author: Ostrander, J.

text:
    BISHOP v. BALDWIN.
    1. Shipping — Liability for Torts — Fish Nets — Right to Fish.
    In an action by the owner of fish nets, set in St. Mary’s river, against the owners of a tug and rafts for injury to the nets by running over them, a claim by defendants that plaintiff had no right to fish in that place because fishing with nets is prohibited by section 5865, 2 Comp. Laws, except in certain rivers, the Sault Ste. Marie, but not St. Mary’s river, being one of them, is immaterial, there being no doubt of the legislative intention, and it not appearing that defendants or their navigating officer knew of the alleged misnomer or supposed it to be unlawful to use nets in such waters.
    2. Same — Trespassers.
    Whether, as between himself and the owner of the shore, plaintiff was a trespasser is also immaterial.
    8. Navigable Waters — Right to Navigate — Right to Fish-Conflict.
    The right of navigating the waters of the Great Lakes, though paramount, is not exclusive, and gives the owner of shipping no immunity from liability for negligent or wanton injury to fish nets placed in such waters.
    4. Shipping — Injury to Fish Nets — Evidence—Sufficiency.
    In an action against the owners of tugs and a raft for injury to fish nets by running over them, evidence examined, and held, sufficient to go to the jury on the question of defendants’ negligence.
    5. Same — Liability of Vessel Owner — Care Required.
    Where fish nets were so placed that, if seen before closely approached, no appreciable interruption of the voyage of defendants’ vessel would have followed a change of course to avoid them, or, if they were not seen, but their presence was so obvious that ordinary care must have discovered them, defendants are liable for the injury caused by running them down.
    Error to Chippewa; Steere, J.
    Submitted October 10, 1906.
    (Docket No. 32.)
    Decided January 4, 1907.
    Case by Joseph Bishop against Cyrus W. Baldwin and the Peninsula Bark & Lumber Company for damages to plaintiff’s fishing nets. There was judgment for plaintiff, and defendants bring error.
    Reversed.
    On July 27, 1905, and for some time previous thereto, plaintiff had two pound nets set in the waters off shore in Bay Mills township, Chippewa county. The river or bay at this point is about four miles wide. The channel bank begins at 22 feet of water. The current is southeast. The nets were set at right angles with the shore; the stakes nearest the shore being from to 5 rods distant, in 10 or 12 feet of water. The nets were attached, to piles or stakes driven to considerable depth in the earth, extending from 3 to 5 feet above water. Each net had 50 rods of lead, the larger one a tunnel extending 50 feet farther into the water, and a pot 35 feet square and 60 feet deep. Each pot was protected by a framework around the top and above the water. In daylight, in clear weather, the position of these nets could be seen for one mile. Plaintiff was not the owner of the shore and had no riparian rights, though he had a license from one who had, in fact, no title to the shore. Both nets extended into the navigable channel, but were not in the course usually followed by steamboats navigating those waters. On the night of the day mentioned, defendants’ tugboats, Charley O. Smith and Kate, were towing a raft in this river; the tug first named leading, and her master being in command of the expedition. The raft passed over a portion of the nets, and the plaintiff has recovered a judgment for the injuries sustained. There was no light on the nets, nor any bushes set up, as is sometimes done, to attract attention to their position. The tugs had their full complement of crews, were seaworthy, and were navigated by compass. So far as is above related, the facts are not in dispute. There is some dispute as to whether the night was clear, with starlight, or only reasonably fair, whether the raft took the same course as on previous earlier occasions, and as to the velocity of the wind.

      It is not contended that the vessels were driven by stress of weather into collision with the nets. It is denied that the agents of defendants saw the nets. On his cross-examination, the officer who had charge of the tugs, and was on the leading tug at the time the fish nets were passed, testified in substance that, while the course which he found set for him when he took command at 12 o’clock would have taken him about a half a mile from the shore at the point where these nets were set, he changed the course for the purpose of keeping farther out, the wind being southeast ; that, in passing the point where the nets were set, the course he set for himself would have carried him farther out than the one he found set for him when he took command; that he did not notice that the wind was driving him towards shore; that, when opposite the place where the nets were set, he must have been more than a quarter of a mile from shore; that he examined the shore with his glass, and the river down shore between the banks with the glass, and the water ip front of him; that he could not see, in a night of that character, a spar buoy with his glass over 200 feet away; that the watchman was aft somewhere at the time plaintiff’s nets were passed; that he did not go through the fish nets to his knowledge, and did not see any fish nets; that the tow line was from 600 to 800 feet long, hitched to the middle of the raft, which was about 400 or 500 feet wide, and his (the leading) tug was 150 feet in advance of the other tug. He himself was at the time acting as wheels-man and in a position to see visible obstructions of his course. His testimony to the effect that he examined the course, shore, and water with his glass, that he saw no fish nets, and did not know that a collision with the nets had occurred, is undisputed by other testimony.
    It is averred in the declaration of the plaintiff that the nets were situated less than one mile from shore in that part of Lake Superior known as "White Fish Bay,”in said county, and so set as not to hinder or prevent navigation in said waters. Defendants gave notice, with their plea, that they would insist in their defense that plaintiff had no lawful right to have his nets in the place in which they were, and that they were there in violation of the law of this State and of the United States; that the nets were so placed and set as to impede and obstruct navigation, and that they (defendants) had a paramount right, with steamboats licensed by the United States, to navigate said waters freely; that plaintiff’s right to fish in said waters was subordinate to the right of defendants to navigate them; that any and all statutes of the State of Michigan purporting to grant or give to plaintiff the right to fish in said waters with his said nets were of no force or effect, because in conflict with the superior right to navigate said waters with steamboats; that the said steamboats of defendants were duly enrolled and licensed by the United States to navigate said waters and to tow said raft, and that at the time and place set out in the declaration they had the paramount right in said waters; that the waters of the Great Lakes for a distance of one mile from shore are subject to unobstructed and free navigation, unaffected by local or State laws, the acts of Congress respecting navigation governing to the exclusion of other laws; that plaintiff took no care to properly warn passing vessels of the presence and position of said nets.
    The learned trial judge submitted the case to the jury upon the theory that plaintiff had the right to fish in the waters where his nets were set; that defendants had the right to navigate those waters; that the right of navigation was paramount to all other uses of the water; that the issue to be determined by the jury, apart from the question of the damages sustained, was whether or not the defendants, in view of all conditions, navigated the waters upon the occasion in question negligently, whether as a result of such negligent navigation the alleged, injury occurred, and whether the failure of the plaintiff to light or otherwise better mark the position of his nets contributed to the injury. One special question was submitted to the jury, which was:

      “ Did the conduct or failure on the night in question of the plaintiff, Bishop, to give warning by light or otherwise of the location of his nets, contribute to the injury ? ”
    This question the jury answered, “No.”

      13. S. B. Sutton, for appellants.

      M. M. Larmonth (Warner & Sullivan, of counsel), for appellee.
   Ostrander, J.

(after stating the facts). Counsel for appellants contends that plaintiff had no right to fish with these nets in the waters in which they were placed. The ground of this contention is:

1. That the nets were in the waters of St. Mary’s river and not in those of White Fish Bay; that 2 Comp. Laws, § 5865, makes it unlawful for any person to catch fish at any time with pound nets in any waters of the State, excepting those specified in the statute; and that St. Mary’s river is not specified.

2. That St. Mary’s river is a national highway of commerce, and the State can pass no. effective law permitting interference with commerce, and that the setting of nets obstructs navigation.

The statute names the Sault Ste. Marie, St. Clair, Saginaw, and Detroit rivers. It is said there is no Sault Ste. Marie river, and that the court may not assume that the legislature meant to designate these waters by the name Sault Ste. Marie. We are referred to the Webster-Ashburton treaty, to various public documents, and to our own decision in Sherwood v. Commissioner of State Land Office, 113 Mich. 227, in which, uniformly, the designation is “ St. Mary’s.” We are not favored with inspection of a certain marine map used in the trial court. There can be no doubt concerning the legislative intention, and it does not appear that defendants, or their navigating officer, knew about the alleged misnomer, or supposed it to be unlawful or unusual to use such nets in these waters. We agree with the circuit judge that, for the purposes of this case, it is immaterial what name is given to the waters in which the nets were placed, or whether, as between himself and the owner of the shore, plaintiff was a trespasser.

No question of conflict of State and Federal jurisdiction over waters or over the subjectof navigation is presented. The theory of the plaintiff’s case and of the charge of the court is that the right of navigation in the waters where the nets were set is paramount to the right to fish. The real question presented is much narrower than the one counsel for appellants has argued. That defendants were exercising a paramount right does not necessarily excuse them. It was well said by Mr. Justice Lyon, in Wright v. Mulvaney, 78 Wis. 89 (9 L. R. A. 807):

“The benefit which the navigator is entitled to claim by reason of his paramount right is, we apprehend, that, when the two rights necessarily conflict, the inferior must yield to the superior right.”

This court long ago asserted that the right of navigation in such waters, though paramount, was not exclusive. People’s Ice Co. v. The Steamer Excelsior, 44 Mich. 229. See, also, Lincoln v. Davis, 53 Mich. 375; Hopkins v. Railroad Co., 131 N. C. 463. Plaintiff complains of the violation of a common-law right, and seeks a common-law remedy. We confine ourselves, therefore, to an examination of the errors relied upon in the brief of counsel for appellants, arising upon the trial, affecting the result of the trial.

It is not claimed there was testimony improperly received or rejected. It is asserted that in charging and in refusing to charge the jury error was committed. The serious complaint, and the only one, perhaps, which we need to notice,- is of the rule laid down by the court respecting the care demanded in the navigation of the boats to discover and to avoid collision with the plaintiff’s nets. For a proper understanding of the criticism made, it is necessary to set out various portions of the charge. In defining to the jury the rights of the parties, the court said:

“And if those nets are so set that by mere changing of the course the vessels can safely navigate on their way, then they are lawfully there. The master of a vessel would not be justified, in cases of that kind, if he carelessly, unnecessarily, or wantonly ran his vessel upon such nets and destroyed them. Now, vessels having a paramount right of navigation can lawfully run upon any course in these waters. They can run to all ports and any direction, and to any place. They can run far from shore, or close to shore, or straight along the shore • in a varying course; but in doing so they are required to observe the rules of navigation. It is the duty of masters to operate their boats with care and caution, to watch for other vessels and other obstructions, and to avoid them when possible. If it should appear in this case that these vessels, with rafts, were running closer to shore than the parties navigating them proposed, they still had a right to do so; but it was their duty to watch and discover these nets or any obstruction in the way, and avoid them, if possible to do so, by exercising ordinary diligence, * * *
“ So far as the testimony in this case stands, it shows that these boats were properly equipped and properly manned, and, as I said before, they had a right to pass as near the shore as they were shown to have passed; but in doing so they must have due regard for the conditions surrounding them, and it was their duty, if it was a well-known fact that fish nets were along that shore, to exercise greater care and caution according to the conditions to their knowledge upon that subject. * * *
Briefly stated, the rule is this: That it was the duty of those navigating these tugs and towing that raft to do so with caution, to exercise all care and diligence possible to observe these nets or any other obstruction. If they exercised that care and'caution, under the conditions, the time of day, and the condition of the weather, they would not be liable in this case. If they did not, and were careless or negligent, then they are liable.
“ Taking up that proposition again, and giving it in the language of a request, which we have [one of defendants’ requests to charge], you are instructed that the plaintiff had a common right to fish in the waters in question, in common with others, subject to the paramount right of navigation, and also these tugs and rafts had a common right to navigate those waters in question in common with other craft; and if any injury was done to plaintiff’s nets by said tugs or rafts, or. either of them, as alleged, you are instructed that if you find the defendants’ tugs and rafts used the said waters in question and navigated their said tugs, respectively, and towed said rafts, in a prudent, seamanlike, reasonable, and cautious manner, at the time of said injury, they were in the lawful exercise and use of a common right, and a lawful right, possessed by each of said defendants, and for which there could be no recovery by this plaintiff, even though damage was done.”

It is conceded by counsel for appellants that, even if the nets were unlawfully in these waters, defendants would have no right to wantonly run into them, and would be required to use ordinary care to avoid them, and claimed that, whether the nets were legally or illegally in the waters, the jury under this charge were permitted to apply a rule concerning the care required which was unwarranted. The argument made by counsel for the plaintiff is that, taking all the testimony into consideration, the jury were justified in finding that the night was clear starlight. That the tugs were carelessly and negligently managed is conclusively shown by the fact that, although claiming to steer by compass and to have determined to sail a course at least a half a mile from shore, followed by a change of course which would have brought the boats a mile and more from shore at the point at which these nets were set, the flotilla actually passed within a quarter of a mile of the shore, indicating that those in charge were asleep, or paying no attention to the course which they were taking, and maintaining no lookout whatever. In our opinion, the testimony made a case upon which plaintiff was entitled to take the verdict of the jury, and it is not clear that, if the court had given the jury the most modified rule respecting the care which defendants’ officers were bound to exercise, the verdict, in view of the testimony, would have been different.

But we are also of opinion that the court laid down a rule concerning the duty of the defendants not warranted and not supported by authority, which rule the jury were at liberty to apply. The most favorable rule to which the plaintiff here is entitled is based upon the principle, stated in Wright v. Mulvaney, supra, that the master of the .vessel may not, unnecessarily, by his owh negligence, force the two rights into conflict, and then claim the benefit of the paramount right. The testimony in this case is, and no other conclusion is warranted, that, if the nets had been seen before they were closely approached, no appreciable interruption of the voyage would have followed a change of the course to avoid them. If, therefore, they were so seen, defendants should be held liable. If they were not seen, but their presence was so obvious that the person or persons charged with navigating the fleet, if performing with ordinary care the duties of the position, must have seen them, then it was negligence not to see them, and defendants should be held liable. These views are supported by the reasoning of our own and other decisions already cited, and are not opposed to those expressed in Lewis v. Keeling, 46 N. C. 299; The City of Baltimore, 5 Ben. (U. S.) 474; Cobb v. Bennett, 75 Pa. 326; Post v. Munn, 4 N. J. Law, 61; Gould on Waters, § 87.

As a new trial must be awarded, discussion may properly end here. The judgment is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    FREED v. STUART.
    1. Drains — Lost Records — Restoration.
    Where a public drain has been in existence for over 30 years, and no record of the proceedings for its establishment is to be found, the case is one for proceedings under section 4379, 2 Comp. Laws, providing for the restoration of lost drain records.
    2. Same — Cleaning Out Old Drains — Authority
    Authority of the drain commissioner to a landowner to enter upon the lands of others and clean out an established drain can extend no further than to authorize restoring the drain to its original dimensions.
    Error to Calhoun; Hopkins, J.
    Submitted October 12, 1906.
    (Docket No. 76.)
    Decided January 4, 1907.
    Bill by John A. Freed against Frank A. Stuart, George W. Robinson and others to restrain the obstruction of a drain. Defendants Stuart and Robinson filed answers in the nature of cross-bills to enjoin complainant from deepening and widening said drain. From a decree for complainant, said defendants appeal.
    Reversed, and bill dismissed without prejudice.
    The main purpose of the bill filed in this case is to restrain the defendants Stuart and Robinson from obstructing a drain known as the “ Brace Lake Drain.” The bill alleges the obstruction, but it alleges that complainant ‘£ is unable to give a more accurate description of said drain as petitioned for, for the reason that your orator has, and the county drain commissioner has, been unable to find the original petition or application and the survey bill for said drain, or any copies thereof, although diligent search has been made therefor.” The defendants answered, admitting the erection of the dam, and charged that the complainant had entered upon this ditch without any right or authority, and had deepened and widened it beyond its dimensions as they had been for more than 30 years, and asked affirmative relief by injunction against such conduct on the part of the complainant. Defendant Rentschler was an employe of defendants Stuart and Robinson, and defendant Dickinson was drain commissioner. As to them no relief is asked. The answers do not deny the existence of the drain, and upon the hearing it was conceded that this was a legal public drain, having been established more than 10 years.
    Brace Lake is about three-quarters of a mile long and half a mile wide. Another small lake empties into it from the south. The drain crosses a public highway a few rods from the mouth of the drain. The defendants Stuart and Robinson own summer cottages near the mouth of the drain, between the highway and the shore. Complainant owns a farm situated on the north and west of the lake. The land around the lake is very low. This drain was laid out and completed as a public drain by the drain commissioner in 1871. No action has since been taken by the drain commissioner towards widening, deepening, or cleaning it out. Complainant without claim of authority, except as hereinafter stated, entered into the drain and cleaned it out between the lake and the bridge. He claims to only have cleaned it out to its original depth. The defendants claim that he dug it deeper and lowered it several inches below the depth as it had existed for more than 10 years. The commissioner erected a bridge over the drain on the highway. On digging for the abutments quicksand was found, and plank were laid across the drain at this point and the abutments erected upon them. These plank were under water, and have remained since the bridge was constructed.
    Complainant claims that his land was injured by the rise of the water in the lake on account of the dam, which was about 15 inches high, constructed of cement, upon the plank under the bridge.
    Defendants claim that the action of the complainant in lowering and widening the ditch lowered the water in the lake and injured their property, and, in order to restore the water to its original height they constructed the dam.
    Complainant entered upon the land of the defendants and into the ditch, and tore out the dam. He then filed this bill to enjoin the building of another. Each side gave testimony to sustain his theory. The case was heard upon pleadings and proofs taken in open court. The court found that the bottom or bench of the ditch was at the top of the plank under the bridge, and entered a decree enjoining the defendants from maintaining the dam.

      Hatch & Page, for complainant.

      Miller & Miller (George H. Southworth, of counsel), for defendants.
   Grant, J.

(after stating the facts). The drain does not flow through the complainant’s land, which is located some distance away. It was constructed about the year 1871, and had never been cleaned out prior to 1904, when the complainant entered upon the lands of the defendants for that purpose. It naturally became filled to a considerable extent by accretions and other means. No one, however, had complained or had taken any steps to secure its cleaning until about the year 1900, when the complainant presented a petition to the then drain commissioner, praying that the drain be cleaned out. The commissioner denied the petition, and no further action was taken under it.

Complainant claims that he afterwards had a talk with defendant Dickinson, the drain commissioner, about taking out the obstructions, and that the commissioner said to him, “Why, you have a right to go and take them out. ” That is the sole authority under which complainant claims the right to enter upon the lands of the defendants and others and clean out the drain. The effect of his work was to lower the lake from 9 to 10& inches. The defendants had érected cottages and had a summer resort near the mouth of the drain. They claim that the lowering of the lake has done great damage to their property.

The drain for many years had been in substantially the same condition as when complainant cleaned it out. The amount of water that passed through it depended upon the amount of the rainfall. In some dry seasons no water flowed through it. It is evident that there would be accumulations during that period. The only evidence of its depth as originally constructed was that of some witnesses who testified that, when the bridge was built, the plank were laid at the bottom or bench of the ditch as fixed by the commissioner. The complainant’s bill alleged that he “had been unable to find the original petition and the survey bill for said drain or any copies thereof.” Upon the hearing it was conceded to be “a public and legal drain for all the purposes of this suit.”

Complainant introduced no evidence of the loss of the record of the proceedings for establishing and constructing it. The statute (2 Comp. Laws, § 4381) provides:

“Any drain that has been established for ten years shall be conclusively deemed to have been regularly established, and it shall be the duty of the county drain commissioner, where no records of such drains have been preserved, to see that the récords of such drains are made in the most practicable manner in the drain- records of their respective counties.”

There is no evidence that the commissioner had performed this duty. Whether "complainant in cleaning it out had dug deeper than the original bench or bottom is in dispute; but that he dug it wider than it originally was is well established. Three disinterested witnesses testified that it was several feet wider. This case is, in my opinion, a proper one for proceedings under 2 Comp. Laws, § 4379.

If, however, it be conceded that the complainant had the right to enter upon the lands of the defendants and clean out this drain (a right which I very much doubt), he was limited in that right to the original dimensions of the drain. He failed to establish such dimensions, and therefore has failed in his proofs. Before doing this, he should have secured from the drain commissioner a compliance with the statute above quoted, restoring the records as far as practicable. Whether the complainant could be authorized by the. commissioner to enter upon lands other than his own and clean out the drain through its full length, which had lain for nearly 35 years untouched, and meanwhile had become filled with natural accretions, is a question we need not determine.

Decree reversed, and the .bill dismissed, with costs of both courts, but without prejudice, inasmuch as the merits of the case cannot be determined upon this record.

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


author: Moore, J.

text:
    RAYMOND v. McKENNA.
    1. Counties — Supervisors—Contracts—Committees—Authorizing Acts.
    Whether a board of supervisors can properly delegate to a com mittee authority to receive bids and award contracts, a ratification of the acts of a committee to which it has attempted, to deligate such authority, and which has proceeded as in. structed, makes the acts of the committee the acts of the board and validates the contract which they have made.
    2. Fraud — Presumption—Burden of Proof.
    Fraud is not lightly to be presumed and those alleging it must prove it.
    3. Counties — Contracts—Highest Bidder — Fraud.
    A contract for furnishing a court-house is not presumptively fraudulent because let to the highest bidder, it being claimed that the bidder was a manufacturer of éstablished reputation of high-class goods, and the proposal being for goods made to order as against stock goods specified in other proposals.
    Appeal from Chippewa; Steere, J.
    Submitted October 16, 1906.
    (Docket No. 82.)
    Decided January 4, 1907.
    Bill by Frederick B. Raymond, Melville E. Sayles, and Minerva Sayles, copartners as the Raymond & Sayles Furniture Company, and others, against James McKenna and others to enjoin the performance of a contract on the ground of fraud. From a decree for complainants, defendants appeal.
    Reversed, and bill dismissed.

      Sharpe & Handy, for complainants.

      George B. Holden (L. O. Holden, of counsel), for defendants.
   Moore, J.

During the summer and fall of 1904, an addition was erected to the court-house of Chippewa county. The board of supervisors appointed, at the January, 1905, session, a committee “to interview the several furniture dealers and salesmen, and to determine what furniture will be required and the expense there'of, and to report at tomorrow’s session, with their recommendation.” After a session of a few hours, the committee reported to the board that they had received bids from three parties, as follows:

Schedule A. Schedule B.
“A. H. Andrews Go., Chicago, 111. J........$3,095.40 $2,335.50
John McKee, Sault Ste. Marie, Mich.------ 2,335.75 1,914.85
Raymond & Sayles, Sault Ste. Marie, Mich.. 2,061.55 1,679.00
“We have no recommendation to make except that Schedule A of the A. H. Andrews Co. is made to order in a large part. Schedule B of the A. H. Andrews Co. we compare with Schedule A of John McKee and Raymond & Sayles, which are to be first-class quarter sawed oak, stock goods. John McKee’s Schedule B has many articles which compare equally with some articles in Raymond & Sayles’ Schedule A.”

This was near the end of the session, and the board referred the report back to the committee with power to purchase such furniture as, in their judgment, they deemed necessary, in an amount not to exceed $3,000. The committee went into session after the board adjourned, and decided to award the contract to the A. H. Andrews Co. at their highest bid, agreeing to pay $3,815 for the furniture first listed, less the opera chairs for the court-room. The following morning, before the contract was signed, Raymond & Sayles secured a further hearing before the committee. There is a dispute as to what then occurred. A conference was had between John McKee and the representatives of A. H. Andrews Company. McKee then proposed taking the contract in his name, but for the A. H. Andrews Co. and for their furniture, and at their figures, $3,815, and a contract was then signed by the committee and McKee. This action was brought for the purpose of enjoining the carrying out of this contract, the complainants claiming it was fraudulently brought about. The circuit judge granted a temporary injunction and on the final hearing issued a permanent injunction. The case is brought here by appeal.

The defendants put in a sworn answer in which they denied all the allegations of fraud and averred:

“That the members of said committee, after spending much time and giving much consideration to the matter of the purchase of said furniture, and after duly and fairly considering the price and furniture offered by each of said bidders and according to each of them two or more hearings with respect to their offers, and having referred the matter back to the board of supervisors for action thereon by the whole board, and after having been instructed by said board to purchase such furniture, and after further consideration and examination of the bids, said committee came to the conclusion that the bid submitted by said A.' H. Andrews & Co., while higher than the other bids, provided for a much better grade of furniture; better designed and finished and better adapted to the purposes for which it was intended, and that, in the opinion of said committee, such furniture was by reason thereof better and cheaper than that offered by the other bidders, at the prices stipulated. * * *
“That each of the members of the said committee and said John McKee, in the contract for the purchase of said furniture, acted in entire good faith without falsity or fraud, and that each of the members of said committee acted for the best interests of the county of Chippewa, according to the dictates of his judgment. That there was no fraud whatever in any of their transactions in this regard, and that it was, in their judgment, economy and good business sense to purchase the articles of furniture so purchased by them at the price stipulated to be paid therefor. That furniture of a like quality, usefulness, suitability, and adaptability cannot be purchased for a less price than that contracted to be paid for the furniture so purchased by said committee.”

The circuit judge filed a written opinion in which he said, among other thing:

“ Courts cannot interfere with such contracts, however unwise they may be, or however exorbitant the price paid, if there was no misrepresentation or fraud; but in this case we are convinced that the committee was misled and predjudiced in favor of the Andrews goods by the claim that they were special, and made to order to fill this bill.
“It is claimed, and undoubtedly true, that if the articles were equally good and as good as represented it would make no difference in their intrinsic value whether they were made to order or stock goods; but a general sentiment prevails that special designs and specially made to order articles are better and .more to be desired even at higher prices, and we are convinced that such a feeing largely influenced the committee in awarding the contract to the highest bidder. * * *
“The subsequent action of the board of supervisors relative to the doings of said committee has no bearing on the question before us. Our duty is to deal with the matter as it stood when this bill was filed. The board of supervisors heard no testimony, and made no investigation. Learning that a claim of fraud had been made against certain of their members, and believing them to be honest, they proposed to stand by them. So far as that proceeding is concerned we have no criticism to offer, and it is not the opinion of this court that said committee acted dishonestly or corruptly with any view to personal gain. They did act unwisely and hastily, and were misled and deceived and entered into this .contract under an honest belief that certain false representations made to them were true. Those misrepresentations taint the contract with constructive fraud rendering it illegal and void in the opinion of the court.”

After the bill of complaint was filed and the temporary injunction was issued, the committee reported the situation in writing to the board of supervisors then in session, part of the report being as follows:

“That after careful consideration of all bids submitted, we concluded to use the A. H. Andrews furniture, and entered into a contract with John McKee of Sault Ste. Marie, Michigan, for the same as per schedule attached and filed in the county clerk’s office for the sum of $3,815. Your committee further reports that subsequent to entering into said contract, to wit, on the 4th day of March, 1905, your committee, your chairman, your clerk, and John McKee were restrained temporarily, by an order of the circuit court of this county which is now pending, from in any way carrying on said contract, or purchasing any furniture for the court-house, upon the complaint of F. B. Raymond and others, which complaint alleges lack of authority on the part of your committee to purchase said furniture and enter into said contract, and also that the proceedings of your board relative thereto were defective, because of the absence of the necessary appropriation to pay for the same. The said complaint also charges fraud in the letting of said contract, and alleges that the price paid for the furniture is considerably in excess of the offers made by other bidders for practically the same class and style of furniture.
“Your committee further says that while the price is in excess of the other offers it was and still is the opinion of your committee that the furniture offered by the other bidders was inferior in style, quality, and adaptability to that selected by your committee, and that the superiority of the furniture selected is great enough to warrant the extra price to be paid therefor.
“Your committee requests, in view of the charges of fraud made against the members thereof, that if, in the opinion of your honorable body, there is any foundation for ’such charges that a full and complete investigation be had by your honorable body, and your committee earnestly courts said investigation.”

Instead of appointing an investigating committee the board of supervisors by a vote of 13 to 1, all the five members of the committee refraining from voting, adopted the following resolution:

“Resolved, That the sum of $2,815.00 be and the same hereby is appropriated and set aside from the amount heretofore appropriated by this board ‘for purposes not otherwise provided for.’ Said sum to be used to pay for the furniture for use in the several offices in the courthouse as,per contract therefor heretofore on the 17th day of January, 1905, entered into by James McKenna, John B. McDermid, Patrick McEvoy, and A. G. Hull as a special committee of the board of supervisors on behalf of the county of Chippewa and John McKee.
“Be it further resolved, That said contract and all its provisions be and the same hereby are ratified and confirmed, , and that the furniture therein listed and mentioned be purchased as therein provided, for the uses and purposes of said county of Chippewa as in said contract contemplated, and that the clerk and chairman of this board be, and they hereby are, authorized and instructed to draw an order in favor of said John McKee in payment therefor upon the acceptance of said furniture as in said contract provided. ”

We think the learned judge was wrong in ignoring this action of the board of supervisors. Had this action been taken before the contract was signed, it can hardly be questioned that the act of the committee became the act of the board of supervisors. We think the same result followed from what was done by the board of supervisors when the action of the committee was reported to it. Naegely v. City of Saginaw, 101 Mich. 532. The purchase of furniture for the remodeled court-house was peculiarly within the functions of the board of supervisors. It is usual in the transaction of any such business to appoint a committee for the purpose of learning what can be done, and to act upon the report of the committee. While it may be doubtful if the board of supervisors could properly delegate to a committee the duty of buying such a quantity of furniture, we have no doubt that it can ratify the act of its committee. Fraud is not lightly to be presumed. It is the duty of those alleging it to prove it. Peaslee v. Collier, 83 Mich. 549; Clinton v. Rice, 79 Mich. 354; Gumberg v. Treusch, 103 Mich. 543; Zucker v. Karpeles, 88 Mich. 413; Bly v. Brady, 113 Mich. 176.

It is a matter of common knowledge that there is a great difference in the quality and value of furniture which looks much alike. Some firms have the reputation of making and dealing only in high-class goods. The fact that articles are furnished by such a firm may he and often is an assurance that the purchaser will get articles of a good quality. Though the price is higher, many persons believe it is good economy to purchase from a dealer having an established reputation as a maker of and dealer in high-class goods. A careful examination of this record does not satisfy us that such fraud is shown as justifies the interference of the court.

The decree is reversed, and the bill dismissed, with costs of both courts.

McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred.


author: Blair, J.

text:
    READE v. HAAK.
    1. Brokers — Right to Commissions — Procuring Cause oe Sale.
    Where a broker’s contract binds him, as a condition of his right to demand commissions, to bring the buyer and seller to an agreement, it is not necessary that the broker shall conclude the sale in person, it being sufficient if his efforts are the procuring cause of the sale.*

    2. Same — Evidence—Sufficiency.
    In an action by a broker for commissions on the sale of real estate, evidence examined, and held, sufficient to go to the jury as to the terms of the agreement and what was done under it:
    Error to Calhoun; Hopkins, J.
    Submitted October 17, 1906.
    (Docket No. 96.)
    Decided January 4, 1907.
    Assumpsit by J. Lyman Reade, George R. Cowles, and Charles W. Robinson, copartners as J. L. Reade & Company, against Harry K. Haak for commissions on the sale of certain real and personal property. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      W. S. Powers, for appellant.

      Williams & Beck, for appellees.

       As to when real-estate broker is considered the procuring cause of a sale or exchange of property, see note to Hoadley v. Savings Bank (Conn.), 44 L. R. A. 321.

   Blair, J.

Plaintiffs brought this action to recover a commission fee alleged to be due them as brokers upon the sale of certain real estate and personal property comprising the lumberyard and contents of defendant. The declaration alleges that:

“ The plaintiffs and the defendant entered into an agreement by which the said defendant placed the property hereinafter described in the hands of said plaintiffs for sale at a price to be satisfactory to said defendant, the said plaintiffs to act as commission men and brokers for the sale thereof, and the said defendant to pay the said plaintiffs a commission of two (2) per cent, upon the sale price thereof upon the consummation of such sale.”

The declaration further avers that plaintiffs did procure a purchaser, at a price satisfactory to defendant, to whom the property was sold, and “that the said purchaser was so found as aforesaid by the efforts of said plaintiffs, and the said sale was made by the plaintiffs.”

Defendant gave notice, under the plea of the general issue, among other things:

“ That it was expressly understood and agreed that, in order to entitle the said J. Lyman Reade to any commission whatever, he was to find a buyer ready and willing to take said real estate at $14,000, and said personal property at invoice price, and in case said J. Lyman Reade found a buyer ready and willing to take all of said property at said price, this defendant was to pay him 2 per cent, commission therefor.”

Plaintiff Reade gave testimony that:

“ My commission was understood at that time to be 2 per cent, straight through. They asked me what my rate of commission was, and I said it would be 2 per cent, straight through on the valuation of their property — that is, whatever their property sold for. * * *
“At the time the property was left with me, there was nothing said by the defendant about how long a time I was to have to make the sale. He was exceedingly anxious to have the property sold as soon as possible.”

Defendant stated that his price for the real estate would be $14,000, which he finally reduced to $13,500. After negotiations extending over five or six weeks, the highest offer plaintiff was able to get was $12,000, which defendant refused to accept. April 21, 1905, plaintiff wrote a letter to defendant’s father, who was present when the parties made their agreement, of which the following are extracts:

“ Harry and I had a conference this morning, and have come to the conclusion that we will be unable to get Messrs. North & Strong in line. We thought possibly if you were here, that you might have some bearing upon Mr. North. He seems to think that he could do some better in price if you were here and he has positively stated that he will not pay more than $12,000 for the real estate. * * * 'I said to Harry this morning thdt I would try and get my commission above that and thought possibly I could do it, but without something further from you, we have nothing to work from. Harry suggested that I lay this matter before you just as I see it. * * * We thought possibly that you might be able to assist us in closing this matter and as you have written that you would be here this week, I would suggest that you come as early as possible, as I fear the longer we let it go the farther Mr. North gets away from us. Within the last two days we have exhausted all the resource we had to bear upon Mr. North to purchase this property and feel that it is important to close this matter up at once, if we do it at all. It seems as though we should be able to close it up with a small concession for each side. It is our aim to secure the very best value we possibly can for our clients, but in this case, there does not seem to be any way out of it, to get more from the purchaser; he has simply ‘backed up.’ Please advise about when you think you will be here. I am very anxious to close this matter if possible and am satisfied were you here we could close, and close at once.”

This letter was introduced in evidence by defendant. Soon after writing the letter, plaintiff Reade secured from North & Strong an offer of $12,500, which was also refused by defendant. On April 26th, plaintiff had an interview with defendant and his father at defendant’s office.

“We stood up around the table and I asked Mr. Haak what he thought of the proposition as it now stood. Well, he did not like the proposition. He says: ‘ We can sell this property for $12,750, but we won’t allow you any commission for selling it..’
Q. Sell it to whom, did he say ?
“A. North & Strong, but he would not allow me any commission on it, and he would allow me commission on the stock, and he was excited. * * *
“ The younger Mr. Haak got to talking with me about my commission — that I should reduce my commission on the real estate because they had not got their price on it. I told him I did not see any good reason for it, but I says: ‘ I will take care of that part of it if you sell this property to North & Strong, my.client.’ And the old gentleman Haak says: ‘You are getting a big commission now.’ I could see from his face that he was mad. The younger Mr. Haak at that point said to me, ‘Well,’ he says, ‘we may as well go out,’ and he steps out and I goes right out in the street and went over to North & Strong’s office and stayed there with him for probably half an hour, and while I was in there talking the matter over with him, he told me just how the matter stood. Defendant came into North & Strong’s office while I was there and made this remark: ‘ That the deal was all off,’ meaning the sale of that property was all off, and I went away then and had no other conversation. The next day, about 9 o’clock, Harry Haak served a paper on me [Exhibit 1 was read in evidence, as follows]:
‘“To J. Lyman Reade:
“ ‘You are hereby notified that we withdraw from your hands the real estate and personal property known as the ‘ Haak Lumberyard’ in the city of Battle Creek, Mich., and that you are no longer our agents for the sale of either the personal property or real estate, you having failed to find a purchaser for said property at the price we placed the same in your hands for.
“ ‘ Dated April 26, 1905.
“ ‘Harry K. Haak.
“ • Jacob A. Haak.’
Q. Your connection with this matter ceased, then, upon receipt of this paper ?
“A. Yes, sir; he served this paper upon me about 9 o’clock in the morning, the 27th. At the time Mr. Haak handed the paper to 'me, he says, ‘I am very sorry,’ he says, ‘ very sorry that I can’t allow you commission upon that property down there, for what you have done, but,’ he says, ‘ this is for father, and father won’t allow you a commission.’”

Defendant put in testimony tending to sustain his plea of a special agreement to sell the property for $14,000, afterwards reduced to $13,500, of the failure of the plaintiffs to perform their part of the agreement, the termination of the agreement by defendant, and the sale by him on his own account to North & Strong, At the close of plaintiffs’ proofs, and again at the close of the case, defendant moved for the direction of a verdict in his favor. Defendant’s motions were overruled, and the court submitted the case to the jury, who found a verdict for plaintiffs. After verdict, defendant moved for a new trial, which motion was denied, the reasons therefor filed and exceptions taken. Defendant brings the record to this court for review on writ of error, assigning as errors rulings of the court upon the admissibility of testimony, the refusal to direct a verdict; refusal of requests to charge, errors in the charge as given, and the denial of the motion for a new trial.

We do not think there is any merit in the assignments of error relating to the court’s rulings in admitting or excluding testimony. If it could be said that any of the rulings was erroneous, the error was not of such a character as to be prejudicial to defendant’s case. The important question presented by the record is whether the court should have directed a verdict for defendant.

Defendant contends “that the testimony shows conclusively that the plaintiffs never found a buyer for the property in question at a price satisfactory to said defendant as alleged in plaintiffs’ declaration, and that the sale was not made by the plaintiffs.” It is true that plaintiffs did not themselves obtain an offer from North & Strong which was accepted by defendant, but this fact is not conclusive of their right to their commission. The agreement, as stated by the plaintiffs in their declaration, and as testified to by Mr. Reade, bound the plaintiffs, as a condition of their right to demand commissions, to bring the buyer and seller to an agreement. It was not necessary, however, that the plaintiffs should conclude the sale in person; it was sufficient if their efforts were the procuring cause of the sale. According to the testimony of plaintiff Reade, he had procured an offer of $12,500 from North & Strong, which he had communicated to the defendant. The statement of defendant at the office on April 26th that he could sell the property to North & Strong for $12,750 would warrant the jury in finding that defendant had obtained such an offer from North & Strong before the alleged cancellation of the contract, and there was evidence to warrant them in finding that the plaintiffs’ efforts were the procuring cause of the offer at which they closed the transaction on the next day. There was a sharp conflict of testimony as to the original agreement and what was done under it, which presented questions of fact for the jury. If they accepted the plaintiffs’ testimony as true, they were not only authorized, but it was their duty, to find a verdict in their favor. Heaton v. Edwards, 90 Mich. 500; Decker v. Widdicomb, 137 Mich. 331.

There were some inconsistencies in the charge and perhaps some erroneous instructions, but they were not prejudicial to the defendant. In fact, the charge was much more favorable to the defendant than he was entitled to.

What we have already said disposes of the assignment of error upon the overruling of the motion for a new trial.

The judgment is affirmed.

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


author: Carpenter, J.

text:
    STEWART v. GRAND RAPIDS & INDIANA RAILROAD CO.
    1. Railroads — Fencing Track — Yards—Cattle Guards — Duty to Maintain.
    By fencing each side of its main track to a point near a station a railroad company exercises its discretion to determine the limits of its station grounds and fixes that point as such limits.
    2. Appeal and Error — Right of Review — Waiver.
    To justify this court in declaring that an appellant has waived the right to have reviewed a question obviously and necessarily determined by an adverse judgment of the lower court, this court should be able to refer to the record for some conduct from which waiver can fairly be inferred.
    3. Railroads — Cattle Guards — Duty to Maintain — Yard Limits.
    A railroad company is under a statutory (section 6294, 2 Comp. Laws) obligation to provide and maintain cattle guards and connecting fences at the point where its fenced track leaves its unfenced yard.
    Error to Missaukee; Chittenden, J.
    Submitted 'October 18, 1906.
    (Docket No. 99.)
    Decided January 4, 1907.
    Case by Joseph Stewart against the Grand Rapids & Indiana Railroad Company for the killing of certain cattle. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      F. F. Sawyer, for appellant.

      James H. Campbell, for appellee.
   Carpenter, J.

Plaintiff brings this suit to recover • compensation for the loss of five head of cattle killed through the alleged negligence of defendant. These cattle were struck by defendant’s train and killed while they were on defendant’s main track, about one-half mile south of Osceola Junction, Osceola county. They had entered on said railway from the station grounds at said junction at a point where there were no cattle guards or connecting fences, and the liability of defendant in this case depends upon whether it was under any obligation to provide and maintain such cattle guards and connecting fences. The trial court decided that there was no such obligation, and directed a verdict in defendant’s favor.

To correctly determine this question, a statement of the situation and surroundings at Osceola Junction is necessary. At Osceola Junction a spur track extends west from defendant’s main track. The main track runs' north and south, and the spur track nearly east and west. The spur track is connected with the main track by a Y. The distance between the points where the two arms of the Y intersect the main track was about 15 rods. Defendant’s station (and this is a regular station where both passengers and freight are received and discharged) is situated at the point where the south arm of the Y intersects the main track. The public obtains access to this station by a highway running east and west. This highway, except as hereafter stated, is located on a quarter section line, 10 or 15 rods north of defendant’s station. At a point 15 rods west of defendant’s main track the highway leaves the quarter line and angles directly to defendant’s station. From that point it continues east, crossing the main track upon planks laid for that purpose by defendant. It then passes through a fence on the east side of defendant’s right of way — a gate being provided for that purpose— thence proceeds north, parallel to said track, until it strikes the quarter section line, and then proceeds east on said line. This highway has been in existence and used by the public in the manner above indicated for 17 years, and the public authorities have expended money upon it for highway purposes. There is no fence on the west side of defendant’s main track between the points where it is intersected by the two arms of the Y, but that track is fenced on each side beyond these two arms, and on the east side opposite the space between said arms. In other words, all of defendant’s track is fenced, save the space on the west side between the two arms of the Y. Plaintiff’s cattle entered upon defendant’s railway at the point where the highway above described crosses defendant’s main track. From this point south there were, as above stated, fences on each side of said railway; but neither at this point nor at any other point for a distance of 2i miles did defendant maintain cattle guards, connecting fences, or anything else to prevent cattle entering its railway. And, as heretofore indicated, defendant’s liability in this case depends upon its obligation to maintain such cattle guards and connecting fences at this point.

In support of its claim that it was under no such obligation, defendant contends that this point was within the limits of the station grounds, because it should, it insists, be presumed that a siding described asa “long siding” continues south of this point. This contention, even from the point of view most favorable to defendant, is merely technical; for, if the place in question was within the limits of the station grounds, there was a place further south — over which it must be assumed plaintiff’s cattle crossed before they were killed — which marked its southern boundary, and at this latter place defendant should (as we shall hereafter show) and did not maintain cattle guards and connecting fences, and this failure made it responsible in this case. But the contention is not, in my judgment, even technically sound. We have held that railroad companies have a discretion within reasonable limits to determine the boundaries of their station grounds. McGrath v. Railroad Co., 57 Mich. 555; Rabidon v. Railway Co., 115 Mich. 390 (39 L. R. A. 405). I think we are bound to hold that defendant by fencing each side of its main track from the point in question exercised that discretion and fixed that point as the southern boundary of its station grounds. See, also, Hathaway v. Railway Co., 124 Mich. 610. Otherwise, defendant, by maintaining, as it should, the cattle guards and connecting fences south of this place, on what it now claims was the true boundary of its yards, would have constructed a trap for cattle and other stock, endangering their safety and imperiling the lives of passengers carried on its trains.

The record, then, presents this question: Is a railroad company under a statutory obligation to provide and maintain cattle guards and connecting fences at the point where its fenced track leaves its unfenced station grounds? Defendant contends that this question cannot be considered because it was not raised in the circuit court. We cannot assent to this contention. That question was obviously involved in the contention of plaintiff, denied by the trial judge, that the statute imposed upon defendant an obligation to maintain cattle guards and connecting fences at the point where his cattle entered on defendant’s railway. It is true there was also involved in this contention the question of whether the road at that point was a public highway. If it was, defendant’s obligation to maintain cattle guards, etc., was fixed by section 6294, 2 Comp. Laws. The record does not contain the argument of plaintiff’s counsel in support of this contention. We cannot, therefore, say that he did not in that argument present the question under consideration. It is possible that the trial judge did not apprehend it,- but even this we cannot say with certainty. To justify our declaring that an appellant has waived the right to have reviewed in this court a question obviously and necessarily determined by an adverse judgment of the lower court, we should he able to refer to some conduct from which that waiver can fairly be inferred. The claim of wafver in all such cases must be supported by the record. It cannot rest on mere presumption. We cannot, therefore, decline to consider the question upon the ground that plaintiff has waived his right to have it considered in this court. We think it, therefore, our duty to determine the question. In the interest of clearness we restate it: Is a railroad company under an obligation to provide and maintain cattle guards and connecting fences at the point where its fenced track leaves its unfenced yard F

The statute (section 6294, 2 Comp. Laws) obligates all railroad companies in this State to fence their tracks. The station grounds of railroad companies are not in express terms excepted from this statute. This court has held that they are excepted by implication (see Flint, etc., R. Co. v. Lull, 28 Mich. 510) because “the convenience of the company, as well as of the public in transacting business with it, would be very seriously incommoded by such fencing.” See, also, Hathaway v. Railway Co., supra. It is obvious that the exemption of railroad companies from the obligation to fence their station grounds in no way lessens their obligation to fence other portions of their railroad. Those portions must none the less be effectually fenced. Clearly they are not so fenced if cattle guards and connecting fences (or some substitute therefor) are not maintained at the point where they leave the unfenced station grounds. Without such cattle guards and connecting fences, the fence on either side of the railroad fails to perform its purpose. For in such a case cattle may, as they did here, enter upon the railroad from a public highway by walking a short distance across an unfenced yard. We have no hesitation, therefore, in saying that the statute, properly construed, requires the maintenance of such cattle guards and wing fences. Any other construction would defeat the obvious purpose for which the statute was enacted. This conclusion harmonizes with the reasoning of this court in Fuller v. Railway Co., 108 Mich. 690. The court erred in directing a verdict for defendant.

Judgment reversed, and a new trial ordered.

McAlvay, C. J., and Grant, Blair, and Moore, JJ., concurred.


author: Hooker, J.

text:
    PICKELL v. COATES.
    Justices oe the Peace — Appeals—Time—Delay—Laches.
    An unexcused delay until November 4th after learning on August 21st that judgment was rendered against him on July 14th prevents appellant from taking advantage of the statute (section 909, 1 Comp. Laws) providing for delayed appeals, even if his failure to learn of the judgment before August 21st was caused by circumstances beyond appellant's control.
    Error to Barry; Smith, J.
    Submitted November 13, 1906.
    (Docket No. 114.)
    Decided January 4, 1907.
    Assumpsit in justice’s court by Charles W. Pickell and Edmond L.. Pickell, copartners as C. W. Pickell & Brother, against Jesse K. Coates upon certain promissory notes. There was judgment for defendant, and from an order denying a special appeal, plaintiffs bring error.
    Affirmed.

      Fred W. Walker, for appellants.

      Thomas & Pryor, for appellee.
   Hooker, J.

The plaintiffs placed a claim against the defendant in the hands of a collection agency at Detroit for collection, who sent it to its correspondent, an attorney at Hastings, the home of defendant. He brought an action in justice’s court, but was defeated. He wrote the collection agency without delay, asking if the plaintiffs wished to take an appeal. The letter was received and opened by a lady clerk, who was temporarily acting in the absence of their correspondence clerk, and she neglected to bring the matter to the attention of the manager until a week or so after the statutory period of five days had elapsed. Subsequently the manager informed the plaintiffs, who directed an appeal, and the necessary papers for an application for leave to appeal were prepared. This motion was denied upon the ground that this was a case where tho injured party or his attorney was not misled as to the real situation, but one where by proper inquiry the real situation might have been ascertained. A final order, of denial being made, the cause is before us on error.

We need not decide whether these were circumstances beyond the control of the plaintiffs, and warranted a special appeal. It appears that the facts came to the knowledge of plaintiffs’ attorney on July 24th. The information came to the plaintiffs about August 21st. The motion was made upon a petition signed and verified by plaintiffs’ local attorney at Hastings, and was sworn to in November, 1905, notice being given to the defendant on November 4th. The affidavit of the plaintiffs was sworn to October 13th, and that of his attorney was October 24th. The clerk’s affidavit was made on October 25th. It appears, therefore, that the manager of the collection agency waited four weeks after learning of the judgment before informing the plaintiffs, and plaintiffs waited over seven weeks thereafter before making their affidavit, and three weeks more elapsed before the petition was made and filed, making a period of nearly four months between the date of the judgment and the filing of the motion, and a period of ten or eleven weeks after plaintiffs were informed of the judgment against them.

The statute [section 902, 1 Comp. Laws] limits the right to take appeals from judgments of justices of the peace to five days. We may reasonably assume that this time was made so short to prevent delays in the enforcement of justice’s court claims. The statute [section 909, 1 Comp. Laws] relieving parties who have been prevented from taking appeals by circumstances not within their control, should be considered a remedial statute, and while it should have a reasonable construction no construction should be adopted which does not take account of the evident intention of the legislature to require prompt action by the defeated party, if he would appeal. In this case the plaintiffs had information that judgment had been rendered against them on August 21st. Had this information come to them before the five days expired, it would have been necessary to show great diligence to excuse a failure to appeal. No laches would have been permitted, and while we might not be justified in laying down the rule that one who was prevented from appealing within the five days should be required to perfect his appeal within the same period after the removal of the impediment, we are of the opinion that an unexcused delay from August 21st to November 4th does not permit of the application of the statute. In his letter of July 14th, the local attorney wrote that he must receive directions by July 18th, at which time he would be obliged to pay the costs and appeal. This came to counsel’s attention July 24th, and no reason is given for withholding information to the plaintiffs, and if this delay cannot be chargeable to the plaintiffs, it should have inspired them with diligence, when it did reach them. Yet they did not see that a motion was filed for nearly three months thereafter, and no reasonble excuse is given for such delay.

This was such laches as to preclude the relief asked. The order is affirmed.

McArvay, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    BLACKFORD v OLMSTEAD.
    Deeds — Delivery—Evidence—Sufficiency.
    On a bill to re-establish a deed, evidence examined, and held, 0 to show by a preponderance thereof that a deed as stated in the bill was executed and delivered to complainant with intention to vest title in the lands described in him.
    Appeal from Barry; Smith, J.
    Submitted November 14, 1906.
    (Docket No. 144.)
    Decided January 4, 1907.
    Bill by Charles H. Blackford against Kitty Olmstead and others to re-establish a deed, and for other relief. From a decree for complainant, defendants appeal.
    Affirmed.

      Golgrove & Potter, for complainant.

      Jesse Arthur, Thomas & Pryor, and W. S. Powers, for defendants.
   Moore, J.

This case has been here before upon demurrer to complainant’s bill of complaint. A reference to the opinion as reported in 140 Mich. 583, will make a long statement of facts unnecessary at this time. After the opinion was handed down the case was put at issue and was tried in open court. Testimony covering more than two hundred pages of printed record was taken. A decree was rendered in favor of the complainant. The case is brought here by appeal.

Counsel for appellants in their brief say:

“We understand the decision of this court upon the demurrer in this case, reported in the 140 Mich. 583, to have settled all of the questions except the simple question of fact whether there was a delivery of the deed in question to the complainant, with intention to vest a present title at the date of the delivery to the land in question. The pleadings and the evidence upon that question will be briefly discussed.”

Counsel then proceed at great length with the discussion.

The solicitors for the complainant insist:

Two questions are involved in this case. The determination of either one of these in favor of the complainant settles the case. They are:
First. Is the complainant entitled to the specific performance of the contract alleged in the bill of complaint under the proofs introduced in this case ?
“ Second. Was the deed made by Joel Evans and wife to the complainant Blackford delivered to Blackford as alleged in the bill of complaint ? ”

The trial judge filed a written opinion in which he states:

“From the evidence in the case I am in no doubt as to the fact of the making and delivering to the complainant in this case by Joel Evans and Deborah Evans, his wife, of the deed claimed by the bill to have been made and delivered, and it follows that a decree should be taken establishing his title to the land in controversy, and setting aside and holding for naught the conveyance of the same by Joel Evans to Sarah Thompson, on October 31, 1903.”

We are agreed with all the solicitors that the important question in the case is whether, to use the language of Justice Montgomery when the case was here before, “there was a delivery with intention to vest title” of the deed to complainant. While, as the result of reading this voluminous record, we cannot say, as did the trial court, that we have “no doubt as to the fact, ” we think it shown by a preponderance of the evidence that an agreement was made as stated in the bill and that in pursuance of the agreement a deed was executed and delivered to complainant with the intention to vest the title to the 80 acres in controversy in him. It would profit no one to attempt to set out in detail the evidence that leads us to this conclusion.

The decree is affirmed, with costs.

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


text:
    BARTLETT v. AUSTIN & WESTERN CO.
    1. Courts — Chancery—Jurisdiction—Amount Involved.
    On the hearing of a bill by a taxpayer to set aside a contract by a highway commissioner for the purchase of a road machine and restrain the treasurer from making payments thereon, it appeared that the machine was to be paid for in five equal annual installments and that the money for the first payment had been collected, complainant’s share thereof being $6.50. Held, that if the bill had no other office than to prevent the treasurer from paying money on the contract, it involved only $6.50, and there was no justification for filing it, the amount involved being insufficient to support jurisdiction. (Section 435, 1 Comp. Laws.)
    2. Townships — Taxpayer’s Suit — Taxes Voluntarily Paid
    A taxpayer who has voluntarily paid the tax levied against him for a particular purpose has no interest in the money raised or any part of it upon which to base a suit to restrain the township treasurer from paying it out for the purpose for which it was raised.
    3. Same — Lien on Land.
    Payment, of itself, of money already raised by tax, for the purpose for which it was raised, does not affect a taxpayer’s land, and an intention so to do is no occasion for him to ask an .injunction against its payment on the ground that such an act will create a lien, or that it is an act which will result in a tax being levied.
    4. Courts — Chancery—Jurisdiction—Restraining Tax Levy— Amount Involved.
    A suit by a taxpayer to set aside a contract for the purchase of a road machine is a suit to restrain proceedings leading to the assessment of a tax under Act No. 183, Pub Acts 1903, and must be dismissed where complainant’s tax does not amount to $100; since, if it be claimed that the suit is not to restrain the levy and consequent lien upon complainant’s land, of the value of more than $100, the suit must be dismissed as not involving $100 under section 435, 1 Comp. Laws.
    Appeal from Lenawee; Chester, J.
    Submitted November 15, 1906.
    (Docket No. 14.)
    Decided January 4, 1907.

      Bill by George W. Bartlett and Joseph L. Drake against the Austin & Western Company, Limited, and others, to set aside a contract on the ground of fraud, and to enjoin the collection of a tax. From á decree for complainants, defendant Austin & Western Company appeals.
    Reversed, and bill dismissed.

      John F. Bird, for complainants.

      Fellows & Chandler, for appellant.
   Hooker, J.

At its 1897 session, the legislature passed the following law:

“Seo. 2. That the commissioner of highways may, upon the request of one or more overseers of the highway districts of their township, contract for and purchase for such district or districts, upon credit or otherwise, if a majority of the taxpayers of one or more highway districts in any township, representing more than one-half of the taxable property in such district, or in each of such districts, to be ascertained by the last preceding assessment roll and certified to as such by the town clerk of the town, petition the commissioner of such township therefor, such commissioner may contract for purchase upon credit or otherwise a road machine for the use of such district or districts, which implement shall be used, cared for and owned by such district or “districts jointly. Such implement shall be paid for out of the highway tax of the district or districts for which they are purchased and may be paid for in annual installments not exceeding five years.” Act No. 173, Pub. Acts 1897.

In 1899 one Charles W. Pelham, a resident of Lenawee county, and alleged to have been an agent of the Austin & Westérn Company, Ltd., circulated petitions addressed to the highway commissioner of the defendant township, requesting him to purchase a road scraper for the use of road districts numbered 4, 17, 20, 25, and 33, in said township, in accordance with the provisions of the act quoted. These petitions, apparently signed by the requisite number of inhabitants of the respective districts, were presented to the commissioner and he purchased a scraper from said company upon a contract, providing that it should be paid for in five annual installments with interest, and it was delivered to one of the districts, but was never used by any of them. Rumor became current that some of the names upon the petitions were forged, and, the money for the first payment having been raised by tax and collected, the complainants, resident landowners of one of said districts who were subject to taxation to pay for the scraper, filed the bill in this cause in 1901 to set aside the contract and enjoin payment by the treasurer, in whose hands the money theretofore raised then was, of any sum upon said contract. Complainants’ tax for 1900 (i. e., the one collected) was $6.50. The bill prayed that the contract should be set aside, and injunctions, temporary and permanent, allowed, restraining the treasurer from paying any money upon the contract and for other relief. Defendant Austin & Western Company demurred, and, the demurrer being overruled, it answered. The bill was taken as confessed by Pelham and the township treasurer. Upon a hearing of the merits, relief was granted as prayed, and defendant Austin & Western Company has appealed.

The complainants in the case are private persons, with no interest in the subject of the controversy, except to avoid the payment of their proportionate share of the cost of the scraper. Upon the basis of the sum already paid, their tax, covering the remainder of the price of the scraper, amounts to less than $30. This affirmatively appearing in the testimony requires a dismissal of the bill, unless the case is ruled by a class of cases which hold that the value of the premises upon which the claim is, or may become, a lien, is the test of the amount involved, and that, in such case, where such value is more than $100, the statute has no application. The complainants rely upon these cases, claiming that, unless this contract shall be set aside, their land will be subject to a charge for the taxes to be raised to pay for the scraper. If it be conceded that complainant is right in this claim, he is still confronted by Act No. 183, Pnb. Acts 1903, reading as follows:

“Section 1. No decree shall be made or entered for the complainant in any suit pending, or in any suit which may be hereafter commenced, in any of the circuit courts in chancery in this State, brought to restrain the proceedings taken, or about to be taken, by any officer or officers of any township, county or municipality, which may or shall result in a tax being levied upon property, unless the tax which may or shall be levied upon the property of any such complainant shall amount to more than one hundred dollars, and all such suits brought shall be dismissed by the court.”

Complainants assert that this statute is not applicable, because the bill does not ask the restraint of any tax, or act that may or shall result in a tax being levied upon his property. If this bill has no other office than to prevent the treasurer from paying money over on this contract, it involves only $6.50, and there is no' justification for filing it: First, because the amount involved is insufficient to support the case; second, because the complainants have no interest in this money or any part of it, having voluntarily paid it for the use proposed to be made of it; and third, the payment of this money of itself does not affect complainant’s land, and there is no occasion to ask an injunction against its payment upon the ground that such act will create a lien, or that it is an act which will result in a tax being levied.

It is only upon the theory that these officers have taken some other act that may result in a tax, and therefore a lien upon this land, that this bill could be sustained against them, and, upon that theory, Act No. 183 would have application. Therefore the jurisdiction cannot be sustained as against the officers. The contention might be made and perhaps counsel so intend to be understood, though the brief does not clearly show it, that this contract made between the officers of the township and the other defendant is one which contemplates the levying of a tax, and without which it cannot be lawfully performed, and that, being true, it may result in a lien upon the land for such tax, and that, inasmuch as the bill does not in terms pray a decree restraining any proceedings taken or to be taken by any officers which may result in a tax, Act No. 183 does not affect the case. It must be manifest that the only object of this bill, in which the complainants have a pecuniary interest to the extent of $100, is the prevention of the levy of a tax upon land. There is no other ground to sustain any jurisdiction. Had this been a bill asking that such levy be restrained, Act No. 183 would have been an answer. That is none the less the object of the bill, although apparently it is to be accomplished by indirection. If it is not an attempt to get a decree which will have the effect of restraining the proceedings begun by the making of the contract and the levy of one installment of the tax, there is no jurisdiction under section 435, 1 Comp. Laws. If it is an attempt of that kind, there is no jurisdiction by reason of Act No. 183, and this result cannot be avoided by an evasive prayer, nor by a decree which omits to pass upon the only question upon which the jurisdiction could be sustained, viz., the tax lien.

The decree is reversed, and a decree will be entered in this court dismissing the bill, with costs of both courts.

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


text:
    BOGUE v. De LONG.
    1. Highways — Proceedings to Establish — Review by Township Board — View.
    Where an appeal is taken to the township board in proceedings to establish a highway (Act No. 195, Pub. Acts 1905), it is not necessary to a valid determination thereof that the township board shall view tha premises.
    2. Same — Disqualification of Commissioner.
    Whether the highway commissioner before whom proceedings to lay out a highway were brought was disqualified is immaterial where an appeal was taken to a township board which was qualified, and his decision affirmed.
    3 Same — Township Board.
    A township board is not disqualified to decide an appeal from the decision of the highway commissioner in highway proceedings, by reason of the fact that two of the members of the board have previously participated in deciding the appeals of others relating to the same road; it being proper for the board, in a case where there are several appeals, to determine once for all, as the commissioner does, the necessity of the road.
    4. Same — Appeals—Hearing—Prejudice.
    Where the appeals of several from the decision of a highway commissioner came on to be heard by the township board at the same time, and the board proceeded to hear them separately, and each appellant was represented- by the same attorney, it will be assumed that the action of the board in hearing the appeals separately was assented to by all the parties, and that none of them was prejudiced thereby.
    •5. Same — Disqualification of Member of Township Board.
    A member of the township board is not disqualified from participating in the determination of an appeal from a highway commissioner in highway proceedings by reason of the facts that his wife was a sister of the deceased wife of a freeholder who signed the petition and is the chief promoter of the proceedings, that his wife signed a former application to open a highway at the same place, and that as a member of the board he voted for a resolution authorizing the expenditure of money for the highway.

      Error to Cass; North, J., presiding.
    Submitted November 15, 1906.
    (Docket No. 173.)
    Decided January 4, 1907.
    Certiorari by Stephen A. Bogue against Harmon De Long, highway commissioner, and the township board of Penn township, to review proceedings for establishing a highway. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Marshall L. Howell, for appellant.

      Harsen D. Smith, for appellees.
   Carpenter, J.

Plaintiff, across whose land the township highway commissioner determined that a highway should be laid, appealed from said determination to the township board. Said board sustained the action of the commissioner. The decision of the township board was sustained by the circuit court, who reviewed the proceedings on a writ of certiorari procured by plaintiff. Plaintiff now seeks relief by writ of error in this court. He complains, first, that the township board did not, in determining the appeal from the commissioners, view the premises described in the application for the highway; and, second, that both the highway commissioner and township board were disqualified. "We will consider these questions separately.

Was it necessary for the township board to view the premises ? The law regulating the procedure before the township board is found in Act No. 195 of the Public Acts of 1905, and reads:

“The township board shall proceed at the time and place specified in the notice to hear the proof and allegations of the parties, and may examine persons on oath in respect to the matter of such appeal.”

Here is no requirement that the board shall view the premises. While a view may sometimes be helpful and desirable, a failure to make it is not error, especially in a case like this, where the party complaining did not ask it.

We now come to the complaint of plaintiff that the highway commissioner and township board were disqualified. We need not consider his complaint respecting the disqualification of the highway commissioner, for we reach the conclusion, as hereafter stated, that the township board was qualified. Plaintiff’s rights having finally been determined by a qualified tribunal, it is of no consequence that they were once determined by a disqualified tribunal.

Plaintiff claims that the township board is disqualified because two of its members had, just before hearing his appeal, participated in determining appeals of others who complained of the determination of the commissioner. It is argued that this participation disqualified said two members because they had already determined the question of necessity. This argument is based upon the assumption that when several property owners appeal from the action of the highway commissioner in laying out a highway, each has a separate right to have determined the question of necessity. This assumption is erroneous. The township board in such a case may, as the highway commissioner does, determine once for all that question. Otherwise the scheme to establish a highway might be blocked after the public, in reliance upon a determination of necessity, had expended large sums of money. See, in this connection, Detroit, etc., R. Co. v. Campbell, 140 Mich. 384. It is true in this case the township board did in form hear the appeals separately and determiné the question of necessity, but of this plaintiff cannot complain. He and three others appealed from the determination to the township board. These appeals came on to be heard at the same time. Each appellant was represented by the same attorney. It must be assumed that the action of the board in hearing the appeals separately was assented to by all the parties, and that none of them was prejudiced thereby.

Plaintiff also contends that one George J. Townsend, a member of said township board, was disqualified for three reasons:

1. His wife was a sister of the deceased wife of “ Lot Bonine, one of the freeholders who signed the application for said highway in said matter of appeal, and who is also the principal promoter and instigator in attempting to have said highway laid out.”

2. His wife had signed a former application for the opening of this highway (it appears there had been several prior attempts to open it).

3. As a member of the township board, Townsend had voted for a resolution authorizing the highway commissioner to expend not to exceed $1,000 in opening the highway.

These facts do not prove Townsend’s disqualification. The most that can be said is that they furnish evidence either of partiality, of interest, or that he had prejudged the case. It is a complete answer to say that the return, which we must take as true, states that he “was never interested in having "the highway laid out, * * * that he entered upon the' consideration and hearing of said appeals without prejudice or 'partiality and was entirely unbiased, and that he had not made up his mind before the said hearing.”

The order of the circuit court is affirmed.

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


text:
    McQUISTEN v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    , 1. Street Railroads — -Personal Injuries — Persons on Track —Contributory Negligence.
    In an action against a street-railway company for the negligent killing of plaintiff’s intestate while crossing the defendant’s track on foot, evidence examined, and held, that whether deceased was guilty of contributory negligence was a question for the jury.
    2. Same — Crossing Before Approaching Car.
    Even though a pedestrian can see an approaching car, if, in the exercise of common prudence, he may reasonably think there is sufficient time to cross safely, he is not chargeable with negligence in attempting to do so.
    Error to Wayne; Carpenter, J.
    Submitted November 16, 1906.
    (Docket No. 151.)
    Decided January 4, 1907.
    Case by William D. McQuisten, administrator of the estate of Peter Trudell, deceased, against the Detroit Citizens’ Street-Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant, notwithstanding a verdict for plaintiff, and he brings error.
    Reversed, and judgment entered for plaintiff.

      William Look, for appellant.
    Brennan, Donnelly & Van De Mark, for appellee.
   Moore, J.

This action is brought to recover damages for the death of plaintiff’s intestate, who was instantly killed by a car of defendant company, March 2, 1895. After plaintiff’s testimony was in, and also at the close of the testimony for defendant, a motion was made to take the case from the jury. These motions were overruled. The case was submitted to the jury- by the trial judge,' and a verdict of $3,500 was rendered in favor of the plaintiff. When the case was submitted to the jury, it was agreed that, if the trial judge should later conclude he ought to have directed a verdict for defendant, he should set aside the verdict, in case one was rendered in favor of plaintiff, and enter one in favor of defendant. Afterwards a motion was made by defendant to set aside the verdict and enter one in favor of defendant. The trial judge was of the opinion that the testimony showed deceased was guilty, as a matter of law, of contributory negligence, and set aside the verdict, and entered one in favor of defendant. This was done April 22, 1902; the trial judge suggesting that, if he was wrong, the Supreme Court would correct his error, and doubtless reinstate the verdict and judgment, in accordance with the practice in Rudell v. Transit Co., 117 Mich. 568 (44 L. R. A. 415).

The accident occurred about half past 10 o’clock in the morning, on Jefferson avenue, near Bowen avenue. The track of defendant at that time was north of the traveled portion of the street. The street runs east and west. North of the railway track, at a distance therefrom variously stated by the witnesses to be from 3 to 7 feet, was a well from which teamsters were in the habit of drawing water for their teams. It is claimed that parallel to the track, on the north side thereof, looking west, and from 4 to 7 feet from the north rail, were the trolley and telephone poles and a row of trees that somewhat obstructed the view. The deceased and two other teamsters, each in charge of a team, stopped their teams opposite the well, and from 3 to 6 feet south from the railway track,.for the purpose of watering their horses. It is claimed that before crossing the track deceased looked in each direction, and then went to the well and drew a pail of water; that after getting his pail filled he looked in a westerly direction and started across the track, and when about half way across he was struck by a car running at the rate of 30 or 40 miles an hour; and that no gong or bell was sounded, and that no warning was given of its approach. Testimony was given by several witnesses tending to support the plaintiff’s claim. Counsel sought to discredit the witnesses for the plaintiff, claiming they testified differently at the coronor’s inquest. They denied they had done so. The witnesses for defendant gave another version of the transaction, but that presented a question for the jury. It is claimed the body was carried by the car 160 feet after Mr. Trudell was struck, and that the car ran 100 feet farther before it was stopped.

It is urged on the part of the plaintiff that if the signals had been given, or if the car had been running at a reasonable rate of speed, deceased would not have been hurt, and that it cannot be said, as a matter of law, the deceased was guilty of contributory negligence. It has been repeatedly held, even though one could see an approaching car, that if, in the exercise of common prudence, he may reasonably think there is , time to cross safely, he is not chargeable with negligence. Chauvin v. Railway, 135 Mich. 85, and the many cases there cited; McVean v. Railway, 138 Mich. 263, and cases cited therein; Gaffka v. Railway, 143 Mich. 456; La Londe v. Traction Co., 145 Mich. 77. We think it cannot be said, as a matter of law, deceased was guilty of contributory negligence. The' trial judge properly submitted that question to the jury in his charge, and the verdict rendered should have been permitted to stand.

The last judgment is reversed, and the first one reinstated, with costs of both courts.

McAlvay, C. J., Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    DETROIT NATIONAL BANK v. WAYNE CIRCUIT JUDGE.
    Venue — Change—Time to Move — Statute—Court Rule. „
    Where a suit was in judgment at the time Act No. 309, Pub. Acts 1905, took effect, and was pending in the Supreme Court when Circuit Court Rule 58 was adopted, the rule had no application, and a motion for a change of venue under the statute made promptly on reversal and remand for a new trial was in time and should have been granted.
    Mandamus by the Detroit National Bank to compel Flavius L. Brooke, circuit judge of Wayne county, to grant a change of venue.
    Submitted December 4, 1906.
    (Calendar No. 21,991.)
    Writ granted January 4, 1907.

      Henry A. Harmon (H. Geer, of counsel), for relator.

      Bowen, Douglas, Whiting & Murfin, for respondent.
   Per Curiam.

This is an application for the writ of mandamus to compel the respondent to grant a change of venue under Act No. 309, Pub. Acts 1905.

The cause was at issue August 4, 1902. Act No. 309 went into effect June 17,1905. Trial was had in January, 1905, resulting in a verdict against the relator. Relator sued out a writ of error October 3, 1905. The case was reversed September 20, 1906, and a new trial ordered. [Detroit Nat. Bank v. Union Trust Co., 145 Mich. 656.] On September 29, 1906, relator made a motion for a change of venue, alleging:

‘ ‘ Plaintiff cannot have a fair and impartial trial of said cause in this county because of the odium attaching to the plaintiff and its cause of action, on account of local prejudice existing against plaintiff; that the plaintiff cannot have a fair and impartial trial of this cause in this county because the defendant has an undue influence over the citizens of this county.”

The respondent refused to grant the motion because it was not entered within 10 days after the cause was at issue, and it was not made to appear to the satisfaction of the respondent that the facts upon which the application was based had come to the knowledge of the moving party within 10 days of the time of making such application, or that the relator had been diligent in ascertaining the facts upon which it based said motion.

Circuit Court Rule 58 was adopted February 16, 1906, which provides:

“ Motion for change of venue * * * shall be entered and notice of hearing served within ten days after the cause shall be at issue, unless the moving party shall make it appear * * * that the facts upon which the application is based have come to his knowledge after the time above limited, and within ten days previous to such deferred application, and that said party has been diligent in ascertaining the facts upon which said action is based.” 137 Mich, xxxvii.

It further provides that in causes then pending the motion should be entered within 20 days therefrom.

We think this case does not come within Rule 58. When Act No. 309 went into effect, the suit of relator was in judgment in the circuit court for the county of Wayne, and its attorneys were preparing a bill of exceptions for a removal to this court. An application for a change of venue then would have been an idle ceremony. It was uncertain whether there would' be another trial. The suit was in this court when Rule 58 was adopted. It could not, therefore, be made applicable until the case was reversed and remanded to the court below for a new trial. It was reversed, and the relator promptly moved for a change of venue, bringing itself within the provisions of the statute.

We must, therefore, hold that the order for a change of venue should have been entered. The writ will issue as prayed.