author: Ostrander, J. Sharpe, J.

text:
    GAGUSH v. HOEFT.
    1. Trial — Conduct of Counsel — Instructions — Saving Questions fob Review.
    A remark by counsel for plaintiff that he would stipulate that witness for defendant, who was with difficulty giving testimony through an interpreter, would say what counsel for defendant wanted her to say, where, upon objection, the trial judge instructed the jury to pay no attention to the remark, in view of uncertainty in the appellate court as to the intended and accepted meaning of the remark, and the manner in which it was treated by the trial judge, held, not reversible error.
    "2. Appeal and Error — Argument of Counsel — Instructions— Trial.
    In an action for breach of marriage promise, where counsel for plaintiff, in his argument as to the measure of damages, said “She is entitled to the same share in his property” — when he was interrupted and the judge stated that he would attempt to define the measure of damages when he got to it, and no complaint is made of the charge of the court thereafter given, there was no reversible error, although counsel finished his remarks as to his understanding of the measure of damages, stating that if he was wrong he would stand corrected.
    3, Trial — Argument of Counsel — Opinion Based on Testimony.
    In an action for breach of marriage promise, where plaintiff’s damages were aggravated by her seduction, her counsel did not exceed the limits of proper argument dn stating to the jury that he was impressed, and that he thought the jury ought to be, that upon the record plaintiff was shown to be a virtuous woman, where his expressed opinion was based upon testimony.
    4. Same.
    It was error for the court to refuse to counsel the right to comment in his argument upon certain alleged contradictions in the testimony given upon the former and upon this trial without producing a transcript of the testimony given upon the last trial or having the reporter read what was desired from his notes.
    5. Appeal and Error — Argument of Counsel — Limiting Argument.
    Error in limiting the argument of counsel, where prejudice did not result, held, not reversible.
    On Rehearing.
    1. Appeal and Error — Assignments oe Error — Sufficiency.
    An assignment of error to the charge of the court without pointing out any specific erroneous statement therein, held, not sufficiently specific.
    2. Trial — Argument of Counsel — Based on Testimony.
    The argument to the jury should he based on the testimony ‘submitted at the trial.
    S. Same — Right to Comment on Contradictory Testimony Given at Formes Trial.
    Counsel had the right during the new trial to interrogate witnesses as to the testimony given by them on the former trial, either from a transcript of such testimony, or from notes taken by him, or from his personal recollection of what they then testified to, and if the witnesses admitted the giving of such testimony and it is contradictory, counsel may comment on it in his argument to the jury without producing a transcript, or he may submit to the jury his recollection of the questions asked and answers given, and he should not he prevented from doing so, unless on objection, tbe trial judge is convinced that counsel is mistaken in bis statement of such testimony.

      i. Appeal and Error — Comment on Contradictory Statements Not in Record.
    Counsel cannot complain of not having been permitted to comment on contradictory statements of witness on the former trial, where he neglected to call her attention to them when she was on the stand.
    5. Same — Errors Appearing in Record.
    The Supreme Court can only consider the errors which appear on the printed record.

      6. Sasde — Conduct of Court — Prejudice.
    Alleged error in the use o£ the word “rebuke” by the trial judge when commenting on the contradictory nature of the testimony, where not alluded to in the brief, held, not prejudicial in view of the fact that the verdict was less than on the former trial.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted February 5, 1919.
    (Docket No. 18.)
    Decided April 3, 1919.
    Eesubmitted October 7, 1919.
    Former opinion affirmed December 22, 1919.
    Case by Anna Gagush against William Hoeft for breach of promise of marriage accompanied by seduction. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Peter P. Boyle (McHugh & Lee, of counsel), for appellant.

      Harold McIntyre, for appellee.
   Ostrander, J.

a judgment for $2,000 for plaintiff was reversed and a new trial ordered. Gagush v. Hoeft, 198 Mich. 263. The testimony, which it was held required the giving of a certain refused instruction, does not appear at all in the record now before us, about which appellant does not complain, did not seek to develop on cross-examination or otherwise, and about which counsel for appellee says in the brief:

“While the general facts and theories as reported and developed in the former trial of the circuit court were again reiterated, certain material evidence which was introduced at the trial of the cause the first time were entirely omitted, changed, amended on this last trial.”

The case for the plaintiff is, however, so developed in the statement of facts in the 198th Michigan that it is not necessary to repeat that statement here.

Upon the second trial, plaintiff had judgment for $1,850. Appellant’s assignments of error, argued in his brief, are based upon exceptions to rulings made during the course of the trial and upon exceptions to alleged prejudicial remarks of counsel for appellee. These various exceptions brought to the attention of the court upon a motion for a new trial were overruled, and of 37 assigned errors only the 9th, 26th to 30th inclusive, and the 37th are referred to in the brief. These assignments will be referred to in their order.

A witness was giving testimony, an interpreter being employed. Difficulty appears to have been experienced in eliciting whatever the woman knew. It is not apparent that this difficulty arose from the fault of any one. A question was propounded. The court said:

“Now, interpreter, have her understand that, what Mr. McHugh (counsel for defendant) wants is to have her tell what Mrs. Gagush said as to what took place in the cemetery, see if you can have her understand that.
“A. First, she did not tell until afterwards.
“Q. Then what did she tell you afterwards?
"Mr. McIntyre (attorney for plaintiff) : I will stipulate, your honor, on this record that this witness will say what he wants her to say.”

Counsel for defendant objected to this as a grossly prejudicial remark and recorded an exception, and the court said:

“The exception may be noted. The jury should not pay any attention to that. We are all having trouble getting these questions and answers, and it is not the fault of anybody.”

We are not at all certain that the counsel who made the. remark complained about intended the meaning to be given to it which counsel for appellant gives it, which is a meaning that the words, standing alone, import. Our uncertainty as to the intended and accepted meaning of the remark arises partly from the manner in which the objection was treated by the trial court. If the attorney who made the remark intended that the jury should understand him to assert that the witness would, without regard to truth, give such testimony as the defendant wished her to give, he deserved a reprimand from the court which would sharply correct his conduct. Whatever his intended meaning, the remark should not have been made. It does not follow that defendant was prejudiced by it. Jurors do not generally overlook the lack of due decorum. on the part of counsel in the trial of causes, and are quite likely to resent improper and impertinent remarks and comments. The testimony of this witness, as well as her manner of giving it, was for their consideration. We cannot say that reversible error was committed.

In his argument to the jury, addressed to the question of damages, the attorney for appellee said, “She is entitled to the same share in his property — ,” when he was interrupted by the objection that the measure of damages is not determined “by any share in his property.” The court said, “I will attempt to define the measure of damages to the jury when I get to it.” The attorney for appellee at once disclaimed the right or desire to usurp the functions of the court, but continued, by saying:

“I am simply telling you, if I be wrong in my statement of what the measure of damages in this case is, then I will stand corrected, but my understanding is, gentlemen, if this woman promised to marry a man that was worth $5,000, and as his wife she would become entitled to an interest in that $5,000, if he were to die the next day after the marriage ceremony were performed, she would be entitled to dower rights in his property.”

No complaint is made of the charge of the court thereafter given. A party is more often harmed than aided when his counsel asserts a legal proposition which the court denies.

Continuing his argument, counsel for appellee became eloquent and was several times interrupted and exceptions were taken to his remarks. Without setting out the argument, we express the opinion that the limits of proper argument were not exceeded. Counsel did express the opinion that his client was a virtuous woman. Her reputation for chastity was involved by the testimony. His expressed opinion seems to have been based upon the testimony. Summed up, his expressions in his argument amounted to no more than this: “I am impressed, and I think the jury ought to be, that upon this record she is shown to be a virtuous woman.”

It was error for the court to refuse to counsel for the appellant the right to comment in his argument upon certain alleged contradictions in the testimony given upon the former and upon this trial. Using the testimony given on the former trial, counsel had properly interrogated the witnesses for appellee upon cross-examination, and had secured certain admissions with respect thereto. In argument, he sought to return to the matter and to call the attention of the jury to the alleged discrepancies and contradictions of testimony. For this purpose he used, as he had used in interrogating the witness, the record of the testimony given on the first trial. This he was refused permission to do. No one claimed, or now claims, that he made improper use of the testimony or sought to call attention to matter not used in cross-examining the witnesses. What he sought to do was, in substance and effect, this: To say to the jury that the witness admitted having testified on the former trial as follows — reading from the minutes of the testimony given on the former trial matter to which the attention of the witness had been directed — and upon this trial she testified differently. In short, he was directing attention to testimony given at the instant trial. But the court was of opinion that he should either have produced a transcript of the testimony given upon the last trial or have had the reporter read whatever was desired from his notes. The practice pursued by counsel is not an uncommon one, and not improper, it being always the duty of the trial court to see that an unfair argument is not indulged in. Whether for this error, this limiting of the privilege of argument, the judgment should be reversed depends upon whether we can say that prejudice did not result. To this end we have examined the testimony, and especially the alleged- contradictory statements of witnesses about which counsel sought to address the jury, reaching the conclusion that it is wholly improbable that the limitation of the argument affected in any way the result— the conclusion of the jury. Wholly outside of the alleged contradictory statements of the witness, there remains the main, the vital and material facts upon which plaintiff’s case depended. They were, that the parties mutually promised to marry each other, at a time to be fixed and which was fixed, reasonably, by defendant, that the defendant refused to marry plaintiff, that her damages were aggravated by her seduction by defendant under promise of marriage.

We do not find reversible error, and therefore affirm the judgment, with costs to appellee. ,

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

On Rehearing.

Sharpe, J.

1. In considering appellant’s claim that the jury were prejudiced by the remarks of plaintiff’s counsel as to the damages to which she would be entitled, Mr. Justice Ostrander, who wrote the opinion. said:

“No complaint is made of the charge of the court thereafter given. A party is more often harmed than aided when his counsel asserts a legal proposition which the court denies.”

.It is claimed that' he overlooked the fact that error was alleged on the charge as given relative to the measure of damages. While it is true that error was so alleged, counsel then failed, and now fail, to point out any specific erronéous statement therein. As we read it, we think it fairly stated the matters which the jury should consider in assessing plaintiff’s damages. Bennett v. Beam, 42 Mich. 346.

2. In the opinion filed it was said:

“It was error for the court to refuse to counsel for the appellant the right to comment in his argument upon certain alleged contradictions in the testimony given upon the former and upon this trial.”

The conclusion was reached after examining the testimony, and especially the alleged contradictory statements of witnesses, that—

“It is wholly improbable that the limitation of the argument affected in any way the result.”

The argument to the jury should be based on the testimony submitted at the trial. Counsel had the right during such trial to interrogate witnesses as to the testimony given by them on the former trial, either from a transcript of such testimony, or from notes taken by him, or from his personal recollection of what they then testified to. If the witnesses admitted the giving of such testimony and it is contradictory, counsel may comment on it in his argument to the jury. He need not produce a transcript of the testimony taken while the trial is in progress to entitle him to do so. He may submit to the jury his recollection of the questions asked and answers given, and he should not be prevented from doing so, unless, on objection, the trial judge is convinced that counsel is mistaken in his statement of such testimony.

The alleged erroneous ruling occurred during the argument of defendant’s counsel to the jury. We quote from the record:

“Mr. McHugh: Now in the first trial the same witness was questioned upon that subject and this is what she said: ‘Q. I went there’ — that is on direct examination now by her own counsel, she was not being cross-examined, she was not annoyed or heckled by opposing counsel, but was being questioned in a nice, kind way by her own mother’s attorney and this is what she says, page 85:
“The Court: Is that in the record in this case?
“Mr. McHugh: Yes, your honor, it was called to the witness’ attention and read to her.”

On objection, and after some discussion, counsel assured the court that “these identical questions were asked of the witness when she was on the witness stand.” Whereupon the court ruled that he might proceed.

We have examined the printed record with care and cannot find that any such question as counsel was seeking to read to the jury appears therein.

Later in counsel’s argument, the record shows:

“Mr. McHugh: First we find that Mrs. Gagush testified that she put the children to bed on the 13th of July; you will remember she claimed that Mr. Hoeft came to her home and that she left him and went in and put the children to bed, and upon that subject she was questioned along these lines: ‘Q. When did they go to bed? A. Half-past nine.’”

Upon objection being made, defendant’s counsel said: “I submit, your honor, it was called to the witness’s attention.” The court expressed a clear recollection that no such question was put to the witness on the trial and ruled that counsel could not read from the transcript of the former trial.

A careful examination of the record shows that the court was right and counsel mistaken. Unless much care be exercised in marking the passages in the transcript of the testimony given on a former trial, counsel may mark parts thereof which he intends to ask the witness concerning but fails to do so. This, apparently, is what occurred. But he cannot now complain of not having been permitted to comment on contradictory statements which do not appear in the present, record.

In defendant’s brief now filed, several pages consist, of parallel columns claimed to be statements made by plaintiff and several other witnesses on the present trial contradictory to those given on the former trial. For the purpose of the comparison, the record of the former trial and in one case the stenographer’s minutes are quoted from. We can only consider the errors which appear on the printed record before us. From, it we reach the conclusion that no prejudicial error was committed by the trial court in the rulings complained of.

8. Defendant’s counsel insist that this court overlooked his claim of error in the trial judge using the word “rebuke” when commenting on the contradictory nature of the testimony and that the jury were influenced thereby in their allowance of damages to plaintiff. It is, perhaps, sufficient to say that this alleged error was not in any way alluded to in the brief filed by defendant, but, in view of the fact that the verdict at the last trial was less than that rendered at the former trial, it seems apparent that no prejudice was created thereby.

The judgment must stand affirmed, with costs to plaintiff.

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    DOW CHEMICAL CO. v. DETROIT CHEMICAL WORKS.
    1. Sales — Delivery to Carrier — Passing of Title.
    In the sale of goods the general rule that title passes when the vendor has fully performed in the appropriation and delivery of the goods to the vendee, and delivery to a public carrier for transportation constitutes delivery to the vendee, has been adhered to in this State, and is, in effect, incorporated in the uniform sales act (3 Comp. Laws 1915, §§ 11849, 11850, 11873, 11877).
    2. Same — Right to Reject After Acceptance.
    Title may pass even though the right to reject after acceptance be reserved.
    S. Same — Place of Delivery.
    A provision in a contract for the sale of 900 tons of sulphuric acid to be delivered in monthly installments providing that the price should be “?12 per ton f. o. b. vendor’s tank cars, Detroit, Mich., less freight to Midland, Mich.,” construed, and held, that place of delivery was at Detroit, although the buyer had the right to deduct the freight to Midland.
    4. Same — Delivery—Time of Payment.
    In view of section 42 of the uniform sales act (3 Comp. Laws 1915, § 11873) fixing the time of payment concurrent with delivery unless otherwise provided, where the contract provided payment to be “net cash in ten days,” payment was due ten days from delivery of each installment at Detroit. __
    5. Same — Cancellation of Contract — Default.
    Where the contract gave the vendor the option, in case • the buyer failed to make payment according to its terms, to delay further shipment until payment was made or cancel the contract, the vendor had the right, when the buyer failed to make payment within ten days of delivery at Detroit, to cancel the contract.
    6. Waiver — Notice—Intent.
    Waiver implies the abandonment of a right by a person entitled to exercise it, who has at the time full knowledge Of the existence of the fact on which the right depends, such knowledge and the intention to relinquish the it must concur.
    7. Same — Default—Notice.
    Although, under the contract, payment for ad installment becameNdue on February 1st and vendor/made another shipment\on February 3d, without having received payment for previous shipment, said aetiop cannot be said to be a waiveA of its right to rescind, since payment might have been iA the mails, and vendof, at the time of the alleged waiveA had no definite knowledge of the default.
    8. Sales — Shipment i\ Installments^-Default.
    Although the contract provide^ for approximately equal monthly shipments,'-where first shipment was made on January 22d in response to buyer’s notification on January 20th, and second shipment for that month was made on February 3d, heXú,, that vthe vendor was not in default in not making shipment of second installment in January.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted June 10, 1919.
    (Docket No. 100.)
    Decided December 22, 1919.
    Rehearing denied June 17, 1920.
    Assumpsit by ,the Dow Chemical Company against the Detroit Cheinical Works for breach of a contract of sale. Judgnient for defendant on a’directed verdict. Plaintiff brings error.
    Affirmed.

      Beaumont, Smith & Harris and G. A. Currie, for appellant.

      Monaghan, Monaghan, O’Brien & Crowley, for appellee.
   Fellows, J.

On June 8, 1915, the parties hereto entered into the written contract following:

“The Detroit Chemical Works of Detroit, Michigan, vendor, agrees to sell and deliver to the Dow Chemical Company of Midland, Michigan, purchaser, and the said purchaser agrees to buy, receive and pay for the merchandise hereinbelow described, in the quantities and at the prices herein named, during the period of one year from January 1st, 1916, and according to the terms and conditions named below:
“Description and Quantity:
“Nine hundred (900) net tons (2000 lbs.) of sulphuric acid commercial grade of approximately 60° Be. Strength.
“Prices:
“Twelve dollars ($12.00) per ton, f. o. b. vendor’s tank cars, Detroit, Michigan, less freight to Midland, Michigan, all deliveries to be computed to and billed as 60° Be.
“Deliveries:
“To be made and taken in approximately equal quantities throughout the months of 1916 — as nearly as may be 75 tons per month.
“Terms of Payment:
“Net cash in 10 days.
“Conditions:
“Each shipment to be treated for the purpose of settlement, as a separate and independent sale, but if buyer fails to make payment for any materials furnished by vendor according to terms of sale, said vendor may defer additional shipments until payment is made, or may cancel this contract at his option.
“Payment of all bills to be made in United States gold coin or its equivalent in United States currency. The vendor reserves the right to decline to make deliveries on this contract except for cash, whenever said vendor shall have any doubt as to buyer’s responsibility and so informs buyer. Deliveries to be renewed according to contract terms when buyer shall have satisfied said vendor as to his responsibility.
“It is understood and agreed that any decline or advance in freight rates or other transportation charges which may be made subsequent to date of this contract shall be for the account of and borne by the buyers.
“Vendor shall not be held responsible for failure of delivery when same is due to strikes, fire, casualties at their works, delays in transit, or other contingencies beyond their control.
“This contract agreed to as above.”

The acid under this contract was to be delivered during the year 1916. On January 20, 1916, plaintiff wrote defendant referring thereto:

“There is due on our contract 75 tons of 60° acid this month. This is approximately , two cars. Please make shipments about three or four days apart.”

On January 22d, defendant replied thereto:

“We are shipping you one car today, in compliance with your request, and a second car will follow the latter part of next week, which we trust will be satisfactory.”

The first car was shipped and invoiced as of that day. It contained 62,500 pounds of acid testing 59.58, being the equivalent of 61,930 pounds of 60° acid. It was billed at the contract price of $12 per ton, less the freight to Midland of .104 per cwt., making a net of $306.58. The invoice reached plaintiff on January 27th. The car did not arrive in Midland until the 29th (Saturday), about 4 p. m. It was delivered at plaintiff’s plant on the 31st. On February 3d, plaintiff wrote defendant:

“Please rush shipment of the balance of sulphuric acid due on our contract for shipment during January. Also get the February quota out for us. These cars may be distributed approximately in even shipments over this month.”

On that day, and before receiving plaintiff’s letter, defendant had shipped the second car. It was billed out as of February 3d, and contained 61,960 pounds of 60° acid. The invoice price, after deducting freight, was $307.32. This car reached Midland on February 8th. It was not received by plaintiff until the 19th. This was considered by both parties as in fulfillment of the January quota.

On February 7th, defendant’s treasurer dictated a letter to plaintiff, which was, however, not mailed until the 9th. It reads as follows:

“Owing to the fact that you seem determined to ignore the terms of our contract with you for 60° sulphuric acid, we now elect, under the terms of said contract, to declare same canceled.
“Our invoice to you of January 22d, for delivery of the first car of sulphuric acid, under this contract, matured on the 1st. Up to this writing we have not received remittance for same.
“On December 8th last, we wrote you at some length on this very subject, calling your attention to the fact that you were endangering your contract by your nonobservance of the terms thereof.
“We will, therefore, now cancel this contract.
“Trusting you will see the justice of our position, we remain.”

This reached plaintiff on the 10th, and on the same day plaintiff’s agent went to Detroit and paid defendant for the first car shipped. On February 12th, plaintiff paid defendant for the second car shipped. The defendant refused to make further shipments as requested by plaintiff, claiming that it had canceled the contract by its letter of February 7th, and that it had the right to do so. Plaintiff was compelled to buy acid in the open market, and in this suit seeks to recover the damage it sustained by reason of the failure of defendant to furnish the acid according to the contract.

It is plaintiff’s claim that it was not required to pay for the acid, according to the terms of the contract, until 10 days after its delivery to it at Midland and a reasonable time allowed for the inspection thereof. It also claims that by making the shipment on February 3d, defendant waived the default of plaintiff in not having paid for the car shipped within 10 days after January 22d, and that it thereby became estopped from cancelling the contract as it did on February 7th.

The court, over plaintiff’s objection, permitted defendant to offer proof tending to show a general custom of the trade by which the language of the contract, “Terms of payment: Net cash in 10 days,” was construed to mean, payable in cash within 10 days after date of invoice or shipment. There are other facts which will be stated in the discussion of the questions presented.

After the proofs were concluded, the trial judge directed a verdict for the defendant, holding that it was justified in terminating the contract for the reason stated, and that there was no waiver of its terms which prevented it from relying on such cancellation as a defense in this suit. From a judgment for defendant entered on such verdict, the plaintiff appeals.

There are many assignments of error relating to the admission and rejection of testimony and to the rulings of the court, but the meritorious question presented is as to the action of the court in directing a verdict for defendant. As stated in plaintiff’s supplemental brief:

“The two major questions in this case are (1) When was the payment due of the invoice of January 22, 1916? and (2) If the right to cancel the contract accrued to the defendant by reason of the delay in the payment of this invoice, did the defendant by its conduct waive that right.”

The following sections of our uniform sales act, 3 Comp. Laws 1915, § 11832 et seq. (Act No. 100, Public Acts 1913), are pertinent and controlling so far as they apply:

“(11849) Sec. 18. Property in specific goods passes when parties so intend.
“(1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
“(2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.
“(11850) Sec. 19. Rules for ascertaining intention. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property'in the goods is to pass to the buyer:
“Rule 1. .Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed. .
“Rule 2. Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them in a deliverable state, the property does not pass until such thing be done.”
“Rule 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.”
“(11873) Sec. 42. Delivery and payment are concurrent conditions. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.”
“(11877) Sec. 46.. Delivery to a carrier on behalf of the buyer.
“(1) Where, in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer, except in the cases provided for in section nineteen, rule five, or unless a contrary intent appears.”

1. When was the payment due? The terms of payment agreed upon were: “Net cash in 10 days.” “Net cash,” of course, means cash without the allowance of any discount. The cash was to be payable in 10 days. When shall these days be counted from? The plaintiff contends from the date of the delivery of the acid to it and its acceptance after test and inspection at Midland. The defendant insists, from the date of delivery on board its tank car at Detroit and the consignment of the car to plaintiff. Quoting from plaintiff’s brief:

“ ‘Net cash’ means cash on delivery. Then, ‘Net cash in 10 days’ means 10 days from delivery and such reasonable time to inspect.”

There is much discussion by counsel as to when title to the acid passed to the plaintiff. While not conceding that the determination of this question is controlling, plaintiff’s counsel contend:

“The title does not pass until such delivery and inspection and a reasonable time therefor.”

The general rule is that title passes when the vendor has fully performed in the appropriation and delivery of the goods to the vendee, and delivery to a public carrier for transportation constitutes delivery to the vendee. There may, of course, be stipulations in the contract or circumstances attending its performance which indicate a contrary intention. Wagar v. Railroad Co., 79 Mich. 648. This rule is, in effect, incorporated in the sections of the uniform sales act above quoted.

It is claimed by plaintiff that as the acid was to be of a particular commercial grade and strength, it necessarily had the right to inspect before acceptance and that title did not pass until such inspection and acceptance had been had. The argument based on this claim loses sight of the fact that title may pass even though the right to reject after acceptance be reserved. The general rule above stated seems to have been adhered to many times by this court. Perhaps the leading case, and that which best exemplifies the rule, is Kuppenheimer v. Wertheimer, 107 Mich. 77 (61 Am. St. Rep. 317). The plaintiffs were wholesale clothing dealers in Chicago and shipped certain goods to defendant, a retail dealer in Detroit, on an order given from samples. The right to inspect was expressly agreed upon. Plaintiffs contended that delivery to the carrier completed the sale and passed title to defendant, while defendant claimed that the delivery to the carrier was merely for transportation and that title to him did not pass until he had received the goods and made inspection thereof. After announcing the general rule above stated, the court said:

“In the present case there is no evidence of an understanding that the property should not pass until inspected. Nothing was said about transporting to Detroit with a view to change of ownership only after acceptance. It is true that the goods were to be examined, and the price remitted at once, if found correct; but the agreement was silent as to this inspection being with a view to a change of ownership. The right to inspect before acceptance always exists, and a purchaser cannot be required to inspect at the shipping point, but is entitled to a reasonable opportunity after the arrival of the goods. Fogel v. Brubaker, 122 Pa. St. 7 [15 Atl. 692]; 2 Benj. Sales (Corbin’s Ed.), §§ 910, 966; Erwin v. Harris, 87 Ga. 333 [13 S. E. 513]. If the goods are not up to the sample, the right to refuse them exists, which is, in effect, a rescission. The title passes upon delivery to the carrier, subject to this right, of which the purchaser may avail himself or not. Upon the facts shown, the court properly held that title passed by delivery to the carrier.”

This decision has been cited and approved in People v. Sheehan, 118 Mich. 539; Althouse v. McMillan, 132 Mich. 145.

The application of this rule in no way deprived plaintiff of its right of inspection after the arrival of the car. In Williston on Sales, § 473, page 830, it is said:

“Where by the terms of the bargain the property was to pass before delivery to the buyer, the buyer has a reasonable time after delivery in which to examine the goods, and if they are not of a kind and quality ordered, he may then refuse to accept them, and thereby rescind the contract; but this does not prevent the title from passing, nor a recovery by the seller in an action for goods sold and delivered if in fact they do conform to the terms of the contract.”

See, also, Meagher v. Cowing, 149 Mich. 416; Illinois Glass Co. v. Horse-Radish Co., 166 Mich. 520; Germain v. Loud, 189 Mich. 38.

Is the rule thus announced and followed by this court in any way abrogated by the provisions of the uniform sales act above quoted? Rule 2 of section 19 provides, in effect, that the title shall not be deemed to have passed while “the seller is bound to do something to the goods, for the purpose of putting them in a deliverable state.”

There can be no claim that this rule applies as the acid was in condition for use when shipped. Rule 5 of the same section reads:

“If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.”

The contract, provides that the price shall be—

“Twelve dollars ($12.00) per ton, f. o. b. vendor’s tank cars, Detroit, Michigan, less freight to Midland, Michigan.”

Does this provision, which permits the plaintiff to deduct the freight to Midland, bring the shipment within the above rule? We do not think the language used should be construed as an undertaking on the part of the defendant to deliver the product at Midland. While the plaintiff had the right to deduct the freight rate from Detroit to Midland, as counsel for the defendant pertinently suggest, plaintiff could have ordered this car sent to any point designated and, no matter where sent, to deduct the Midland rate of freight. The provision is specific that delivery shall be on defendant’s tank cars at Detroit, and this was in no way controlled by defendant’s agreeing that plaintiff might deduct the freight cost of transportation to Midland. Had plaintiff’s necessities at some time required that a car go forward by express, there can be no claim that it would have had any right to deduct more than the usual freight charges. This construction is accentuated by the provision in the contract that'

“any decline or advance in freight rates or other transportation charges which may be made subsequent to date of this contract shall be for the account of and borne by the buyers.”

See, also, Williston on Sales, § 280.

We must therefore conclude that delivery was made and that the title to the acid passed to the plaintiff when placed in its car and consigned for transportation to plaintiff at Midland. Section 46 (above quoted) so provides.

Delivery having been made to plaintiff at Detroit, the time of payment is fixed by section 42, wherein it is said that—

“Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions.”

We therefore find that the invoice was payable in 10 days from the date of delivery, January 22d.

Was plaintiff’s failure to make payment within 10 days thereafter such a breach as entitled defendant to cancel the contract? Section 45 of the uniform sales act provides:

“(11876) Sec. 45. Delivery in installments.
“(1) Unless otherwise agreed the buyer of the goods is not bound to accept delivery thereof by installments.
“(2) Where there is a contract to sell goods to be delivered by stated installments which are to be separately paid for, and the seller makes defective deliveries in respect to one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments, it depends in each case on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken.”

The contract between the parties provides:

“Each shipment to be treated for the purpose of settlement, as a separate and independent sale, but if buyer fails to make payment for any materials furnished by vendor according to terms of sale, said vendor may defer additional shipments until payment is made, or may cancel this contract at his option.”

The plain language of this provision gives the defendant the option when the buyer fails to make payment according to the terms of sale to delay further shipment until payment is made or cancel the contract. It exercised the option to cancel. Plaintiff’s counsel in their brief say:

“The contract was for delivery in monthly installments, payments to be likewise made in installments. The failure to pay for one installment is not of itself such a breach as to justify, by the seller, a refusal to proceed further. A failure to pay sufficient to justify such cancellation must amount to a material breach of the contract. The determination of whether the failure to pay is such a material breach, ‘depends on the terms of the contract and the circumstances of the case’ and is a question of fact.”

They rely on the quotation from section 45. This section and the effect to be given to this language were considered by this court in Cadillac Machine Co. v. Iron Co., 205 Mich. 107. In that case, the provisions relative to cancellation read:

“If the buyer fails to make payment when due, the seller shall have the right to cancel the contract or to postpone shipments of future installments until prior shipments are paid for.”

In the opinion, also very illuminating on some of the other questions' discussed, Mr. Justice Brooke, speaking for the court, said:

“It is further urged that this being a sale of goods by installment the seller cannot rescind or refuse performance unless the buyer’s default is made under such circumstances as justifies an inference that he repudiates the entire contract, citing West v. Bechtel, 125 Mich. 144 (51 L. R. A. 791), and Welsh v. Michigan Maple Co., 161 Mich. 16. The difficulty with this position is that the contract provides for more than a mere sale of goods by installment. It preserves definitely in the vendor the absolute right of cancellation:
“ ‘If the buyer fails to make payment when due.’
“In neither of the cases cited did the contract contain any such provisions. Leaving out of the question plaintiff’s default as to the April, May and June quotas, it was nevertheless clearly in default on the March quota, when on July 10th the contract was definitely repudiated by the defendant. We are unable to see how the provision that:
“‘This contract for all purposes shall be treated as separate for each installment,’
“deprives the defendant of its right to cancel. This language must be read in conjunction with the earlier provision of the contract providing for cancellation of the contract or postponement of shipment of future installments. It is true that because of its own acts such cancellation cannot be made effective as to the February quota, but we can see no reason why the plaintiff’s default as to the March quota cannot be made the basis of a valid cancellation as to the balance of the contract.”

2. Did the defendant by its conduct estop itself from exercising the option to cancel? It is insisted that at the time the default occurred, on which the right of cancellation is based, the defendant was itself in default in not having made the second January shipment and by making such shipment after plaintiff’s default it waived the right to cancel for that reason.

The contract provided for distributing the 900 tons to be shipped during 1916 in approximately equal quantities each month. Plaintiff had made a purchase from defendant which was delivered in 1915. Defendant did not ship in January until plaintiff notified it to do so. In response to such notification, dated January 20, 1916, it shipped a car on the 22d, and on February 3d it shipped the other car of the January shipment.

In support of its position, plaintiff quotes' the following from 24 Am. & Eng. Enc. Law (2d Ed.), p. 1105:

“The right to rescind must be exercised promptly upon the discovery of the facts authorizing rescission. Any unreasonable delay in rescission, or any further dealing or action in respect to the contract as though it were still in force amounts to a ratification or election to abide by the contract and is a bar to a subsequent rescission.”

■ — and cites in support thereof, Edward Thompson Co. v. Vacheron, 125 N. Y. Supp. 939; Capper v. Paper Co., 86 Kan. 355 (121 Pac. 519).

While the right to rescind must be exercised promptly, we fail to find any unreasonable delay on the part of defendant after discovery of the facts on which the rescission was based. The payment was due on February 1st, but, as defendant’s counsel suggest, there was perhaps a question whether mailing it at Midland, on that day would not be a compliance with the contract. Defendant’s witness testified:

“We shipped a car on February 3d. I did not know at that time as to whether or not the payment which would be due February 1st was in the mail.”

In the New York case above cited, which involved a sale of the publication of plaintiff, the payment became duq on April 15th and a volume issued subsequently was sent to defendant on June 27th. This was held to be such an unreasonable delay as waiyed the default.

In the Kansas case, delay in remitting was held to have been waived, but the facts as stated show many defaults and for a considerable period of time. The evidence tended to show, as the jury found, that the defendant had repeatedly excused.such defaults and made shipments long after they occurred. The decision in this case but followed the rule well stated in 2 Black on Rescission and Cancellation, § 604, wherein it is said:

“If, however, there has been repeated delay on the part of the purchaser in making his payments, and habitual indulgence on the part of the vendor in giving him time, so that the course of their dealings might reasonably lead the vendee to believe that strict compliance with the terms of the contract would not in the future be insisted on, then it would be inequitable to permit the vendor to take sudden and sharp advantage of a subsequent default and declare a forfeiture forthwith; and in order to preserve his right to do so, it will be necessary for him to give the vendee notice that he intends thereafter to insist on strict punctuality in payment, and the notice must be so timed as to give the vendee a reasonable opportunity to comply with its terms.”

Waiver implies the abandonment of a right by a person entitled to exercise it, who has at the time full knowledge of the existence of the fact on which the right depends. Such knowledge and the intention to relinquish the right must concur. The facts relied on must also show that such intent was communicated to and so understood by the party claiming the waiver. It is, in effect, the abandonment of a particular obligation and an agreement to substitute another in its stead. 2 Black on Rescission and Cancellation, § 605 et seq.; 40 Cyc. (Waiver) p. 252.

The facts are not in dispute. The burden of proof to establish the waiver was on the plaintiff. To maintain it, it must show that defendant acquiesced in the continuance of the contract after its officers knew that it had a legal right to rescind. We think there is no competent proof from which such an inference might be drawn.

Neither are we impressed by the claim that defendant, being in default in not having shipped the second January car during that month, could not take advantage of its right to cancel. It was not in default at the time it exercised the right nor when it first had such knowledge as justified the action taken by it. Under the terms of the contract and the undisputed facts we find that defendant was legally entitled to rescind the contract and that there was no error in the trial judge so holding and directing a verdict in its favor.

The judgment is affirmed.

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

The late Justice Ostrander took no part in this decision.


author: Sharpe, J.

text:
    BATTIE v. ROTH.
    1. Intoxicating Liquors — Trial—Instructions.
    In an action against a saloon keeper and his bondsman for an illegal sale of liquor to plaintiff’s minor son, where defendant saloon keeper admitted that part of the liquor was drunk when plaintiff stepped around the partition to the bar, and denounced the sale, an instruction to the jury that plaintiff was so near to said minor son at the time that he could have prevented his drinking the liquor, but did not do so, held, erroneous and prejudicial.
    2. Same — Bar to Action — Acquiescence—Inferences.
    Where there was nothing in the record from which an inference could be drawn that plaintiff acquiesced in the furnishing of liquor to his minor son, an instruction to the jury that plaintiff could not recover for an illegal sale of liquor that he acquiesced in, was erroneous.
    3. Same.
    Where the minor son had drunk part of the glass of liquor before plaintiff entered the bar, he was under no obligation to snatch the glass from his son’s hand, and his failure to do so cannot be construed as acquiescence in the illegal sale.
    4. Same — Minors—Illegal Sales — Good Faith — Defenses.
    Under the provisions of the act (2 Comp. Laws 1915, § 7050), the good faith of the defendant in selling the liquor to a minor is no defense, and while it might have been considered by the jury in its award of damages, it was error for the trial court to submit it as a fact which, with others, would bar recovery.

    5. Same — Evidence—Motive—Trial—Instructions.
    The trial court was in error in submitting to the jury-testimony of defendant that he had had trouble with an older brother of the minor who was with him when the illegal sale was made, as tending to furnish a motive on the part of plaintiff for prosecuting the action, since there is nothing in the record to show that plaintiff knew of the incident.

      Error to Muskegon; Vanderwerp (John), J.
    Submitted October 14, 1919.
    (Docket No. 33.)
    Decided December 22, 1919.
    Case by Charles A. Battie against Henry Roth, principal, and the Michigan Bonding & Surety Company, surety, under the civil-damage act. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Simpson & Gale, for appellant.

      Sybrant Wesselius, for appellee Roth.

      A. F. Bunting, for appellee surety company.

      The question of seller’s ignorance of minority of purchaser of intoxicating liquor as defense to prosecution for sale to minor is discussed in a note in 25 L. R. A. (N. S.) 669.

   Sharpe, J.

This action was brought by the plaintiff to recover damages for the unlawful sale and furnishing of intoxicating liquor to his minor son, Owen Battie, during the period between May 1, 1917, and April 1, 1918. The defendant Roth was at that time engaged in the business of a saloon keeper in the city of Muskegon, and the other defendant was the surety on his bond as such. The case was submitted to the jury, who rendered a verdict for the defendants, on which judgment was entered. The plaintiff moved for a new trial, which was denied. He now appeals to this court, alleging errors in the charge of the trial judge and in the denial of such motion.

It is the claim of the plaintiff that, on several occasions, during the time alleged, the defendant Roth and his bartender sold spirituous and intoxicating liquor to Owen Battie, who was at that time but 18 years of age. Three young men testified positively to such sales by both Roth and his bartender. Owen testified that, before he began to get liquor at Roth’s saloon, he turned over an average of $10 per week óf his earnings to his father but after that time he spent his money for liquor.

The front part of the saloon was separated from the barroom proper by a short partition. In this Roth kept his safe. On the evening of March 30, 1918, Owen and his elder brother, Bert, entered the saloon. Roth cashed Owen’s time check, taking the money from the safe, and Owen and Bert then stepped around the partition to the front of the bar and Owen asked for a drink. As ta what then occurred, Roth testified:

“He came up and he says he wanted a drink, and I said, ‘No, you look too young to. me,’ and he said, T am twenty-one,’ and his brother stood there and he said, ‘No, he is all right; he is twenty-one,’ so Bert said. I said, ‘He don’t look old enough to me, but if you say he is all right, I will give you a drink,’ and vl set the bottle on the bar, and they poured out the drinks, and I put the bottle away, and the old gentleman walked around the bar and he said, T have got you. You sold my boy, nineteen years old.’ That is the very words he said.”

He later said, in answer to a question from his counsel:

“Q. When he (plaintiff) came around the partition, the boy hadn’t drank the liquor yet?
“A. No, not entirely.”

He also testified that before that he had had some trouble with Bert and had thrown him out of the saloon, and that Bert had then said, “I will get you.”

The sections of our statutes (2 Comp. Laws 1915) which authorize this action read as follows:

“(7050) SEC. 20. Every person who shall by himself, or by any clerk, servant, agent or employe, sell, give or furnish, or cause to be sold, given, or furnished, any intoxicating * * * liquors * *' * to any minor * * * shall in addition to all other penalties provided therefor by this act, be liable for both actual and exemplary damages therefor, to the father * * * in such sum, not less than fifty dollars in each case, as the court or jury shall determine.
“(7051) Sec. 21. The damages in all cases arising under this act, together with costs of suit, shall be recoverable in an action of trespass on the case before any court of competent jurisdiction. And in any case where parents shall be entitled to such damages either the father or the mother may sue alone therefor. But recovery by one of said parties shall be a bar to a suit brought by the other.”

The first assignment of error is based on the instruction of the court wherein, in stating to the jury the claim of the defendant Roth as to the sale on March 30th, he said:

“That before the liquor was drunk by Owen Battie, the plaintiff stepped to the bar and said to Mr. Roth that he should not sell Owen liquor as he was only nineteen years old, and that plaintiff was so near to Owen Battie at the time that he could have prevented his drinking the liquor but did not do so.”

This was doubtless presented to the court as a request to charge. While the court may properly state to the jury the claims of the respective parties, he should be careful to present only such claims as are founded on the testimony. As before stated, Roth admitted that a part of the glass of liquor had been drunk by Owen before plaintiff came around the partition. In view of this admission by him, the instruction was erroneous and prejudicial. The jury might well have inferred from the instruction that, in the opinion of the court, there was testimony of the defendant Roth supporting the claim as stated.

In the seventh assignment of error, the plaintiff complains of the following instruction:

“It is well-settled law that a party cannot recover for an illegal sale of liquor that he acquiesced in or that he furnished or that he could have prevented from being furnished, and his presence upon that occasion and not forbidding the delivery of the liquor was an acquiescence within the law which would bar him from recovery. While the sale of liquor without the parent’s consent is contrary to law, yet furnishing of liquor to a minor creates no liability unless damage is done, except for a minimum penalty of fifty dollars, and this penalty could not be recovered if no liquor was furnished except that which plaintiff acquiesced in.”

This portion of the charge assumed that, from the proofs, the jury might find that the plaintiff acquiesced in the sale of the liquor to Owen. We fail to find anything in the record from which such an inference can be drawn. There is no evidence that the plaintiff ever bought liquor for Owen or that he was ever before present when Owen was drinking. He remonstrated with Roth for selling it to him. He was under no obligation to snatch the glass from his son’s hand even were he in a position to do so. At least a part of the glass had been drunk before he arrived at the bar. The propriety of exercising parental authority at such a time and place may well be doubted. The defendants rely on the following authorities:

“In an action by a father if it appears that he has consented to and acquiesced in the sale of liquor to a minor son, such conduct on his part may in connection with other circumstances be a bar to an action by him. And where in an action by parents to recover damages for the death of their son resulting from his intoxication, vindictive damages are claimed, it is proper to show that on other occasions the father had visited other saloons in company with his son and had drank with him.” Joyce on Intoxicating Liquors, § 451, p. 512.

See, also, Rosecrants v. Shoemaker, 60 Mich. 4.

The proofs do not bring this case within the rule laid down in either of these authorities. As stated by Mr. Joyce, it must appear that the father “consented to and acquiesced in the sale of liquor to a minor son,” while in the Shoemaker Case the question involved was as to whether or not the plaintiff “had encouraged and requested” the sale of liquor to her husband. The jury had the right to consider all of the facts incident to the sale in determining' the damages to which plaintiff was entitled. But, in our opinion, there was no evidence which justified an instruction that they might find such a consent to, and acquiescence in, the sale on the part of plaintiff as would bar his recovery.

In the fourth assignment, plaintiff alleges error on. the following instruction:

“If you find from the evidence in this case, gentlemen, that the only intoxicating liquor which the young man, Owen Battie, ever received or was sold at Mr. Roth’s saloon and that the plaintiff, on that one occa sion, stood by, and near enough to the young man tí» have prevented his drinking it, and did not do so, and that such liquor was furnished or sold to Owen Battie by Mr. Roth in good faith, believing the statements made to him at the time by the young man and his brother, Bert, that Owen was twenty-one years old, the plaintiff cannot recover in this case.”

The court afterwards properly instructed the jury in this particular. He said:

“It is no defense in this case that from the appearance or statements of the minor or any other person, the defendant believed-him to be of full age, as the law absolutely forbids the sale of intoxicating liquors to a minor, and any one selling or furnishing malt, brewed, fermented and intoxicating liquor to a minor, does so at his peril.”

The good faith of the defendant was no defense, and, while it might have been considered by the jury in its award of damages, it should not have been submitted as a fact which would, with the other facts stated, bar a recovery.

We are also of the opinion that the testimony of the defendant as to the trouble which he claims he had at a previous time with Owen’s older brother, Bert, who was with him on March 30th, when the liquor was furnished, should not have been submitted to the jury as tending to show a motive on the part of plaintiff for prosecuting this action. There is nothing in the record to indicate that the plaintiff knew of it, and, even if Owen did know of it, this suit is not brought by him or for his benefit.

In view of what has been said, the other errors complained of are not likely to arise on another trial.

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

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


author: Moore, J.

text:
    VINTON v. TOWNSHIP OF PLAINFIELD.
    1. Municipal Cop.pop.ations — Highways and Steeets — Townships —Negligence—Question foe Juey.
    In an action against a township' for personal injuries alleged to have been received by reason of defendant’s negligence in maintaining tlie highway in a reasonable state of repair under section 4586, 1 Comp. Laws 1915, testimony 7teM, to present a question of fact for the jury.
    2. Same — Contbibutoby Negligence — Riding on Defective Highway — Question of Law.
    It cannot be said that plaintiff was guilty of contributory negligence, as a matter of law, because he rode down a hill, on a defective highway; upon a load of straw, since the highways are made for farmers as well as others.
    3. Same — Trial—Insteuctions—Contbibutoby Causes.
    Where plaintiff used no breeching on his horses, and the testimony as to the need of same’.was very conflicting, instructions by the court to the effect 'that'the lack of breeching would not be important unless the jury found that it was one of the contributory causes of the injury, held, not misleading because negative.

      On the question of burden of proof of contributory negligence in action against township on account of defects in highway, see note in 13 L. R. A. (N. S.) 1219.

      4. Same — Imputable Negligence.
    Negligence of the son, who was driving the team, would be imputable to plaintiff, who was riding on the load.
    5. Trial — Opinion op Trial Court — Credibility op Witnesses— Instructions.
    It is not for the trial court to intimate that an interested witness might not be truthful and accurate, or to express an opinion as to which witness was entitled to credence, in his instructions to the jury, where the conflict in testimony was very sharp.
    6. Same — Urging Jury to Reach Verdict.
    Where the jury returned for further instructions, after having been out for a long time, the court was not in error in instructing them that it was desirable for them to reach an agreement if they could do so without violating their convictions and judgments, that they should reason together and-it was just possible they might arrive at a verdict.
    7. Same — Conflicting Testimony — Questions fob Jury.
    Where the case was full of conflicting testimony upon the controlling facts, held, that it was properly submitted to the jury.
    Error to Kent; McDonald (John S.), J.
    Submitted October 28, 1919.
    (Docket No. 104.)
    Decided December 22, 1919.
    Case by Simeon Vinton against the township of Plainfield for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cornelius Hoffius and Fred P. Geib, for appellant.

      M. Thomas Ward, for appellee.
   Moore, J.

This is an action brought to recover for the negligence of defendant in failing to keep a public highway in a condition reasonably safe and fit for travel, resulting, as plaintiff claims, in injury to him. From a judgment for $850 in favor of the plaintiff, the case is brought here by writ of error.

The assignments of error may be divided into three groups:

(1) The refusal of the judge to direct a verdict in favor of the defendant.

(2) Refusal to charge as requested by defendant, and error in the charge as given.

(3) Error when the jury returned for further instructions, and in keeping the jury out unreasonably long.

1. It is said the defendant should have had a directed verdict because the record fails to show any actionable negligence on the part of the defendant. The statutory duty imposed upon townships to keep their highways in reasonable repair and convenient for public travel is found in section 4586, 1 Comp. Laws 1915. When the accident occurred to the plaintiff he was riding on a load of rye straw which witnesses say would weigh twelve to fifteen hundred pounds. The straw was on a hay rack, and to keep it in place ropes led from the four corners of the rack over the straw toward the center of the load where a binding pole was thrust through the rope and twisted until the ropes were drawn taut. The highway led down a hill over a high fill or embankment, then up another hill.. The team was driven by a son of the plaintiff. It was claimed that the rains following down each hill made washouts or dips at the sides of the traveled portion of the road, and down the embankment.

It was claimed by the plaintiff that while going down the hill which slopes easterly on the highway, his son was using particular care in driving, and that when the wagon reached the “dip” which existed in the left hand wheel track, the front wheels chucked toward the north and swung the team slightly to the north; that the front wheel and the rear wheel ran off the graveled portion of the highway; that the son pulled the team back to the south; that the front wheel came up on the gravel, the hind wheel grinding along the side of the gravel did not come back upon the road; that about six feet east of the dip, the hind wheel settled into the hole by the side of the graveled portion of the road; that part of the load tipped off and precipitated the plaintiff down over the embankment and as a result the plaintiff sustained a broken leg and injuries in and about the spine, which have caused the plaintiff to be permanently disabled. Considerable testimony was introduced tending to sustain the claim of the plaintiff. There was a sharp conflict of testimony in reference to the condition of the road, at the place of the accident. The witnesses of the defendant maintaining that there was no hole beside the traveled portion of the highway; that there was no dip in the track west of the place of the accident, but that the accident was caused because of poor loading of the straw, which, with some assistance of the wind, made the load slip off at the place of the accident.

The charge was a long one, and in it appeared the following:

“If after consideration of the evidence you find that ■the defendant was not guilty of any negligence which was the proximate cause of plaintiff’s injuries, you need not further consider the case. That is, if you find that the defendant did perform its statutory duty to make and keep that road in a reasonably fit and safe condition for public travel, then you need not further consider the case for, if you find that the defendant did make and keep the road in a reasonably safe and fit condition for public travel, it was not negligent, and, if it was not negligent, the plaintiff cannot recover.
“If, on the other hand, you find that the defendant was guilty of negligence, that is, it did not make and keep the road in a reasonably safe condition for public travel and that such negligence was the proximate cause of the injury, the plaintiff can recover providing he himself or his son were not guilty of any negligence which contributed in any degree to the injury; and that will bring you to the consideration of the second element of the plaintiff’s case, namely: Was the plaintiff himself or by his son guilty of any negligence which contributed to his injuries? Such negligence we call contributory negligence.
“The law requires that a party claiming to be injured by the negligence of another must show that he himself was free from negligence that contributed to the accident. It must appear that he used ordinary care for his own safety. In this case if the young man who was driving the team was negligent, his negligence would be imputed to his father, the plaintiff. So, in determining whether the plaintiff was negligent, you will also consider if the son was negligent. Both knew of the condition of that road, and the law would require of them that they use care commensurate with the dangers known to them. The question is, Did the plaintiff or his son, knowing the condition of the road, use such care as men of ordinary prudence would have used under the same or like circumstances?”

We shall not attempt to set out the testimony in detail as to the condition of the highway.' We think it presented a question of fact for the jury under proper instructions, which we think were given.

It is the further claim of defendant that the plaintiff was guilty of contributory negligence as a matter of law, in riding down the steep hill as a passenger on the load of slippery straw. This contention cannot be approved. The highways are made for use by farmers as well as others, and it cannot be said as a matter of law that one may not ride upon a load of straw without assuming all risk of accident because of a defective highway.

It is said the coürt erred in his charge to the jury-relating to want of breeching on the harness. The court charged the jury as follows:

“The defendant also claims that an ordinarily prudent man would have used breeching on his horses in driving down such a hill as this was with such a load. The fact that there was no breeching on the harness would not be material unless you find that the lack of breeching was one of the contributory causes to the injury; whether considering the question of the plaintiff’s negligence or the defendant’s negligence, you find that either was guilty of negligence and that it had nothing to do with the injury, it is not important and you can forget it. So I say that whether he had breeching is not important or material if you find that the lack of breeching had nothing to do with the accident. The question is not whether breeching were necessary, or whether you think it would have been safer; whether you yourselves think it would be safer to have used breeching, that might be a matter of opinion or matter of judgment. A man would not be negligent if he used his best judgment and his best knowledge, even though his judgment was wrong. The question is in relation to this claim of negligence as I have explained in regard to the other, Did he use such care as an ordinarily prudent man would have used under the same circumstances? Considering all the facts and circumstances, the question is, Did the plaintiff use ordinary care for his own safety? If he used ordinary care, he would not be guilty of negligence. If he did not use ordinary care commensurate with the dangers as he understood them, he would be guilty of contributory negligence; and when I speak of the plaintiff I am referring also to the son who was driving the horses, and whose negligence, as I told you, if he were guilty of any negligence, would be imputed to the father.”

Counsel say:

“What we are complaining of in the foregoing charge is that all of the statements of the court with reference to breeching were negative. He stated that the fact that there was no breeching on the harness would not be material unless it was also found that the lack of breeching was one of the contributing causes to the injury, and again he said that whether he had breeching is not important or material if you find that the lack of breeching had nothing to do with the accident.”

The testimony was very conflicting upon the need of breeching. Many witnesses testified that with such a load as was drawn in the instant case it would not be necessary, and at least one of them testified that it would be harmful. On the other hand there was testimony offered by the defendant that breeching was essential. We think the jury was not misled upon this subject by the charge.

Complaint is made because the court did not give without modification the following charge:

“In determining the weight to be given to the testimony of witnesses, you are entitled to take into account their interest, bias, and prejudice, if any, as it appears from the testimony, or as indicated by the witness upon the stand. You are also entitled to take into account in determining the weight to be given to testimony as to distances, size, depth, etc., the method by which the result was reached. That is, an interested witness who makes a guess as to a certain distance is not entitled to as much credence as the testimony of a disinterested witness who has made accurate measurements with appropriate instruments.” Counsel citing Perkins v. Township of Delaware, 113 Mich. 377, and Jones v. City of Detroit, 171 Mich. 608.

The court said as to this charge:

“No. 3 I struck out. I will give this part of it, so far as I read. I did not intend to strike it all out, but the latter part of it I did not intend to give. In determining the weight to be given to the testimony of witnesses, you are entitled to take into account their interest, bias and prejudice, if any, as appears from the testimony or as indicated by the witnesses on the stand. You are also entitled to take into account in determining the weight to be given to testimony as to distances, size, depth, etc., the method by which the result was reached.”

The cases cited by counsel are easily distinguishable from the instant case. It was not for the court to intimate that an interested witness might not be truthful and accurate, or to express an opinion as to which witness was entitled to credence.

Did the court err in giving the jurors further instruction after they had been out a long time and in what was said to them? After a colloquy between the foreman, the judge, and one of the jurors, the record shows as follows:

“The Court: Have you got the charge there?
“The Reporter: Yes, your honor.
“The Court: I think you better read the charge. That would be the better and safer way.
“Mr. Geib: If the court please, I don’t suppose it will be necessary to read the part relating to damages; only the part relating to the right to recover.
“The Court: I don’t know.
“Mr. Juror Unterkireher: There is another I forgot to mention. Some of the jurors seem to take from your charge that the question of driving without a' breeching should be eliminated from our verdict. Some of us understood you one way and some another.
“The Court: Well, I think you better listen to the éharge. Before you start with that, did I speak loud enough for you to hear?
. “Mr. Juror Unterkireher: We could hear here, but back there they could not.
“The Court: I ask that for my information and the reporter’s in reading it. If some of you do not hear, just make it known.
“Mr. Geib: If the court please may I suggest that the reporter sit up here in this chair (indicating witness chair); I think that will help the jurors to hear better.

(Whereupon the reporter read to the jury the charge of the court, including such requests as the court gave, but excluding the part relating to damages and their computation.)

“The Court: Now, gentlemen, the verdict of the jury, of course, should represent the individual judgment of each and every juror. Nevertheless, it is desirable that you reach an agreement, if you can do so, without violating your convictions and judgments; and in order to bring that desired end about, you should reason with each other, listen to each other’s arguments, and see if possibly you might be wrong and the other juror might be right. By listening to what each other has to say it is just possible that you can arrive at a verdict. I don’t know as it is necessary for me to say that to you, because I am satisfied that you have been doing everything that you honestly could to arrive at a fair verdict. I know from my experience with jurors that some jurors are very settled and firm in their convictions, and they do not care to argue with other jurors about it at all. That probably is not the case with any of you; but it is your duty to argue with each other, listen to what the others have to say, in order that you might arrive at an agreement. That is all I care to say in regard to that. You may retire.”

We do not think this was error. See 38 Cyc. p. 1899; Kelly v. Emery, 75 Mich. 147; Knapp v. Railway Co., 114 Mich. 199; Stevenson v. Railway Co., 118 Mich. 651; Richardson v. Railway Co., 182 Mich. 206.

The case was full of conflicting testimony upon the controlling facts and was properly submitted to the jury under the following authorities: Speck v. Township of Bruce, 166 Mich. 550 (35 L. R. A. [N. S.] 203), and the many cases cited therein; Highland v. Township of Garfield, 168 Mich. 538; Loose v. Township of Deerfield, 187 Mich. 206; Pool v. Township of Montague, 194 Mich. 476; McIntyre v. Township of Grant, 206 Mich. 223.

Judgment is affirmed with costs in favor of the plaintiff.

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


author: Moore, J. Brooke, J.

text:
    MacLACHLAN v. CITY OF DETROIT.
    1. Evidence — Deeds—Streets—Dedication oe Plat — Municipal Corporations.
    Testimony by one of the stockholders of a corporation owning a plat that, in dedicating the same to the city, a boulevard shown therein was offered as a boulevard and not as an ordinary street, and that the same was accepted as such, yield, admissible.
    2. Municipal Corporations — Streets — Boulevards—Taxation— Special Assessments — Paving Tax.,
    Where a plat in the city of Detroit containing a street of extra width was dedicated and accepted with the understanding that the same should be a boulevard and that funds for its improvement should be raised by general tax as provided in the charter of said city for improving, parks and boulevards, the action of the city council in afterwards placing said boulevard under the control of the street committee and assessing a special tax for paving against abutting owners, held, illegal and void.
    3. Same — Estoppel.
    The status of plaintiff, a purchaser of a lot abutting said boulevard, in a suit to enjoin the collection of said illegal tax, could not be affected by the fact that one of the aldermen who voted tor the paving was one of the stockholders in the corporation owning said plat.
    Brooke and Kuhn, JJ., dissenting.
    Appeal from Wayne; Chester (Guy M.), J., presiding.
    Submitted January 28, 1919.
    (Docket No. 96.)
    Decided December 22, 1919.
    Bill by Annie E. MacLachlan against the city of Detroit and another to enjoin the collection oí a paving fax. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Arthur Schueler, for plaintiff.

      Walter Barlow (Allan H. Frazer, of counsel), for defendants.
   Moore, J.

This is a bill filed to enjoin defendants from collecting a tax spread upon'the lands of plaintiff for the paving of a street in front of her premises. While the amount involved in this case is $168, it is/ agreed by counsel that it is a test case involving about $60,000. From a decree in favor of the plaintiff the case is brought here by appeal.

After the hearing, the trial judge filed an opinion which reads:

“The Marshland Boulevard Land Company was interested in the lands platted, a portion of which are involved in this suit, and presented to' the common council of the city of Detroit a proposed plat; that the plat showed various streets paralleling and crossing each other, with names which referred to them as streets. This plat also showed a street wider than the other (being 70 feet), which was given the name, ‘Marshland boulevard.’ Later a strip ten feet wide was added, making the boulevard 80 feet wide.
“The common council accepted and approved the plats, and the same were recorded in the office of the register of deeds. By resolution the common council changed the name ‘Marshland boulevard’ to ‘Lakewood boulevard.’
“On February 17th, 1914, the common council, by resolution, placed Lakewood boulevard under the control of the department of parks and boulevards, and made it a part of the park and boulevard system, and directed the commissioner to take possession of and maintain the same as a part of the park and boulevard system of the city of Detroit.
“On March 2, 1914, plaintiff purchased the lot in question on Lakewood boulevard. On April 18, 1916, the common council of the city of Detroit passed the two following resolutions:
“ ‘Resolved, that the report of the committee on parks and boulevards, and the accompanying resolution of Alderman Jakel adopted on February 17th, 1914, placing the street or highway known as Lakewood boulevard, and extending southerly from Jefferson avenue, between Coffin and Chalmers avenues, under the control of the department of parks and boulevards and making the same a part of the park and boulevard system, and authorizing and directing the commissioners of parks and boulevards to take possession of and maintain the same as a part of the park and boulevard system of the city of Detroit, be and the same is hereby rescinded.
“‘Resolved, that the department of public works be and is hereby reguested to consider the advisability of paving Lakewood boulevard, from Jefferson avenue to Essex avenue, with cedar on concrete foundation, under the six hundred thousand dollar clause of the charter.’
“This action was taken without any notice to the platters of this property and without any notice to the abutting owners on Lakewood boulevard that this boulevard was to be transferred from the park system to the street committee.
“Following this proceeding, Lakewood boulevard was paved, and the cost assessed to the abutting property owners.
“The language used in the two deeds of dedication is substantially the same. Naming the grantor, the following is the language used:
“ ‘Has caused the land embraced in ’ the annexed plat to be surveyed, laid out and platted * * * and that the streets and alleys shown on said plats are hereby dedicated to the use of the public.’
“The term ‘boulevard’ means more than the term ‘street.’ A boulevard is. a public street usually wider than the ordinary street, and is given a park-like appearance by being beautified with trees, flowers and the like, and is not used for heavy teaming.
“That grantors intended Marshland boulevard, so-named, as a boulevard, is apparent from the plat, because of its name and its being wider than all other public highways named on the plat.
“It is also apparent that the city of Detroit, in accepting and approving the plat, understood and accepted Marshland boulevard, so named, as a boulevard. The city changed its name to Lakewood boulevard, and placed it under the control of the department of parks and boulevards, and made it a part of the boulevard system and directed the commissioner to take possession and maintain the same as a part of the park and boulevard system of the city of Detroit.
“This being the understanding of both parties, as shown by the plats which are a part of the grants, and the proceedings of the city of Detroit, as shown by the proceedings of the common council, then it should be construed as creating a boulevard which is to be improved and maintained under the provisions of the charter of the city of Detroit with reference to parks and boulevards.
“Plaintiff having purchased property abutting on Lakewood boulevard while the same was a part of the park and boulevard system of the city of Detroit, her rights therein and her status with reference thereto cannot be changed without notice to her of the proposed change and she being given an opportunity to be heard. She was not given this opportunity.
“The city of Detroit having accepted Lakewood boulevard and having made it a part of its park and boulevard system, and while it was a part of such system, plaintiff having acquired property abutting thereon, then the city should be bound by the charter provisions with reference to boulevards until the same has been abandoned as such by legal proceedings for that purpose.
“The grounds under the control of the park and boulevard commissioner shall be used and enjoyed solely for the purposes for which they were established. Charter of Detroit [1904], § 554.
“Boulevards cannot be used the same as ordinary streets. Certain restrictions are made applicable to boulevards which do not apply to ordinary public streets, and these restrictions apply to Lakewood boulevard. See Charter of Detroit [1904]; §§ 572, 573, 574, 575, 576, 578, 582, 588, 585 and 590.
'“Sec. 546. Tit© commissioner of parks and boulevards shall have the control and management, and shall have charge of the improvements of all the parks and public grounds of said city, including the island park, known as Belle Isle park, and of such parks and public grounds as may hereafter be acquired, laid out, purchased or dedicated for public usé in said city. And he shall likewise have the control, management, and charge of the improvement and maintenance of the boulevard, which was laid out and established by the act creating said board of boulevard commissioners, and of any other boulevard which may at any time be hereafter acquired, laid out, established or located by said city. The authority hereby conferred shall not be construed as giving any charge or control to said commissioner over and to the improvement of any of the ordinary public streets or alleys.’ * * *
“ ‘Sec. 548. The commissioner shall, annually, before the first day of April, prepare and submit to the common council an estimate of the amount of money that should be raised for the ensuing fiscal year for the purpose of improving and maintaining the grounds under his charge, which estimate shall specify the sums desired for each of the several objects of expenditure, and at the same time make a report to the common council of the amount of revenue and income which it is estimated shall be received during such fiscal year from any source. * * *
“ ‘Seo. 549. The common council of said city with the consent of the board of estimates, may cause to be placed upon the general tax roll, and raisedi by tax the same as other taxes, such sum as they may think proper to be raised for each of the several objects of expenditure, estimated as aforesaid, the maintenance and improvement of said parks, public grounds and boulevards, or for the payment of any other expenses which said commissioner is, by this act, authorized to incur.’ * * *
“Under the foregoing circumstances, and considering these provisions of the city charter and the case of Scovel v. City of Detroit, 159 Mich. 95, I think it follows that this special assessment is not authorized in the law, and is void.
“A decree may be entered in accordance with these findings.”

Only one witness, Mr. Freud, was sworn. He testified in substance that before filing the plat he appeared before the committee of the council and explained to them that his company was offering the boulevard as a boulevard and not as an ordinary public street.

“I suggested to the committee that if they would accept this as a boulevard we would make the street wider and plan it as a boulevard — we might have planned it in several other ways more advantageously and more profitably to our company, by making the street fifty feet wide, or sixty, and adding the property, the difference, to the surrounding lots — in fact, we might have saved a good deal more property because it was only necessary for us to give one-half of the street — either twenty-five or thirty feet, and the people west of us would be compelled to give the other twenty-five or thirty feet.
“Q. You did not own the property west of it?
(‘A. We did not — so I pointed this out to the committee and offered it to them as a boulevard, and they accepted it as such, and our plat was recorded. We made the street, at that time, seventy feet wide. It was then known as Marshland boulevard and subsequent to that time the Marshland Boulevard Land Company purchased the property west of this boulevard. * * * On August 11, 1913, we filed a petition with the common council of the city of Detroit for the acceptance of a proposed plat west of this boulevard. * * *
“Q. At that time, Mr. Freud, what was said by you to the committee about the additional ten feet to the boulevard?
“A. I appeared before that committee and I suggested to them that inasmuch as this was a boulevard ■ — very fine street, that we would be willing .to give them an additional ten feet to make it a much better street — we might have added this on to the lots — made our lots a good deal more valuable. We offered it to the city and they accepted it and the street on our plat was marked distinctly Lakewood boulevard. * * *
“Q. Would you have offered that property to the city, either Marshland or Lakewood boulevard, had it been an ordinary street?
“A. I would not.
“Q. Did you offer it for the purpose of enhancing the value of that boulevard as a boulevard ?
“A. Yes, and that is the only reason.
“Q. Was there an extended agitation in the city about this Riverside boulevard?
“A. Very much — there were several meetings held publicly — the city planned improvements and there were very elaborate plans drawn for this Riverside boulevard. * * *
“Q. That was at the southerly end of your property?
“A. Southerly end of the property. * * *
“Q. Had you talked with the City Plan and Improvement Association?
“A. Yes. And the members of the council were satisfied with our offer; they were very much pleased with it.”

It is now the claim of the city — we quote from the brief:

“The dedication of the public streets in the Marshland boulevard subdivision was made in the following language:
“‘Know all men by these presents: That the Grosse Pointe Land Company has caused the land embraced in the annexed plat to be surveyed, laid out and platted, to be known as “The Marshland boulevard sub. of part of private claim 321, Detroit, Wayne county, Michigan,” and that the streets and alleys shown on said plat are hereby dedicated to the use of the public.’
“On the 19th day of April, 1910, the common council of the city of Detroit approved and accepted said plat. The language used by said common council in accepting and approving said plat, was as follows:
“ ‘Resolved, that the plat of Marshland boulevard subdivision, part of private claim 321, be and the same is hereby accepted and approved, and the commissioner of public works be and he is hereby directed to sign and approve the same.’

—and that the same language was used as to the second plat. * * *

“The resolution of the common council adopted February 17, 1914, placing Lakewood boulevard under the control of the department of parks and boulevards of the city, referred to it as a ‘street or highway.’
“The resolution of the common council adopted April 18, 1916, rescinding the resolution of February 17, 1914, referred to Lakewood boulevard as a ‘street or highway.’ It was a boulevard in name only. Its name ‘Lakewood boulevard’ carries with it no more significance than the name of the street. ‘Broadway’ in city of New York, or the name of the street ‘Commonwealth avenue’ in the city.of Boston, or the names of streets, ‘Boston boulevard,’ ‘Chicago boulevard,’ ‘Dexter boulevard,’ ‘Hamilton boulevard,’ ‘Lafayette boulevard,’ ‘Park boulevard,’ ‘Washington boulevard,’ and others in the city of Detroit,”

■ — and that the city had the right to pave this street the same as any other street, citing among other authorities Burridge v. City of Detroit, 117 Mich. 557 (42 L. R. A. 684), and Newberry v. City of Detroit, 184 Mich. 188. These cases are both dissimilar from the instant case. The first was a personal injury case involving the liability of the city for a defective sidewalk, and in the last-named case there was no claim of exemption from taxes because the street paved was a boulevard.

The claim of the city involves the proposition that Mr. Freud’s testimony was incompetent and the further proposition that nothing was accomplished by the council formally placing the street under the control of the department of parks and boulevards. We think the case is controlled by the principles stated in Scovel v. City of Detroit, 159 Mich. 95. See, also, Conkling v. Village of Mackinaw City, 120 Mich. 67; White v. Smith, 37 Mich. 291; McArthur v. City of Cheboygan, 156 Mich. 152; Crosby v. City of Greenville, 183 Mich. 452.

The counsel for the city urge that Mr. Burton, who was an alderman and also a stockholder in the company with Mr. Freud, and his brother voted to rescind the action of the council in putting the street under the control of the park and boulevard commission $nd also voted for the paving of the street. We do not see how this action on the part of Mr. Burton can affect the status of the plaintiff.

The decree is affirmed with costs to the plaintiff.

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

Brooke, J.

(dissenting). The facts involved herein are sufficiently set forth in the opinion of my Brother Moore. I desire only to emphasize the form of the dedication, which is as follows:

“Know all men by these presents: That the Grosse Pointe Land Company has caused the land embraced in the annexed plat to be surveyed, laid out and platted, to be known as ‘The Marshland boulevard sub. of part of private claim 321, Detroit, Wayne county, .Michigan/ and that the streets and alleys shown on said plat are hereby dedicated to the use of the public,”

- — and the resolution of the common council accepting said plat in the following terms:

“Resolved, that the plat of Marshland boulevard subdivision, part of private claim 321, be and the same is hereby accepted and approved, and the commissioner of public works be and he is hereby directed to sign and approve the same.”

Like language of acceptance and dedication was used as to the adjoining plat. I call attention to the language .of dedication and acceptance for the purpose of emphasizing the fact that nothing is shown of record indicating that “Lakewood boulevard” was treated either, by the owners of the property in dedicating, or by the city authorities in accepting the plat, in any manner which would distinguish it from an ordinary street. Although the claim is made in the brief of counsel for plaintiff that the mere calling of a street a boulevard has some bearing upon the question here involved, I am of the opinion that such claim is utterly without foundation. We have in the city of Detroit as pointed out by counsel for the defendant many so-called “boulevards” which are simply “streets/; among them the following: Boston, Chicago, Dexter, Hamilton, Lafayette, Park, Washington, most of which remain under the jurisdiction of the board of public works. Nothing therefore can be predicated upon the mere use of the word “boulevard” instead of “street.” Plaintiff’s right, if any, in the premises must be based on the testimony of Mr. Freud, and upon the resolution of the common council of February 17, 1914.

The law relative to the admissibility of Mr. Freud’s testimony is stated as follows:

“To show the intention of the alleged dedicator with reference to acts of dedication, either for or against the dedication, his declarations made at the time of the acts or so near that time as to be a part of the transaction are admissible in evidence as a part of the res gestee. Such declarations will not be admissible, however, after the dedication has become irrevocable by acceptance.” 13 Cyc. p. 472.

See cases cited in note 18. My conclusion is that Mr. Freud’s testimony should have been excluded, and, so excluded, there remains only for consideration the legal effect of the resolution of February 17, 1914, placing “the street or highway known as Lakewood boulevard * * * under the control of the department of parks and boulevards.” Two years later and on April 18, 1916, this resolution was rescinded. In the meantime no money had been appropriated by the city of Detroit for the paving of Lakewood boulevard at public expense.

Assuming but not determining that the common council of the city of Detroit hasi authority by mere resolution to change the character of a highway from that of an ordinary “street” to a “boulevard” and place it under the jurisdiction of the department of parks and boulevards, such action is simply an exercise of a legislative function which may in the discretion of the legislative body be changed or rescinded at any later time. In other words the power to enact, in the absence of contractual relations, implies the power to rescind.

The case of Scovel v. City of Detroit, 159 Mich. 95, cited and relied upon by counsel for plaintiff, has no¡ bearing upon the question here under consideration, in that case the court had under consideration the Grand boulevard encircling the city of Detroit, provided for by an act of the legislature in which there appears the following:

“The city of Detroit may annually raise and appropriate funds for the uses and purposes of the said boulevard, but shall raise the same by taxation only, and after approval of the board of estimates and in the manner provided by law for raising funds for the general purposes of the said city.” Act No. 374, Local Acts 1879, § 16.

The conveyance from Scovel to the city contained the following language:

“Said strip of land is conveyed only for the use of a public boulevard as contemplated by Act No. 374, passed by the legislature of Michigan in 1879,” etc.

In passing upon the question there involved this court said:

“The language of the deeds that ‘said strip of land is conveyed only for the use of a public boulevard as contemplated by Act No. 374,’ etc., should be construed, in the light of surrounding circumstances, as referring to a boulevard to be improved and maintained by general taxation only. Under this construction the acceptance of the deeds by the city raised an implied contract, at least, not to levy special assessments upon the grantor’s abutting property.”

It cannot be contended that the dedication and acceptance in the case at bar imports any contractual relations between the city and the owners by the terms of which the street known as Lakewood boulevard should be improved at public expense. I am of the opinion, that plaintiff, in purchasing her lot upon the street in question after the resolution of the common council placing said street under, the jurisdiction of the department of parks and boulevards was passed, must be held to have done so with the knowledge that the power to enact said legislation implied a power to rescind and therefore that at any time thereafter the common council might, as it ultimately did, withdraw said street from the jurisdiction of the department of parks and boulevards and return it to its status as a common or ordinary street, improvement of which in the first instance is, under the charter assessable to the abutting owner.

A decree should be entered in this court dismissing plaintiff’s bill of complaint with costs.

Kuhn, J., concurred with Brooke, J.

The late Justice Ostrander took no part in this decision.