text:
    SCHEURMANN v. STYNINGER.
    Chancery Case — Question of Fact — Finding of Circuit Judge.
    In this case the question is one purely of fact, upon conflicting evidence; and the finding of the circuit judge, who was in a better position to determine the credibility of the witnesses, is affirmed.
    Appeal from Bay; Shepard, J.
    Submitted April 9, 1902.
    (Docket No. 35.)
    Decided May 8, 1902.
    Bill by Frances Scheurmann and the Jennison Hardr ware Company against John A. Styninger and Hattie Styninger to reform a deed. From a decree for complainants, defendants appeal.
    Affirmed.

      Loranger & Flynn, for complainants.

      Pierce & Kinnane, for defendants.
   Grant, J.

The question is one entirely of fact, with the testimony in sharp conflict. We think the learned circuit judge reached the correct conclusion. The result depended upon the credibility to be given to the witnesses. In such case the circuit judge is in a better position to determine the truth than are those who have not the opportunity to see them.

The decree is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    HARRIS v. DOYLE; CULLEY v. SAME.
    1. Logging Liens — Nonresidents—Jurisdiction oe Justice.
    Where both parties are nonresidents of the county, proceedings to enforce a lien upon logs by attachment under 3 Comp. Laws, § 10760, may be commenced in the township where the logs are.
    3. Security for Costs — Nonresidents—Reversal on Certiorari.
    A judgment will not be reversed on certiorari for the failure of the justice to require a nonresident plaintiff to file security for costs, where defendant’s motion for that purpose was not made until after the close of plaintiff’s testimony, and it does not appear that defendant until that time believed plaintiff was a resident, or that he had been misled upon that subject.
    3. Filing of Lien — Indorsement by Clerk — Oral Proof.
    Where a statement of a laborer’s lien upon logs, filed with the county clerk, is not indorsed by him, oral proof of the delivery to him is competent.
    Error to Montmorency; Emerick, J.
    Submitted April 9, 1902.
    (Docket Nos. 36, 37.)
    Decided May 8, 1902.
    Log-lien proceedings by James Harris and William Culley against Augustus Doyle, principal defendant, and Robert Rea, log owner. From judgments for plaintiff's, defendant Rea brings error.
    Affirmed.

      Joseph H. Cobb, for appellant.

      Collins & D’Aigle, for appellees.
   Hooker, C. J.

These are companion cases, and were heard together. The respective plaintiffs worked for the principal defendant, Doyle, in cutting and skidding, in Montmorency county, logs belonging to Robert Rea, Doyle being under contract obligations with Rea to cut and skid the same. The last day’s work was done on March 26, 1901. On the 11th day of April, 1901, each plaintiff made and verified a statement of lien upon the hemlock logs in question, and it is claimed on their behalf that they were filed with the clerk of Montmorency county upon the same day. On April 26, 1901, each plaintiff made and filed another statement of lien for the same claim, thereby seeking to charge other kinds of timber besides the hemlock. It is conceded that these were filed one day too late, and they need not be further considered. The lien claimed by Harris was for $78, and that of Oulley $154. The latter included an item of $48 for the services of his wife. Attachments were issued by a justice of the peace of Hillman township, Montmorency county, and plaintiffs recovered judgment for the full amount of their respective claims, with liens for $70 and $144, respectively. On removal to the circuit court by certiorari, the judgments were reversed, so far as they declared liens on timber other than hemlock, and as to the item of $48 for the services of Gulley’s wife, and in other respects they were affirmed, and the causes have been brought to this court on writ of error by the defendant Rea.

Rea lived in Hillman township, Montmorency county, while Doyle and the plaintiffs resided in Alpena. On the return day of the writ the parties appeared by counsel, with the exception of Doyle, who appeared in person. The cause was tried after an adjournment by consent for nine days. A motion for security for costs upon the ground that plaintiffs were nonresidents of Montmorency county was overruled. This motion was made at the close of plaintiffs’ testimony.

Three questions are raised by the assignments of error:

1. Did the justice have jurisdiction to issue the writ, in view of the fact that neither plaintiffs nor defendant was a resident of Montmorency county?
2. If the justice had jurisdiction, was it lost when he denied a motion for security for costs, after the close of the evidence ?
3. Was there adequate proof that the liens were duly filed, and, if not, can the judgment be sustained?

Both plaintiffs and defendant resided outside of the county of Montmorency, where the logs were situate. Had either lived within said county, the action must have been commenced within the township where such party resided, or an adjoining township, in conformity to the general statute, as we held in the case of Burlingame v. Marble, 95 Mich. 5 (54 N. W. 695). The log-lien statute (3 Comp. Laws, § 10760) expressly provides that'the action shall be brought in the county where the logs are situate. The defendant’s contention involves the claim that, where the parties are both nonresidents, no justice of the peace can have jurisdiction, and he argues that nothing would preclude the bringing of an action in the circuit court in such case. There would seem to be as much force in the claim that no action could be brought in the circuit court, for ordinarily such court has no jurisdiction where neither party resides or is found within the county. In both cases the presence of property confers jurisdiction under the statute. The circuit court may have had jurisdiction of the larger of these liens, but not of the smaller, unless the owner of the larger was willing to unite the claims (see section 10762), and, if we were to sustain defendant’s contention, it would leave a single lienholder remediless, where both parties were nonresidents of the county where the logs were situate. It was competent for the plaintiffs to commence these proceedings before a justice of the peace of the township in which the logs lay, both parties being nonresidents.

The statute (section 713) provides that, in all justices’ cases, “ plaintiffs who are not residents of the county in which the suit is brought shall give security for costs before process shall issue.” At the close of the plaintiff’s testimony, counsel for defendant Rea, who had been served with process as one claiming to be owner of the property, moved the court for an order requiring plaintiff to file security for costs, upon the ground that plaintiff’s testimony showed him to be a nonresident of Montmorency county, and for judgment against the plaintiff on the ground that the justice had no jurisdiction. The statute is mandatory, and it is ordinarily the duty of the justice to require security for costs from nonresidents upon motion seasonably made; and such motion is seasonable if made at the first opportunity after the defendant is apprised of the fact that the plaintiff is a nonresident. See Parks v. Goodwin, 1 Doug. 56; Brown v. Mining Co., 105 Mich. 656 (63 N. W. 1000). But there can be no doubt of the power of a defendant to waive his right to security for costs. In this case the motion was not made until all of plaintiff’s testimony was in. It does not appear to have been claimed that defendant’s omission to move earlier was due to the belief that the plaintiff or Doyle resided in said county, nor is there any showing that he had been misinformed on the subject and misled. One who resorts to certiorari to review the judgment of a justice of the peace is required to show a clear ground for reversal, for the consequences are serious. A reversal in this case would annul the proceedings, if it did not prevent any remedy upon the lien. We must presume that the justice found that defendant’s motion was unseasonable, and we will not review his action.

The remaining question relates to the proof. It is claimed that there was no proof that the lien was filed. A certified copy of the lien was introduced, but it failed to show the date of filing with the clerk. The two copies of statements are all that were shown to have been of record, and they are supplemented by testimony that statements of lien were filed within the statutory period. If the statements were not indorsed by the clerk, oral proof of the fact of delivery to him for filing was competent. Huntoon v. O'Brien, 79 Mich. 231 (44 N. W. 601).

These are the only questions which require discussion, as they are the only ones clearly raised.

The judgments of the circuit court are affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    CITY OF DETROIT v. WESTERN UNION TELEGRAPH CO.
    Taxation op Telegraph Companies — Unconstitutional Law— Repealing Clause.
    Acts No. 77 of 1879 and No. 168 of 1881, providing for the assessment of telegraph and telephone companies, and rexiealing all acts and parts of acts inconsistent therewith, being unconstitutional by reason of invalid provisions for taxation therein, and the only reason for the enactment of the repealing clauses being found in such invalid pirovisions, they are also void, and the law of 1851, providing for a specific tax on telegraph companies, was not thereby repealed.
    Case made from Wayne; Carpenter, J.
    Submitted April 9, 1903.
    (Docket No. 24.)
    Decided May 8, 1902.
    Debt by the city of Detroit against the Western Union Telegraph Company to collect a tax. There was a judgment for defendant, and plaintiff assigns error.
    Affirmed.

      John W. McGrath, for appellant.

      C. A. Kent, for appellee.
   Hooker, C. J.

The city of Detroit assessed personal property of the defendant within the city, and levied a tax against it, for the year 1899. The property consisted of personalty used in defendant’s business of telegraphing, and the taxes levied included city, school, highway, and police taxes. This action of debt was brought by the city to enforce payment. The plea alleges that defendant had been previously assessed on all of its personal property for the year 1899 in accordance with the provisions of Act No. 179 of the Public Acts of 1899, and that it paid the tax levied as required by that act. The court held that the levy upon which this action was brought was void, and gave judgment for the defendant, and the city has appealed.

It appears to be conceded that a law passed in 1851 imposed a specific State tax upon telegraph companies. This act continued in force until 1879, when an act was passed providing for the assessment of telegraph and telephone companies. It contained a clause repealing all acts and -parts of acts inconsistent therewith. In 1881 a similar act was passed, containing some modifications, and repealing the law of 1879 and all acts and parts of acts inconsistent with the new act of 1881. Under our Constitution, specific taxes must be applied to the educational fund, and that was done with all taxes raised under these acts until the year 1899, when Gov. Pingree sought to have them applied to other purposes, upon the claim that they were not specific taxes, inasmuch as they were assessed upon an ad valorem basis. His contention was sustained to the extent of holding that the taxes were not specific taxes, but the court held that the act of 1881 was unconstitutional, for reasons stated in the opinion; and these reasons would be equally applicable to the law of 1879. Pingree v. Auditor General, 120 Mich. 95 (78 N. W. 1025, 44 L. R. A. 679). Notwithstanding the fact that it is obvious that the laws of 1881 and 1879 were ineffective to create a method of assessment and the collection of taxes, counsel for tfie city maintain that they were effective to repeal the law theretofore existing, i. e., the statute of 1851. In other words, they would sustain the acts to the extent of the repealing clauses, and no further, and upon this theory they seek to tax the property of the defendant under the general tax law of the State.

We have often applied the rule that an act may be sustained in part, where we can reasonably say that the portions held valid are adequate to accomplish the legislative intent, but never when it is clear that they are not. The apparent intent of these two acts was not to change the rule by which the telegraph companies paid taxes to the State in lieu of all other taxes, but simply change the basis upon which the tax was computed. It is evident that there was no design to relieve them from the payment of any tax, and it is equally clear that ikwas not the intention to have them taxed under the general tax law. To hold, notwithstanding these facts, that the pre-existing statute was repealed, and thereby make telegraph companies liable to pay a tax under the general law, would do violence to the rule above stated. No one can doubt that the only reason for the repeal is to be found in the invalid provisions for taxation provided by those acts. We think, therefore, that the repealing clauses must fall with the acts of which they are parts. See Campau v. City of Detroit, 14 Mich. 276; Blades v. Board of Water Com’rs of Detroit, 122 Mich. 381 (81 N. W. 271).

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    ERICKSON v. VICTORIA COPPER MINING CO.
    Negligence — Fellow-Servants.
    Plaintiff, while at work in defendant’s mine, was injured by a plank falling down an inclined shaft. The timber boss fastened a rope with a half hitch around each end of the plank, securing the lower end with a 10-penny nail. When part way down the shaft, the plank escaped from the rope, and fell to the bottom. The evidence was conflicting as to whether the timber hitch, or boring a hole and inserting the rope, was the customary way of lowering plank. Held, that,while the question as to whether the timber hitch was the customary way was one for the jury, the undisputed evidence showed that defendant had furnished proper tools for boring , holes, and the neglect to use them by the timber boss was the neglect of a f eHow-servant, and a verdict was properly directed for defendant.
    Error to Ontonagon; Haire, J.
    Submitted April 9, 1902.
    (Docket No. 23.)
    Decided May 8, 1902.

      Case by Erick Erickson against the Victoria Copper Mining Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John O'Gorman (P. H. O'Brien, of counsel), for appellant.

      Dunstan & Hanchette, for appellee.
   Hooker, C. J.

The plaintiff was an employe of the defendant mining company, and, on the day of the accident out of which this case grows, was engaged, with others, in timbering the mine. One Peterson, who was the timber boss, sent some plank down an inclined shaft of the mine. The evidence shows that the course taken was to take a half hitch with a rope around each end of the plank, the lower hitch being secured by a 10-penny nail driven above it. The shaft was not of uniform grade, and at the depth of 60 or 70 feet the plank escaped from the rope, and fell or slid to the bottom of the shaft, injuring the plaintiff and another who was at work with him. The learned Circuit judge who tried the case directed a verdict for the defendant on the following grounds: (1) That it appeared by the uncontradicted testimony that the method adopted for lowering the plank was the customary one among miners; (2) that the timber boss, Peterson, was a fellow-servant of the plaintiff, and that the defendant had furnished suitable tools and materials for the lowering of the plank, and that the negligence, if there was any, was that of Peterson, and consequently plaintiff could not recover.

The plaintiff testified that it was usual in mines to use a timber .hitch for sending down plank; that big timbers were sent down with a dog or clevis; and that he had seen plank sent down with these. August Oman testified that he knew the customary way of fastening the rope onto timbers and planks to lower them into a shaft; that he had worked with the timber gang for a couple of weeks, and saw how they sent them down; that they got a timber dog, and put a half hitch on the stick of timber, when they sent them down; that, if they do not use that, they bore holes through, and put a bolt through and chain it. He never saw them send down timbers simply tied with rope around the plank, without any bolt or hook. Charles Johnson testified:

“I have worked a good many years in mines, and at timbering some. I know the customary way of securing planks so as to send them down a shaft. They generally used to .bore a hole through to send a plank down, or either have a clevis, and put it through, and then tie it with a rope. If they don’t have that, they just bore a hole through, and put a rope through it, or else they used to use timber dogs with timbers.”

There was much testimony offered by the defendant, from miners of long experience, that the timber hitch was the customary way for lowering planks into a mine, but the testimony quoted raised a question of fact for the jury.

The undisputed testimony shows that Peterson, the timber boss, was a fellow-servant of plaintiff, but the plaintiff claims that the defendant failed to furnish him with augers for the purpose of boring holes into the planks. There was testimony on the part of the defendant that augers were furnished; that the tools were kept in the warehouse, and were at the command of the timber boss at any time that he chose to get them; that they were in the habit of going to the warehouse for such tools as they needed to use. In contradiction of this there is the testimony of Oman, who testified that there was a box near the shaft where they put tools that were in use, and that he had looked in the box on several occasions, and had never seen any augers in it. There was the testimony of Peterson that he did not use ány augers; that there were some bits in the box, but not large enough to bore holes of sufficient size in the plank; that he never took the trouble to look in the warehouse for augers, because he thought the half hitch the usual and safe method of lowering timber. Neither the testimony of Oman nor that of Peterson in any way contradicts the clear testimony that' augers of proper size were to have been had at the warehouse, where Peterson and all other employés were in the habit of getting tools when needed. We think, therefore, the circuit judge did not commit error in holding that the undisputed evidence showed that the defendant furnished the proper tools, and that the neglect to use them was the neglect of Peterson, a fellow-servant. It was therefore unnecessary to submit the first question discussed to the jury, as the latter was conclusive of the case.

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


author: Grant, J.

text:
    BLODGETT v. VOGEL.
    1.. Evidence — Facts Equally Within Knowledge of Deceased.
    In an action by an executrix to recover an account upon the testator’s books, the defendant will not be allowed to testify that the words, “in full for services to date, — settlement in full,” were written upon a check given by him to decedent before delivery, as such fact is equally within the knowledge of the deceased.

      2. Same — Checks—Custom of Defendant.
    Checks issued by defendant to third persons are inadmissible to - show the custom of defendant to indorse upon his checks the nature of the transactions on account of which the payments were made, in the absence of any evidence to show that the deceased knew of such custom.
    3. New Trial — Conflicting Evidence.
    A new trial will not be granted on the ground that the verdict for the plaintiff was against the weight of evidence, where the only question was one of settlement, and defendant’s only evidence consisted of the testimony of his daughter, the sole witness to the transaction, who swore to a “kind of a settlement,” a check containing a recital in full settlement, and the opinion of experts that the recital was written before it was stamped “Paid” by the bank, while plaintiff’s experts testified positively that it was written afterwards.
    Error to Mason; McAlvay, J.
    Submitted April 10, 1902.
    (Docket No. 51.)
    Decided May 8, 1902.

      Assumpsit by Mary E. Blodgett, executrix of the last will and testament of Gilbert H. Blodgett, deceased, against Albert Vogel, for services rendered. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    This is an action of assumpsit, brought by plaintiff, as executrix of the estate of Gilbert H. Blodgett, deceased, to recover on an account for legal services rendered by decedent for the defendant. The account is alleged to have covered a period of about five years, commencing in 1894 and ending in May, 1899. Mr. Blodgett died June 21, 1899. The entire account aggregated several hundred dollars, and the books of account, in May, 1899, showed a balance due from the defendant to Mr. Blodgett of $82.05. It is claimed by the defendant that this account was settled and paid in full, and a check was introduced in evidence in support of such claim, which reads as follows:
    “Ludington, Michigan, 1899.
    “Albert Vogel,
    “ Manufacturer of Hardwood Lumber.
    “Pay to G. H. Blodgett, or order, $75.00, seventy-five , dollars; $30.00,in full settlement of McVane lien suit, and $45.00 in full for services to date, — settlement in full.
    “A. Vogel.
    “To First National Bank, Ludington, Mich.”
    The plaintiff attacked the receipt included in the check, claiming that it was not a' receipt, but simply a check, given upon a bank by the defendant, for $75. Plaintiff produced testimony tending to show that the writing upon the check, “$30.00 in full settlement of McVane lien suit, and $45.00 in full for services to date, — settlement in full,” was inserted after the cancellation stamp of the bank had beén put on it, and after it had been returned by the bank to the defendant as his voucher. There was a sharp con-' flict of testimony, — the witnesses for the plaintiff testifying that the bank’s “Paid ” stamp was placed upon the check before the above words were written thereon; while the defendant’s witnesses were equally positive that the bank’s stamp was impressed upon the check after all the writing was done thereon. The plea was the general issue, with notice of set-off. The jury rendered verdict for plaintiff.'
    ' Fitch & Reek, for appellant.

      Henry C. Hutton, for appellee.
   Grant, J.

('after stating the facts). The defense offered to show by the defendant that the writing was upon the check at the time of its delivery to Mr. Blodgett. This was excluded by the court, as a matter equally within the knowledge of the deceased, and prohibited by the statute. 3 Comp. Laws, § 10212. The decision of the court was correct. This was not an extraneous fact.or circumstance, within the rule of Pillard v. Dunn, 108 Mich. 301 (66 N. W. 45). In that case a witness had testified that the defendant signed .a note in his (the witness’) presence, and that of the deceased, at a certain time and place. It was held that the defendant might contradict this witness by testifying that he was not at that place at that time, and did not sign any note in witness’ presence. The sole question of fact in this case is, When were those words written upon the check P It is an indorsement not common upon checks. The burden of proof was upon the defendant, who relied upon the receipt written upon the check. Its condition, the real issue in this case, was a fact equally within the knowledge of the deceased and within the prohibition of the statute.

Defendant offered several checks, issued near the date of the check in controversy, to other parties, to establish a usage on defendant’s part to indorse upon checks issued by him the nature of the transactions on account of ■which, payments were made. This was rejected, and we think properly. There was no evidence to show that such custom on the part of the defendant was known to Mr. Blodgett. The offer raised collateral issues, which plaintiff could not be prepared to meet.

It is urged that the court erred in not granting a new trial on the grdund that the verdict was against the weight of the evidence. We do not think this is a case calling for a reversal of the case upon this ground. The daughter of the defendant, the sole witness to any settlement, testified to a “kind of a settlement.” All the other testimony was by experts who examined the check, — some testifying positively that, upon a careful examination with glasses, it showed that it was written on after it had been stamped by the bank. Witnesses for the defendant testified that, in their opinion, the stamp had been placed over the writing. *

Judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    CROSSON v. VOGT.
    An examination of the record in this case discloses no error and no question of sufficient importance to merit discussion.
    Error to Wayne; Carpenter, J.
    Submitted April 11, 1902.
    (Docket No. 79.)'
    Decided May 8, 1902.

      Assumpsit by John Crossón and others against Fred Yogt for services rendered. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Lehmann & Biggs, for appellant.

      John D. Harger, for appellees.
   Grant, J.

Plaintiffs and defendant executed a land contract, dated November 17, 1897, by which the defendant agreed to sell certain land to the plaintiffs for the purpose of erecting a store or shop and a dwelling house thereon. Defendant loaned plaintiffs the money with which to erect the building. One Smith was the contractor to build it. Whether that contract was made with plaintiffs or with defendant we are unable to determine from the record. The record is very unsatisfactory, and it is difficult from either the record or the briefs to make a connected statement of the transaction. Neither the land contract nor the contract to build appears in the record. Two hundred dollars is involved, and the dispute ‘ is whether that was a commisssion, agreed upon by Mr. Vogt with plaintiffs for loaning them the money, or whether plaintiff John did work upon this building to the amount of $200, which defendant agreed to pay. The testimony was in direct conflict, and was properly submitted to the jury. We find no error upon the record, and no questions of sufficient importance to merit discussion.

The judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    BROWN v. RAPID RAILWAY CO.

    Railroads — Ejecting Passenger — Damages.
    A railroad sold to plaintiff a ticket with eight coupons, four for the outward trip, and four for the return. On the outward trip, the first two conductors tore off returning coupons. The third conductor tore off the first two going coupons, and^returned them to plaintiff, informing him of the mistake and told him the portions returned would be accepted by succeeding conductors. On the return, the conductor would not honor these coupons, and, on plaintiff’s refusal to pay, put him oil the car in such a manner that he sustained personal injuries. Plaintiff took the next car, and paid his fare. Held, that plaintiff could recover the extra fare paid, but no damages for being ejected from the car.
    Error to Wayne; Donovan, J.
    Submitted April 11, 1902.
    (Docket No. 83.)
    Decided May 8, 1902.
    Case by Samuel J. Brown against the Rapid Railway Company to recover damages for his expulsion from defendant’s car. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Bacon & Yerkes, for appellant.

      L. 8. Trowbridge, Jr., for appellee.

      Rehearing denied June 24, 1902.

   Hooker, C. J.

The plaintiff has sued for damages arising upon his expulsion from a car by defendant’s conductor. He purchased three tickets on the áfternoon of May 5, at defendant’s ticket office in Detroit, for passage to Marine City and return. Each ticket consisted of eight coupons. Four of these coupons, colored respectively white, pink, yellow, and blue, were the “going portions of the ticket” between the stations in the following order: Michigan Central Railroad Depot, Junction Line, Chesterfield, Broad Bridges, and Marine City. Four coupons, colored respectively blue, yellow, pink, and white, were for the return trip in inverse order. Each coupon contained the names of the stations between which it was good, and the words, “Detroit to Marine City, and Return,” and, “Void if Detached from Signature Coupon.” Plaintiff, with his wife and daughter, entered defendant’s car at the Michigan Central Depot. He handed the three tickets to the conductor within the city limits, and he tore from each a portion, and kept the same. Defendant’s conductor in charge of the car between Junction Line and Chesterfield tore off and kept another portion of each. At Chesterfield defendant’s conductor Jones took charge of the car, and, on being shown the tickets, told plaintiff that the previous conductors had made a mistake, and had taken coupons from the wrong end of the tickets, and then for the first time the plaintiff discovered that the last two returning coupons had been detached from each of the tickets. Jones then tore off from each ticket the first two going coupons, and handed them to the plaintiff, and then took the third going coupon, leaving the remainder with plaintiff. Plaintiff asked if he could use the detached portions, and was told that they would be accepted by succeeding conductors. On their return the defendant’s conductor Gordon refused to honor these coupons, and, notwithstanding plaintiff’s explanation, and offer to corroborate his statement by other passengers, on his refusal to pay another fare, expelled the passengers from the car at New Baltimore, and plaintiff and family took the next car .an hour later, paying $1.20 fare, after offering the coupons to the conductor, who refused to accept them after learning of Gordon’s action. Testimony was offered to show that the plaintiff had been sick, and suffered a relapse, being confined to his bed for four or five weeks thereafter. The plaintiff recovered a judgment for $500 in 'justice’s court, and defendant appealed to the circuit, where a verdict was directed for the defendant, and the plaintiff has taken a writ of error.

The evidence shows conclusively that the defendant’s conductor detached the wrong coupons from the tickets in the first instance. The next conductor, Jones, had no means of taking his fare but to take off the coupons preceding the one covering his own section of the road. These he returned to the plaintiff, but it was obvious to the plaintiff that he was left without transportation for his return, and it is equally plain that, notwithstanding that fact, he insisted on being carried by a conductor who had no personal knowledge of the circumstances, without the surrender of appropriate tickets, or any other payment that he was authorized to receive, or that the plaintiff had a right to insist that he should receive. It seems to be conceded that the trouble was the result of the mistake of defendant’s first conductor. The most serious inconvenience that the plaintiff need have suffered was to pay 40 cents for his return fare, present his tickets, with proof of the circumstances, and get his money refunded. He was not content to do this. Rather than lose 40 cents, or be to the trouble of asking that it be refunded, he preferred to refuse to recognize the reasonable rule of the company. He refused to leave the car, notwithstanding the suggestion of the conductor that he pay his fare, and have it refunded later, and allowed the conductor to drag him through the car, and actually made him lift him off. The other members of his family appear to have used better judgment, and left the car when required to do so.

We have several cases that hold that, under such circumstances as these, the conductor does not commit a wrong by ejecting from his train one who has no ticket, and refuses to pay, and that it would be absurd to hold that the conductor must take his passenger’s word regarding his failure to have an appropriate ticket, or take the evidence of fellow passengers, and determine the matter at his peril, or that of the company. These two coupons which the plaintiff had were the first that should have been detached. Had he succeeded in riding over the first two sections without detection by the conductor, and detached them himself, he could have made the same claim, or sold them to another for second use. The law permits these companies to make reasonable rules for their protection, and the plaintiff has no cause of action arising out of his ejection from the car, as the learned circuit judge-properly held. It is unnecessary to append a list of our own cases upon the subject. They are cited in the briefs of counsel.

Under the proofs this plaintiff paid 40 cents by reason of the inadvertence of the conductor. Under this declaration he had a right to recover that amount, but he had no right to expect a verdict of 1500. We cannot agree with the defendant’s contention that the declaration counts only on the expulsion of the plaintiff. The action is not trespass, but case, and the declaration alleges the contract and its breach, as well as the expulsion in aggravation of it. We are therefore constrained to reverse the judgment, and order a new trial, but it will be without costs to either party.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.

      Viz.: Frederick v. Railroad Co., 37 Mich. 342 (26 Am. Rep. 531); Hufford v. Railway Co., 53 Mich 118 (18 N. W. 580); Thomas v. Railway Co., 72 Mich. 355 (40 N. W. 463); Heffron v. Railway Co., 92 Mich. 406 (52 N. W. 802, 16 L. R. A. 345, 31 Am. St. Rep. 601)
        Mahoney v. Railway Co., 93 Mich. 612 (53 N. W. 793, 18 L. R. A. 335, 32 Am. St. Rep. 528); Van Dusan v. Railway Co., 97 Mich. 439 (56 N. W. 848, 37 Am. St. Rep. 354); Keen v. Railway Co., 123 Mich. 247 (81 N. W. 1084); McWethy v. Railroad Co., 127 Mich. 333 (86 N. W. 827). Plaintiff’s counsel, to the contrary: Hufford v. Railroad Co., 64 Mich. 631 (31 N. W. 544, 8 Am. St. Rep. 859); Rouser v. Railway Co., 97 Mich. 565 (56 N. W. 937); Vining v. Railway, 122 Mich. 248 (80 N. W. 1080).


author: Hooker, O. J.

text:
    BARGER v. FARNHAM.
    1. Note — Consideration—Settlement oe Claim.
    Plaintiff agreed to sell certain notions for defendant under a contract by the terms of which he paid defendant a large sum of money, and was entitled to reimbursement if he should so elect after 90 days from the date of the contract. Held, that the settlement and surrender of his claim for reimbursement before the expiration of the 90 days was a sufficient consideration fór a note.
    2. Same — Duress—Threatened Prosecution.
    Such note is not void for duress because of the fact that plain- - tiff,vtwo weeks before the note was executed, while defendant was in prison on a charge of conspiracy, threatened to give information to the district attorney, and also go into another State and have defendant indicted by the grand jury; it appearing that plaintiff left with defendant’s refusal to settle the claim.
    3. Same — Evidence—Illegal Consideration.
    Evidence to show that a part of the consideration of a note was illegal cannot be admitted under a plea that the note was given “without any consideration whatever.”
    4. Law oe Another State — Decision oe Court.
    A decision of the supreme court of another State is admissible in evidence to prove the law of that State.
    5. Note Payable in Another State — Construction.
    A note made in one State, and payable in another, is governed by the laws of the latter in determining whether it is negotiable.
    6. Negotiable Note — Rule in West Virginia.
    In West Virginia a note not made payable at a bank is not negotiable, and indorsers thereon need not be served with notice of nonpayment.
    7. Same — Indorser—Joint Maker — Evidence.
    Parol evidence is admissible to show that an indorser is a joint maker.
    8. Same — Sunday Contract — Delivery.
    A note signed on Sunday is not invalid if not delivered on that day.
    9. Same — Liability oe Indorser.
    An indorser on a promissory note cannot be held liable without notice of nonpayment.
    10. Nonnegotiable Note — Indorsement—Liability.
    The indorsement of a nonnegotiable note by the payee does not render him liable in case of nonpayment by the maker.
    Error to Kent; Perkins, J.
    Submitted April 11, 1902.
    (Docket No. 90.)
    Decided May 8, 1902.

      Assumpsit by Robert W. D. Barger against Frank H. Farnham, Zellner Dowling, George P. Dowling, and William O. Dowling on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendants bring erroi;.
    Reversed as to defendant Zellner Dowling, and affirmed as to the other defendants.

      The following is a copy of the note sued on:
    “250.00 ' Philadelphia, June 1st, 1899.
    “Six months after date I promise to pay to the order of Zellner Dowling two hundred and fifty dollars at Mounds-ville, West Virginia, without defalcation, for value received. [Signed] Frank H. Farnham.”
    Indorsed on the back:
    “Zellner Dowling1.
    “William C. Dowling.
    “George P. Dowling.”

      R. J. Cleland (Don E. Minor, of counsel), for appellants.

      Boltioood & Boltivood, for appellee.
   Hooker, O. J.

The defendants have appealed from an adverse judgment rendered in an action upon a promissory note. They defended upon the ground that the note was obtained by duress and without consideration, and that it was executed by two of them upon the first day of the week, and not upon the day that it purports to have been executed. The learned circuit judge was of the opinion that the case involved no controlling disputed question of fact, but turned upon a question of law, and therefore directed a verdict for the plaintiff.

The plaintiff said that he became the owner of the note on Tuesday, June 13, 1899, in ignorance of any claim that it was executed by any of the makers or indorsers upon Sunday, or that it was executed through duress or undue influence. It was given in settlement of a claim made by the plaintiff against defendant Farnham; the Dowlings being sureties, and their names being written upon the back of the note before it was delivered to the plaintiff. The defenses set up in the plea were (1) want of consideration; (2) that the note was given under duress and fraud, and only after repeated threats of arrest and imprisonment of said defendants Frank H. Farnham and Zellner Dowling in an action brought against them by the Commonwealth of Pennsylvania on the criminal charge of conspiracy; (3) that George and William Dowling executed the note on June 11, 1899, — the first day of the week, — and not on the day. that the note purports to have been executed.

The plaintiff had made a contract in writing with Frank H. Farnham, by which he was made an agent to sell certain notions which Farnham professed to be dealing in, and paid Farnham a large sum of money on said contract. The arrangement did not prove satisfactory to the plaintiff, who claimed that Farnham had overreached him; and when, subsequently, he heard that Farnham had been arrested in Philadelphia, he went there, and saw him in jail, and urged a settlement. Farnham testified that plaintiff called upon him at the prison, and wanted him to settle the matter, and threatened to see the district attorney, and inform him of all that he knew about Farnham, in case he did not, with a view to putting said district attorney in possession of information which would aid in his prosecution of Farnham and Zellner Dowling, who was charged as a codefendant. This talk was twro weeks before the execution of the note, and plaintiff left with Farnham’s refusal to settle the claim, although plaintiff threatened to go before a grand jury in West Virginia, and get an indictment against Farnham, and have him extradited, and promised not to appear before the district attorney, and would see that no letters or papers were furnished him, if Farnham would sign the note.

The record does not clearly show the charge upon which Farnham was imprisoned, but enough appears to indicate that he and Zellner Dowling were arrested upon a charge of conspiracy. Dowling was released on bail, ahd both were interested in preventing the plaintiff from aiding the authorities in their prosecution. We agree with the circuit judge that the evidence clearly showed a liability to the plaintiff upon the contract; for it expressly gave him a right to reimbursement if he should so elect, and it is clear that he did so elect. It is said that this election was premature, and it may be that he co'uld not have enforced the contract right until after the expiration of 90, days after the date of the contract; but, however that may be, the settlement of and surrender of his claim was ample consideration for the note. It cannot be said, therefore, that there was no consideration for the note; and it is evident that the note was not secured from Farnham and Dowling, or, in fact, any of the defendants, through duress. See Beath v. Chapoton, 115 Mich. 507 (73 N. W. 806, 69 Am. St. Rep. 589).

An argument is made in the brief that the note was void because a part of the consideration was to suppress a criminal prosecution, and to suppress evidence in a pending prosecution. Farnham’s testimony tends to prove this. The plaintiff’s counsel answer this by saying that the plea contains no notice of such a defense, and this is true. The plea alleges a wánt of consideration, but we have already seen that there was a valid consideration, in addition to which the defendants now claim that, as a further consideration, an illegal promise was made, which rendered the note void. The question appears not to have been raised by the pleadings, and is therefore not available. Cir. Ct. Rule No. 7c. See Walbridge v. Tuller, 125 Mich. 218 (84 N. W. 133). In the present case the plea gave no hint that counsel relied upon a claim that a portion of this consideration was illegal because it was a promise to suppress testimony, and it was not covered by the untrue allegation of the plea that it was given {‘ without any consideration whatever.”

William C. Dowling and George P. Dowling live in Michigan, and, at the solicitation of Farnham and Zellner Dowling, signed the note upon its back, as accommodation makers, and returned it to Farnham for delivery, according, to an understanding between Farnham and Zellner Dowling and the plaintiff. The judge stated in his charge that Zellner Dowling was the last to put his name upon the note, after which it was delivered to the plaintiff. The court seems to have treated him as an indorser, and the others as makers. The note was payable in West Virginia, and a decision of the supreme court of that State was admitted in evidence to show that, inasmuch as the note was not payable at a bank, it was not necessary that indorsers be served with notice of nonpayment, because the writing was not a negotiable instrument. This testimony was admissible, and a proper way of proving the law of a sister State, which was a necessary fact to be considered in the case. The learned circuit judge was justified in treating this paper as a West Virginia contract, it being payable there, under the general rule that “ if, by the terms or nature of the contract, it appears that it was to be executed in another country [or State], then the place of making the contract becomes immaterial, and the law of the place where the contract is to be performed governs in determining the rights of the parties.” 1 Beach, Cont. §§ 592, 593, and notes. The law of West Virginia determines the nature of this contract, and, construed in the light of it,.this note is nonnegotiable.

Three of the defendants signed their names upon the back. These are irregular indorsements, and resort to parol evidence is permissible to determine the nature of their contract. See Tied. Com. Paper, § 272, and authorities cited. It is plain that two of them (William and George Dowling) are joint makers, and in this connection we may say that the fact that they signed the note upon Sunday, if it be a fact, does not invalidate the note; the evidence indicating that it was not delivered by them on that day. See Id. § 34c. Being makers, they are upon the same footing, as to right to notice, that Farnham is, irrespective of the provisions of the law of West Virginia shown in the case.

It appears to be admitted that Zellner Dowling is not a maker. He is the payee in the note, which is payable to his order, and is said to have signed it upon the back after it was made. Indeed, it is through this signature that the plaintiff derives his title, upon the face of the paper. This indorsement of Zellner Dowling was made in Philadelpliia. Were this contract of indorsement to be governed by the law of Pennsylvania, which we must presume would treat the note as negotiable, — and we do not intend to so intimate, — he was entitled to notice of dishonor. If, on the other hand, it is to be treated as nonnegotiable paper, his signature is of no further force than evidence of an assignment through which the plaintiff acquired title; and, in either view, -the learned circuit judge was in error in directing a verdict against him. Story v. Lamb, 52 Mich. 525 (18 N. W. 248); Merchants’ Nat. Bank v. Gregg, 107 Mich. 146 (64 N. W. 1052).

It follows that the judgment must be reversed, and a new trial ordered, as to Zellner Dowling, and affirmed as against the other defendants. See 3 Comp. Laws, § 10057.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    PEPKE v. GRACE HOSPITAL.
    1. Charitable Hospital — Negligence of Employes.
    A charitable hospital, organized and maintained, not for pri-. vate gain, but for the care and medical treatment of the sick, cannot be made liable for the negligence of its employés.

    2. Trustees of Hospital — Liability for Negligence of Employes.
    Where the trustees of such hospital appointed a physician as house surgeon upon the recommendation of a board of 25 competent physicians and surgeons, and after an examination of the applicant, as provided by the rules of the hospital, and no charge of incompetency having ever been made against him, the trustees are not liable for his negligence in treating a patient.

      3. Malpractice — Insufficient Evidence.
    Where the only evidence of malpractice against a physician consists in the evidence of a witness that he thought he could have saved more of the hand, but that he did not consider it negligent to do what the physician did, and that the operation was a good job, the court should direct a verdict for the defendant.
    Error to Wayne; Donovan, J.
    Submitted April 11, 1902.
    (Docket No. 96.)
    Decided May 8, 1902.
    Case by Reuben Pepke, by next friend, against the Grace Hospital, James McMillan, William C. McMillan, Ransom Gillis, Rollin C. Olin, and Albert T. Putnam, for negligence in tbe performance of a surgical operation. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff, a boy 11 years of age, trespassed upon the tracks of a railroad company, and climbed upon the ladder of a freight car of a moving train to ride. Seeing some one approach, he jumped from the car, and in doing so fell. His hand struck upon the rail, and the wheel passed over it, crushing the bones of the hand, and making what plaintiff’s physician said was a compound, comminuted fracture. He was taken into an office near by, where some one telephoned for an ambulance. Word was also sent to his home that he had been taken to the defendant hospital. His mother immediately telephoned the hospital to await her arrival, and to get her family physician, Dr. Hare. The hospital physicians waited for the arrival of his mother, and immediately telephoned for Dr. Hare. It was from an hour to an hour and a half before they could find him, and he arrived about two hours after the plaintiff reached the hospital. The physicians, deeming it inexpedient to wait longer for the arrival of Dr. Hare, performed the operation, and amputated the arm somewhere between the wrist and the elbow. Dr. Fletcher, house surgeon, performed the operation, assisted by Dr. Haggerty, the house physician. Dr. Knight, one of the -visiting surgeons, of large experience, came into the operating room about the time the arm was ready for sawing off the bone. Dr. Knight advised that more of the flesh be removed, and that the arm be amputated a little farther up; his reason for this being that the flesh had become devitalized by the accident, and there would be danger unless it was removed. The physicians agreed to this, and the operation was performed in the presence of the three. Dr. Hare arrived after the bone had been sawed off, and witnessed the rest of the operation.
    Defendants James and William C. McMillan and Mr. Gillis are the trustees; Mr. Putnam is the superintendent of the hospital, but has nothing to do with the surgical operations; and Mr. Olin is a member of the medical board. Plaintiff sues the defendant hospital and its trustees for negligence in performing the operation. All the physicians, including Dr. Hare, admit that the operation was skillfully performed. The only charge of malpractice made against Dr. Fletcher and the other physicians is that more of the arm might have been saved by amputating it nearer the wrist. The charge of negligence in the declaration is that Dr. Fletcher was incompetent, and that the defendant trustees knowingly employed an inexperienced and incompetent physician. The court directed a verdict for the defendants, chiefly upon the ground that, the defendant hospital being a charitable institution, neither it nor its trustees were liable for the negligence of its employés.

      Trevor & Trevor {Fred. H. Aldrich, of counsel), for appellant.

      Wells, Angelí, Boynton & McMillan, for appellees.

       As to liability of charitable institution for negligence, see note to Williamson v. Industrial School, (Ky.) 23 L. R. A. 200.

   Grant, J.

{after stating the facts). The defendant Grace Hospital is a charitable institution, organized and maintained in the same manner as Harper Hospital of Detroit. The liability alleged against defendant in this casg is the same as that alleged in Downes v. Harper Hospital, 101 Mich. 555 (60 N. W. 42, 25 L. R. A. 602. 45 Am. St. Rep. 427). That case controls this as to the liability of Grace Hospital, and the court properly directed a verdict for the defendant hospital.

The trustees of the hospital are laymen. The rules of the hospital provide for a medical board of 25 physicians and surgeons of the city of Detroit, who have charge of all the surgical matters in the hospital. They examine applicants for appointment upon the medical staff, and recommend such appointments to the trustees. Dr. Fletcher was appointed by the trustees upon the recommendation of the medical board. Dr. Fletcher was first appointed, after his examination, junior assistant, where he served six months; then senior assistant, where he served another six months; and was at the time of the operation serving as house surgeon. He was a graduate of a medical college of good standing. No complaint whatever is made by any person that he was inexperienced or incompetent. No intimation had ever been made by any one to defendant trustees that he was incompetent to fill the position. The trustees, who are laymen, must naturally leave the competency of their physicians and surgeons to the judgment of those competent to determine such matters, since they are not qualified to make the determination themselves. They performed their full duty towards the patrons of the hospital in appointing a competent board to examine applicants, and in acting upon its report by the appointment of Dr. Fletcher. The testimony on the part of the superintendent of the hospital, Mr. Putnam, who was a witness for the plaintiff, was that, as a surgeon, Dr. Fletcher was considered one of the most competent young men they ever had in the hospital. No charge of incompetency had ever been made against him. The trustees were therefore not negligent in retaining him. Fwen if this were not a charitable institution, the full duty of the trustees in employing and retaining Dr. Fletcher was performed. It is therefore unnecessary to determine, as it was in Downes v. Harper Hospital, whether, for some active wrong or act of negligence on the part of the trustees, recovery might be had by a patient against them.

There is no evidence of negligence on the part of Dr. Fletcher and the attending physicians. Dr. Fletcher was in the service of the United States army as a surgeon, in the Philippines, at the time of the trial, and was not a witness. Dr. Haggerty and Dr. Knight were present, and both testified that the amputation was performed, in their judgment, at the proper place, giving their reasons why. No charge against these physicians is made. Dr. Hare testified that he would have attempted to save the arm lower down, near the wrist, and possibly the thumb, but admitted that the rest of the hand should have been amputated. On direct examination, to a question whether it would have been possible to perform the operation so as to save any portion of the hand, he replied:

“I think so; I would have tried it.
Q. Could they have saved the thumb ?
“A. I think so.”

After testifying further on direct examination as to what he would have done, he said it was a matter .of individual judgment. On cross-examination he said:

‘ ‘ I would not consider it negligent to do what the physicians did. * * * Different doctors have different views. Medical and surgical men of equal experience differ in their judgment in such cases. * * * The operation was a good job.”

The sole testimony as to the propriety of attempting to save more of the boy’s arm in the amputation rests entirely upon this testimony of Dr. Hare. We do not think this testimony was of any probative force to show negligence on the part of the attending surgeons, or to justify the submission of the question of malpractice to the jury. The operation was properly performed; the only differ-' ence in judgment being whether the arm might, with safety, have been amputated nearer the wrist.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomery, J.

text:
    RENTSCHLER v. FOX.
    Replevin — Service—Entering House — Trespass.
    An action of trespass will not lie against a constable for unlocking a door and entering plaintiff’s house and shop to serve a writ of replevin on household furniture and shop fixtures therein, where the constable first asked admittance for the purpose of serving the writ.
    Error to Wayne; Hosmer, J.
    Submitted April 11, 1902.
    (Docket No. 86.)
    Decided May 8, 1902.
    Trespass quare clausum fregit by John E. Rentschler against David W. Pox. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.

      Bacon & Yerkes, for appellant.

      Lehmann & Biggs, for appellee.
   Montgomery, J.

This is an action of trespass. The declaration contains two counts, — one for breaking and entering the dwelling house of plaintiff, the other .for breaking and entering a store building occupied by plaintiff. The defendant j ustified his breaking by a plea setting up that he entered the two buildings in question while acting as a constable in the city of Detroit, and for the purpose of serving a writ of replevin.

The testimony offered by defendant tended to show that he visited the plaintiff at his store on Third avenue, and said to him that he had a writ of replevin for his shop fixtures and for his household goods, and desired him to open the doors and let him in; that the plaintiff replied, “No, I will go over to my folks;” that defendant did not give him any assurance that he would wait for him, but did wait 10 or 15 minutes, and then opened the store, and seized part of the goods; that he then went to plaintiff’s house, on Sixth street, about three blocks distant, but found nobody in the house when he got there; that he tried the front door at the foot of the stairs, and found it locked; that he inquired of a bystander, Mr. Hollands, where plaintiff was, and was told that he was there a little while ago; that he told Hollands that he had a writ of replevin for plaintiff’s furniture; that he then again rapped at the door, got no answer, and, after waiting a little while, no one appearing, he unlocked the door with a skeleton key, went up to the head of the stairs, again rapped, received no answer, unlocked the door, went into the house, and removed the furniture. The plaintiff gave a different version of the transaction, and the circuit judge instructed the jury that, if they found plaintiff’s version of the transaction to be correct, the plaintiff was entitled to recover, but that, if they found the facts as testified to by defendant, and above recited, the verdict should be, “No cause of action.” The jury found in favor of the defendant, and plaintiff brings error.

The sole question presented which we deem worthy of discussion is whether, under the facts sworn to by defendant, the breaking"and entering was unlawful. 3 Comp. Laws, § 10655, provides as to the manner of service of a writ of replevin, and that the officer, for that purpose, may break open any house, stable, outhouse, or other building in which such property may be concealed, having first demanded the deliverance thereof at the building or place where the same is concealed. By section 752 this chapter of the Compiled Laws is made applicable to proceedings in justice’s court. We think the charge of the circuit judge correctly stated the law. See Howe v. Oyer, 50 Hun, 559 (3 N. Y. Supp. 726); Clark v. Wilson, 14 R. I. 11.

The judgment will be affirmed.

Hooker, C. J.,, Moore and Grant, JJ., concurred. Long, J., did not sit.


author: Moore, J.

text:
    PRICE v. UNITED STATES BAKING CO.
    Negligence — Knowledge of Danger — Assumption of Risk.
    A person of mature years, and of sufficient intelligence to be placed at the head of a department, and who has for a long time bécome familiar with the operation of a belt, must be as well aware of the danger of operating it as any one; and if, by reason of a change in the works, it becomes more dangerous to push the belt off to the left than to the right, as had been the custom before, and she continues to operate the belt knowing the danger, she assumes any risk there may be in doing so.
    ■Error to Wayne; Donovan, J.
    Submitted'April 22, 1902.'
    (Docket No. 114.)
    Decided May 8, 1902.
    Case by Alice L. Price against the United States Baking Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      George H. Prentis, for appellant.

      Earl D. Babst ( Otto Kirohner, of counsel), for appellee.
   Moore, J.

The plaintiff sued defendant to recover damages for injuries received by her while in the employ of the defendant. The trial judge directed a verdict in favor of the defendant. The case is brought here by writ of error.

The important question is, Should the judge have allowed the jury to pass upon the case? The plaintiff was injured in October, 1897. She was then 27 years old. The defendant was engaged in the manufacture of crackers, biscuits, and cakes. The plaintiff testified:

“ That October 14, 1897, she was employed by defendant in the icing room in its factory, situated on Wood-bridge street. That she was working on the third floor. That she started to work in 1887, worked until 1890, then left their employ, and went back to work for them in 1895, and then worked continuously for them until October 14, 1897. That she was forelady in the icing department, working on the third floor of defendant’s factory. That her duties were to teach the girls how to put on icing, and how to make it; also how to make marshmallow and put it on cakes. She also had charge of the raisin department, and taught the girls how to clean and pick them. That the defendant had a tank to beat up icing in, and also had a tank to beat up the marshmallow in. These two tanks stood side by side. In beating up icing, I had to put the belt on with my hands, and, when the icing was beat up, I had to push the belt off with my foot. The tank was run by steam, connected with the engine in the basement. The shafting ran on the ceiling of the second floor. That there were from 40 to 50 girls employed in the factory, and from 5 to 8 girls employed in the room where I was working. * * *
“I was hurt on October 14, 1897, at the defendant’s factory in Detroit, Michigan, on the third floor, where I was required to be in the discharge of my duties. I was shifting the belt from the icing tank while it was in operation. I was required to shift the belt with-my foot, and was so instructed by Mr. Coleman, the engineer and foreman of the defendant. The day before the 14th of October, 1897, Mr. Coleman, the foreman, had moved the marshmallow tank close to the icing tank. I had always, previous to that time, pushed the belt from the icing tank to the right with my right foot. On the 13th of October, 1897, Mr. Coleman, foreman of the machinery, had directed me to push the belt connected with the icing machine off to the left with my right foot. I had only pushed the belt off as Mr. Coleman directed two or three times before I was hurt. In obeying the orders given to me. my right foot was caught by the belt, carried up to the pulley, the smaller bones of the foot broken, the ligament torn, and my nervous system shattered. After the marshmallow tank had been placed close to the icing tank, there was no room to push the belt to the right, as was done formerly, but it had then to be pushed to the left with my right foot. This required putting my right foot across my left foot with my hand upon the icing tank. * * *
Q. State how such belt was shifted, and why it was thus shifted.
“A. It was shifted with the foot to the left, or towards the machine, because there was no other way to shift it.
Q. State what knowledge you had at that time— October 14, 1897 — with regard to the running of such machinery as was used in the room where you were at work.
A. All the knowledge I had was that they were running as usual, and I was required to push off the belt. * * * There were two tanks. One, the small one, was used for icing; and the other, a larger one, used for marshmallows. On the 13th of October, 1897, the large tank was moved, and placed close to the icing tank. Before the 14th day of October, 1897, I shifted the belt of the icing tank to the right with my foot, but, after the marshmallow tank had been moved near to the icing tank, the belt could not be shifted to the right with the foot, as we had before done, but I was instructed by Mr. Coleman to slip the belt off to the left with my right foot, and he also requested me to so instruct and teach the others in this department how to slip it off in this way. ”

On the cross-examination she testified:

Q. Was it necessary for you, in the performance of your duties, to remove the belt from the pulley on the mixing tank ?
“A. Yes, it was necessary.
Q. How many times per day ?
“A. That would depend how busy we were.
Q. On what occasions did you remove that belt ?
“A. In order to see how the icing was beat up I had to remove that belt.
Q. How many times, in all the course of your employment, did you have to remove the belt in question?
“A. That would be impossible to state. Sometimes three or four times a day; other days not at all.
“ Q. Was it your duty to take off that belt ?
“A. Yes, sir; it was.
Q. How had yo,u been accustomed to take off that belt before the accident ?
“A. I had been accustomed to push the belt off with my right foot, to the right, allowing the belt to slip on the floor.
Q. How did you take it off at the time of the accident ?
"A. I attempted to push the belt off with my right foot to the left, as I had been instructed, and in some manner unknown to me my foot was carried to the pulley, which caused the accident to my foot, and also slipped the belt off.” ‘

She also testified that she never knew any one else to be hurt in taking off that particular belt.

We then have, according to her testimony, a woman of mature years, of sufficient intelligence so she is put at the head of a department, where she works operating machinery driven by a belt, which she puts on and removes as occasion requires, for a long time, so that she must have become entirely familiar with the belt and its operation. The only change made was the placing near it of a tank, which made it necessary to push the belt to the left, instead of to the right. It is evident that, if there was any danger in operating this belt, it was as apparent to the plaintiff as to any one. In continuing to operate the belt after knowing the manner of its operation, she assumed any risk there might be in so doing. Michigan Cent. R. Co. v. Smithson, 45 Mich. 221 (7 N. W. 791); Schroeder v. Car Co., 56 Mich. 132 (22 N. W. 220); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145); Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907).

Judgment is affirmed.

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


text:
    TOWNSHIP OF BLUMFIELD v. BROWN.
    Drains — Certiorari to Review Proceedings.

      Certiorari will not lie to review proceedings ta^en by a drain commissioner to lay out a drain unless notice is served upon the commissioner within 10 days after his final order establishing the drain.
    Error to Saginaw; Beach, J.
    Submitted April 22, 1902.
    (Docket No. 103.)
    Decided May 8, 1902.

      Certiorari by the township of Blumfield against Alonzo M. Brown, drain commissioner of Saginaw county, to review certain drain proceedings. From an order dismissing the writ, relator brings error.
    Affirmed.

      W. F. Denfeld, for appellant.

      James H. Davitt, for appellee.
   Grant, J.

This case is brought to this court by certiorari to review proceedings taken by the drain commissioner of Saginaw county to clean out, widen, and deepen a part of a public drain. The sole claim of plaintiff in certiorari is that the petition is fatally defective, and conferred no jurisdiction.

The order based upon the petition was made February 18, 1901, while the application for writ of certiorari was not made until April 30th. The statute provides that notice of the certiorari shall be served on the commissioner within 10 days after his determination, and that, if no certiorari has been brought within the time prescribed, its legality shall thereafter not be questioned in any suit at law or in equity. Plaintiff claims the right to a common-law certiorari, and that it is not limited by the statute. It is within the power of the legislature'^ limit the time within which writs of certiorari may be issued. The statutes afford abundant instances of this kind. See 1 Comp. Laws, §§ 936, 1047, 2764. The legislature has not taken away the right to review the proceedings by certiorari, but only has limited the time within which parties must proceed. The purpose of the statute is' to' obtain speedy determination of suits begun to test the validity of the proceedings, and to avoid “the law’s delays,” and the incurring of further expense until the validity of the proceeding is beyond controversy. The township was duly served with notice of the proceedings and of soliciting bids, and its proper officer was present when contracts were let. The township did not move seasonably. Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130), where, in an opinion written by my Brother Montgomery, it was shown under what circumstances the common-law certiorari may be open, viz., where the statutory remedy is not possible of application. Such a case was Loree v. Smith, 100 Mich. 252 (58 N. W. 1015), where no order was actually made which would set the time running.

The judgment is affirmed.

Hooker, O. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    McGREGOR v. McGREGOR.

    Partnership — Salary op Public Oppioer — Public Policy.
    An agreement by a public official that his salary, when earned, shall be deemed assets of a partnership of which he is a member, is not an assignment of the unearned salary, but rather an agreement as to the manner in which it shall be disposed of when earned, and therefore not void as against public policy.
    Gross-appeals from Wayne; Rohnert, J.
    Submitted April 23,1902.
    (Docket No. 115).
    Decided May 8, 1902.

      Bill by John McGregor against Thomas McGregor for a partnership accounting. From the decree rendered, both parties appeal.
    Modified in defendant’s favor.

      A. G. Pitts, for complainant.

      George W. Radford, for defendant.

      Rehearing denied June 3, 1902.

   Montgomery, J.

This is an appeal from an accounting between partners. The complainant and defendant are brothers, and succeeded to the business established by John McGregor, Sr. Both parties appeal from the decree of the court below, and neither contends for a decree in the terms granted by the circuit judge.

Substantially the only controversy between the parties relates to the question of the salary received by complainant while he was acting, for several years, as boiler inspector of the city of Detroit. It is the claim of defendant that both himself and complainant had been devoting their time exclusively to the business of the partnership; that complainant was offered the appointment of boiler inspector; and that, before accepting the appointment, the matter was talked over between the two partners, in the presence of their father, and the conclusion reached that it would be well for complainant to accept the appointment, as the partnership business was somewhat dull, and the firm would have a salary coming in from this office; that, upon this understanding, complainant accepted the office, and held it for several years; that defendant continued to devote his entire time to the business; that complainant from time to time paid in some of the money to the business; that defendant opened an account with the boiler inspector’s office on the books, which was credited in 1894, 1895, 1896, and 1897 an aggregate of $1,983. Complainant disputes this claim of defendant, and alleges that there was no understanding or agreement that the salary of the office of boiler inspector was to be deemed a part of the assets of the firm, but avers that the sums paid in by him were in the nature of loans to the company, and should be returned.

The case is not free from doubt, but we think the preponderance of testimony supports the contention of defendant. Previous to the appointment of complainant as boiler inspector, both parties were drawing $15 per week from the business for living expenses. It is a significant fact that John continued to draw that amount regularly for nearly four years after he became boiler inspector, although the testimony is very clear that he gave little or no attention to the business.

The complainant further contends that the contract was void as against public policy, as it amounts to an assign- ' ment of an unearned salary as a public officer. But it is, rather, an agreement as to the manner, in which the salary shall be disposed of when earned and paid. See this distinction taken in Thurston v. Fairman, 9 Hun, 584; Greenh. Pub. Pol. p. 355.

It is conceded in complainant’s brief that if, on an accounting, John McGregor should be charged with the amount of the salary received, the defendant is entitled to the whole sum in the hands of the court, and complainant would also be bound to pay him $1,252.89 in cash, and that complainant’s interest in certain Windsor property should be subjected to a lien for this amount. As we adopt the view that the evidence preponderates in favor of defendant’s contention, the decree below will be modified and put in this form. The defendant will recover the costs of this court.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


text:
    THOMPSON v. UNION TRUST CO.
    1. Insolvent Bank — Deposits.
    Money on deposit in a bank, subject to check, becomes due without demand when the bank becomes insolvent.
    2. Same — Set-Oep.
    A depositor may set off the amount standing to his credit when the bank becomes insolvent against his notes payable to the bank, and not then due.
    Appeal from Wayne; Donovan, J.
    Submitted April 23, 1902.
    (Docket No. 119.)
    Decided May 8, 1902.
    Petition by Prank M. Thompson against the Union Trust Company, receiver of the City Savings Bank of Detroit, to compel the application of a deposit to the payment of certain promissory notes. Prom a decree for petitioner, defendant appeals.
    Affirmed.

      Ransom G. George, for petitioner.

      Bowen, Douglas & Whiting, for defendant.
   Moore, J.

The following statement taken from the brief of the counsel for the appellant shows the question involved in this case:

“On the 10th day of February, 1902, the City Savings Bank, a Michigan corporation, located in the city of Detroit, was insolvent; and on that day George L. Maltz, commissioner of the banking department of the State of Michigan, closed and took possession of said bank. On that day there were in the possession of said bank two notes made by Frank M. Thompson, the petitioner, — one for $3,021, dated August 12, 1901, due six months after date, and one for $910, dated January 17, 1902, due four months after date. At the time of the failure, Frank M. Thompson had to his credit upon the books of the said bank, on deposit, the sum of $2,458.43, subject to check. On February 19, 1902, the said Frank M. Thompson demanded from the receiver, appellant herein, that said receiver apply upon the above-described notes the deposit due the said Frank M. Thompson, and, upon payment by him of the balance due upon said notes after the deposit had been deducted, surrender to him the notes. This the receiver refused to do, and, from the order directing such set-off, brings this appeal to this court. The legal question can be stated very simply: May petitioner set off the deposit standing to his credit when the bank closed its doors against his notes not then due ? ”

Counsel for appellant contend that these deposits are not subject to set-off, because not mutual credits; that they are not mutual because, at the time the bank suspended, the debt owing from petitioner to the insolvent bank was not due; that such set-off would affect the rights of other creditors, and would give petitioner a preference over them. They are unable to find any Michigan cases directly in point, but cite several which they think in principle support their position, which will be referred to later.

It is conceded the deposit of Mr. Thompson became due, without demand, when the bank became insolvent. Colton v. Building & Loan Ass’n, 90 Md. 85 (45 Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431); Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148). It is also conceded that the receiver stands in the place of the bank, subject to all equities against the bank, and does not sustain the relation of a purchaser of the notes for value, without notice. See Louis Snyder’s Sons Co. v. Armstrong, 37 Fed. 18; Van Wagoner v. Gaslight Co., 23 N. J. Law, 283; Sherwood v. Bank, 103 Mich. 109 (61 N. W. 352). It is urged that, if this bank were solvent, — a “going bank,” — it could not compel Mr. Thompson to pay the notes until maturity, and, on the other hand, he could not compel the bank to accept payment of the notes until they came due; and as the claim of the bank had not matured when the receiver was appointed, though Mr. Thompson’s claim did mature when the bank became insolvent, and before the receiver was appointed, it cannot be said the two claims are in any sense mutual credits, and the subject of set-off. Counsel cite, in support of this proposition, Gibbons v. Hecox, 105 Mich. 509 (63 N. W. 519, 55 Am. St. Rep. 463); Mechanics’ Bank v. Stone, 115 Mich. 648, (74 N. W. 204); and Koegel v. Trust Co., 117 Mich. 542 (76 N. W. 74).

An inspection of these cases will show they are distinguishable from the one at bar. In Gibbons v. Hecox neither debt was due at the time of the insolvency. In Mechanics’ Bank v. Stone the debt to the bank was due at the time of its insolvency, while the debt from the bank was not due, and was a contingent liability. It was held the rights of other creditors had intervened, and their equities were superior to those of debtors seeking to set off claims not due. In Koegel v. Trust Co. one of the debts did not come into existence until after the appointment of the receiver.

In Stone v. Dodge, 96 Mich. 514 (56 N. W. 75, 21 L. R. A. 280), Justice McGrath, speaking for the court, said:

“There can be no doubt that the certificate of deposit in this case would, in a proper case, be a proper subject of set-off. It is well settled that, in a suit by a receiver of an insolvent bank upon a note or obligation due the bank, the defendant will be allowed to set off his deposit or a certificate of deposit held by him at the time of the suspension of the bank. Dickson v. Evans, 6 Term R. 57; Pedder v. Mayor, etc., of Preston, 9 Jur. (N. S.) 496; Niagara Bank v. Rosevelt, 9 Cow. 409; Ogden v. Cowley, 2 Johns. 274; McLaren v. Pennington, 1 Paige, 112; Miller v. Receiver of Franklin Bank, Id. 444; In re Receiver of Middle Dist. Bank, Id. 585 (19 Am. Dec. 452); Smith v. Fox, 48 N. Y. 674; New Amsterdam Sav. Bank v. Tartter, 4 Abb. N. C. 215; Berry v. Brett, 6 Bosw. 627; Jordan v. Sharlock, 84 Pa. St. 366 (24 Am. Rep. 198); Farmers’ Deposit Nat. Bank v. Penn Bank, 123 Pa. St. 283 (16 Atl. 761, 2 L. R. A. 273); Kentucky Flour Co.’s Assignee v. Merchants’ Nat. Bank, 90 Ky. 225 (9 L. R. A. 108, 13 S. W. 910); Van Wagoner v. Gaslight Co., 23 N. J. Law, 283; Platt v. Bentley, 11 Am. Law Reg. (N. S.) 171; Clarke v. Hawkins, 5 R. I. 219.”

The case of Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148), is in point. This was an action by the receiver of the Fidelity Bank against the maker and indorsers of a promissory note which did not mature until after the insolvency of the bank. One of the defendants sought to offset its deposit with the Fidelity Bank at the time of the failure. This set-off was not allowed in the United States circuit court for the southern district of Ohio. An appeal was taken to the circuit court of appeals, who certified the questions involved to the Supreme Court. Mr. Chief Justice Fuller delivered the opinion of the court, in which the lower court is reversed and the set-off allowed. We quote from the opinion, as follows:

* ‘ The note in controversy did not mature until September 7, 1887, but the deposit to the credit of the Farmers’ Bank was due, for the purposes of suit, upon the closing of the Fidelity Bank, as under such circumstances no demand was necessary. The receiver took the assets of the Fidelity Bank as a mere trustee for creditors, and not for value and without notice, and, in the-absence of statute to the contrary, subject to all claims and defenses that might have been interposed as against the insolvent corporation before the liens of the United States and of the general creditors attached.
“The right to assert set-off at law is of statutory creation, but courts of equity, from a very early day, were accustomed to grant relief in that regard independently, as well as in aid of statutes upon the subject. * * * Courts of equity frequently deviate from-the strict rule of mutuality when the justice of the particular case requires it, and the ordinary rule is that, where the mutual obligations have grown out of the same transaction, insolvency on-the one hand justifies the set-off of the debt due upon the other. * * *
“In the case at bar the credits between the banks were reciprocal, and were parts of the same transaction, in which each gave credit to the other on the faith of the simultaneous credit, and the principle applicable to mutual credits applied. It was, therefore, the balance upon an adjustment of accounts which was the debt; and the Farmers’ Bank had the right, as against the receiver of the Fidelity Bank, although the note matured after the suspension of that bank, to set off the balance due upon its deposit account, unless the provisions of the national banking law were to the contrary.”

After quoting the act, it continues:

“The provisions of the act are not directed against all liens, securities, pledges, or equities whereby one creditor may obtain a greater payment than another, but against those given or arising after, or in contemplation of, insolvency. Where a set-off is otherwise valid, it is not perceived how its allowance can be considered a preference; and it is clear that it is only the balance, if any, after the set-off is deducted, which can justly be held to form part of the assets of the insolvent.”

Jones v. Piening, 85 Wis. 264 (55 N. W. 413), quotes the case of Oatman v. Bank, 77 Wis. 505 (46 N. W. 881, 20 Am. St. Rep. 136), which is cited ,by this court in Mechanics’ Bank v. Stone, 115 Mich. 651 (74 N. W. 204), and which is a case similar to the latter, and says:

“The case at bar differs widely from that class of cases, and turns upon a different principle. Here it was not the indebtedness of the insolvent debtor that was not due when the assignment was made, but a portion of the indebtedness from the plaintiffs to the assignee of the insolvent debtor. An assignee of such an insolvent debtor has no authority to waive the time of credit secured for the sole benefit of his assignor, and pay a debt not due with credits, or the avails of credits,' which are due to the assignor at the time of making the assignment, for to do so would tend to prejudice the creditors of the insolvent’s estate; but a debtor to such estate, whose debt was not due at the time of the making of such assignment, has the authority to waive the time of credit which was secured for his own benefit, and pay the same at once in money, or by way of set-off of the amount due him from such estate. This rule is firmly settled in other States.”

To the same effect are Smith v. Fox, 48 N. Y. 674; Rothschild v. Mack, 115 N. Y. 1 (21 N. E. 726); Smith v. Felton, 43 N. Y. 419; Lindsay v. Jackson, 2 Paige, 581; Colton v. Building & Loan Ass’n, 90 Md. 85 (45 Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431); Jordan v. Sharlock, 84 Pa. St. 366 (24 Am. Rep. 198); Second Nat. Bank v. Hemingray, 34 Ohio St. 390; Keightley v. Walls, 27 Ind. 387; Smith v. Spengler, 83 Mo. 408; Jones v. Robinson, 26 Barb. 310; In re Van Allen, 37 Barb. 229; Stewart v. Anderson, 1 Cranch, 586; Davis v. Manufacturing Co., 114 N. C. 321 (19 S. E. 371, 23 L. R. A. 322); Adams v. Drug Co., 57 Fed. 888 (23 L. R. A. 334); Martin v. De Loge, 15 Mont. 343 (39 Pac. 312); Yardley v. Clothier, 2 C. C. A. 349 (51 Fed. 506, 17 L. R. A. 462); Ex parte Prescot, 1 Atk. 230; 1 Morse, Banks, § 338.

As the precise question involved here is a new one in this State, but has been, as we have shown, directly passed upon in the Federal courts and many of the State courts, we feel bound to follow those decisions.

Judgment is affirmed.

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


author: Per Curiam.

text:
    RUTKOWSKI v. TOWNSHIP OF DEARBORN.
    This case is ruled by McKeller v. Township of Monitor, 78 Mich. 485.
    Error to Wayne; Frazer, J.
    Submitted April 24, 1902.
    (Docket No. 135.)
    Decided May 8, 1902.
    Case by Minnie Rutkowski against the township of Dearborn for injuries sustained by reason of a defective approach to a bridge. It appeared on the trial that the highway of which the bridge formed a part had not been in use 10 years; whereupon the court directed a verdict for defendant. Plaintiff brings error.
    Affirmed.

      William Look (Harry F. Ghipman, of counsel), for appellant.

      Thomas Mulvihill (Richard I. Lawson, of counsel), for appellee.
   Per Curiam.

This case is ruled by McKeller v. Township of Monitor, 78 Mich. 485 (44 N. W. 412).

Judgment affirmed.


text:
    SPARROW-KROLL LUMBER CO. v. VAN SLYCK.
    Conditional Sale — Instructions to Jury.
    Defendant was working for plaintiff under a lumbering contract, and plaintiff purchased for him a team under an agreement that the title should remain in plaintiff until paid for. Plaintiff claimed the horses were to be paid for in work under the contract, and introduced his general account in evidence, showing a large balance due plaintiff. Defendant claimed that he was to pay for them by the sale of certain logs, and that more than enough had been sold to pay for them. Held, that it was not error to charge that the general account and final balance had nothing to do with the case except to show what the agreement was, and whether the purchase price had been paid.
    Error to Houghton; Streeter, J.
    Submitted April 24, 1902.
    (Docket No. 30.)
    Decided May 8, 1902.
    Replevin by the Sparrow-Kroll Lumber Company against Whiter G. Van Slyck. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Gray, Haire & Rice, for appellant.

      Ghadbourne & Rees, for appellee;
   Moore, J.

This is an action of replevin to recover the possession of horses, the ownership of which is claimed by the respective parties. The giving of the following paper was part of the transaction:

‘ ‘ Memorandum of agreement made and entered into this fifteenth day of December, 1897. It is hereby understood and agreed that, inasmuch as C. A. Van Slyck & Sons are desirous of purchasing two pair of horses of Jacob Ullman, and in order that said Van Slyck & Sons can obtain said horses, the Sparrow-Kroll Lumber Co. agree to and do pay said Jacob Ullman the sum of five hundred and five dollars ($505.00) for said horses: Provided, however, that the said horses so purchased shall be the property of the said Sparrow-Kroll Lumber Co. until fully paid for by said Van Slyck & Sons, and, in case said Van Slyck & Sons fail to pay said Sparrow-Kroll Lumber Co. on or before May 1st, 1898, said Van Slyck & Sons agree to deliver on demand said horses in good condition to said Sparrow-Kroll Lumber Co.
[Signed] “C. A. Van Slyck & Sons.”

In September prior to the making of this paper, Van Slyck & Sons entered into a written agreement with plaintiff to cut, skid, and haul certain'logs for them. It is claimed by the plaintiff that, to enable Van Slyck & Sons to carry out this agreement, the horses in controversy were purchased, and were to be paid for out of the proceeds of the lumber contract, and that the teams were never paid for, but Van Slyck & Sons still owe plaintiff over $1,700. It is the claim of defendant that Van Slyck & Sons desired these horses, and asked Mr. Kroll to aid them in buying the teams; that Mr. Kroll suggested the lumber contract could probably take care of itself; and it was then agreed that if Van Slyck & Sons would sell to plaintiff certain logs they owned, at $6 and $7 per thousand, plaintiff would buy the teams, and apply the proceeds of the logs in payment for the teams; and that under this agreement more than enough logs were delivered to pay for the teams.

The testimony was in sharp conflict. The jury returned a verdict in favor of defendant. The only assignments of error relate to the charge of the court. The court permitted the plaintiff to show its entire account with Van Slyck & Sons, and that Van Slyck & Sons were largely indebted to the plaintiff when these teams were bought. Complaint is made of what the judge said in his charge about this account. Particular stress is laid on the following language:

“Something was said in the progress of the case about the equities of the case being entirely with the plaintiff. I wish to say to you, gentlemen, that the balance as testified to on the general account between the plaintiff and the defendant, as existing in November and December, 1897, and the final balance, have absolutely nothing whatever to do with this case. That is a question that must be determined in another suit. The only possible bearing it could have would be to show the contract relation of the parties at the time the bargain with regard to the horses was made; that they were having other deals, some of them having been reduced to writing, and some of them without writing, oral bargains; and you will take all the circumstances together, so far as they bear op the single question of ownership. That is the only one. Let us put everything else out of our mind.”

We cannot understand fully the charge without reading what immediately preceded this statement. It was as follows:

“If you find that it was agreed or understood that the logs sold by Van Slyck to the plaintiff were to be applied in payment of the purchase price of the horses, then all matters relating to the lumbering contract of September 25, 1897, and the state of the accounts between the parties, or the claim that Van Slyck, or his firm, is now indebted to the plaintiff, are immaterial, and have nothing to do with the question of the ownership of the horses. The plaintiff has no claim or lien upon the horses as security for, or by reason of, any indebtedness to the plaintiff, and the question of such indebtedness is immaterial in this case, except in so far as it may have a bearing upon the question as to whether the purchase price of the horses was paid, and you will not consider the question of such indebtedness as having any application to this case except on that one question. In determining the one question as to the ownership of the horses, the testimony with regard to .the circumstances and surroundings of the parties at the time they entered into the contract should appear before the jury, in order that you may better determine that one question. But the question of who was the owner of the horses is the only one for us to determine. ”

The court gave plaintiff’s second request as follows:

“ The undisputed evidence shows that the horses in controversy in this case were to remain the property of the plaintiff until paid for. If you find from the testimony that the horses have not been paid for by the defendant, or any one in his behalf, you will return a verdict for the plaintiff. ”

We think it clear the jury were made.to understand that if the horses were to be paid for from the proceeds of the logs, and sufficient logs were delivered to pay for them, the condition of the other portions of the account was immaterial ; but, for the purpose of learning what the agreement was, the account might be taken into consideration. We do not think the jury could have misunderstood the charge.

The case was tried with exceptional fairness. The legal questions involved were stated clearly. The question of fact was in dispute. It was fairly submitted to the jury, who decided it in favor of the defendant, and we cannot disturb their verdict.

Judgment is affirmed.

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