in his own language, as follows:

“These papers called for are clearly the property of the company. Whatever value they have is not an issue at present. Whatever use they may be put to in evidence here is not at present the issue. The owner of any paper, in a court trial, is entitled to be the controller of it, and the question is now up to this: Shall the court control this matter, or allow the parties who have been in dispute, and that continue to dispute and wrangle over these papers ? The ruling is that the court controls these papers; that they shall be brought into court before we take another step or give any judgment at all. We cannot play with them. Bring them in, Mr. Randall, before you go to this jury. Will you need some little time ? Unless they are brought in, I shall direct a verdict. I shall have the order of the court obeyed. Unless they are brought in, I shall direct a verdict. ”

Plaintiff persisted in his refusal to produce the papers, and thereupon the court directed a verdict for defendant.

It is clear to us from an examination of the record that the papers did not relate to any question involved in the issue. It is doubtless true that the papers belonged to the defendant, and, so far as the record indicates plaintiff’s relation to them, his refusal to turn them over to the defendant, either in or out of court, was wholly without justification. The question remains whether the duty to deliver these papers to the company could be enforced in the manner adopted.

The defendant’s counsel cites us to Hunton v. Hertz & Hosbuch Co., 118 Mich. 475, as sustaining this action of the trial judge. The case is not in point. In that case certain papers in court in possession of the party were demanded, and the court refused to order their production. This was held error. The papers were desired as evidence, and were presumably pertinent to the case. In the present case the papers could not have been required as evidence, and we are cited to no case which justifies the ruling made.

It is contended that by plaintiff’s own testimony he made no case. We have examined the record with care, and find that there was some testimony to sustain plaintiff’s claim. We are not therefore able to say that it conclusively appears that the error pointed out was without prejudice.

The judgment is reversed, and new trial granted.

Moore, C. J., and Carpenter, Ostrander, and Hooker, JJ., concürred.


text:
    VAN HAAFTEN v. VAN HAAFTEN.
    Marriage — Annulment—Insanity—Evidence — Sufficiency — Religious Beliefs.
    On a bill to annul a marriage on the ground of insanity of the wife at the time of the marriage, it appeared that the parties were aged, when married, that the wife was a religious enthusiast, that they lived together for three years before separating, and after the first separation cohabitation was resumed at the husband’s request. The bill was not filed until after she had been adjudged insane and her guardian had sought to compel him to support her. Held, that a case for annulment was not shown.
    Appeal from Kalamazoo; -Adams, J.
    Submitted January 11, 1905.
    (Docket No. 26.)
    Decided March 28, 1905.
    Bill by Ive Van Haaften against Antonia Van Haaften' and Walter Hoek, as guardian of defendant Van Haaften, to annul a marriage. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Hollender & Notley and Dallas Boudeman, for complainant.

      Osborn & Mills and A. M. & O. H. Stearns, for defendants.
   Hooker, J.

The parties to this cause were respectively 75 and 60 years old when married. They lived together nearly three years, after which they separated without apparent reason. This was followed by a resumption of cohabitation at the solicitation of the complainant, and some time later by another separation. The wife lived with her son for a time, when she was adjudged insane, and has been in the Kalamazoo asylum since. Her expenses were paid from her estate, and her guardian after-wards brought suit to recover them from the husband. Subsequently the husband brought this action to have the marriage declared null upon the ground that the woman was insane at the time of the marriage. A decree for the complainant was rendered at circuit, and the case has been appealed.

The proofs show that the parties were married on August 37, 1894. They separated within three years. About three years later, and on April 13,1900, the woman was adjudged insane, and sent to the asylum. On April 37, 1903, Walter Hoek was appointed her guardian.

We have endeavored to examine the testimony in the case critically. Our impressions derived therefrom are that the woman was for some years a religious person, who perhaps took the teachings of her faith more literally than is usual; that she was much concerned about her spiritual welfare; and that on some occasions she obtruded these things upon others, more than is commonly done. Her husband testified to some instances of talking to herself, more frequently after she went to bed. He was unable to understand her. Sometimes during the day he noticed peculiar actions, and that she walked up and down the room four or five times, with her hands clasped, but saying nothing. He. never spoke to her about it, and did not know why she did these things. He stated that on one occasion she said she saw something, something he did not like to see. When asked what it was, he replied:

“I don’t know nothing, because I stopped her. She started, but I stopped her. She said these, and she saw that. Some angels, and sometimes Christ,-and so on.
‘ ‘ Q. How frequently did you talk about ghosts with her, or spirits ?
“A. Not very much. I shut her up when she began to talk about it, I told her to stop talking.
“Q. How often did that occur ?
A. Well, maybe two or three times. That is all — to me. .
‘‘Q. How soon after you were married to her did that begin ?
A. Maybe four or five or six weeks.
“Q. Now, when you had this talk about the angels and Christ, did she say that she had seen them ?
“Mr. Stearns: I object to that as leading.
“A. Yes, she saw them.
“Q. Just tell us what she said.
“ A. I could not say much, becauseT stopped her right away as soon as she commenced. I didn’t like to listen to that thing.
“ Q. I want you to tell as near as you can — tell about what she has seen, and what she said to you she had seen, at those times.
“A. Just what I say. I could not say no other way. She came in to talk, and I stopped her right away, because I did not believe in such things.
“ Q. How much would she say when she commenced ?
“A. Oh, maybe a good deal. I don’t know.
Q. What was it she said ?
‘ ‘ A. She was talking about the angels and Christ, and then I quieted her right away. I stopped her right away.
Q: Did you leave her, and tell her to stop ?
“A. At first I stopped her, and' then I go out of the house and go in the barn.
Q. And this occurred how frequently — how often ?
“A. Oh, frequently — more—maybe three times; that is all. I got to make excuses, and go to the barn.”

He never called her insane, or called a physician to consult regarding her condition.

It is unnecessary to quote the testimony of other witnesses, and it is sufficient to say that the evidence indicates that she was exceptionally religious, perhaps abnormally so; that she believed in the visitation of spirits — not, perhaps, of her own particular friends, but spirits generally ; that she believed in a personal devil, and that he had personal designs regarding her, which were thwarted only through the intervention of Christ, to whom she looked for protection; that she communed with Christ, and saw spirits and angels.

The evidence indicates that she was a model housewife, and that the relation of the parties toward each other was satisfactory to the complainant up to the time that she finally left him. He gave no reason for the separation, apparently did not know why she left. He opposed her going upon the second occasion, and told her that if she did she must riot come back. There is nothing to indicate that he thought her deranged during these years, though it is improbable that he was ignorant of her religious tendencies. The manifestations of religious opinion, zeal, and fervor are too various and common to justify an assumption of derangement lightly. It certainly would not do for courts of justice to set up their own views upon such subjects as a standard of what is natural, or in conformity to general opinion. Upon these subjects it would be difficult to determine what religious opinions could safely be called “insane delusions consisting in the belief of facts which no rational person would believe.” Nevertheless, we do know that religious interest sometimes begets insanity, and it is plainly shown in this case that the defendant became insane, and there is abundant evidence that it was in a measure due to her religious belief, though there is no Certainty that it is the principal cause. The fact of her ultimate derangement is the only thing that gives plausibility to the complainant’s claim. If she had continued to this day to evince no further symptoms of insanity than those preceding the separation of these parties, we could not safely infer insanity. Insanity is not to be lightly inferred. Many cases protest against it.

In Cole v. Cole, 5 Sneed (Miss.), 59, it was said:

“Every consideration of policy and humanity admonishes us that a contract so essentially connected with the peace and happiness of individuals and families and the well-being of society should not be annulled on this or any other ground not clearly made out.”

This view has support in Powell v. Powell, 27 Miss. 783, where it is said that “'the law favors marriage, and, when once solemnized according to forms of law, will not declare its nullity upon anything less than clear and certain testimony.”

Hayden, J., in Slais v. Slais, 9 Mo. App. 97, expresses the sentiment thus:

‘6 A contract of marriage is not likely to be pronounced void, on the ground that one of the parties was insane, and incapable of contracting. The testimony by which such eases are often supported is open to suspicion, and nowhere ought the discernment of the chancellor to be more employed than in weighing witnesses who testify as to insanity.”

This is pertinent language to the testimony before us.

In Kern v. Kern, 51 N. J. Eq. 582, the language from Cole v. Cole, supra, given above, is quoted more at length and with approval. The New Jersey court said, “A result so important * * * should not be reached except upon the most convincing proofs,” etc.

"When we consider the uncertainty of the conclusion that should be drawn from the facts stated, coupled with the failure of the complainant to discover insanity so long as he could induce the defendant to live with him, the coincidence of the attempt to compel him to support her, and his assertion of this claim, we are not able to say that the claim of insanity is proven, or that we would be justified in saying that she was ever insane previous to the marriage. It is true that she is said to be insane now, but when her reason was dethroned is not satisfactorily shown.

We have not found it necessary to discuss the questions arising in relation to our statute and the interpretation that it should receive, as, under any view presented by counsel, the complainant’s case fails upon our understanding of the proofs.

The decree is reversed, and complainant’s bill will be dismissed, with costs of both courts.

Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., concurred.


text:
    LINE v. SPIES.
    1. Slander — Actionable Words. To say of another, “He is a thief,” is prima facie actionable.
    2. Same — Evidence—Surrounding Ciroumstanoes.
    In an action for slander the surrounding circumstances and connection in which the words were used may be shown for the purpose of proving that the words could not have been understood as imputing a crime.
    3. Same — Ciroumstanoes.
    Language used toward another is actionable if, in the circumstances under which it was used, the hearer would reasonably understand tlpat it was intended to impute a crime.
    4. Same — Damages.
    In an action by an attorney for slander, where there is no evidence of injury to plaintiff in his profession, it is error to leave that question to the jury.
    Error to Menominee; Stone, J.
    Submitted January 12, 1905.
    (Docket No. 4.)
    Decided March 28, 1905.
    Case by Charles Line against Augustus Spies for slander. There was judgment for plaintiff, and defendant brings error.
    Affirmed conditionally.

      L. D. Eastman (George H. Peaks, of counsel), for appellant.

      Charles Line, in pro. per.
   Montgomery, J.

This is an action on the case for slander. The words charged in the declaration are, “He (meaning plaintiff) is a thief.” On the trial the defendant denied having uttered the words. Plaintiff’s case was made in the main by the testimony of John Stiles. Mr. Stiles was at the time sheriff of Menominee county, and in his official capacity had received from plaintiff, who was city attorney of Menominee, some papers to serve on the defendant. The witness Stiles testified that the defendant made use of the language imputed to him by the declaration. He further testified that a controversy had arisen between the city of Menominee and the defendant over the assessment of certain lots owned by the defendant for the construction of a sidewalk, and that defendant claimed the assessment was illegal, and was angry about it.

On cross-examination the witness testified as follows:

Q. And you understood that what he said had reference to the action of the city council with regard to the construction of that sidewalk, did you ?
“A. What do you mean — by calling Mr. Line that name?
Q. No, repeat the question to him. (Question repeated.)
“A. The conversation we had led from that I served the papers from the city suing him.
Q. You understood in a general way that is what the trouble was about ?
“A. Oh, yes; there wouldn’t have been any trouble if I hadn’t served the papers. * * *
Q. Did you understand by what Mr. Spies said about Mr. Line that Mr. Spies intended to accuse Mr. Line of having stolen anything, and, if so, what ?
“A. He didn’t say that he stole anything. * * *
Q. You didn’t understand that he meant to impute •the crime of larceny to Mr. Line, or that he didn’t mean that Mr. Line had committed the crime of larceny; is that "true?
“A. Yes; I didn’t consider that Mr. Spies meant it, because he was excited, and I didn’t pay any attention to it; that is, it didn’t make any impression upon my mind that Mr. Line was a thief.
“ Q. You didn’t believe it ?
“A. No, sir.
'c Q. You understood that it was simply the vituperation of an angry man, who thought he was being unjustly dealt with by the city council of the city of Menominee; is that true ?
“A. Yes.
Q. You didn’t understand that Mr. Spies meant to say that Mr. Line had stolen anything, did you ?
“A. Well, I didn’t know whether he knew that he stole anything.”

On redirect he testified:

Mr. Power: You say you didn’t understand him to mean that he had stolen anything. Wasn’t he serious when he said that Line was a thief ?
A. Yes, he was very angry, angry and serious, loud and boisterous.”

It was contended at the circuit, and is strenuously insisted in this court, that the testimony of this witness conclusively shows that it was not the intention of defendant to impute a crime to plaintiff by employing the language charged, and that the witness Stiles did not so understand the language, and that, therefore, the court should have directed a verdict for defendant as requested. There can be no doubt that the language counted on is prima facie actionable. It is also settled by our adjudications that the surrounding circumstances may be shown, and the connection in which the words are used put before the jury for the purpose of showing that the words could not have been understood as imputing a crime. Ritchie v. Stenius, 73 Mich. 563; Ellis v. Whitehead, 95 Mich. 105; Youngs v. Adams, 113 Mich. 199.

It is also unquestionably true, as contended by appellant’s counsel, that if, upon the showing made by the plaintiff’s witnesses, taken as a whole, it appears that the 'language used was employed in a connection which of necessity precludes the idea that a crime was charged, or if the language taken as a whole could not have been understood as imputing a crime, the words are not actionable per se.

We do not, however, find that the circumstances of this case conclusively show that that charge is not to be given its ordinary meaning. In reaching this conclusion we discard the test of the impression actually made upon the mind of the witness Stiles as to the fact of plaintiff’s guilt of the crime charged. It will not do to say that slanderous words are any the less actionable because uttered in the presence of those only who have such confidence in the plaintiff that belief in the truth of the charge made is withheld. The law presumes some damage from such a slander, and will not enter into nice calculations to learn whether the impression made upon the mind of the hearer leads to present belief in the truth of the charge or remains dormant to be fanned into a belief, more or less strong, by some future circumstance.

"We think a fair construction of the testimony of the witness Stiles by no means leads to the conclusion that it is conclusively shown that the language imputed was used in a sense, or would by reasonable men be understood as having been employed in a sense, which restricted the meaning to something else than a charge of larceny.

It is to be noticed that the controversy between the city and defendant did not relate to any matter with reference to which any act of plaintiff could be characterized by the use of the word “thief,” that word having for the time and occasion a different meaning. The controversy, it is true, furnished the occasion for the use of this term, but does not explain it, or give a conclusively different color to its meaning.

The circuit judge, in charging the jury, made use of the following language:

“ Now, gentlemen, what were the circumstances ? Were the circumstances such that a reasonable man would have understood on that occasion that the defendant was imputing a crime to the plaintiff; or has the explanation been sufficient to show you that this language, even if applied to the plaintiff, was not intended to impute to him the crime of larceny? This is the turning point, in my judgment, in the case, gentlemen.”

Later in the charge he said:

“Now, gentlemen, you will take this case, and look it over carefully, bearing in mind that the plaintiff has the burden of proof here to establish the use of these words in the first place; that they were used; that they were used in a sense intended to impute a crime, or at least so that bystanders would understand that they were intended to impute a crime, to the plaintiff.”

It is contended that by the first instruction above quoted the court placed the burden on the defendant of showing that the words were used in a peculiar sense, and that the use of the words “sufficient to show you,” etc., implied a necessity for something more than a preponderance of'evidence. In view of the instruction last above quoted, it is altogether clear that no such construction could have been given to this language by the jury.

We understand defendant’s counsel to contend that the first quoted instruction is faulty in another respect. The contention is made that the true test in determining whether the words were actionable is how they were in fact understood by the bystanders, rather than how they would have been understood by a reasonable auditor. The authorities are not agreed upon this question. There are cases holding that the understanding of the words by the bystander cannot be given in evidence. It is clear such testimony cannot be used to aid an innuendo or enlarge the meaning of the language actually employed. There are, however, cases which hold such testimony competent in cases like the present, and some which go the length of making the actual understanding of the bystander the test of liability. We think, however, the better rule is that the language is actionable if, in the circumstances under which it is used, the hearer would reasonably understand that it was intended to impute a crime. See Newell on Slander and Libel (2d Ed.), p. 308 et seq.

In Ellis v. Whitehead, 95 Mich. 105, the trial judge appears to have made the question turn upon the understanding of the bystanders; i. e., what that understanding was in fact. The defendant brought error. It is manifest that the charge was sufficiently favorable to the defendant, and it was stated by the court that the charge was a fair presentation of the case. The precise question here involved was not presented.

In Youngs v. Adams, 118 Mich. 199, the charge stated:

“ Explanatory circumstances, known to all of the parties, speakers and hearers, are to be taken into account, then, as a part of the words. * * * The test in such case is the knowledge possessed by those to whom the language is published. The question now is not what the defendant meant by the words he spoke, but what reasonable men, hearing the words, would understand them to mean.”

This court, speaking through Mr. Justice Hooker, said:

‘ ‘ The foregoing instruction was elaborated and applied to the question in the case, and, in our opinion, made it plain that the defendant should not be found guilty if the' circumstances showed that the words ought not to have been understood in their ordinary sense. This charge follows the rule laid down in Ellis v. Whitehead, 95 Mich. 105, where a similar question was considered.”

It will be seen that these cases recognize the test to be what the language employed would import to a reasonable man. The charge was not erroneous upon the ground statedi

The charge upon the subject of damages was as follows:

.“He claims injury in his declaration, and I use the word, meaning to use it; that the declaration, fairly construed, would mean that he has' been prejudiced and injured in his good name, fame, credit, reputation, and profession, and has been thereby and is greatly injured and hurt in his feelings. Wherefore the said plaintiff alleges that he is injured, and has sustained damages. I think the declaration sufficient for you to consider those matters. But, gentlemen, there being no evidence of any specific damages, it would be simply such damages as, in your judgment, under all the circumstances of the case, the plaintiff is entitled to recover by reason of the use of these words maliciously.” If you shall say that they were used, I say intentionally, intending to impute a crime to the plaintiff, then the law will imply malice. * * * Remembering that there is no evidence here of injury at all to his property, and no claim in his declaration of injury to property. ”

The jury were also instructed to award separately damages on account of injury to feelings and all other damages, under 3 Comp. Laws, § 10424. The verdict was $500, $350 of which was for injury to feelings and the balance for other damages.

There was no evidence of injury to plaintiff in his profession. We feel constrained to hold that the instruction was erroneous in leaving this question to the jury. Smedley v. Soule, 125 Mich. 192; Derham v. Derham, 123 Mich. 451.

The judgment will be reversed, with costs, unless the plaintiff shall elect to remit the sum of $150 from the judgment as of its date, in which event the judgment will be affirmed, but with costs of this court to the plaintiff in error.

Moore, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


author: Blair, J.

text:
    WHITEHEAD v. BOARD OF EDUCATION OF DETROIT.
    Municipal Corporations — Governmental Agency — Board of Education — Negligence of Employés — Liability.
    The board of education of Detroit is a governmental agency and is not liable for the negligence of its agents in providing unsafe appliances with which a servant is directed to work.
    Error to Wayne; Hosmer, J.
    Submitted January 19, 1905.
    (Docket No. 89.)
    Decided March 28, 1905.
    Case by Harry Whitehead against the board of education of the city of Detroit for personal injuries. There was judgment for defendant on demurrer, and plaintiff brings error.
    Affirmed.

      Abbott & Abbott (M. J. Lehman, of counsel), for appellant.

      P. J. M. Hally (T. E. Tarsney, of counsel), for appellee.
   Blair, J.

Plaintiff seeks to recover damages from defendant corporation for certain personal injuries sustained by him while employed by the said defendant in the painting of one of its school buildings. The declaration is framed upon the theory that the defendant was undertaking and performing the work in question in its corporate capacity, and under the direct supervision and control of its private agents employed by the defendant for the special work of painting and repairing all of defendant’s school buildings; that the said special agents employed by the said defendant were intrusted, not only with the duty of overseeing and superintending the work, but were also authorized and relied upon to properly discharge and perform all of such duties as usually devolve upon the owner, the principal, or the master, with respect to all persons who might in any way be affected by the acts, doings, and undertakings on the part of the .said defendant while engaged in the repairing and painting of said school buildings.

The duty counted upon was one which, the declaration avers, the defendant, by and through said private and special agents, owed directly to the plaintiff as an individual, and under which it became and was the duty of the defendant to furnish to plaintiff a safe place in or on which to perform his work, and to also furnish to him such tools, implements, and accommodations as would be reasonably safe for the use expected of them, and which the plaintiff would be required to make of them. In assigning the breach of said duty the declaration avers that the defendant furnished to plaintiff certain appliances and accommodations, viz., a certain “guy hook,” which the said defendant, through its said agents, knew was defective, and not of sufficient strength and quality and reasonably safe and fit for the use which plaintiff was required to make of it; that as a result of said negligence on the part of said defendant the scaffold upon which plaintiff was working gave way, precipitating plaintiff to the ground, and causing him to fall a distance of some 35 feet, whereby plaintiff sustained severe and permanent injuries.

A demurrer was interposed to the declaration, alleging that “under the facts set forth in said declaration plaintiff is not entitled to recover,” assigning as the reason therefor that “ there is no statute in the State of Michigan making the board of education of the city of Detroit liable for the negligence of its servants or agents,” and that “in the State of Michigan municipal corporations are not liable for the negligence of their servants when in the exercise of duties in connection with the governmental capacity of the corporation, unless made so by statute.”

The circuit judge sustained the demurrer, filing the following opinion:

“ The board of education was engaged in purely governmental work. It was decided as long ago as Belles v. Burr, 76 Mich. 1, that the Constitution had turned all matters of education over to the legislature, and, that being so, the affairs of the board of education are as purely a State function as those of the board of health. I therefore cannot distinguish the case from the case of Nicholson v. City of Detroit, and hence feel compelled to sustain (the demurrer.”

From the judgment of the court sustaining the demur- - rer, plaintiff appeals to this court.

In the case of Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601), the plaintiff, as administratrix of one Alfred Cope, brought action against the city of Detroit to recover for the negligent causing of his death, alleging, in substance, that the city was possessed of a parcel of land upon which was an old building that had been used by defendant as a hospital for contagious diseases, particularly smallpox; that defendant began the erection of a new building designed for a similar use, and employed the plaintiff’s intestate, who was a carpenter, to work upon the same; that the new building was located in close proximity to the old one, and that said old building and the surrounding grounds were infected with smallpox germs; that plaintiff’s intestate was attacked by • smallpox and died from that disease. It was alleged that defendant was negligent in not using reasonable care to furnish plaintiff’s intestate a safe place to work, and in not warning him against said dangers, and in not constructing the new building at a greater distance from the old one, and in not causing the old building and the grounds to be disinfected. .A second count of the declaration alleged that the deceased was employed to tear down the old building, and that while so engaged he was exposed to smallpox, and by reason thereof was seized with said disease, and died, and that defendant had assured the deceased that it was safe for him to work upon and about said building. A demurrer was interposed, which, upon the hearing, was sustained. It was held by this court upon appeal that the demurrer was rightly sustained, since the city was not liablé for the negligence of its officers, because it was acting in a governmental capacity.

Section 5 of an act relative to free schools of the city of Detroit (compiler’s section 596, 1904 compilation of the charter of the city of Detroit) provides:

“ The school inspectors * * * shall be a body corporate, to be known and distinguished by the name and style of the ‘ Board of Education of the City of Detroit,’ and in that name may be capable of suing and being sued, and of holding and selling and conveying real and personal property as the interest of said free schools may require.”

In Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639, this court, speaking of this class of corpora: tions, says:

“The quasi corporations are radically different. They consist of counties, townships, school districts, highway districts, etc. They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private. They perform many functions, but these are for and about the business and policies of the State, which has imposed upon them the responsibility and expense of maintaining highways, schools, drains, bridges, etc. * * *
“ The school district is a State agency. Moreover, it is of legislative creation. * * * The property of the district is in no sense private property, but it is public property devoted to the purposes of the State, for the general good, just as almshouses and court-houses are, although confided to local management, and applied to uses which are in a sense local, though in another sense general.”

Applying this decision to the facts of the present case, we think the learned trial judge was correct in saying that “the affairs of the board of education are as purely a State function as those of the board of -health,” and that this case could not be distinguished in principle from the case of Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601), upon which he relied.

The case of Ferris v. Board of Education of Detroit, 122 Mich. 315, cited by plaintiff’s counsel as requiring a different determination of the case, involved the liability of the defendant for injuries occasioned not by the negligence of its agents, but by direct act or trespass of the municipality itself. Mr. Justice Long, speaking for the court, said:

“The trial court was of the opinion that the defendant, being a municipal corporation, could not be held liable for negligent injuries under the common law, and, there being no liability created by statute, the plaintiff could not recover. It is conceded by counsel for plaintiff that municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals arising from defective plans of construction of public works or failure to keep the same in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable, no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right in this contention. The plaintiff had the right to the exclusive use and enjoyment of his property, and the defendant had no more right to erect a building in such a manner that the ice and snow would inevitably slide from the roof and be precipitated upon the plaintiff’s premises than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises. It has been many times held in this court that á city has no more right to invade or cause the invasion of private property than an individual.”

The case is clearly distinguishable from the case at bar, and is not at war with the conclusion reached by the trial court. We do not deem it necessary to consider the numerous authorities cited in plaintiff’s brief, since we regard the question as settled by. our own decisions.

The judgment is affirmed, with costs.

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