text:
    SANDERS v. KALAMAZOO TANK & SILO CO.
    1. Negugence — Defective Derrick — Liabiuty of Manufacturer —Burden of Proof.
    In an action for injuries causing the death of plaintiff’s decedent due to the collapse of a derrick manufactured by defendant, the burden was upon plaintiff to show a substantial compliance with the accompanying plans and instructions in the erection of the derrick.
    2. Same — Evidence—Directed Verdict.
    Undisputed testimony that the instructions of the manufacturer were not followed by deceased and his employer in assembling said derrick, held, to support a directed verdict for defendant.
    3. Same — Contributory Negugence — Assumption of Risk.
    Where decedent helped to construct the derrick knowing that the instructions for erecting had not been complied with, and continued to use it after it developed symptoms of weakness, held, to preclude recovery on the grounds of contributory negligence and assumption of risk.
    Error to Kalamazoo; Weimer, J.
    Submitted January 29, 1919.
    (Docket No. 19.)
    Decided April 3, 1919.

      Case by Myrtle M. Sanders, administratrix of the estate of Hiram E. Sanders, deceased, against the Kalamazoo Tank & Silo Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Affirmed.

      Charles H. Farrell, for appellant.

      \Jackson, Fitzgerald & Balm, for appellee.
   Stone, J.

The plaintiff, as administratrix of the estate of her deceased husband, • Hiram E. Sanders, brings this action under the survival act of the State of Kansas, to recover damages for the injury and resulting death of her decedent caused by. the collapse of a- derrick or scaffolding on which he was working at the time, which was being used in constructing a tile silo, for one J. W. Tron, on June 3, 1915, in Mitchell county, State of Kansas. Mr. Tron, a contractor, had purchased the derrick directly from the manufacturer, the defendant company. Mr. Sanders died eleven hours after the injury, and as a result thereof. He was a mason by. trade, was a strong, able-bodied, intelligent and industrious man, 52 years of age, and had followed his trade for about 15- years and had earned from $800 to $1,000 a year.

The derrick in question had a center pole made of one 20-foot piece of 4-inch gas pipe, and some 10-foot sections, and at the time of the accident the center pole was about 50 feet high which was held in a vertical position by four guy cables. Around the vertical pole were two collars held at a fixed distance from each other, by three rods with screw thread and nut adjustment. On each of these collars were 12 wings or flanges. To the flanges on the upper collar were bolted 12 pieces of angle iron, which were to form the joists.of the derrick, and upon which the plank of the platform was to be laid. These 12 joists radiated from the center collar to the circumference of- the silo (which was round) and were supported in a horizontal position by 12 other pieces of angle iron, which extended from a point near the end of each joist to the lower collar, to which they were bolted. These latter braces — or struts, as they were technically called— are shown by members numbered 6 and 7 on exhibit “D,” hereto attached. Both the joists and struts were

two-piece members, arranged with' bolts and symmetrical holes so that the length of the member could be increased, or diminished to fit varying sizes of silos. The whole contrivance was arranged to be raised on the vertical upright by means of a pulley and tackle, as the work on the silo wall advanced. To hold the derrick in a vertical position while a new section of the upright pole was being put in place, and the guy wires were consequently loosened, and also to help support the platform as the work of building the silo progressed, four shoe arms extended from the lower collar, as shown in exhibit “D,” to the inside walls of the silo, where the arms terminated in large plank shoes held in position against the silo wall by small chains, which were attached to the ends of the joists above. This is a brief description of the so-called “Kalamazoo Erecting Derrick” shown in the exhibits in the record, upon which plaintiff’s decedent and his son Lester E. Sanders were working on the morning of June 3, 1915, when suddenly two or three of the struts “buckled.,”' and allowed the horizontal joists to fall, precipitating the two men to the bottom of the silo, a distance of about 35 feet — resulting as above stated.

Of the 150 derricks which the defendant had manufactured and sold, at the time of the trial, the derrick in question was the only one about which there had been any complaint relating to the parts breaking or giving away.

Mr. Tron had purchased the derrick from the defendant’s agent at Kansas City, Missouri. Mr. Tron had the contract for building the silo. In setting up the derrick his directions were followed. He had before him printed directions, and the assembling diagram exhibit “B.” The deceased read the instructions and he and his son assisted in assembling and erecting the derrick, after the foundation had been constructed, and the instructions and cut were referred to while the derrick was being erected. Upon this subject Mr. Tron, a witness for the plaintiff, testified:

“Mr. Sanders and I had this tally sheet and assembling diagram between us. I examined it and read it over. . I understand that No. 12 in the diagram was the lower collar of the derrick as erected, and I also understand that No. 7 constituted the lower part of one of the braces that was to be fastened to No. 12. I did not understand that No. 8 in this exhibit was to be bolted to No. 9 and was then to be bolted to the collar marked No. 12. The bolts were too short to bolt these two pieces together. From the diagram it looked as though No. 8 was bolted on the collar and No. 7 onto brace No. 8. It looked that way on the diagram at the time we were putting up the derrick, but it could not be done that way. I did not put it on that way because I could not. The outer end of No. 8 was attached to No. 9, and that was attached to the shoe on the inside of the silo. As a matter of fact, instead of fastening it to the collar, as the direction showed, I fastened it up here at this point on the brace about 18 inches from the collar, about that far away from where the tally sheet, and the assembling diagram showed they should be fastened. At that time I knew that No. 8 was to be fastened to No. 9, and that there was a shoe on the end of No. 9 which was supposed to be slipped up tight against the inside of the silo wall for the purpose of furnishing support for the center pole. After we got the derrick assembled, there were four or five extra pieces of angle iron, in addition to those used.
“When the derrick was shipped to me, I was short eight pieces of angle iron, and I telephoned Kansas City, to the company’s agent, and he finally shipped me some others, and he shipped me more than was needed, and for this reason there were four or five pieces left.
“It was impossible for me to attach the shoe rod to the lower collar as directed in exhibit ‘D’ because the bolts were too short to fasten the two pieces of iron to those wings on the collar. There were twelve of these wiags on the collar, and there were twelve braces to go to them, so there were no wings left for these shoe rods. They had to be bolted through the braces to the wings and the bolts were not long enough. All of the bolts furnished were of the same length, just long enough to bolt two pieces together. I did not know it was necessary to undertake to get any larger bolts to bolt No. 8 .to the collar. I didn’t attempt to get any. Larger bolts than I had, would have enabled me to bolt them tog-ether at that point' and carried out the directions. Instead of that I took the shorter bolts and bolted it 18 inches up the braces. It would have only taken a bolt about an eighth of an inch longer.”

The purpose of the shoes spoken of was to keep the center pole from weaving back and forth; there was a tendency for it to weave back and forth when the derrick got up 25 or 30 feet from the ground. The shoes would reach out from the side and stop the weaving. These shoes, were kept against the sides of the silo except when moving the platform, and were used for tightening, and holding stiff the center pole. The derrick first showed signs of weakening when the deceased and his son got up to a point about 30 feet from the bottom of the pit; they then took some 2x6 timbers and braced them against the bottom of the pit, and angled them up against the center pole to help make the pole more rigid and stop the weaving to a certain extent.

In the use of the derrick and during the erection of the silo on which the deceased was working at the time of his injury, he discovered through one experience that these' shoe arms, running from the shoes at the sides of the silo to the struts or braces, were causing the struts or braces to “buckle.” The deceased and his "son talked this situation over some time before the accident.

Prior to the accident one of the struts or braces had buckled or sprung in the same direction that this one did which buckled at the time of the accident, and it buckled toward the center pole. Previous to the morning of the accident, the witness Kennedy had a talk with deceased in regard to the derrick, and the latter said he did not like to work on it; that he was “not stuck on this rigging.” * At the time of the accident the deceased and his son were on the platform of the derrick. The son weighed about 160 pounds, and the deceased from 170 to 175 pounds, and in addition there was a mortar board weighing perhaps 10 pounds. There were no tile upon the platform at the time.

The testimony produced by the plaintiff in the way of expert evidence as to how such a derrick should be constructed is largely covered by the testimony of the plaintiff’s witness Elbert Nicholson. This witness testified, on direct examination, as follows:

“From an examination of these exhibits, I believe that the collapse of the machine on the 3d day of June, 1915, was due to the buckling of the lower part of the brace, was due to the fact that the strain placed upon it was larger than it could carry. In my opinion the strut or brace member was not strong enough to carry the load imposed upon it. That is my present opinion.”

It was the plaintiff’s claim that the collapse of the derrick was due to the fact that the braces, which were supposed to support the platform joists, were not made of material sufficiently strong to support the weight of the platform together with that of the men and materials necessary in order to use the derrick for the purpose for which it was advertised and sold; that the device was not constructed according to good engineering practice; that these defects were unknown to plaintiff’s intestate, who had no means of ascertaining them; that defendant, while knowing, or being in a position to know that the device was unsafe, represented to plaintiff’s intestate and others that it was built with a view to the safety of the “operator,” and “all parties connected with or around the structure,” and there was a good deal of expert testimony produced by the plaintiff upon these subjects.

On the other hand, it was defendant’s claim, among other things, that the derrick was built of proper materials upon approved engineering lines, and that the reason for the collapse and consequent death of decedent was that the derrick had not been assembled according to directions furnished by the company (the manner in which deceased erected and used the derrick being illustrated by exhibit “I,” hereto attached); and, further, that since the plaintiff’s intestate assisted in assembling the derrick, he assumed whatever risk resulted therefrom. We quote further from the testimony of the plaintiff’s witness Nicholson as follows:

“I understand that the center pole was stayed by those shoes that go to the side of the silo wall. I heard the testimony this morning, that there was a weaving there of about one and a half to two inches on each side of the center pole. Whether this weaving would have any effect, would depend upon where it took place. If the platform weaved back and forth to the center pole an inch and a half or two inches each side, as the testimony shows, it would have a tendency to throw the weight of this member against this brace and make it buckle. Whether it would cause it to break is a matter of speculation; it might, at least I should, consider that it would weaken it enough to make it dangerous because of the light members used in the braces. It is so close to the limit of strength that any little thing like the dropping of a plank, or striking it, any little accident that might happen, might produce a strain. That is why I made the statement in regard to the use of heavier angle iron which might resist the strain that might be made upon it. * * * If the joist had been loaded just under the breaking point, the touch of a finger would have been enough to cause the brace to buckle. It would be like a trigger, it might go with the least provocation. If member No. 8 had been fastened down to the collar, it would not have had any effect in the way of causing the strut to buckle. I have examined the brace in member F-2 and they are both examples of buckling. If member No. 8 had been, fastened to the lower collar any weaving of the platform one way .or the other would not have had any effect upon the brace. With No. 8 fastened to the brace 18 inches up from the collar, any weaving of the platform one way or the other would produce an added pressure at the point where it was attached, and the effect would be in proportion to the pressure; it might stand a little pressure and not buckle, but it would not stand a certain amount more. These conditions existing as shown in exhibits F-l and F-2 would certainly tend to decrease the efficiency of that strut, if there was any pressure going to that strut through this brace; that is, if it came to it when the strut was holding a load and in action. If one thrust was up against the side of the silo and the derrick weaved from one side to the other, it would have a tendency to make a direct thrust against the brace through member No. 8.”

Exhibit “I.”

The following occurred in the testimony of the plaintiff’s witness Lester E. Sanders:

“By the Court: Q. I will ask you a question or two. Prior to the accident had any of those struts or braces, so-called, buckled or sprung in the same direction that this did at the time of the accident?
“A. One had.
“Q. Towards the center pole?
“A. Yes, sir.”

At the close of the plaintiff’s testimony, and also at the close of all the testimony, counsel for defendant moved for a directed verdict of no cause of action for many reasons, among which,were the following:

(8) That under the testimony it appeared that the plaintiff’s decedent and the owner of the derrick together knowingly erected the derrick in a way not in conformity with the printed instructions furnished for the erection of the same.

(9) That under the evidence it appeared that the derrick was not erected in conformity with the instructions and plans furnished by the defendant.

(10) That the plaintiff’s decedent was guilty of contributory negligence.

(11) That the plaintiff’s decedent assumed the risk.

(18) That under the testimony it appeared that the derrick was used by plaintiff’s decedent, in a manner absolutely in violation of the plans and instructions furnished for its use.

Decision of the motion was reserved under the statute, and the case was submitted- to the jury under a lengthy charge, and resulted in a verdict for the plaintiff for $5,000 damages. Later, upon the argument of the motion for a judgment for the defendant notwithstanding the verdict of the jury, a judgment was entered for the defendant. The court filed a written opinion in granting the motion in which, among other things, it said:

“At the close of the testimony the defendant made a motion for a directed verdict. Various grounds were assigned, among them being that it appeared from the testimony of the plaintiff’s witnesses, Kennedy, Tron and Lester E. Sanders, that the deceased and others assembled the derrick, and in doing so failed to follow the instructions and plan furnished by the manufacturer; that they discussed the situation and decided to rely, and did rely upon their own judgment in preference to the judgment of the manufacturer; and that the manner in which they assembled the derrick caused the braces or struts, so-called, to bend and spring, and that the deceased commented' upon this condition, and in substahce expressed his doubt as to the efficiency of the machine; and that it conclusively appears that he had knowledge of the trouble which afterwards caused the derrick to collapse; and that the defect, no matter by what cause, was not hidden or concealed; and that the danger of using the derrick was not imminent, but was revealed to him, and that he assumed the risk involved therein. * * * In my opinion the motion should have been granted for the reasons urged by the defendant as herein set forth.”

The plaintiff has brought error, and error is assigned upon the ground that the court erred in entering judgment for the defendant notwithstanding the verdict.

The position of the appellant in this court is that the evidence presented questions of fact which were properly submitted to the jury in the charge, and that the court could not say, as matter of law, that the plaintiff was not entitled to go to the jury upon the questions of the negligence of the defendant, and the claimed contributory negligence of the plaintiff; the position of the plaintiff being expressed tersely in this language:

“This court early laid down the rule that all reasonable minds must reach the same conclusion before negligence and contributory negligence .will be treated as presenting questions of law exclusively” — citing Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Scharman v. Bridge Commission, 158 Mich. 77; Amanta v. Railroad Co., 177 Mich. 280; Beach v. City of St. Joseph, 192 Mich. 296, and other authorities.

These cases are readily distinguished from the instant case.

It is contended by counsel for the defendant that from the testimony we have quoted, and much other testimony in the record, it appears uncontradicted that the witness Tron knowingly and deliberately violated the instructions given by the manufacturer, or defendant herein, for the erection of the derrick in question; that he knew these shoe arms to which were attached the shoes that were to be placed against the inside of the silo, were also to be fastened to the lower collar, No. 12 on the center pole; that the purpose of this connection was to furnish a support from the inside of the silo wall to the center pole, and keep the same steady; that with such knowledge, and to meet his immediate convenience, he undertook a different manner of use of these shoe arms”and fastened them to the struts or braces supporting the joists on which the platform was laid; that the owner of the derrick at least took upon himself, deliberately and knowingly, the responsibility for this manner of assembling the derrick. It is claimed that the record is clear that his conduct and the connection made between these shoe arms and the struts, had to do with the ultimate collapse of the derrick; and that in this matter the deceased took a part and had equal knowledge with that of the witness Tron. It appears undisputed, we think, in this record, that the collapse of the platform was caused by the buckling of one or more of the struts or braces, and that the particular strut or brace which buckled was one which had attached to it a shoe member.

When Mr. Tron found that he did not have bolts of a sufficient length, it was his duty to "obtain the same, or at least to ask the defendant for them, as he had asked for and received the angle iron. As he says,

“Larger bolts than I had would have enabled me to bolt them together at that point and carried out the directions. Instead of that I took the shorter bolts and bolted it 18 inches up the braces. It would only have taken a bolt about an eighth of an inch longer.”

In the recent case of Bayne v. Everham, 197 Mich. 181, we had occasion to pass upon a question quite like the one here involved. We there held that a collapsed building not constructed according to the plans and specifications — one not actually or substantially built according to the design — furnished no foundation for a recovery against an engineer or architect. There was in that case convincing evidence that the plans and specifications were deviated from in respects which were of necessity vital; and we said that an engineer or architect cannot be held responsible for the collapse of the building, unless the plans have been substantially followed; and that where the plans had been deviated from in material and vital respects which might, and probably did cause the collapse, it was fatal to a recovery. In that case we quoted at length from Lake v. McElfatrick, 139 N. Y. 349 (34 N. E. 922). The court of appeals there held, that when it appeared that the structure was not built in substantial compliance with the plans and specifications furnished by the defendants, that the plaintiff’s case should have been dismissed; and said:

“Where the variance is not disputed, and involves the integrity of the mode of construction of the affected part, and is so far material that it may have been the direct cause of the injury for which” recovery is sought, “it must be held, we think, that the plaintiff has failed to establish the cause of action upon which he relies.”

One cannot read this record without being of the opinion that had the instructions, especially the assembling diagram as shown in exhibit “D,” been followed and complied with, in all probability this deplorable accident would not have happened. We think the duty and burden were placed upon the plaintiff to show a substantial compliance with the plans and instructions accompanying the derrick when it was purchased, and that burden has not been sustained; and that when that lack of conformity is traced to' the knowledge of the decedent, as it was in this case, the plaintiff is in no position to recover a judgment for damages.

We think the conclusion reached by the court below was a proper one, and the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    SCOTT v. O. A. HANKINSON & CO.
    1. Master and Servant — Workmen’s Compensation Act — Finding of Industrial Accident Board — Review.
    In a proceeding under the- workmen’s compensation law (2 Comp. Laws 1915, § 5465), the finding of the industrial accident board is final if there is competent legal evidence from which such fact might be found.
    2. Same — Evidence—Sufficiency.
    The finding of the industrial accident board that plaintiff was in the employ of defendant at the time of his injury, held, supported by the evidence.
    3. Same — Undisclosed Principal — Liability of Agent — Election of Servant.
    If defendant, in hiring plaintiff, intended to act as agent of another, but failed to disclose such intention to plaintiff, upon learning the true state of facts plaintiff could treat his contract as binding either defendant or the principal, and, having elected to bind defendant, the latter is liable under the workmen’s compensation law.
    See notes In L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted January 10, 1919.
    (Docket No. 25.)
    Decided April 3, 1919.
    Frank W. Scott presented his claim for compensation against O. A. Hankinson, and others, copartners as 0. A. Hankinson & Company, for accidental injuries received in defendant’s employ. From an order awarding compensation, defendants and the Travelers’ Insurance Company, insurer, bring certiorari.
    Affirmed.

      Vandeveer & Foster, for appellants.

      Lee N. Brown, for appellee.
   Kuhn, J.

Certiorari to the industrial accident board. The sole question in this case is whether or not there was any evidence to support the finding of the industrial accident board that applicant was, at the time of the accident, in the employ of the respondent O. A. Hankinson & Company. The finding of the board is final (2 Comp. Laws 1915, § 5465) unless there was no competent legal evidence from which such fact might be found. See Reck v. Whittlesberger, 181 Mich. 463 (Ann. Cas. 1916C, 771); Kennelly v. Stearns Salt & Lumber Co., 190 Mich. 628.

O. A. Hankinson & Company, a copartnership composed of Oliver A. Hankinson, Lee Hankinson and Robert Wiard, were the contractors for the installation of the plumbing, heating and ventilating systems in the new administration building of the Michigan State Normal College at Ypsilanti. They sublet the installation of the heating and ventilating systems to the Toledo Exhaust & Blow Pipe Company. The latter company entered upon the performance of its contract, but did not make satisfactory progress, owing to shortage of labor, difficulty in obtaining material, and lack of money, and the work finally came almost to a standstill. To enable them to proceed, O. A. Hankinson & Company guaranteed the payment of certain amounts due for material, agreed to advance money for the payment of labor, etc., and undertook to secure experienced laborers to complete the work. At the request of the Toledo company, they inserted the following advertisement in the Detroit papers, under the heading of “Male Help Wanted”:

“Tinners and Lathers. Apply 0. A. Hankinson & Co., Ypsilanti, Mich. ’Phone 312-F, 1.”

Applicant was at the time working on the main building as a tinner in the employ of the Pudrith Roofing Company, of Detroit, who were the contractors for the roofing. He had previously made some inquiries with a view to securing employment on this heating and ventilating job, and after the advertisement appeared, applied to Mr. O. A. Hankinson personally, and was employed, and as soon as they were ready for him, commenced work as a tinner on this heating and ventilating system. Three days later, while he was at work, a laborer who was wheeling a piece of iron tie beam in a wheelbarrow for use by applicant in connection with his work, in some way allowed the load to tip over and the iron beam fell on Mr. Scott’s left foot, crushing and cutting it severely.

It is the claim of O. A. Hankinson & Company that, in the employing of Mr. Scott, Mr. Hankinson was merely acting as agent for the Toledo Exhaust & Blow Pipe Company, who were still the contractors for this work, and that Mr. Scott thereupon became an employee of the latter company. Mr. Scott, however, claims that no mention whatever was made of the Toledo Company in the contract of hiring, but, on the contrary, to use his words:

“Mr. Hankinson said he was very glad to get me to help on the ventilating work at the school; that I should consider myself engaged to O. A. Hankinson & Company.”

And in another part of the record we find the following testimony:

“Q. I would like to know of Mr. Scott if he can give the date that he fixed the price with Mr. Hankinson as to the wage he received?
“A. Well, I can figure it out. It was September 28th that I was hurt; that was on Friday, and it was the — the second Sunday after that. Friday, Saturday, Sunday; the second Sunday evening.
“Mr. Vwnd&oeer: That would be what, the 6th or 7th?
“Mr. Brown: The 7th.
“Q. Did you ever tell Mr. Scharer here, that has just been on the stand, or anyone else, that you were working for the Blow Pipe Company?
“A. I did not.
“Q. Did you know anything concerning the Blow Pipe Company?
“A. I did not. I never had any connection with them, or any knowledge of them at all. My entire arrangement was with Mr. Hankinson entirely.
“Q. Now, will you give the exact language that took place when the price was fixed as to what you were to receive an hour?
“A. Mr. Hankinson was solicitous about my condition, seemed to be. We were good friends, and he says, ‘What hours were you putting in on that work out there; how many hours a day?’ I told him nine hours. He says, ‘I am paying 50 cents an hour; will that be satisfactory to you?’ I told him it would. He says, ‘I hope you won’t be laid up very long.’ He says, ‘I need you up there to go on with this work.’ And he says. ‘Anything-1 can do for you I would be glad to do.’ He says, ‘Do you need any money?’ I says, ‘No, not just at present.’
“Q. Did you have any conversation with Mr. Wiard, who has just been on the stand, in which you told Mr. Wiard that you were going to work for the Blow Pipe Company?
“A. Yes, sir — no, not for the Blow Pipe Company. My connection with Mr. Wiard was while I was working- on the main building. I had heard through workmen there that Mr. Hankinson had the contract for the ventilating work. I went over to see Mr. Wiard. He is a friend of mine, and I told him that I would like to get a job working for Mr. Hankinson on that ventilating work. I understood he had it, and, ‘Well,’ he says, ‘I will see Mr. Hankinson and see if I can get you the job.’ A short time after that he says, ‘I have seen Mr. Hankinson, and Mr. Hankinson says he would like to have you; just the man he wanted, and to engage you.’ He says, ‘Consider yourself éngaged.’ So later I walked up to Mr. Hankinson and asked him if he had made arrangements with Mi. Wiard to hire me for work on the ventilating. He said that he had; he was glad to get me, and to go to work in a few days.
“Q. Did you ever have a conversation with him in which you wanted him to show you where the pipes, and so forth, went, as he states, and in which you told him that you had hired out to the Blow Pipe Company?
“A. Not that way.
“Q. Did you ever tell him you had hired to the Blow Pipe Company?
“A. No, sir, I know nothing about that at all in any way. I never had anything to do with the Blow Pipe Company. All of my transactions were with Mr. Hankinson. I met- Mr. Hankinson down in the building, and I asked him again personally if he told Mr. Wiard to engage me. He said that he did, and I considered myself engaged to work for the 0. A. Hankinson Company. * * * He says, ‘We have got some iron coming and as soon as we get that fixed up, why, you can go to work.’ ”

Counsel for respondents say, in their brief:

“There is only one question before this court for determination, and that is, Does the record fairly and impartially disclose that the applicant Scott was an employee of the respondent Hankinson at the time he was injured and for which a claim for compensation was made and favorably acted upon by the industrial accident board? * * *
“Counsel is well aware of the fact that the Supreme Court will not disturb the findings of the industrial accident board, in the absence of fraud, where there is competent'and legal evidence to support them; that such findings are conclusive. It is the respondent’s contention, however, that in the case at bar the evidence does not support the finding of the industrial accident board that the claimant was an employee of the respondent.”

If counsel mean to assert that there is no evidence whatever in the record upon which the board might have based the finding complained of, we cannot agree with their contention. The testimony above quoted is a sufficient answer to such a claim. And if counsel mean merely that there is not a preponderance of evidence to support the finding, respondents have no standing in this court. The question is not open to review.

Counsel further say:

“This record on its face discloses that even though Scott was hired by Hankinson, it was done by authority of, and on behalf of the Toledo Exhaust & Blow Pipe Company and that the applicant was in the service of the Toledo Exhaust & Blow Pipe Company. That in effect is the substance of the evidence taken as a whole.”

Even if it might be conceded that the real purpose of Hankinson & Company and the Toledo company was that Mr. Scott should be considered as in the employ of the latter — that he was to have been placed on its pay roll and under the direction of its foreman— it would not necessarily follow that the finding and award in this case was erroneous. If O. A. Hankinson & Company were acting as agents and in making the contract of hiring failed to disclose their principal, and Mr. Scott was led to enter into the contract under the belief that he was contracting with Hankinson & Company as principals, there can be no doubt, it seems to us, that Mr. Scott, upon learning the true state of facts, could treat his contract as binding either Hankinson & Company or the Toledo company, at his election. Having elected to hold O. A. Hankinson & Company, they must answer to him as principals, and a sufficient contract of hiring existed between them to enable Mr. Scott to enforce a claim under the workmen’s compensation law against the said company.

The finding and order of the industrial accident board is therefore hereby affirmed.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, J., did not sit.


author: Kuhn, J,

text:
    HAMMER v. MARTIN.
    1. Fraud — Vendor and Purchaser — Representations—General Rule — Exceptions.
    It is the general rule, in the sale of land, that if the parties are dealing at arm’s length and on equal terms, statements-as to value, even when not mere expressions of opinion, cannot be relied upon, and they will not amount to fraud, though known to be false by the party making them, and acted upon by the party to whom they are made; the rule does not apply, however, when there is a relation of trust and confidence between the parties, where the value is peculiarly within the knowledge of the party making the representations, where, from the nature and subject-matter of the transaction, reliance on the representation is clearly expected or intended, or where the other party is prevented from making inquiries which he would otherwise make.
    2. Same — Evidence—Sufficiency.
    In an action to set aside, on the ground of fraud, a sale of land on contract, evidence held, insufficient to establish fraud.
    3. Same — Representation of Material Fact — Opinion of Value.
    To represent that property could be sold upon the market for a certain price is not a mere expression of opinion, but is the representation of a material fact which could be relied upon in an action based upon fraud.
    See notes in 30 E. R. A. (N. S'.) 748; 35 L. R. A. (N. S.) 175; Jj. R. A. 1916F, 782.
    Appeal from Oakland; Rockwell, J.
    Submitted January 21, 1919.
    (Docket No. 69.)
    Decided April 3, 1919.
    Bill by John Hammer and another against Armittie Martin to set aside an exchange of real property on the ground of fraud. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Charles Flowers, for plaintiffs.

      Andrew L. Moore, for defendant.
   Kuhn, J,

The bill of complaint in this case seeks to set aside, on the ground of fraudulent misrepresentations, a certain real estate transaction wherein the plaintiffs purchased from the defendant, on land contract, an 80-acre farm in the township of Commerce, Oakland county, and turned in as the initial payment thereon their equity in a certain lot in the city of Detroit, assigning the land contract for the latter to the defendant. The allegations as to fraud are as follows:

_ “2. The preliminary negotiations between the parties which culminated in the execution of said contract, were had between the plaintiff, John Hammer, and the defendant, and the said plaintiff relied solely upon the claims, representations and warranties of the defendant as to the value and quality and location of said land, and he purchased the same with the intention of making it a home for himself and his family and spending the remaining years of his life there, and the said farm was not bought by him for speculation or with a view of making profits by resale of the same.
“3. The plaintiff, John Hammer, is about sixty years of age. He had been engaged in Detroit a large por-, tion of his life as a' carpenter, and had no experience in farming, and had no actual knowledge of the quality and value of farming lands. The defendant made to him the following representations: That the land was worth at least ten thousand dollars, or one hundred and twenty-five dollars per acre; that it was the best farm in the neighborhood; that property in the immediate vicinity, which was not of as great value, had lately been sold for two hundred dollars per acre ; that the farm was three-quarters of a mile from Walled Lake, and not more than three-quarters of a mile from Walled Lake village; that it was less than three miles from the interurban railway; that the soil was of fine value, and she gave him samples of said soil, which she' claimed was the average quality of the soil of the entire farm; that she had owned the farm for more than a year and well knew its value; that her intention had been to lease the farm and to spend the week ends there. The plaintiff seemed to be fascinated by her frankness and honesty, and it was solely upon her said representations that he was induced to enter into the said contract.
“4. And the plaintiffs show unto the court: That the said farm, instead of being worth ten thousand dollars, is worth not to exceed four thousand dollars, and not more than fifty dollars per acre; that the property referred to by her as having been sold for two hundred dollars per acre was sold for only seventy dollars per acre, and it was of far greater value than the land in question; that instead of being but three-quarters of a mile from Walled Lake, it is at least two miles and a half from said lake; that instead of being three-quarters of a mile from Walled Lake village, it is at least two and a half miles from said village; that instead of being but three miles from the interurban railway, it is at least five miles from said railway; that the samples of soil that she gave him as being the average soil of the farm were taken from the garden, from the orchard and from the bottom lands by the creek; that instead of her having owned the property for more than a year, she had bought it upon the fifth day of May, 1917, and as your orator is informed and believes, she had paid not more than fifty dollars per acre for it; that at the time she bought said property it was subject to two mortgages aggregating twelve hundred dollars; that upon said fifth day of May she executed a third mortgage for two hundred and fifty dollars, making the total amount of the incumbrance upon the property of fourteen hundred and fifty dollars, and plaintiffs charge that the said property is now incumbered to the limit that it will stand, and they believe the real value of said land is not more than double the incumbrance.”

After hearing the testimony, the trial judge made the following findings:

“The plaintiff, John Hammer, resided in Detroit, is about 60 years of age and a carpenter by occupation, at which occupation he has worked the greater portion of his life at the city of Detroit, but had no practical knowledge of farming. The defendant resides in the city of Pontiac, was the owner of the farm in question and deals in real estate. The testimony discloses that the plaintiff John Hammer’s attention was attracted to this farm by an advertisement of a farm for sale of 80 acres in Oakland county. That he called at 17 Baker street, Detroit, the home of defendant’s brother, where he talked with the defendant, the owner of the farm, and she invited him to go out with her and see the farm for himself. That on the Wednesday following, being Decoration Day, he came to. Pontiac, where the defendant met him and took him with her automobile, together with a Mr. Beardsley, who was assisting her with the sale of the farm, to the farm in question, where they looked the place over, at which time the plaintiff selected samples of the soil and put them in envelopes and took them back to Detroit with him. Plaintiff stated that he had looked at a farm in the township of Orion, with a view of buying, but that he liked the farm in question much better and if he had the money he would buy it that day. That they then drove to the village of Walled Lake, which is situated some few miles from the farm in question, and then drove back to the city of Pontiac, crossing the interurban railway, which is referred to in the bill of complaint. That on the following day plaintiff’s two sons arranged to inspect the farm and met the defendant at a station on the Detroit^ and Pontiac electric line called Circle, about four miles south of Pontiac, where she took them in her automobile to the farm, at which time they inspected it, returning to the city of Pontiac by way of Walled Lake village, the same route their father had taken on the preceding day. On the following day, which was Friday, June 1st, plaintiff came to Pontiac and went to the Oakland County Savings Bank, where he talked with Mr. Frank L. Perry, cashier, regarding the farm. That he secured from him the abstract to the title of the farm and returned with it to the city of Detroit. That he arranged with Mrs. Martin to come to the city of Detroit and go with him to his attorney’s office on Gratiot avenue on Saturday, June 2d, where the papers could be drawn and the deal completed. Mrs. Martin kept the appointment. The plaintiff, his wife and adult son, called at the attorney’s office with her. The deal was talked over, the details agreed upon, but the attorney did not have time to prepare the papers on that day and it was agreed that he would prepare them over Sunday and that the plaintiff and his wife would come to Pontiac on the following Monday and the deal could be closed. In the meantime, on the Sunday following, before any papers had been drawn and the deal closed, plaintiff’s sons again came to Pontiac and were taken to the farm, made some arrangements for putting in crops, staked out certain fields, examined the farm further and decided what portion of it they would crop, and returned to Detroit. The following day, Monday, at 1 o’clock, plaintiffs came to Pontiac with the contracts drawn that he now seeks to avoid, ready for execution, and which were prepared by plaintiffs’ attorney. The parties then went to the Oakland County Savings Bank, where the papers were signed and acknowledged and delivered in the presence of some officers of the bank. Thereafter plaintiffs went into possession of the farm, causing certain lands to be cultivated, and planted some crops. A number of days afterwards it appears he talked with some of the neighbors who advised him that he had paid too much for the farm and that he would have some trouble in making a living off from it. As shown by the land contract in question it was sold for $10,000 on terms, the first payment was made by taking a lot of the plaintiffs for $1,880, for which plaintiffs had originally paid $465. The remaining $8,120 was to be paid for at different periods, with the privilege of discounting the same $500, provided $4,500 of the same was paid within six months from the date of the contract. It appears that the farm is not as productive as some farms, however, some time prior to the sale of this farm, small tracts of land with improvements have been sold in this neighborhood for as high as $150 an acre.
“I am satisfied that the price plaintiffs contracted to pay for the farm was in excess of its real value. However, in view of the fact that plaintiffs and members of their family had ample opportunity to investigate the farm, which they evidently did, and make inquiries concerning its value, which they had ample opportunity to do, that it cannot be said that there was fraud practiced on the part of the defendant. While it appears to be a well settled rule of law in Michigan that deeds may be set aside on the ground of fraud, nevertheless it is equally a well settled rule of law that where the purchaser takes upon himself, as he did in this case, the responsibility of investigating the property, he was bound to rely, to some extent at least upon his own judgment. It appears that there was nothing done to prevent him from making full investigation as to its location, character and value.
“It is not the province of courts to make or unmake contracts for parties, and their province is to interfere only when they are satisfied that fraud has been practiced.
“I am not prepared to say that defendant’s statements incident to the sale, coupled with plaintiffs’ means and opportunities of making a complete investigation, which was not hampered in any way, amounted to fraud.
“Bill is therefore dismissed, with costs to the defendant. Decree,so ordered.”

We think the case was rightly decided. We are inclined to agree with the statement in the brief of defendant’s counsel, that?

“A careful reading of plaintiffs’ brief, of the bill of complaint and the facts set forth in the record, clearly indicates that plaintiffs place their entire case upon the single question that defendant, falsely and fraudulently, misrepresented the value of the property, and that such misrepresentation was a misrepresentation of a material fact and that they were deceived thereby and defrauded.”

Indeed, plaintiffs’ counsel states in his brief:

“The real question in the case is whether the farm was worth ten thousand dollars, for the plaintiffs bought it of the defendant upon her representation that it was worth ten thousand dollars.”

The general rule with reference to representations as to value is thus stated in 14 Am. & Eng. Enc. Law (2d Ed.), p. 124:

“It is no doubt agreed that, as a general rule, if parties are dealing at arm’s length and on equal terms, statements as to value made by one to the other, even when not mere expressions of opinion, cannot be relied upon; and that they will not amount to fraud, though known to be false by the party making them, and acted upon by the party to whom they are made” — citing Bristol v. Braidwood, 28 Mich. 191; Allison v. Ward, 63 Mich. 128; Walker v. Casgrain, 101 Mich. 604.

On page 125 of the same volume the following is stated as an exception to the general rule:

“The rule does not apply, however, when there is a relation of trust and confidence between the parties, nor generally when they are not dealing on equal terms, as where the value is, or is represented and believed to be, peculiarly within the knowledge, or means of knowledge, of the party making the representation, or in any other case where, from the nature and subject-matter of the transaction, reliance on the representation is clearly expected or intended. * * * Nor does the rule apply where, by the artifice and fraud of the party making the representation the other party is prevented from making inquiries which he would otherwise make,” — citing Picard v. McCormick, 11 Mich. 68; Kost v. Bender, 25 Mich. 515; Nowlin v. Snow, 40 Mich. 699.

This rule and exception are thus referred to in Pinch v. Hotaling, 142 Mich. 521, at page 525:

“The contention is made that the statement of value was a mere matter of opinion, and cannot be made the basis of an action for fraud. This is a statement of the general rule, but .the rule established by the weight of authority is that false statements of value intentionally made to one who is in ignorance of the quality and value, under circumstances indicating a purpose that such statements are to be relied upon, and where the party to whom they are made has no opportunity to examine the property, may be treated as an affirmation of fact and fraudulent,” — citing Collins v. Jackson, 54 Mich. 186; Maxted v. Fowler, 94 Mich. 109; 16 Cyc. p. 749; 14 Am. & Eng. Enc. Law (2d Ed.), p. 125.

Upon a careful examination of the record in this case, we are convinced that plaintiffs have failed to establish a ease within the scope of the exception to the general rule.

In the recent cases of Pound v. Clum, 204 Mich. 28, and Pratt v. Allegan Circuit Judge, 177 Mich. 558, upon which the decision in the former case was based, the representations were that the property could be sold upon the market for a certain price, and it was upon this representation that the vendees relied. The court properly held that such a representation was a representation of a material fact, the falsity of which could be relied upon in an action of this kind. It must be clear that to express an opinion that a property is worth a certain amount is different from saying that the market value of that property is a certain amount. ' The first would be merely the expression of an opinion, which might be well founded or not, while the latter would not be the expression of an opinion, but the statement of a fact. This, in our opinion, clearly distinguishes these cases from the one now before us. There is also nothing to indicate that Mr. Hammer gave Mrs. Martin to understand that he was relying on her statements as to value or that he regarded her as an authority on the value of property in that vicinity, which, in our opinion, also distinguishes the case from Pound v. Clum, supra, where it was said^

“It is in evidence that plaintiffs told defendant Clum and his agent, Heine, that they were totally ignorant of the values of the Saginaw property, and that they relied upon the representations as to value made.”

Mr. Hammer understood that he was dealing with the owner of the property, not an agent. Before the transaction was closed, he had the abstract of title, from which, presumably, he might have learned that Mrs. Martin had owned the property but a short time. Whether or not it disclosed the consideration paid by her on her purchase of the farm does not appear. He seems to have been given every opportunity to inspect the property as often and as thoroughly as he saw fit. Had he desired, he might, prior to his purchase, have made inquiries as to the general nature and value of farm property in that vicinity, as well as of that farm in particular, from the same neighbors who after-wards volunteered the discouraging information which led to this proceeding. The fact seems to stand out clearly that he was so well pleased with the partial survey of the premises which he personally made on his first visit that he did hot care to take the time to make a further inspection, but announced himself as willing to buy it on the spot, if he had had the ready money. The plaintiffs have not met the burden of establishing fraud, and the decree dismissing the bill of complaint is therefore affirmed. .

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


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    PEOPLE v. McKEIGHAN.
    1. Criminal Law — Robbery—Information—Sufficiency—Principal and Accessory — Distinction Abolished.
    An information under 3 Comp. Laws 1915, § 15208, charging defendant as principal with the commission of the crime of assault and robbery, not being armed with a dangerous weapon, was sufficient to sustain a conviction, although the evidence showed that defendant advised and counseled the commission of the act, since the distinction previously, existing between principals and accessories was abolished by 3 Comp. Laws 1915, § 15757.
    2. Same — Robbery—Aiding and Abetting — Money Lost in Gambling — Intent.
    In such prosecution, in view of 2 Comp. Laws 1915, § 7795, ' providing that money or goods lost in gambling may be recovered by the loser, evidence that defendant advised and counseled the forcible recovery of money lost in gambling, held, to require the submission to the jury of the question of intent.

    3. Same — Instructions—Trial—Intent.
    Instructions that did not clearly state to the jury that it was necessary that the defendant had a criminal intent to rob, steal, or take from the person property that could have been the subject of larceny, held, insufficient. .
    4. Same — Robbery—Assault—Simple Assault.
    An intent to commit a simple assault would not justify a conviction upon the charge alleged in the information.
    5. Same — Good Character — Instructions—Trial.
    Good character is a proper element to be considered by the jury in every criminal case where an attempt is made to show good character,, and the limitation by the court of evidence of good character to doubtful and circumstantial cases, held, improper and reversible error.
    6. Appeal and Error — Criminal Law — Saving Question por Review.
    In a criminal prosecution, exception to the argument of the prosecutor, without asking for an opinion or ruling of the.court thereon, will not be considered on error.
    •Error to Genesee; Black, J.
    Submitted January 17, 1919.
    (Docket No. 118.)
    Decided April 3, 1919.
    William H. McKeighan was convicted of assault and robbery, not being armed with a dangerous weapon, and sentenced to imprisonment for not less than two years nor more than fifteen years in the State reformatory and house of correction at Ionia.
    Reversed.

      Edward N, Barnard (Thomas F. Stockton, of counsel), for appellant.

      Roy E. Brownell, Prosecuting Attorney, and Harry G. Gault, Assistant Prosecuting Attorney, for the people.

      See note in 14 L. R. A. 226.

   Kuhn, J.

It was the claim of the people on the trial of this case that the defendant induced certain other parties, viz., Harry Davis, Walter Davidson, William Cooper and Joseph Feeney, to commit the crime of assault and robbery, not being armed with a dangerous weapon (3 Comp. Laws 1915, § 15208), upon one Fred Spencer. The information charges the defendant as a principal in the commission of this offense. He was tried separately from the other parties involved, they having pleaded guilty to the charge of assault and robbery. The testimony tended to show that on the evening of November 24, 1917, Davis, Cooper, Davidson and .Feeney were at the home of Mr. and Mrs. Cooper, which was adjoining to the apartments occupied by the defendant and his family in the same building, both of these apartments being over a garage belonging to the defendant. That during the evening Spencer came to the Cooper home and there engaged in a game of dice or playing what is known as “craps.” It is further claimed that after the game had been going on for some time, the defendant came to the apartment, but took no part in the playing of the game. That Spencer won some money from the other men, it is claimed by the use of crooked dice. The testimony further shows, and it is the claim of the prosecution, that the defendant advised some of these men to go and get their, money back, and that he told Mr. Cooper, who yras to take Spencer in his automobile when he left the apartment, to stop the automobile so that the others implicated might get their money back and have a settlement with Spencer. Witness Davis, who had previously pleaded guilty to an assault and robbery charge, testified with reference to his conversation with the respondent as follows:

“He said, ‘Make him give it to you.’ He said, ‘If I was you I would make him give it to me and stick him up, and make him give it to me.’ Then he went over and spoke to Cooper a minute. Then he told me that Cooper said he would stop at North and Parkland provided there was no row.”

There is testimony to the effect that the respondent called Spencer into a room before he left, where the sum of $20 was given by Spencer to the respondent as “kick in” money after threats of violence were made by respondent. That afterwards Cooper did stop his automobile for the purpose of lighting the tail light thereon, and that thereafter Davis, Feeney and Davidson did take from Spencer certain money. The evidence further tends to show that Spencer had $100 on his person when he joined in the game, and that at the time that he was claimed to have been robbed he had $133, all of which was taken from him, which it is claimed tended to show that he was robbed of $100 which he did not win at gambling, but which he had when he joined in the game. The trial resulted in a conviction of respondent, and the case is brought here by writ of error after sentence.

It is claimed that the information is insufficient, in that it charges the respondent as a principal, and that there is nothing in the information to inform the respondent of what connection it was claimed he had in the commission of the offense other than that he directly committed it, and that although the statute (3 Comp. Laws 1915, § 15757) provides that an accessory shall be indicted, tried and punished as a principal, it does not intend to permit an information to be drawn without giving sufficient facts to inform the respondent of the exact nature of the charge. With this contention we do not agree, as the statute has clearly abolished all distinctions previously existing between principals and accessories, and in express terms applies to indictments (including informations). In People v. Wycoff, 150 Mich. 449, this court reiterated the provisions of the statute and said:

“The statute has abrogated all distinctions between principals and accessories, and between principals in the first and second degrees. He who aids and abets is now a principal.”

The information was clearly sufficient to warrant the conviction.

Counsel for the respondent claim that the trial court erred in refusing to give the following request to charge:

. “If you find that the money alleged to have been stolen was won in an illegal game of dice, from Davis and the other parties who participated in securing a return of the same, then that money would not be the property of Spencer and your verdict must be not guilty,”

—and contend that the present- case is ruled by the case of People v. Henry, 202 Mich. 450. In that decision it is stated that—

_ “Our statute [2 Comp. Laws 1915, § 7795] gives a right to the loser to recover the money or property lost in a gambling game, and, among other actions, gives that of replevin, thus recognizing the money or property as belonging to him.”

The statute in question provides:

* * * “and any person that shall lose any sum of money, or any goods or articles of value, by playing or betting on cards, or by any other device in the nature of such playing and betting, and shall pay or deliver the same or any part thereof to the winner, the person so paying or delivering the same may sue for and recover such money in an action for money had and received, to the use of the plaintiff; and such goods or other articles of value in an action of replevin, or the value thereof in an action of trover, or in a special action on the case.” . '

The statute points out that where money is lost, the loser may recover from the winner the money illegally obtained in an action for money had and received, and further provides that goods or other articles of value may be recovered by an action of replevin. A careful reading of this statute has satisfied us that it was the intent of the legislature to provide that the action of replevin may be resorted to where the money could be positively identified, but as it is quite apparent that this would be difficult to do in most instances, the further action for money had and received is provided for in cases where the money cannot be identified. In the instant case the testimony conclusively shows that the money was commingled with the money which Spencer had on his person at the time he started the game, and that it would have been hard to identify the exact money which was lost in the game. Moreover, the record shows that it is the claim of the people that more money was taken from Spencer than he actually won in the game. Under the facts in this case, in our opinion, it clearly became a question for the jury to determine whether or not the respondent aided and abetted the commission of the alleged offense, and the subject for inquiry now is whether the various elements constituting the crime were properly submitted to the jury in the charge by the trial court. One of the essential elements of this crime that it is necessary to prove beyond a reasonable doubt is that .the respondent had a felonious intent at the time of counseling, aiding and abetting the commission of the said offense of robbery. It was therefore necessary that the learned trial judge should give clear and explicit' instructions as to this important feature of the alleged offense. The learned trial judge charged with reference to this as follows: '

“Now if you find by the evidence in this case, beyond a reasonable doubt, that the respondent counseled, advised and knew and had a criminal intent at the time that he advised with the other men, and you find the other men did proceed to hold up, rob, and take the money away from the man Spencer, then under our law the respondent is equally guilty with the other parties who absolutely took the money away from him.”

This, in our opinion, was not a sufficient statement of the necessary intent. It should have been clearly stated that it was necessary that the respondent had a criminal intent to rob, steal of take from the person of Fred Spencer property that could have been the subject of larceny. An intent to commit a simple assault would not justify a conviction upon the charge alleged in the information. People v. Belton, 160 Mich. 416. It may be said that giving the 36th request to charge later in the charge cured this, when the court said:

“If the respondent conspired to commit the offense of assault, but did not consent and was not a privy in fact to the commission of a robbery, then your verdict must be not guilty, for there can be no responsibility against one who is not himself engaged in- the acts of his associates, unless it is within the scope of the combination to which he is a party, and this you will determine from all the evidence in the case.”

We would not be inclined to set aside the conviction if this were the only error in the case, as, reading the whole charge together, the jury may not have been misled thereby, but in view of the fact that the conviction is reversed on another ground, we deem it proper to say that when the intent is such an important factor in the commission of an offense as in the charge against this respondent, this element should be clearly and definitely outlined to the jury.

On the trial a number of witnesses were sworn on behalf of respondent to show his good reputation in the community in which he lived. With reference to good character the court charged the jury as follows:

“In doubtful cases, good character has been used,, or in circumstantial cases, to surround and assist and aid a man.”

The limitation by the court of evidence of good character to doubtful and circumstantial cases is an improper limitation, as good character is a proper element to be considered by the jury in every criminal case where an attempt is made to show good character. As was early said in the case of People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162), by Chief Justice Cooley:

“Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence; and, being in, the jury have a right to give it such weight as they think it entitled to.”

See, also, People v. Laird, 102 Mich. 135, and footnote, where the Michigan cases on this subject are reviewed; also People v. Wilson, 170 Mich. 669 (41 L. R. A. [N. S.] 216. We think that this failure to clearly instruct the jury upon this question was error prejudicial to the defendant, and for this reason alone the case should be reversed.

Complaint is made as to the argument of the prosecuting attorney, it being claimed that it was highly prejudicial to respondent’s rights. We do not think, however, that the question is before us, as only twice during the time that the argument objected to was being made, did counsel object to what was being said. The first objection was sustained, and the part complained of was retracted by the prosecuting attorney. In the second instance, counsel for respondent simply took an exception to the argument without asking for an opinion or ruling of the court thereon. In People v. Sartori, 168 Mich. 308, it was expressly held that such an exception would not be considered, under repeated rulings of this court.

Exception was also taken to. the cross-examination of the respondent and some of the witnesses. We have examined these exceptions and think that the questions, asked respondent on the cross-examination for the purpose of attacking his credibility as a witness, were matters largely within the discretion of the circuit judge, and we are satisfied, in view of this record, that the discretion in this regard was not abused.

However, for the error above referred' to, the conviction of the respondent must be set aside and a new trial granted.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, J., did not sit.


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    LALLEVICH v. BARTOSZEWIZ.
    1. Mechanic’s Liens — Claim of Lien — Owners—Husband and Wife — Estates by Entireties — -Statutes.
    Where, in a claim of a mechanic’s lien against property owned by husband and wife by the entireties, the husband alone was named as owner, the requirements of the statute (3 Comp. Laws 1915, § 14800) were not complied with, although the husband and wife were each personally served with a copy of the plaintiff’s claim.
    2. Same — Statutes^-Strict Construction.
    Lien statutes are innovations upon the common law, and are therefore to.be strictly construed.

      Appeal from Wayne; Dingeman, J.
    Submitted January 22, 1919.
    (Docket No. 92.)
    Decided April 3, 1919.
    Bill by John Lallevich against Henry Bartoszewiz to enforce a mechanic’s lien. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      William Look, for plaintiff.

      A. W. Sempliner, for defendants.
   Kuhn, J.

The plaintiff in this case filed his bill to enforce a mechanic’s lien. The claim of the lien which it is sought to foreclose named the defendant A. J. Banacky as the owner of the property. In fact, Aloys J. Banacky and Mathilda Banacky, his wife, were the owners of the property as an estate by the entirety. Section 14800, 3 Comp. Laws 1915, provides:

“Every person, or his agent or attorney, whether contractor, subcontractor, material man or laborer, who wishes to avail himself of the provisions of this statute, shall make and file in the office of the register of deeds, in the county or counties in which said real estate, house, building, structure or improvement to be charged with the lien is situated, a just and true statement or account of the demand due him, over and above all legal set-offs, setting forth the time when such materials were furnished or labor performed, and for whom, and containing a correct description of the property to be charged with the lien, and the name of the owner, part owner or lessee, if known, which statement shall be verified by affidavit. Such verified statement or account shall be filed within sixty days from the date on which the last of the materials shall have been furnished or the last of the labor shall have been performed by the person claiming the lien.”

It is the contention of the appellees, it being so held by the trial court, that this statute was not complied with, in that the claim of the lien simply stated J. Banacky as the owner of the property and did not state the name of the “owner, part owner or lessee, if known.” It is urged by counsel for appellant that, notwithstanding this is true, the purpose of the statute was complied with, as both Aloys J. and Mathilda Banacky, husband and wife, were each personally served with a copy of the plaintiff’s claim of lien.

Both Mr. and Mrs. Banacky owned the whole property against which the lien was.claimed, and therefore it follows that it cannot be claimed that the owner was named in the claim of lien, as required by the statute. This is a statutory requirement, and its provisions must be strictly construed in order to give jurisdiction to the court, and the failure to observe the requirements is therefore necessarily fatal and the proceeding must fall. As was said by this court in J. W. McCausey & Co. v. Gittleman, 201 Mich. 8:

“Lien statutes are innovations upon the common law over the rights of property, not to be extended in operation and effect beyond their plain provisions. As to their provisions by which lien attaches strict construction is the recognized rule.”

' See Waters v. Johnson, 134 Mich. 436; John F. Noud & Co. v. Stedman, 193 Mich. 459.

The decree dismissing the bill is therefore affirmed, with costs to the appellee.

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


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    HARTMAN v. STOLL.
    Covenants — Incumbrances—Lease—Damages.
    In an action to recover damages for breach of covenant of warranty that land conveyed was free from all incumbrances, where tenants in possession under oral lease from the grantor were paid $600 by plaintiff to surrender possession of said premises and remove therefrom the buildings thereon, plaintiff’s right to recover was limited to $600.
    See note in 35 L. R. A. (N. S.) 779.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1919.
    (Docket No. 107.)
    Decided April 3, 1919.
    Assumpsit by Joseph Hartman against Louis Stoll and another for breach of a covenant in a deed. Judgment for plaintiff. Defendants bring error.
    Affirmed, conditionally.

      Edmund M. Sloman, for appellants.

      Befar & Coolidge, for appellee.
   Kuhn, J.

As a culmination of negotiations for purchase, begun in the month of February, 1916, on March 22, 1916, the above defendants executed a warranty deed in favor of the plaintiff, Joseph Hartman, containing the usual covenants of warranty and that said premises were free from all incumbrances whatever except a mortgage therein described. The property covered by the deed consisted of 40 acres at the corner of the Seven Mile road and Livernois street in the outskirts of the city of Detroit and adjoining 40 acres of land to the south owned by the plaintiff. Apparently neither of the parties, prior to the delivery of the deed, knew of a tenant being in the possession of the premises, and the defendant Louis Stoll, who negotiated the sale to the plaintiff, testified that he did not know that there were any buildings upon the premises at the time the sale was made. It appeared, however, that at the time of the execution of the deed the premises were in the possession of one Herman Guy-man and wife, under the claim that they were entitled to the .possession of the premises until November 1, 1916, by virtue of a parol agreement with the former owners of the premises. The plaintiff claimed that the premises were purchased for subdivision purposes or for resale to persons contemplating subdivision property, and that in order to fit the premises for such resale and subdivision purposes it was necessary that no tenant should be in the possession of the premises. He subsequently entered into a written contract with said Guyman and his wife, the parts of which that are material in the consideration of the points before us are therein set forth as follows:

“Witnesseth, that, whereas, the parties of the first part either jointly or severally claimed certain rights by lease in and to the northeast % of the northeast % of section 9, town 1 south, range 11 east, Wayne county, Michigan, which said rights they have this day surrendered and given up to Joseph Hartman, who owns said property in fee simple.
“Now, therefore, the parties hereto agree as follows:
“1. The parties of the first part confess and acknowledge that they have received from Joseph Hartman the sum of $300.00 as part consideration for the surrender by them of the premises above described, and they confess and acknowledge that they now have no right, title, interest, lease or claim whatsoever, either jointly or severally, in and to the above described premises or any part or appurtenance thereof, except as is given them by virtue of this agreement.
“2, The party of the second part has this day deposited with the Highland Park State Bank of Highland Park, Michigan, an additional $300.00 and hereby authorizes and empowers said bank to pay said additional $300.00 to the parties of the first part if and when they remove the buildings now erected on said premises prior to December 1, 1916. Should the Earties of the first part fail or neglect to remove said uildings from said premises prior to December 1, 1916, the additional $300.00, deposited in said bank as provided in this agreement, shall be repaid to the said Joseph Hartman, his heirs, legal representatives or assigns.
“3. The party of the second part hereby consents and agrees that the parties of the first part may go into possession of and occupy the buildings now erected on said premises, and may remain in such occupancy until December 1, 1916, and that they may, whenever they desire, prior to December 1, 1916, remove said buildings from said premises and retain the same as their own. It being distinctly understood and agreed, however, that if the parties of the first part fail or neglect to move said buildings from said premises prior to December 1, 1916, they shall thereby forfeit and lose all right, title and interest in and to such buildings, and the parties of the first part confess and acknowledge that their rights in and to said premises, by virtue of this agreement, is limited strictly to the occupancy of the buildings thereon contained; they have no right by lease or otherwise in and to any part of the land above described, whether they have already planted crops on a portion thereof or not, and they further agree that should the party of the second part desire at any time prior to December 1, 1916, to move the buildings now erected on said premises from their present location to another location on the premises above described, that the said party of the second part may do so at his own expense, without in any way violating any of the rights hereby given to the parties of the first part.” .

The trial of the case brought to recover damages because of the breach of the covenant that the property was free from all incumbrances, resulted in a verdict in favor of plaintiff for $1,170.89, which was subsequently reduced by the court to $1,135, for which amount the judgment was entered.

The majority of the assignments of error, as stated by counsel for appellants in his brief, relate to the admission of testimony on behalf of the plaintiff and appellee to show the value of the buildings which Herman Guyman removed from the premises, upon the theory that in their removal the appellee gave up something of value, the cash equivalent of which it was claimed should be awarded him as an element of loss in his case. It is the claim of counsel for the appellants that this was improper for the reason that the amount of damages which the plaintiff suffered was fixed and determined by the parties themselves in the contract, the provisions of which are above set forth. With this contention we are inclined to agree. It is quite apparent that when Hartman discovered the fact that Guyman was on the property, and being desirous of having the buildings removed so as to make the land more desirable for subdivision purposes, he entered into the agreement, which seems to be definite in its terms and in our opinion fixes the damages to which he was entitled. The court was in error in no*t construing this instrument and in allowing the jury to hear testimony as to the damages, which tended to, and did, vary the terms of the instrument itself. It is apparent that, as a part of the consideration, Hartman paid Guyman $300 at the time that the contract was made and further agreed to pay him $300 more. It further appears, in the second clause of the contract, that Hartman agreed to pay Guyman the $300 additional in case the buildings on the premises were removed prior to December 1, 1916. Taking the agreement in its entirety, it seems conclusive that the plaintiff did not consider the buildings of any value and was especially anxious to have them removed from the property and that he withheld the second payment of $300 to ensure their removal. Apparently no question is made but that the $600 was paid, and the fair construction of the contract seems to be that the tenant was to have the buildings which he removed as a consideration for doing the work of removal. The jury should have been instructed that the damages claimed by the plaintiff should be limited to $600, the amount that the plaintiff actually had to pay in order to get the tenant off from the property.

We do not think the other assignments of error require discussion.

Unless the plaintiff, within twenty days, sees fit to remit all of the judgment obtained in excess of $600, the judgment will be reversed and a new trial granted. Costs of this appeal will be awarded to appellants.

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


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    COMMON COUNCIL OF THE CITY OF NEGAUNEE v. MUCK.
    1. Equity — Rehearing—Question Before Court — Attorney and Client — Discretion.
    In chancery proceedings by a city council for the vacation of certain cemetery premises belonging to the city, where counsel for defendant accepted a settlement and withdrew his appearance, and thereafter decree was entered in accordance with the prayer of the petition, on appeal from the denial of an application by defendant for rehearing on the ground that his attorney had no authority to withdraw his appearance, the question presented to this court is whether there was an abuse of discretion on the part of the court below, upon the record as made, in denying the motion, and not whether the attorney, by reason of his retainer only, had the power to compromise his client’s case.

      2. Appeal and Error — Record—Affidavit Filed After Decision.
    Since the hearing in this court, on appeal, must be upon the record as presented in the court below, an affidavit filed after the case was heard and decided in the court below, will not be considered in this court.
    3. Same — Finding of Court Below — Review.
    The Supreme Court will not lightly disturb the findings of the trial judge, who had the advantage of seeing the conduct of the parties.
    4. Same — Discretion of Court — Abuse.
    A clear case should be made before the Supreme Court will set aside a discretionary order.
    Appeal from Marquette; Flannigan, J.
    Submitted January 16, 1919.
    (Docket No. 63.)
    Decided April 3, 1919.
    Petition by the common council of the city of Negaunee against Charles Muck and others for the vacation of a cemetery. There was a decree for petitioner, and defendant Muck applied for a rehearing. From an order denying the application, defendant appeals.
    Affirmed.

      T. A. Thoren (Berg & Clcmeey, of counsel), for petitioner.

      J. M. Edgerton, for appellant.
   Kuhn, J.

A petition was filed on October 26, 1917, on behalf of the petitioner, in the circuit court for the county of Marquette, in chancery, for the vacation of certain cemetery premises belonging to said city, under section 3485 et seq., of the Compiled Laws of 1897 (1 Comp. Laws 1915, § 3481 et seq.), and notice was published referring to the petition and notifying persons interested that the petition would be brought on for hearing before the said circuit court on the 3d day of December, 1917, at the opening of court on that day, or as soon thereafter as counsel could be heard. On the 7th day of December, 1917, respondent Charles Muck, by J. M. Edgerton, his' attorney, filed his appearance in said cause, and notice of appearance was served upon the attorney for the petitioner; and one Charles F. Button entered his appearance for the respondent William Watters. Negotiations which occurred that day are set forth by the petitioner in its' answer to the petition for rehearing, as follows:

“Before the hearing was reached, said J. M. Edger-ton and Charles F. Button voluntarily instituted negotiations for the amicable adjustment of all claims for compensation or otherwise which said Charles Muck and William Watters might have or assert against this petitioner, representing to counsel for petitioner that they had full authority to act in such negotiations; that said Charles F. Button and J. M. Edgerton then and there offered to accept in full payment of all claims so held by their respective clients and for expenses incurred in connection with this litigation, the following sums: One hundred fifty dollars for William Watters, together with fifty dollars for his attorney, and two hundred fifty dollars for Charles Muck and fifty dollars for his attorney. That after due consideration by counsel for petitioner, this offer was accepted, and thereupon, for the purpose of carrying it into, effect, Charles F. Button and J. M. Edgerton in open court announced that a settlement had been made and that they therefore withdrew the appearances which they had theretofore filed in behalf of said Muck and Watters and would take no further part in the proceedings. Said court permitted the withdrawal of such appearances, and thereafter your petitioner proceeded with the hearing and introduced evidence and presented testimony in support of the allegations contained in its said petition and establishing its right to relief as there prayed for, and at the conclusion of said hearing and in the presence of said attorneys, said court announced that such a decree would be entered in accordance with the prayer of said petition, and thereupon a decree was signed, filed and entered in said proceedings on December 7th, 1917.”

Two days later, on December 9th, the petitioner caused a tender to be made to the respondent Muck of $250 in settlement of his claim for compensation and also $50 for attorney fee, according to the terms of the settlement so made, but this tender was refused. Nothing further was done until the 26th of December, when the respondent Muck, after the conclusion of the December term of court, filed a petition for rehearing, which was noticed for hearing at the February, 1918, term of court. The reasons for which a rehearing was asked are therein set forth as follows:

“(a) That this defendant did not have an opportunity to appear in court and defend his case. That he is now informed that said case was called and heard on the 7th day of December, last, and decree taken against him. That he employed counsel to attend said hearing and was informed by this counsel on Thursday night, the 6th of December, that it would not be necessary for this defendant to be present in court. That no evidence would be taken on that day. That all the proceedings to be heard on that day on the 7th was that the case would be referred to a commissioner for condemnation proceedings. This defendant says that he relied upon the statement of his attorney, and resumed his work in Negaunee on the 7th of December, all day, instead of going to court where he should have appeared and given evidence and opposed the vacation of the said property, if he had not been informed as above.
“(b) This defendant further says that he is the owner in fee simple of certain lots in the aforesaid described parcel of land. That he has a good case on the merits, and is entitled to be heard in court.
“(e) That he was informed by his attorney on the evening of the 7th of December that said attorney tried to reach this defendant in Negaunee by telephone and messengers, and not being able to get in communication with him, felt that under the circumstances it was for the best interest of said defendant that said attorney withdraw his appearance and plea in the case and allow this decree to be taken against said defendant.
“(d) This defendant says that he never authorized his said attorney to withdraw his appearance and that the same should not have been withdrawn.”

The petitioner herein filed an answer to this petition, and the matter came on for hearing before the trial judge on February 5, 1918. No evidence was taken, and the matter was submitted upon petition and answer, and thereupon the trial judge denied the application. Subsequently, on the 5th of March, 1918, Mr. Edgerton, the attorney for the respondent Muck, appeared and filed an affidavit, which affidavit contained a statement that the attorney .was not authorized to make the settlement agreed upon and negotiations which were instituted as above stated. This affidavit, having been filed after the case was. heard and decided in the court below, and not having been before the court at the time the decision was made, will not be considered in this court on the appeal, as the hearing in this court must be upon the record as presented in the court below. This is a well-established rule, and it is unnecessary to cite any authorities in support thereof.

It is urged by counsel for the appellant that the question here for decision is whether an attorney, by reason of his retainer only, has the power to compromise his client’s case, but in our opinion the question which seems to be presented to this court at this time is whether or not there was an abuse of discretion on the part of the trial judge, upon the record as made, in denying the motion for a rehearing.

The allegations of the petition are uncertain as to whether it is claimed that Mr. Edgerton did not have authority to make the settlement agreement set forth in the record, and it was sought to supply this by the statement in the affidavit subsequently filed, which, as has been stated, we will not consider, as we must be governed by the state of the record at the time the trial judge decided this motion. The principal allegation seems to .be that the respondent Muck “never authorized his said attorney to withdraw his appearance.” The court had nothing to do with the terms of the settlement, and was simply notified of the agreement of the parties and of the fact that their appearances were to be withdrawn. We will not lightly disturb the finding of a trial judge, who had the advantage of seeing the conduct of the parties, and a clear case should be made before we will set aside a discretionary order such as was made in the instant case. We are not impressed from this record that such a showing has been made, and therefore conclude that the order of the circuit court should be affirmed, with costs to the appellee.

Bird, C. J., and Moore, Steere, Brooke, Fellows,, and Stone, JJ., concurred. Ostrander, J., did not sit.