author: Grant, J.

text:
    R. L. POLK & CO. v. MELENBACKER.
    1. Hotel Keepers — Guests—Status.
    Where a person went to a public hotel as a guest, and was received and treated as such, the fact that, after he had remained a week, he was charged at a weekly rate corresponding to that charged those having similar accommodations, did not change his status as a guest. •
    2. Same — Agents—Property oe Principal — Lien.
    Where an agent took to a public hotel, as a guest, property of his principal, with which he had been intrusted for the purpose of assisting him to carry on the principal’s business, and was therefore in lawful possession, the hotel keeper had a lien upon the property for the amount due for the keeping and accommodation of the agent as a guest.
    •3. Same — Common-Law Lien — Statutes.
    Act No. 145, Pub. Acts 1897 (2 Comp. Laws, § 5317 et seq.), relating to the liens of hotel keepers, etc., does not affect the right of an innkeeper to the lien existing at the common law, since the final section of the act (2 Comp. Laws, § 5323) expressly provides that nothing therein contained shall preclude any other existing remedy for the enforcement of hotel-keepers’ liens. •
    Error to Kent; Perkins, J.
    Submitted February 23, 1904.
    (Docket No. 97.)
    Decided May 31, 1904.
    Replevin by R. L. Polk & Company against Henry W. Melenbacker. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    This case was tried before the court without a jury, and the court made the following findings :
    “That the defendant, Henry W. Melenbacker, on the 11th day of April, 1902, and for eight years prior, conducted a hotel in the city of Grand Rapids, Mich., known as the ‘ Clarendon Hotel,’ which was a public inn for the accommodation of guests, and which contained a bar; and on said date one J. W. Boyd, who was a stranger in said city, came to said hotel, where he registered as from Chicago, 111., and where he remained until the 14th day of May, 1902, when he left said inn, and has not since been seen in the city of Grand Rapids.
    “ That said J. W. Boyd came to said hot'el as a guest, and was received, caied for, and treated as a guest by the defendant. There was no special contract or arrangement at the time he came to said hotel as to the price for his accommodations and the length of time he should stay, and during the time he continued at said hotel there was no special arrangement or agreement as to the length of time he should be there, or as to the rates for his accommodations, except that, after he had remained one week, he was given the same weekly rate which was charged to guests of said hotel who occupied rooms corresponding to that occupied by said Boyd, which was $6 per week.
    “That said J. W. Boyd, while at said hotel, received accommodations therein as follows: Bar, $8.25; table and room, $28.30; cash paid for laundry, $2.53; cash advanced to Boyd, $2, — total, $41.08; and the said Boyd paid to said defendant while at said hotel the sum of $13.50, and was indebted to said defendant at the time of leaving said hotel in the sum of $27.58, no part of which has since been paid, and which amount, with interest, is now due and owing to said defendant.
    “That said J. W. Boyd, while at said hotel, was a solicitor or agent for the plaintiff, and brought to said hotel a book known as ‘Notable Men of New York,’ which he informed defendant he had paid $15 for, and which defendant believed to be the property of said Boyd, and the said Boyd also brought to said hotel the photographs replevied in this case, and which he informed the defendant were ample security for his accommodations at said hotel, and which were kept in the safe of said defendant at said hotel, and which, together -with said book, were left by said Boyd in the custody of said defendant until the whole thereof was replevied by the plaintiff after demand therefor, the defendant claiming a lien thereon for said sum of $27.58.
    “ The plaintiff intrusted said book and photographs to the said J. W. Boyd, who was lawfully in the possession of the same while at said hotel, and the defendant had no knowledge or information that the same did not belong to said J. W. Boyd, who treated them as his individual property; and the defendant furnished accommodations; aforesaid to the said Boyd upon the strength of his owning the same. That the value of said book and photographs was $50, and the defendant has no other property or effects left by said Boyd of any value.
    “ That the plaintiff was, at the time of making demand for said property and commencement of suit, the general ■owner thereof; that the book in question was worth not more than $15; that the defendant had at said hotel during the months of April and May, 1903, both guests and .regular boarders.
    “Conclusions op Law.
    “1. I find that the relation of innkeeper and guest existed between said J. W. Boyd and the defendant during the time he was at defendant’s inn, and that the defendant was entitled to a lien' upon the property replevied in this case for the amount of the accommodations furnished the said Boyd, namely, the sum of $37.58, and interest thereon at 5 per cent, from the 14th day of May, 1903.
    “2. That the property in question belongs to the plaintiff as general owner, and at the time of demand and commencement of suit the defendant had a special property therein as aforesaid, and the defendant did not unlawfully ■detain any of the property in question from the plaintiff, and the said defendant had a right to retain the same until said lien was paid, and that said lien included all items charged for accommodations received by said guest while at said hotel, including bar bill, laundry, and money loaned; and I find that the cash paid to defendant by said Boyd while his guest, namely, $13.50, was more than sufficient to pay, and did pay, the said bar bill, laundry, and cash advanced. I find that the lien of the defendant is that of an innkeeper at common law.” .
    Judgment rendered for the defendant for the amount and costs.

      Dwight Goss {Frank A. Hess, of counsel), for appellant.

      J. T. Preston, for appellee.
   Grant, J.

{after stating the facts). Mr. Boyd was a guest of the defendant. He came and registered as .a guest, was received as such, and nothing occurred during the short time he remained at the defendant’s hotel to-change his relations from that of guest to that of boarder.. The fact that, after he had remained a week, he was charged at a weekly rate, did not change his status as a guest. Norcross v. Norcross, 53 Me. 163; Hancock v. Rand, 94 N. Y. 1 (46 Am. Rep. 112); Beale v. Posey, 72 Ala. 323.

Mr. Boyd was in lawful possession of the property which he took to the defendant’s hotel as a guest. He was plaintiff’s agent, and intrusted with the property for the purpose of assisting him to carry on business for his principal. Being, under these circumstances, lawfully in possession, the defendant had a lien upon the property for the amount due for the keeping and accommodation of the-guest. Johnson v. Hill, 3 Stark. 172; Gordon v. Silber, 59 L. J. Q. B. 507; Robins & Co. v. Gray, 35 Q. B. Div. 501; Manning v. Hollenbeck, 27 Wis. 202; 16 Am. & Eng. Enc. Law (2d Ed.), 550, par. b.

Act No. 145, Pub. Acts 1897 (2 Comp. Laws, §§ 5317-5323), in regard to the lien of hotel keepers, boarding-house keepers, and lodging-house keepers, does not affect the rights of an innkeeper to the lien existing at the common law. The closing section of the act expressly provides that nothing therein contained shall preclude any other existing remedy for the enforcement of hotel-keepers’ liens.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    FIRST NATIONAL BANK OF REED CITY v. SWEET.
    Res Judicata — Mistake of Remedy — Action on Note — Replevin of Mortgaged Chattels.
    A note, and mortgage on personalty belonging to a wife, purported to be signed by the husband and wife. The payee sued! on the note, and, failing to recover against the wife, on the ground that the debt was not hers, took no judgment against the husband. Held, that the plaintiff mistook its remedy in that suit, and was not precluded from maintaining replevin for the mortgaged property.
    Error to Osceola; McAlvay, J.
    Submitted February 23, 1904.
    (Docket No. 98.)
    Decided May 31, 1904.
    Replevin by the First National Bank of Reed City against John Sweet and Catherine Sweet. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Charles A. Withey (J. B. Judkins and J. E. Richardson, of counsel), for appellant.

      McKnight & McAllister and C. H. Rose, for appellee Catherine Sweet.
   Moore, C. J.

This is an action of replevin for property described in a chattel mortgage which plaintiff claims was given to it by the two defendants, who are husband and wife. The defendant Catherine Sweet claims she never authorized the giving of the mortgage. From a judgment directed by the judge in favor of defendants, the case is brought here by writ of error.

The mortgage was given to secure the payment of a debt evidenced by a note which the plaintiff claims was signed by both defendants. The case was decided without going into the proofs, the same judge having presided at both trials. Previous to the bringing of the replevin suit, the plaintiff, seeking to obtain a personal judgment against defendants, sued them upon the note.

The bill of exceptions in this case, after showing that the judge directed a verdict in the case at bar because he thought the prior suit was res adjudieata of this one, states:

‘ ‘ The previous case referred to in the above ruling was a case by this plaintiff against these same defendants upon the same note referred to above, which note was secured by the chattel mortgage in question in the suit at bar. The former action was in assumpsit to enforce payment of the note. The plaintiff claimed in that case that Catherine Sweet’s name was signed to both note and mortgage by her husband, John Sweet, acting by both general and express authority to do so; that the note and mortgage was the culmination of a long deal and numerous loans made from time to time by the bank' to the Sweets. The plaintiff claimed in the first case that it knew Catherine Sweet owned all of the property, and that her husband was financially worthless; that the money was loaned exclusively to Mrs. Sweet, for her sole use and benefit, and that John Sweet was simply a voluntary signer; that he usually and continuously acted as the agent of his wife, and signed her name to notes and mortgages habitually, and did so in that instance with her expresst authority; that they looked to Mrs. Sweet alone, and not to John Sweet, for the payment of the money, and as the responsible party.
“On the trial of that case, the defendants put in evidence, as part of the cross-examination of L. K. Parkhurst, who is president of the plaintiff bank, a letter written by him to the Sweets, in which it was expressly stated that the debt was a joint or mutual one; and it appeared in the evidence that the bank had on several occasions loaned small sums to John Sweet. At the close of the plaintiff’s proofs, the court directed a verdict in favor of Catherine Sweet, holding that the proofs showed conclusively that the debt was a mutual or joint obligation; that the money was not loaned exclusively to Mrs. Sweet, for her sole use and benefit, and that the proofs did not trace the proceeds of the note to the exclusive use of her separate estate; that John Sweet was liable, and, as he had defaulted in the case, and did not defend, the plaintiff could take judgment against him if it desired. It did not do so, and the case ended there.”

The question involved is, Was the court right in his ruling that the caséis res adjudicata ? Counsel for defendant say the same subject-matter was in litigation between the same parties on the same indebtedness, and was tried, upon a certain theory and claim, which, if true, would authorize a recovery, in the former suit; and that a party •cannot commence a suit and prosecute it on one theory •and claim, and, when defeated, commence another suit in relation to the same matter upon a different theory and ■claim; and that plaintiff seeks to do that in this case. On the other hand, counsel for plaintiff say that because the note was decided in the other case not to have been given for the sole benefit of Mrs. Sweet, and in relation to her sole •property, the bank failed to accomplish what it sought in that case, to wit, to get a personal judgment against her, which shows it had mistaken its remedy under the facts disclosed by the proofs in the case, and that now it is pursuing the right remedy, and is not precluded from so ■doing. It is not disputed that, unless the note was given for the debt of Mrs. Sweet, a judgment could not be obtained against her in a suit, brought upon it.. Nor is it ■disputed that she might give a chattel mortgage that would bind her, even though the debt secured by the mortgage was not hers, but was the joint debt of herself -and husband, or was the debt of the husband alone; but it is said, the plaintiff having in the former suit claimed it was her debt, that its claim here is inconsistent with that claim; that it is now shifting its position, which it is not entitled to do.

In McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719), it was said:

‘.‘No rule is better settled than the proposition that one laving the choice of two inconsistent remedies is bound hy an election, and that suit brought upon one precludes a subsequent resort to the other claim. Thus, one may waive a tort by bringing an action in assumpsit, or may lose his right to bring assumpsit by commencing an action' for the wrong committed. One may sometimes rescind a. contract, and assert title to property that he has parted with, or he may affirm the contract; but he cannot do-both. Having elected by bringing an action upon one theory, he has no right afterwards to sue upon the other. Thompson v. Howard, 31 Mich. 312, and cases cited;. Brown v. Littlefield, 11 Wend. 467; Id., 1 Wend. 398; Morris v. Rexford, 18 N. Y. 557; M’Elroy v. Mancius, 13 Johns. 121; Sanger v. Wood, 3 Johns. Ch. 416. This, rule is not inconsistent with the practice of bringing a. second and different action where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the-law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had. Morris v. Robinson, 3 Barn. & C. 196; Peters v. Ballistier, 3 Pick. 495; Butler v. Hildreth, 5 Metc. (Mass.) 49.”

This was quoted with approval in Sullivan v. Ross’ Estate, 113 Mich. 311 (71 N. W. 634, 76 N. W. 309). The court then cited Fifield v. Edwards, 39 Mich. 264;, McKinney v. Curtiss, 60 Mich. 611 (27 N. W. 691); Farwell v. Myers, 64 Mich. 234 (31 N. W. 128); 2 Black, Judgm. § 715; Chaddock v. Tabor, 115 Mich. 27 (72 N. W. 1093); and then said:

“It will appear from the authorities cited that if, in choosing his remedy, he [plaintiff] has made a mistake,, and for that reason failed, he is not cut off from pursuing: the right remedy.”

Under the claim made by Mrs. Sweet in the former case,, and the facts found by the circuit judge, the plaintiff never had a right of action against Mrs. Sweet upon the note; but it does not follow that it may not enforce the chattel mortgage, which was not involved in the issue determined by that litigation. We think the court erred in refusing: to hear testimony upon the issue as presented in this case, and in directing a verdict.

The judgment is reversed, and a new trial ordered.

Carpenter, Grant, and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


text:
    PEOPLE v. RICE.
    Criminal Law — Cross-Examination—Conduct op Counsel.
    In a criminal prosecution, where, on the cross-examination of a witness for the people who had not shown any disposition to suppress facts, respondent’s counsel had asked a series of questions suggestive of officious intermeddling in the prosecution, and calculated to reflect on her rectitude of conduct, the witness was entitled to the protection of the court, and it was not error to exclude the question, “ And isn’t it true that you have done all that you could to secure a conviction of the respondent in this case?”
    Exceptions before judgment from Wexford; Chittenden, J.
    Submitted February 26, 1904.
    (Docket No. 47.)
    Decided May 31, 1904.
    Edwin Rice was convicted of violating the liquor law.
    Affirmed.

      D. E. McIntyre (E. O. Gaffney, of counsel), for appellant.

      Fred C. Wetmore, Prosecuting Attorney, for the people.
   Grant, J.

Respondent was convicted of keeping his-saloon open after 9 o’clock at night, contrary to the statute. The only assignment of error entitled to consideration arises out of the testimony of one Mrs. Worden, who» was a witness for the prosecution. She testified that her husband and a visitor at her house went to defendant’s saloon after supper on the night in question; that her husband returned shortly after 10 o’clock, saying that their visitor was intoxicated, and they had put him to bed over at the saloon; that she went to the back door of the saloon, and called for Mr. Rice; that he came out, and afterwards brought out the visitor with him. On cross-examination the following occurred:

Q- Who was the cause of making this complaint ?
“A. You will have to ask the ones that made it.
Q. Well, ain’t you the one that agitated all this, and brought this thing about ?
“A. I don’t think I was the first one that told it.
•“ Q. What did you do in the way of bringing about this transaction, Mrs. Worden?
“A. I don’t know as I did anything to bring it up.
Q. Haven’t you been here several times to consult the prosecutor about it ?
“A. Before the complaint was entered ?
Q. Isn’t it true that since the las.t trial of this case you have been here to consult the prosecutor ?
“A. I think I was up here and mentioned it once just after the other trial.
Q. And isn’t it true that you have done all that you could to secure a conviction of Mr. Rice in this case ? ”

This last question was objected to, and the objection sustained. I think that this was not error. This method of cross-examination comes directly within the condemnation of People v. Cahoon, 88 Mich. 456 (50 N. W. 384). Counsel for the defendant cite several cases holding that it is competent to show upon cross-examination the bias of a witness. The attorney for the people does not dispute this proposition. He only objects that the question was not a proper one for that purpose. In none of the cases cited was the cross-examination like this attempted. The testimony offered in those cases relates to the acts or conduct or statements of the witness tending to show bias or prejudice. This witness had shown no disposition to suppress any facts or statements. Witnesses are entitled to

the protection of the court when assailed in this manner. See People v. Gotshall, 123 Mich. 474 (82 N. W. 274).

Thfe conviction is affirmed.

Moore, O. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


text:
    HANNON v. CITY OF GLADSTONE.
    Municipal Corporations — Sidewalks—Failure to Erect Railings — Negligence—Question for Jury.
    Under 1 Comp. Laws, § 3443, requiring cities to keep their sidewalks reasonably safe and convenient for public travel, the question of the negligence of a city in failing to erect railings along a sidewalk, constructed over a low place some distance above the ground, is for the jury.
    Error to Delta; Stone, J.
    Submitted April 13, 1904.
    (Docket No. 57.)
    Decided May 31, 1904.
    Case by Mary Hannon against the city of Gladstone for personal injuries caused by a defective sidewalk. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      G. P. JEmpson, for appellant.

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

The defendant city constructed a sidewalk of plank, 6 feet wide, and for some distance over a low place it stood 21 inches above the ground. Plaintiff, 53 years of age, was traveling on this sidewalk at 9 o’clock on a dark and rainy night. The streets of the city were supplied with electric lights, which cast more or less light upon the walk. The plaintiff testified that it was so dark she could not see the plank, and for that reason stepped off. There was testimony on the part of the defendant that others saw her on the walk and saw her fall when 190 feet distant. The sole negligence alleged is in the failure to erect a railing along the sides of the walk. The walk otherwise was good. The court left it to the jury to determine whether the failure to erect railings under all the circumstances was negligence. The plaintiff recovered verdict and judgment.

The defendant contends that the statute does not impose the duty to erect railings at such places. The question is not a new one in this State. We think the case is ruled by Malloy v. Township of Walker, 77 Mich. 448 (43 N. W. 1013, 6 L. R. A. 695). That case was approved in Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014); Gage v. Railroad Co., 105 Mich. 335 (63 N. W. 318); Ross v. Township of Ionia, 104 Mich. 330 (63 N. W. 401); Shaw v. Township of Saline, 113 Mich. 343 (71 N. W. 643). The same principle applies to sidewalks as to the roadbed designed for the passage of vehicles.

Judgment affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


author: GrRANT, J.

text:
    McCARTHY v. VILLAGE OF MUNISING.
    Municipal Corporations — Streets—Negligence—Horse Racing.
    Under 1 Comp. Laws, § 3441 et seq., requiring municipal corporations to keep their streets in condition reasonably safe and fit for travel, a village is not liable for personal injuries caused by permitting horse racing on a street which was in proper condition and safe for travel.
    Error to Alger; Steere, J.
    Submitted April 14, 1904.
    (Docket No. 63.)
    Decided May 31, 1904.

      Case by Timothy McCarthy against the village of Munising for personal injuries. From a judgment for defend.ant on verdict directed by the court, plaintiff brings error.
    .Affirmed.
    The declaration in this case alleges that on a certain -day, in the above village, the officers of the village permitted four horses to race on one of its streets, said horses being ridden by one man each; that one of the said horses ran against the plaintiff, and injured him. It is claimed that the defendant, by its officers, approved this use of the street, and thereby rendered it unsafe for travel.
    In his opening statement, the attorney for the plaintiff stated that he offered to show that the defendant, by its •officers and agents, permitted and allowed horse racing in said public street; that the proposed race was well known to the officers and agents of the village for some time prior to the race; that the race actually took place; that one of the horses ran against plaintiff, knocking him down; that plaintiff brought this action under chapter 91, 1 Comp. Laws, to recover damages for the failure to keep the •streets of the village safe and fit for travel; that the officers were guilty of negligence in allowing said horse racing; and that the negligence of the officers was the negligence of the village. Upon this statement, the court directed a verdict for the defendant.

      John E. Mills, for appellant.

      Cornelius E. Donahoe, for appellee.
   GrRANT, J.

(after stating the facts). The statute does not cover cases of horse racing in a municipality, though permitted by the officers of the village. The street was in proper condition and safe for public travel. There is no claim made in this case that the common council had passed an ordinance forbidding the use of the street. If such an ordinance had been passed, and other officers of the village had permitted the horse racing in violation of the ordinance, this would not make the village itself liable.

The judgment is affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision»


text:
    RUSSELL v. WAYNE CIRCUIT JUDGE.
    Contempt — Intimidation of Witnesses — Interrogatories.

      In contempt proceedings for attempting to intimidate witnesses, instituted under 3 Comp. Laws, § 10891, empowering-courts of record to punish as for contempt persons unlawfully interfering with the proceedings in an action, the petition, based wholly on information and belief, was accompanied by certain affidavits, and no damages were claimed as a result of • the contempt. Respondent appeared and filed his answer in response to an .order to show cause, and the court appointed an attorney to examine into the case and file interrogatories, which, being duly prepared, covering specifically the charges, in the affidavits, were submitted, and answered by respondent. Held, on examination of the interrogatories so submitted, that they covered the entire ground, and petitioner was not entitled to the allowance of further interrogatories, prepared by himself.

      Mandamus by Frank H. Russell, as administrator, to-compel Henry A. Mandell, circuit judge of Wayne county,’ to allow certain interrogatories prepared by relator-in a contempt proceeding.
    Submitted April 19, 1904.
    (Calender No. 20,482.)
    Writ denied May 31, 1904.

      8. E. Engle, for relator.

      Allan H. Frazer, for respondent.
   Grant, J.

The relator had a suit pending in the circuit court for the county „of Wayne against the Penberthy Injector Company and S. Olin Johnson. The action was based upon the negligence of the defendants, through which it is claimed that relator’s decedent lost his life. Relator filed a petition with the respondent, charging the defendant Johnson with contempt of court in attempting to intimidate some of the witnesses, or proposed witnesses, in the case. The petition was based wholly upon information and belief, and was accompanied by affidavits. The order to show cause was issued, and answer of Mr. Johnson duly filed. The relator demanded interrogatories. The respondent appointed Mr. Allan H. Frazer, ex-prosecuting attorney and an officer of the court, to examine into the case and file interrogatories. Mr. S. E. Engle, on behalf of the relator, presented to the court 78 interrogatories. Mr. Frazer examined the affidavits, and prepared 26 interrogatories, covering specifically the charges made by the affidavits. Mr. Johnson answered all these interrogatories. The court declined to examine the interrogatories on behalf of the relator, and accepted those proposed by Mr. Frazer. The relator, by this proceeding, seeks to compel the respondent to consider and allow the interrogatories propounded by him.

The respondent returns that the proceeding was treated by the relator as a criminal, not a civil, one. The relator neither in his petition nor in any affidavits claimed damages as a result of the contempt. The intimidation of witnesses is naturally a criminal matter, — one in which the damages are to the public and the courts as well as to litigants.

The affidavits, not the petition, conferred jurisdiction upon the court. Without the affidavits the proceeding would have been quashed. In re Wood, 82 Mich. 82 (45 N. W. 1113). Allegations in the petition not supported by the affidavits will be ignored. When one charges another with the serious crime of interfering with the due course of justice by corrupting or intimidating witnesses, he must have positive evidence to present to the court upon which to base the charge. Rumors will not do. Allegations upon information and belief are not sufficient to put the party charged upon answer.

This proceeding was brought under 3 Comp. Laws, § 10891. The charges made by the affidavits were before the court. The court ordered an attorney to prepare interrogatories based upon those affidavits. The attorney did so, and reported them to the court. The court examined the. affidavits and interrogatories, and determined that those presented by Mr. Frazer were sufficient. The practice was proper, and a full compliance with the statute. We have examined the interrogatories, both those proposed and those submitted and answered. We think those submitted covered the entire ground.

The mandamus is denied.

Moore, C. J., and Hooker, J., concurred. Carpenter and Montgomery, JJ., took no part in the decision.


author: Carpenter, J.

text:
    BARKER v. CITIZENS’ MUTUAL FIRE-INSURANCE CO.
    1. Fire Insurance —Sawmills —Permission to Remain Idle — “Winter Season” — Witnesses—Competency—Opinions.
    In an action on a policy of Are insurance providing that it should be void if the sawmill insured thereby should cease to be operated for more than 10 consecutive days, but having a rider attached permitting it to remain idle during the winter season, where defendant introduced the testimony of a witness to show the length of the winter season as applied to sawmills, it cannot claim that the witness was not competent, or that he was testifying to an inadmissible opinion.
    3. Same — Usage—Proof.
    Such witness stated on direct examination, in answer to the question, “What is meant by the ‘winter season,’ as applied to sawmills ?” that he presumed it was meant when they were shut down, after they had done their season’s cutting; and, on cross-examination, that the winter season is usually known as the “closed season,” that mills situated as plaintiff’s mill was did not get their logs as early in the spring as others, and that it was the custom of plaintiff’s mill to start up when it got its logs. Held, -that it should be inferred from the testimony that those connected with sawmill operations used the term “winter season” to designate the period which elapsed between the time the mill closed in the fall and the arrival of the logs in the spring; and that proof of a usage of the term in this sense was sufficient proof of a fact.
    3. Same — Presumptions.
    A witness having testified that insurance companies were familiar with and acted upon this usage of the term “winter season,” it might be presumed, in the absence of evidence to the contrary, that defendant, in making the contract, understood its local meaning, although its home office was not in the vicinity of the insured property, and the business was done through a broker.
    4. Same — Breach op Contract — Burden op Proop.
    The burden of proof was upon the defendant, alleging a breach of the contract, to show that the mill was idle later than the winter season.
    5. Same — Instructions.
    A charge to that effect, however, cannot be said to have required defendant to establish that the date of the fire (i. e., June 12th) was not within the winter season, as the term was understood by the parties.
    Error to Bay; Shepard, J.
    Submitted April 14, 1904.
    (Docket No. 64.)
    Decided May 31, 1904.

      Assumpsit by Columbus C. Barker against the Citizens’ Mutual Fire-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Patterson & Patterson (Hall & Brockivay, of counsel), for appellant.

      T. A. JE. & J. C. Weadock, for appellee.
   Carpenter, J.

June 12, 1902, plaintiff’s sawmill, situated in Bay county, was destroyed by fire. At the time of its destruction the sawmill was insured by defendant by two policies of insurance, dated, respectively, September 23, 1901, and April 13, 1902. The policies were Michigan standard policies, containing this clause:

“This entire policy * * * shall be void, * * * if the subject of insurance be a manufacturing establishment, * * * if it cease to be operated for more than ten consecutive days.”

And attached to each policy was a rider permitting “ the' mill to remain idle during the winter season. ” At the time of its destruction the mill was idle, and had been since about November 1, 1901. Evidence was introduced on the part of the plaintiff tending to prove that the term “winter season,” in the Saginaw Valley, meant the interval which elapsed from the time the mill closed in the fall until the logs came across the lake, either from Canada or the Upper Peninsula, in the next season, and that these logs did not arrive until late in June or early in July. Defendant’s testimony tended to prove that the winter season ended about April 1st. This issue was submitted to a jury, who rendered a verdict for the plaintiff.

Defendant claims that plaintiff was not entitled to a verdict on this issue, because the testimony “utterly fails to deal with the subject as a fact at all; it does not show the custom was of long standing; it does not show that it was uniform; it does not show that it was well settled; and no effort was made to show that the parties in this case had any knowledge of it at all, and it was not shown to have been so generally known as to raise a presumption that the contract was made in reference to it.”

We do not think these objections well grounded. Before the plaintiff introduced any testimony whatever on this subject, defendant called as a witness one Charles Glossier. We quote from his testimony: Direct examination :

Q. What is meant by the ‘winter season,’ as applied to sawmills ?
“A. I presume that is what they mean by that, — when they shut down after they have done their season’s cutting. I presume that is what is called the ‘winter season.’ They are idle.”
Cross-examination: ■
Q. The winter season is usually known as the ‘closed 'season ? ’
“A. Certainly.
'‘ Q. Those mills that are dependent upon their supply •of logs either from Canada or Lake Superior ports do not get their logs as early in the spring as others ?
“A. No, sir.
Q. It was the custom of this mill to start up when it ■got its logs ?
“A. Certainly.
‘ ‘ Q. And in recent years it had been getting them from Canada ?
“A. I believe that is where they got them from.
Q. What time of the year do the logs usually get in from Canadian ports ?
‘A. I guess they do not get in there much before June.
Q. Generally the middle of June, or a little later, is it not?
“A. A little later; I think so.”

Defendant cannot claim that this witness was not a competent witness, nor that he was testifying to an inadmissible opinion. It should be inferred from this testimony that those connected with sawmill operations used the term “winter season” to designate the period which •elapsed between'the time the sawmill closed in the fall until after the logs arrived in the spring, — a period which had not elapsed when the loss in this case occurred. Proof of a usage of a term in this sense was, in our judgment, sufficient proof of a fact. See Taylor v. Briggs, 2 Car. & P. 525.

Nor can it be said that the testimony was-insufficient to raise the presumption that the contract was made in reference to this usage. One of the plaintiff’s witnesses (George W. Ames) testified that special agents of insurance companies — who for this purpose may be regarded as the insurance companies — were familiar with and acted upon this use of the term. When the defendant entered into these contracts, it may be presumed, when, as in this case, there was no evidence to the contrary, that it understood the local meaning of this term “winter season.” Pennell v. Transportation Co., 94 Mich. 247 (53 N. W. 1049).

Defendant also urges that the evidence respecting the meaning of this term was insufficient because its home office was not in the Saginaw Valley, and it did its business there through a broker. We have already suggested one answer to this objection. It may also be said that this point was not raised in the trial court.

In charging the jury, the court said:

“ It is claimed on the part of the defense that the policy is void because the mill property was allowed to remain idle and not operated for a longer period than the winter season; and the defendant takes the burden upon itself, as you saw in the giving of testimony, to establish the fact or claim, under that language in the policy, either as a. question of law, or a question of fact for the jury, or both, that the mill was idle beyond the period, and later than the winter season.”

It is contended that by this charge the court improperly imposed upon defendant the burden of proving that June 12th was not within the winter season. This contention is based upon an improper construction of the charge. The charge, fairly construed, states that defendant takes the burden upon itself to establish the claim, either as a. question of law or fact, that the mill was idle later than the winter season. It is true that the defendant did assume that burden. We think it will not be disputed that, as a matter of law, the burden rested upon the defendant to prove this breach of the policy of insurance. See N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212 (94 N. W. 757). If the defendant had wished to raise the question that the burden rested upon the plaintiff to prove that June 12th was within the winter season, it should have taken some other step than to assign error on this charge. It would be a manifest unfairness to the trial judge and to the plaintiff in this case to hold that the charge now under consideration touches that question.

No other error complained of in defendant’s brief demands discussion.

Judgment is affirmed, with costs.

The other Justices concurred.


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    LEVANDOWSKI v. ALTHOUSE.
    1. Vendor and Purchaser — Reservation of Easement — Form of Conveyance — Description—Ambiguity—Cure.
    Where, in a contract for the conveyance of land, the vendee agreed to cause a roadway to be laid out on the premises, it was the obvious intent of the parties to create an easement in the vendee’s property, and the vendor was entitled to have the easement evidenced by appropriate language in the deed; and any want of certainty in the contract was cured by a mutual agreement locating the,roadway on the boundary of the land sold.
    3. Same — Specific Performance — Scope of Bill — Variance— Amendment.
    Where a bill for specific performance relied on an oral contract, validated by the possession of the vendee, and in express terms denied the existence of a written contract, which the court found to have been in fact made, the vendee was not entitled to a conveyance in accordance with the terms of the written contract, as such relief would be beyond the scope of the bill; and it would not be proper, on appeal, to permit an amendment, which would make a radically different case from that presented to the lower court.
    3. Same — Decree—Dismissal of Bill Without Prejudice.
    Where a bill for specific performance relied on an oral contract, coupled with possession, and the proof showed a written contract, the decree dismissing complainant’s bill should be without prejudice to his right to maintain a suit to enforce the written contract.

      Appeal from St. Clair; Law, J.
    Submitted April 15, 1904.
    (Docket No. 72.)
    Decided May 31, 1904.
    Bill by Charles Levandowski against Henry Althouse for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Modified and affirmed.

      Avery Bros. & Walsh, for complainant.

      Cady & Crandall, for defendant.
   Carpenter, J.

This is a suit in chancery to enforce the specific performance of a land contract, whereby defendant agreed to sell to complainant certain land in the city of Port Huron. It was the claim of complainant that this land contract was oral, made valid by complainant’s taking possession, and that complainant was entitled to a deed free and clear of all incumbrances and easements. It was the claim of defendant that the contract was in writing, and that it contained this provision:

“The party of the second part [complainant] hereby agrees that he will cause a roadway of the width of twelve feet to be laid out on these premises, commencing at the roadway already laid out by the party of the first part, south to Court street.”

The case was heard by the circuit judge upon testimony taken in open court, who rendered a carefully prepared opinion dismissing complainant’s bill.

A careful examination of the record convinces us that the contract was in writing, and contained the clause respecting the roadway, as claimed by defendant. Complainant insists that, notwithstanding this fact, he is entitled to have a deed which contains no reference to the roadway. To this we cannot agree. It was the obvious intent of the contract to create an easement in complainant’s property, and defendant is entitled to have this easement evidenced by appropriate language in his deed.

Nor can it be said that the roadway is not described with such certainty that it can be located. Any want of certainty in the contract has, in our judgment, been cured by the mutual agreement of the parties to this suit, locating the roadway on the boundary of the land sold complainant.

Complainant also contends that, in any event, he was entitled to relief of some character; that he is at least entitled to have such a deed as the court finds defendant agreed to execute. The answer to this contention is that that relief would be beyond the scope of complainant’s bill, which in express terms denies the existence of the contract which the court now finds to have been made. We do not see, therefore, how complainant can obtain relief in this suit. See Wilson v. Wilson, 6 Mich. 9; Brown v. Brown, 47 Mich., at page 382 et seq. (11 N. W. 205). Nor would it be proper to permit an amendment to the bill in this court, which would make a radically different case from that presented to the lower court.

We think, however, that the decree dismissing complainant’s bill should be without prejudice to his right to maintain a suit to enforce the written contract. Such a modification will therefore be made in the decree, which in every other respect will be affirmed, with costs.

Moore, C. J., Grant and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.


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    ILGENFRITZ v. TOLEDO & MONROE RAILWAY.

    Estoppel — Railroads—Streets—Additional Servitude.
    Where the owner of a city lot accepted damages from a street-railway company for raising the grade in front of his premises, knowing, that the road was to be operated by a railroad company, he is estopped to assert that such use of the street by the railroad company imposed an additional servitude.
    Appeal from Monroe; Chester, J.
    Submitted October 21, 1903.
    (Docket No. 49.)
    Decided June 7, 1904.
    Bill by Charles A. Ilgenfritz and others against the Toledo & Monroe Railway, the Monroe Traction Company, and others, to restrain the operation of a railroad in a certain street. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Willis Baldwin, for complainants.

      O. A. Golden, for defendants.

      Rehearing denied October 28, 1904.

   Moore, C. J.

This bill is filed to restrain the Toledo & Monroe Railway from operating a railroad in Elm avenue across complainants’ premises without compensation. The Toledo & Monroe Railway first attempted to lay this line, but was restrained. The Monroe Traction Company was organized with a capital of $10,000. It obtained a franchise from the city, and then authorized the Toledo & Monroe Railway to construct and operate this line. The bill in this case was filed before this line was completed or in operation. The bill alleges that the Monroe Traction Company is only a pretense, the sole purpose of which organization was to obtain a franchise, and under color of its name allow the Toledo & Monroe Railway to lay its tracks and operate a line on Elm avenue, to avoid paying compensation to abutting owners for damages.

On September 25, 1899, the council of Monroe City granted a franchise to Mr. Black and others to construct and operate a street railway on Monroe and Anderson streets, but not upon Elm avenue. Monroe street was the entrance of the Toledo & Monroe Railway line from Toledo. This franchise was assigned to the Toledo & Monroe Railway after its incorporation, and thereafter, June 3, 1901, the council assented to this assignment so far as the city had any rights. The Toledo & Monroe Railway built this line from Monroe to Toledo. Prior to the incorporation of the Monroe Traction Company, Charles A. Ilgenfritz, one of the complainants here, obtained an injunction against the Toledo & Monroe Railway from extending its line on Elm avenue in front of his premises (not the premises in question) without compensation, and pulled up part of the Toledo & Monroe track.

Mr. Black and others secured a franchise from the city to construct and operate a street railway down Elm avenue from said Monroe street easterly to reach the lake. This franchise was over the complainants’ property involved in this suit. This franchise contemplated that the same company which operated the main line should also operate this line. The company obtained many releases for the line • on Elm avenue, but complainants, among others, refused to release. On April 16, 1901, the Monroe Traction Company was organized, having a par value capithl stock of $10,000. Immediately after the organizar tion of the Monroe Traction Company, the city, on May 6, 1901, consented to the transfer'of the franchise to the Monroe Traction Company. The line was built to the lake thereafter over complainants’ premises, and has since been operated by the Toledo & Monroe Railway, and not by the Monroe Traction Company.

In the spring of 1902 the Toledo & Monroe Railway applied to and the State Crossing Board granted permission to construct a grade crossing over the Lake Shore & Michigan Southern Railway on Elm avenue. The board fixed the grade and conditions, and this grade was upon the land of complainants in question. The Toledo & Monroe Railway furnished and hauled the dirt to make the grade. When the Toledo & Monroe Railway proceeded to construct the grade across complainants’ premises, complainants filed another bill ágainst the Toledo & Monroe Railway and the Monroe Traction Company. Both of these cases were heard together. The court dismissed complainants’ bill in this case upon the ground that the Toledo & Monroe Railway could operate this line to the same extent that the Monroe Traction Company could. In the last case the Monroe Traction Company was ordered to make compensation for raising the grade only, but not for any damages by reason of additional servitude. The damages provided in that decree for raising the grade of the street have been determined and paid. The case is brought here by appeal.

The complainants claim:

1. That a railroad organized under.the general railroad law cannot take or operate a street railway.
2. The operation of this line is an additional servitude npon the land, for which complainants are entitled to compensation.
3. The action in incorporating the Monroe Traction Company was so clearly a subterfuge that it should avail nothing.

Defendants say the Monroe Traction Company built the line on Elm avenue under the provisions of its franchise, and that it has been operated pursuant to the terms of that franchise, and that the complainants are not entitled to damages as abutting owners because of the construction and operation of the Elm-avenue line. Defendants also claim the Monroe Traction Company had a right to connect its railway with the Toledo & Monroe Railway, and the two companies were authorized by law to make the arrangement for the operation of the traction line by the Toledo & Monroe Railway; citing 2 Comp. Laws, § 6432. Defendants also claim the proceedings taken to incorporate the Monroe Traction Company were in compliance with the statute, and that the corporate existence of the Monroe Traction Company, and the legality and regularity of its incorporation, cannot be questioned by the complainants in this suit, and can only be raised by a proceeding instituted under authority of the State; citing Toledo & Ann Arbor R. Co. v. Johnson, 55 Mich. 456 (21 N. W. 888); Wilcox v. Railroad Co., 43 Mich. 584 (5 N. W. 1003); Detroit, etc., R. Co. v. Starnes, 38 Mich. 698. That the city of Monroe recognized the corporate existence of the Monroe Traction Company by granting to it a franchise for the construction of the line on Elm avenue; that the complainants also recognized the corporate existence of the Monroe Traction Company, and its authority to construct and own a railway in Elm avenue, by granting to it the right to raise the grade of Elm avenue opposite their premises for the purposes of its railway for a money consideration paid to and accepted by them; and that, if the question of the corporate existence of the Monroe Traction Company were material, and could be raised in this case by the complainants, they would be estopped by the acceptance of the money so paid to them by the Traction Company.

In our view of the case, the last point suggested by the defendants is the only one we need to consider. The bill before us is an injunction bill. The railway has been built. It has been operated by the Toledo & Monroe Railway, and, according to the claim of counsel for complainants, by no one else.' An overhead crossing of a steam railroad has been made, and it is the claim of complainants that this was done by the Toledo & Monroe Railway, and that the Monroe Traction Company existed only on paper. On the 25th of May, 1902, the circuit judge enjoined the Monroe Traction Company, its assigns or lessees, from maintaining any embankment on Elm avenue across complainants’ premises, unless the said Monroe Traction Company should take proceedings to ascertain the damages under the statute or by mutual agreement. The decree in that case was filed the same day the decree in this casé was filed. No appeal was taken from that decree. In the case here it is stipulated as follows:

“ In the case at bar the lower court dismissed complainants’ bill. In the latter case, disposing only of the question of l’aising the grade, it enjoined the defendants from raising the grade until due compensation had been made, which has been done, and the latter case settled.”

When the complainants, instead of appealing from both decrees, acquiesced in one of them, and allowed the due compensation to be determined, and accepted it, knowing the Toledo & Monroe Railway was making such use as was made of the road, we think they are estopped from saying that the Monroe Traction Company existed only on paper. We also think it inequitable for them to accept compensation for making the embankment when its purpose was to enable the road to be operated, and at the same time insist that the operation of the road must be discontinued by the Toledo & Monroe Railway in the manner authorized by the franchise of the Monroe Traction Company, because the Toledo & Monroe Railway is not authorized to operate a street railway as such, or as part of its through line, without compensation to the abutting owners, because it imposed an additional servitude.

The decree is affirmed, with costs of this court.

The other Justices concurred.


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    SAMBERG v. AMERICAN EXPRESS CO.
    1. Appeal — Wrong Reason por Right Judgment.
    A correct judgment will not be reversed because a wrong reason was given.
    3. Contracts-Signature — Erasure.
    A line drawn through the signature to an instrument cancels the signature.
    3. Written Instruments — Alterations—Burden op Proop.
    The party producing an instrument has the burden of explaining an alteration appearing on its face.
    4. Express Companies — Travelers’ Checks — Signatures.
    A traveler’s check issued by an express company is not payable to a third person unless it is countersigned in the manner agreed upon.
    Case made from St. Clair; Law, J.
    Submitted January 12, 1904.
    (Docket No. 24.)
    Decided June 7, 1904.

      Assumpsit by Ralph Samberg against the American Express Company on a traveler’s check. There was a judgment for defendant, and plaintiff assigns error.
    Affirmed.

      Atkinson & Atkinson (Moore & Brown, of counsel), for appellant.

      Cady & Crandall, for appellee.
   Moore, C. J.

The plaintiff sued upon the following agreement:

The
American Express Company Traveler’s Cheque
When countersigned below with this signature
A. J. Townsend —ÉFuiy-29;-4:9027-
The American Express Company At its Paying Agencies
Will pay to the order of...................................$50.00
(Safety and Dispatch)
In United States and Canada
Fifty Dollars
Countersigned: (See signature above)
-Ar-J — Tow-nsendv
Chas. G. Clark, Treasurer.
Written on the back as follows:
For identification of Ralph Samberg.
Ralph Samberg. S. L. Merriam.

The plaintiff’s account of how he became possessed of this check is as follows: He testified that A. J. Townsend was indebted to him; that Townsend was at Mt. Clemens, and he urged him to make a payment, and that he gave him the sum of $90; that the plaintiff told him he had more, and Townsend handed over to him a little pocketbook, in which there was a blank check and 'this express order, and—

“I looked at that and said, ‘This is good, all right enough;’ and he said it was not any good. ‘ Then,’ so I says, ‘ if it is not any good, you might as well burn it up and I went to get a match out of my pocket and touch it. He grabbed my hand and says: ‘No; it is all right. You .can get the money on it.’ So then I took the check and put it in my pocket, and went to Detroit with it.”

He testified that he knew the handwriting of Townsend, and that the name “A. J. Townsend,” where it appears on the check, is in the handwriting of Mr. Townsend, and that the face of the check is in the same condition it was when he got it. No other witness was sworn. The defendant refused to pay the check, and this suit was brought.

When the testimony was all in, a motion was made for a judgment in favor of the defendant for several reasons, —among others, for the reason that the check had not been countersigned as required in the contract. The court found, as a matter of fact, that plaintiff lawfully acquired possession of the instrument, with the intent on the part of Townsend to pass to him all the title that Townsend had, but found, as a conclusion of law, that the paper was a promissory note made payable to order, and not indorsed, and plaintiff was not, because of the verbal assignment, entitled to maintain the suit in his own name.

Counsel for appellant say the paper is not a promissory note, because it lacks certainty, and that plaintiff could maintain the action in his own name. We do not deem it necessary to discuss whether this is a promissory note. We have repeatedly held that, where the trial court has entered a correct judgment, it will not be reversed because a wrong reason was given. Lentz v. Insurance Co., 96 Mich. 445 (55 N. W. 993).

We have quoted all the material testimony of the plaintiff as to the circumstances under which he became possessed of this check. From that testimony it appears the signature of Mr. Townsend had a line drawn through it when the check came into plaintiff’s possession. We may take notice that this is the usual way of erasing or canceling a word. No testimony is given why this line was drawn through the signature, and that its purpose was not to cancel it. The court has recognized that an erased signature is as though there had been no signature. Stewart v. Bank, 40 Mich. 348. It has been held that if, on the production of an instrument in court, it appears to have been altered, the party offering it must explain this appearance (1 Greenl. Ev. § 564); that such alterations discredit the instrument unless removed (Henman v. Dickinson, 5 Bing. 183; Cillett v. Sweat, 6 Ill. 475).

Checks of a like character to this one have come into very general use, especially by travelers. They are an ingenious, safe, and convenient method by which the traveler may supply himself with funds in almost all parts of the civilized world, without the hazard of carrying the money on his person. The company has the right to refuse to pay when the 'check does not bear the countersign agreed upon. The owner of the check also has the right to insist it shall not be paid when it is not countersigned as agreed. This check was not so countersigned, and for that reason defendant was entitled to a judgment in its favor.

Judgment is affirmed.

The other Justices concurred.


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    ALEXANDER v. BERNARD.
    Deeds — Escrow—Forfeiture—Delivery.
    Where deeds were placed in escrow, together with purchase-money mortgages and notes, to be delivered to the purchaser and seller, respectively, upon the payment of a stated sum at a certain time, and the payment was duly made, a demand by the purchaser that the mortgages and notes should not be delivered until the title should be cleared from incumbrances did not prevent her from afterwards insisting upon a delivery of the deeds according to the terms of the escrow.
    Appeal from Gratiot; Stone, J.
    Submitted January 15, 1904.
    (Docket No. 48.)
    Decided June 7, 1904.
    Bill by Emma J. Alexander against Fred H. Bernard, Elsie Vandercook, and others, to compel the delivery of certain deeds. From a decree for complainant, the above-named defendants appeal.
    Affirmed.

      John T. Mathews, for complainant.

      Searl & Monfort and C. W. Giddings, for appellants.
   Moore, C. J.

This is an appeal by Fred H. Bernard and Elsie Vandercook from a decree in favor of complainant, compelling the delivery of two deeds held in escrow by defendant Fred H. Bernard. The bill of complaint was filed January 24, 1903.

On the 4th day of May, 1901, Elsie Yandercook, defendant, claimed to be the owner of two certain pieces of real estate in the city of St. Louis. George Freeland, his wife, Della A. Freeland, and their son, Perl E. Freeland, entered into an agreement with her to purchase one of said pieces of land at the price of $650, to be paid $50 down, $25 on the 15th of September, 1901, and $25 every three months thereafter until the balance of said purchase price should be paid. Perl E. Freeland at the same time entered into a like agreement with Elsie Yandercook to purchase the other of her said places; deeds to be made to the grantees upon payment of the $50 down upon each place', and purchase-money mortgages given back to secure the balance of the purchase money. Elsie Yandercook had no desire to sell one piece unless both were sold.

The papers were executed, and delivered in escrow to defendant Fred H. Bernard, who was cashier of the Com'mercial Savings Bank, to be' held by him, awaiting the performance of certain conditions contained in the contract of escrow, which was in writing. The grantees in each deed paid respectively the sum of $50 down, and thereafter the quarterly installments as they fell due, until it became apparent that the Freelands would not be •able to keep up their payments, when, on December 12, 1901, they made to the complainant quitclaim deeds of their rights, together with an assignment of all rights under and by virtue of the contracts between the, said grantees and the said Elsie Yandercook. The complainant kept up the quarterly payments as they fell due, and on or before the 15th day of March, 1902, had paid in addition to said quarterly payments the sum of $100, so that on the 13th day of March, 1902, there had actually been paid the sum of $400, — $200 on each place.

The escrow is, in a sense, ambiguous in its description of the papers that were covered and affected by it, as it refers to the fact that “a warranty deed” of lots 5 and 6 had been executed. Both parties agree that two warranty deeds were executed. It also refers to “a mortgage,” when in fact there were two mortgages. It then proceeds to state how long said deeds and mortgages are to remain with said Fred H. Bernard, — “until the sum of $300 shall have been paid, which amount said Freelands agree to' pay on or before March 15, 1902.” It provides that the said Freelands shall pay all taxes, and keep the buildings insured in a sufficient amount to cover said mortgages, payable to the said Elsie Vandercook in case of loss. It has this provision:

“ It is further mutually agreed that in case that the said Freelands shall fail to pay said $300 at the time aforesaid, to wit, March 15, 1902, the said Fred H. Bernard shall return to said Elsie Vandercook the said deeds aforesaid, and to the said Freelands the said mortgages aforesaid. ”

It is the claim of the complainant that all the conditions necessary to be performed to entitle her to the delivery of the deeds have been performed, and the circuit judge so decreed. It is the claim of defendant Vandercook that, because the holder of the escrow was notified not to deliver the notes and mortgages in his hands to the defendant Vandercook, complainant is not now entitled to have the deeds delivered to her. The record, we think, fairly discloses that, before the making of the final payment to Mr. Bernard, complainant’s attorney was of the opinion that the title of defendant Vandercook was not a free and unincumbered one, and sought to prevent the delivery of the notes and mortgages until a bill in chancery could be filed to compel defendant Vandercook .to make good the covenants of warranty,in the deeds; and for that reason the notice was given and correspondence had. In his letter of March 27th, the attorney for complainant wrote to defendant Mr. Bernard, among other things:

“Now, so far as the said deeds are concerned, Mrs. Alexander is ready to accept and allow mortgages to be delivered to Mrs. Yandercook as soon as incumbrances and clouds by tax titles are removed from said lots. Mrs. Alexander stands in the shoes of the Freelands, and expects to be bound by everything binding on said Freelands, and expects to perform their several agreements in the premises. Mrs. Alexander, on behalf of the said Free-lands, does not consent to a withdrawal of said deeds from escrow, but, if Mrs. Yandercook demands them, instead of taking measures to have said incumbrances and tax-title liens and clouds removed, and perfect the title, which said deeds declare to be free from all incumbrances whatever, and are warranted same, you can exercise your own ¡judgment as to the delivery of them back to Mrs. Yandercook. But a recall of said deeds will be at her peril, and be treated by the said Freelands and their grantees and .assigns as an intention not to' perform the contract in the premises of her, and you are notified not to surrender the •contract between said parties and placed in escrow with other papers.”

On March 28th defendant Yandercook caused a notice to be served upon the complainant and the Freelands reciting the fact that they refused to accept the deeds and deliver the mortgages and notes, and declaring the contract forfeited. Among other things, the notice contained .the following:

“And you are hereby further notified’that I have instructed the said Fred H. Bernard to return to you $237.17, paid in by you, or some of you, to the said Bernard, as provided by the terms of said written agreement, upon •each and all of you signing the receipt therefor now in his hands.”

On the 21st of January, 1903, a notice signed by the complainant and.all the Freelands was served on defendant Bernard, among other things containing the following:

“You are hereby notified that all notices heretofore served upon you by myself, or in my behalf, and George Freeland, Della A. Freeland, and Perl E. Freeland, in reference to the withholding of deeds and mortgages conveying or incumbering the title to lots 5 and 6 of block 40 of the city of St. Louis, are hereby canceled, withdrawn, and declared void by ourselves, and each of us. And we, and each of us, hereby make this as our written demand upon you to deliver to Emma J. Alexander the two certain warranty deeds made and executed; * * * she, the said Emma J. Alexander, having purchased from the said grantees mentioned in said' deeds the interest of said grantees, and being now the owner of all the rights, titles, and interests of said grantees in and to the premises conveyed by said warranty deeds.”

The testimony of defendant Yandercook shows that she never demanded from Mr. Bernard the notes and mortgages, but that she did demand from him the deeds. The record does not show there has ever been a refusal to deliver to her the notes and mortgages. Under these circumstances, is the complainant entitled to a delivery of the-•deeds ? The complainant answers the question affirmatively. The defendant Yandercook replies in the negative. The counsel on each side have prepared very careful-briefs,, discussing a great many legal questions. "We do not deem it necessary to discuss them. Warranty deeds, notes, and mortgages were made and left with Mr. Bernard. According to the written agreement, he was to retain the deeds until the grantees had paid $300, which was to be paid on or before March 15, 1902. More than this amount was- paid before that time. The only provision for a return of the deeds to Elsie Yandercook, and of the mortgages to the Freelands, is the following:

“It is further mutually agreed that in case that the said Freelands shall fail to pay said $300 at the time aforesaid, to wit, March 15, 1902, the said Fred H. Bernard shall return to said Elsie Yandercook the said deeds aforesaid, and to the said Freelands the said mortgages afore-, said. ”

That contingency never occurred. The complainant never desired the notes and mortgages back, nor did she desire to rescind the contract. She made all the payments as required. It is true that, under the advice of counsel, she did for a time insist the notes and mortgages should not be delivered until the title was perfected. She never refused to take a perfect title, and, after getting other counsel, she changed her mind about taking the deeds that were left with Mr. Bernard, and offered to take them. There is nothing shown by the record to prevent her from asserting the right to a delivery of the deeds.

The decree is affirmed, with costs.

The other Justices concurred.


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    LEMON v. GRAND RAPIDS & INDIANA RAILWAY CO.
    Railroads — Negligence—Sidewalks—Depot Grounds.
    A railroad company is bound to keep in a reasonably safe condition a path across its grounds which is customarily traveled by passengers in going to and from its depot, although it has provided for them another and safe way.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted January 15, 1904.
    (Docket No. 57.)
    Decided June 7, 1904.
    Case by John A. Lemon against the Grand Rapids & Indiana Railway Company for personal injuries. From a j udgment for plaintiff, defendant brings error.
    Affirmed.

      T. J. O'Brien and James H. Campbell, for appellant. E. A. Maher, for appellee.
   Moore, C. J.

This is an action brought by plaintiff to recover damages for injuries received by him upon the railroad premises at tbe village of Morley. The case was tried by jury. The plaintiff recovered a judgment of 1900. The defendant brings error.

The annexed plat will show the situation. The plaintiff was a passenger on a train which came from the south. It is his claim that there was a well-traveled path used by passengers going to and from the station, and leading from the station building past the pump in the station yard to the plank walk north of the depot; that the pump was placed in the station yard by defendant, and supplied the only water for drinking purposes used, by passengers waiting at the station, and that there was with it a drinking cup to be used for drinking purposés; that the water used for scrubbing out the station building was obtained at this pump, and that from the spout of the pump there was a trough several feet long to carry away the waste water, and that it did carry it across the beaten path, with the result that the water froze, and made a mound of ice in the beaten path, which was very slippery. His testimony was that, after alighting from the train, he followed other passengers traveling in the beaten path until he came to the icy place, which was covered with a thin fall of snow?> which concealed its dangerous character, when he fell, and received severe injuries.

It is the claim of defendant that it was the duty of the plaintiff to follow the crushed-stone walk, which it had provided for the use of passengers, until he came to the plank walk running to the east, and, if he had done so, he would not have been injured. It is the claim of the plaintiff that the crushed-stone walk was not for the exclusive use of passengers, but was also used by the trainmen, and especially those having charge of the baggage; that it was but five feet wide, and, when the baggage truck was opposite the baggage car receiving the baggage and mail, that the whole width of the walk was used.

The defendant rests its defense upon two propositions:

1. That the stone walk and plank walk having been provided by the defendant for the use of persons going to and from its station and trains, and those walks being in good repair and condition, and affording a proper, safe, and convenient means of passage for plaintiff in going from the train, the defendant is not liable for the injuries received by him falling when going across the premises by a short cut, instead of going upon the walks which the defendant had provided.
2. That the plaintiff, in going across the ground, outside the walks, and upon the ice near the pump, instead of going upon the walks provided by the defendant, which were then in proper and safe condition for use, was guilty of contributory negligence, which precluded a recovery by him.

It claims the court should have directed a verdict in its favor.

The court charged the jury, among other things, as follows:

“Now, gentlemen of the jury, I charge you that the mere fact that the plaintiff suffered an injury does not, of itself, entitle him to recover, but his right to recover depends upon whether the company (the defendant in this case) has been negligent in not keeping the way in a reasonably sáfe condition. If you find, gentlemen of the jury, that the plaintiff, while going from the defendant railway company’s depot at Morley on the 24th of December, 1902, made use of a path commonly used for passage on foot-across the company’s grounds by persons having occasion to go to and from the depot or trains on said grounds, and such path at the time appeared to be in general use for that purpose, and the plaintiff was exercising such a degree of care as a person of ordinary prudence would have exercised under the circumstances as they appeared at the time, and received the injuries complained of by slipping and falling because the defendant company had suffered or permitted such path to become and remain in a dangerous condition for passage by reason of ice upon the path, and snow covering and concealing such ice, then the plaintiff is entitled to recover the damages he has sustained by reason of such injury.
“ If you find, gentlemen of the jury, that the defendant, without objection, notice, or protest, permitted its passengers to cross its depot grounds on this diagonal walk or line, then it .was its duty to keep its grounds along such walk in a reasonably safe condition for the coming and going of its passengers; and, if you find that the defendant permitted such use, it makes no difference that there was another and safer way by which the plaintiff might have passed out. If this diagonal way had been a public and common way, to the knowledge of the defendant, for any considerable length of time, so that it became one of the ways recognized by the company and its agents to go to and from the depot, then it was the duty of the company to keep it reasonably safe to go and come upon, the same as it would a route which it had actually provided. That is to say, gentlemen of the jury, that although there may have been other and safer ways of going from the depot to the town, yet, if the railroad company had permitted this to be used, and it had become of general use, and the company knew it and permitted it, then it became a way of egress which it was the duty of the company to keep in reasonably safe condition before they could escape liability for injuries which might be occasioned by reason of their neglect to keep it in a reasonably safe condition.”

If the jury believed the testimony offered upon the part of the plaintiff to be true, it brought the case within Cross v. Railway Co., 69 Mich. 363 (37 N. W. 361, 13 Am. St. Rep. 399). See Collins v. Railway Co., 80 Mich. 390 (45 N. W. 178); Flagg v. Railway Co., 96 Mich. 30 (55 N. W. 444, 21 L. R. A. 835); Hutch. Carr. § 519. We think the questions involved in the case were properly submitted to the jury.

Judgment affirmed.

The other Justices concurred.


text:
    TAYLOR v. WITHINGTON & COOLEY MANUFACTURING CO.

    Master and Servant — Negligent Injuries — Assumption of Risk.
    A master is not liable to a servant for an injury caused by the breaking of an emery belt, where the servant was employed with the knowledge that belts were apt to, and often did, break, and his work was such that he could know better than any one else if the belts were defective, unless the employer failed to remedy the defect after his attention was called to it.
    Error to Jackson; Beck, J.
    Submitted February 23, 1904.
    (Docket No. 20.)
    Decided June 7, 1904.
    Case by Albert Taylor against the Withington & Cooley Manufacturing Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Counsel for appellant have complied with the rule in making a statement of facts. Its correctness is not challenged, and we therefore adopt it:
    On January 11, 1901, the defendant was, and for many years had been, operating in the city of Jackson extensive tool and implement shops. It had a shop inside the State prison, and one outside. One branch of its work was the polishing of forks by means of emery belts 15 feet long, running over wheels or pulleys 2£ feet in diameter. The combination of belt and wheels will be referred to as the polishing machine. There were many of these machines in the prison shop, and eight of them in the outside shop.
    The emery belts were of leather, and from 2 to Si inches wide, and were of three kinds, — roughing belts, or belts used for taking off the rough surface of the forks and for grinding them down; heeling belts, or narrow belts used for grinding the heel of the fork and the angle between the tines; and finishing belts, or lighter belts, with finer emery upon them, used for coloring or polishing the forks. Each operator in the outside shop had a set of from 6 to 11 belts, consisting of roughing, heeling, and finishing belts. This set was given to him new, and he had the exclusive use of them until they were worn out and discarded. They are intended to last about a year.
    The belt which broke was an old belt, which had been received by plaintiff when new, and he alone had used it from the time it was given him new until it broke and injured him. He had used it several months. Plaintiff took the belt when new, and put it on the machine, and sandpapered the rough part off, and cut an arrow on the underside, to determine which way it should run on the wheels as to laps>; also cut his number on the belt, in order that it might be distinguished from the others. Then the belt was handed over to Mr. Kitcher, referred to in the testimony as repairer or inspector, who put a coat of emery on the belt, and hung it on the peg or rack of the operator to whom the belt belonged, which peg or rack was near the operator’s machine; and the operator took the belts off from this peg as he needed them, and put them on his machine for use. The back one of the two wheels could be moved nearer to or farther from the front wheel by means of a screw controlled by the operator, and, “from experience,” he learned what tension to put on the belt by means of this screw. They had to be on good and snug in order to polish the forks. The belts of plaintiff ran about 1,000 revolutions a minute.
    There was a jack next to the machine, consisting of a rod or lever fastened by a pivot to a stationary post about the height of the top of the machine, or upper part of the belt. On one end of this arm or lever was a spring, attached to the floor, which held that end of the lever down when no pressure was applied to the other. On the other end of the lever was a cord or wire attaching it to a foot treadle, to be used by the operator in exerting a pressure with his foot, so as to pull that end down upon the belt; and to this end of the lever was also attached a hook, used to catch onto a fork; and by this jack or device greater pressure could be exerted upon the belt with the fork by the operator.
    New belts would not hold emery as long as old belts. The emery on a belt would last to polish from one fork to three dozen.' Every time a roughing belt was used, a new coat of emery had to be put on by Mr. Kitcher, the repairer. A belt could be re-emeried one, two, three, or four times, according to the belt, and then the operator had to chop the emery all off from his belt, after which Kitcher would put on a new coat of emery. In removing the emery, the operator stood behind the rear wheel of his machine, and chopped with a piece of scythe all the emery from the belt; and in doing so the machine was stopped, and the operator pulled the belt with his hand, little by little, and chopped against the rear wheel, until he had pulled the belt clear around, and cleaned off every inch of it.
    The belt in question had broken when plaintiff was using it the day before the accident, and, in breaking, it flew out behind his machine, to near where Repairer Kitcher’s workbench was; and Kitcher repaired the break in the belt, and emeried it, and hung it on the plaintiff’s peg, where, on the morning of January 11, 1901, the plaintiff found it with his other belts; and about 10 a. m. of that day he placed the belt upon his machine, and had not used it over five minutes when it broke (but not in the repaired portion), and forced the fork he was polishing against his right eye, destroying its sight. The belt, as it appeared after the accident, was in evidence at the trial, and showed two coats of emery on it. This proved that it had been cleaned by plaintiff the second time it was used before it broke the last time, and Kitcher had put on a new coat of emery.
    The repairer’s (Kitcher’s) position or bench was about six feet from the plaintiff’s machine, and where the plaintiff had an opportunity of seeing what the repairer did with the belts; saw- him emery belts, cut belts up, and repair them. There were eight polishing machines in the shop where plaintiff worked, numbered from 1 to 8, all similar to plaintiff’s machine. Plaintiff’s machine was No. 1, and situated at the north end of the shop. To the south of him were machines 2, 3, 4, 5, and 6, each exactly like plaintiff’s, and directly east of 5 and 6 were machines 7 and 8, similar to the others, only smaller. Plaintiff, as he worked, 'stood on the north side of his machine, facing the others, and could see every machine in the shop, unless at times piles of forks hid his view. He had worked at the machine for over two years and two months, at the same kind of work. Had seen belts break in that room. Couldn’t tell how many. Admitted that a dozen might have broken on his own machine in two years. Had heard of only one man being injured by a fork before. Had a fork jerked out of his hands once or twice. Had seen a belt break and hit the hood of the machine so hard as to break out a piece of the belt. He was working by the piece. He did not examine the belt, or look to see if it was safe, before he put it on his machine the morning he was hurt. When he saw a defect in the belt, he called the repairer’s attention to it, and had it fixed. He knew that defendant used old belts, and knew that belts broke. Admits that, when a belt breaks, there is no telling which way the ends will fly.
    One Eugene A. Taylor, plaintiff’s witness, a workman of large experience in the same shop at the same time, as well as in another shop, testified that he thought the breaks would average one in two days in the whole shop, or a belt to a machine about every sixteen days, — sometimes oftener. He had known of their breaking several in a day. So common were breaks of the belts that planks were put in between the machines for the purpose of preventing belts, when breaking, from flying over to other operators.
    One Cameron was the superintendent of the factory, one Morris was foreman, and one Converse showed the men how to operate the machines. When a belt broke, it made a noise that ordinarily attracted the attention of all the workmen. Whenever a polisher wanted a new belt, he applied to Morris, the foreman, for it.
    The negligence complained of by plaintiff was that Mr. Kitcher, being an inspector of belts for defendant, furnished plaintiff with a belt which was too thin, and that Kitcher’s negligence was the negligence of the defendant. Plaintiff recovered a verdict.

      Smith & Townsend, for appellant.

      Bichard Price {Charles A. Blair, of counsel), for appellee.

      Rehearing denied October 27, 1904.

   Grant, J.

{after stating the facts). Did the plaintiff assume the risk? The following facts are conceded: Defendant furnished a good, sound belt. The court so instructed the jury. It had furnished a competent repairer, Mr. Kitcher. If it was his duty to inspect the belts, he was entirely competent for that purpose. The business was dangerous. Belts were constantly breaking, but in the many years of the defendant’s business but one other person had been injured. To lessen or avoid the danger from breaking belts, planks were put up to prevent their flying and hitting other employés working near. The principal danger arose from the breaking of the belts.

The plaintiff was properly instructed how to do the work. He was an experienced workman. The condition of the belt was clearly as apparent to him as to any one. Belts wore more or less, and did not wear evenly. The strength of the belt did not always depend upon its thickness, but to a considerable extent upon the quality of the leather. All the witnesses, including the plaintiff, testified that, if the belt was thin in places, they knew it at once, because, as the fork was held'upon the rapidly revolving belt, it would jump as it struck the thick and thin places. All the witnesses, including plaintiff, state that, when they saw a belt was defective, it was their custom to call the attention of the repairer to it. It was also a duty which the operators owed to themselves and to their employer. When cleaning the emery from the belt, every inch of it was under the eye and inspection of the operator. If it was thin, he would know it before any one else. Plaintiff .testified that he could then determine whether the belt was too thin. Plaintiff’s witness Converse, the oldest operator in the shop, testified that there was no one who could see more of the condition of the belt than could the operator when he cleaned it with his scythe. It was both known and understood that the belts wore thin from use. All admit that when, in their judgment, a belt became unfit for use', it was their custom to throw it aside and get a new one from the foreman. It was their duty to do so. Plaintiff made no complaint, either .to Kitcher or to the foreman, that the belt was unfit for use.

I. think this is clearly one of those cases where the workman assumed the risk. It is not reasonable, in my opinion, to hold that the defendant was responsible for the consequence of breaking belts, when the contract of employment was made with the knowledge and understanding that they were apt to, and did often, break. Before an employé could fasten liability upon the defendant, it was his duty to call the attention of the representative of the defendant to the defect. If then he was not supplied with a new belt, or the old one could not be, and was not, repaired, then the defendant would undoubtedly be liable.

Judgment reversed,, and new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    SCHMIDT v. WAYNE CIRCUIT JUDGE.
    1. Costs — Taxation—Appeal—Judgment. .
    A judgment for costs cannot be disregarded by thé clerk in taxing costs, nor disregarded or amended by the circuit judge on appeal from the taxation.
    2. Same — Want of Exceptions.
    Objections to the taxation of items of costs, to which no exceptions were taken before the clerk, cannot be considered on appeal from his taxation.
    3. Same — Mandamus.
    The action of the oircuit court in retaxing costs may be reviewed on mandamus.

      Mandamus by Christina Schmidt to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate a re-taxation of costs.
    Submitted March 23, 1904.
    (Calendar No. 20,156.)
    Writ granted June 7, 1904.

      Barnes & Race, for relator.

      James Swan, for respondent.
   Hooker, J.

An action of trespass upon lands was certified to the circuit court upon a notice that title to land would' come in question. The plaintiff recovered a verdict and judgment for $43 and costs. The costs were taxed by the deputy clerk at $81.15, against the claim on the part of defendant that plaintiff was not entitled to -costs, inasmuch as she recovered less than $50 damages. The defendant appealed from this taxation to the circuit court, alleging as grounds (1) that, it not being found that the trespass was malicious, plaintiff was not entitled to any costs; (2) that, the amount of damages recovered being less than $50, no costs were taxable for the plaintiff. The circuit court overruled both of these points, but struck out two items from the bill of costs as taxed, viz.: (1) A term fee of $5, which he said it was not the practice to allow in such cases; (2) the item of $27.05, being amount added as double costs, under 1 Comp. Laws, § 789. A mandamus is asked to compel the vacation of said order, and the taxation of costs at the amount taxed by the deputy clerk.

The judgment entered in the cause was for costs. If the defendant was entitled to costs by reason of the smallness of the verdict, or if neither party was entitled to recover costs, the judgment for costs was erroneous, and could have been corrected upon writ of error. It was not for the clerk to disregard the judgment, but it was his duty to tax the costs in accordance with it; and the circuit court, on appeal from the. taxation, could neither disregard nor amend the judgment. Again, no exception was taken to the allowance by the clerk of the term fee or the item of double costs. See Sherman v. Washtenaw Circuit Judge, 52 Mich. 474 (18 N. W. 224, McGrath, Mand. Cas. 579); Fisher v. Kent Circuit Judge, McGrath, Mand. Cas. 604. The circuit court should not, therefore, have disallowed the items. Consequently it is unnecessary to pass upon the question of the propriety of the taxation of the items mentioned. See Haney v. Muskegon Circuit Judge, 101 Mich. 392 (59 N. W. 662). We are aware that in some instances the rule has been disregarded, where the question of remedy has not been discussed; but it seems clear that an erroneous judgment that a party recover his costs to be taxed should be reviewed on error, and in no other way, whatever may be the method of reviewing the action of the circuit court in matters arising upon his review of the taxation of costs.

It is said that mandamus is not the proper remedy to review a retaxation, and this is supported by the case of People v. Wayne Circuit Judge, 14 Mich. 34, in which it is said that error is the proper remedy in such a case, and that mandamus is not. That case accords with the rule in other States, but we are of the opinion that later decisions of this State are not in harmony therewith; several cases holding that error is not a proper remedy, and that matters arising upon taxation of costs have no place in a bill of exceptions, though we see no reason why they should not be considered when they are so included, as is done in other States, and as has probably been done without objection in some cases in this State. It would seem superfluous to compel an appellant to supplement his writ of error with a certiorari or mandamus, or lose the benefit of his points upon the taxation of costs. But the cases of Abbott v. Mathews, 26 Mich. 176, Forman v. Insurance Co., 33 Mich. 65, and Stebbins v. Field, 43 Mich. 336 (5 N. W. 394), hold that error is not the proper remedy. These cases do not point out the proper remedy* but it has been the common practice to review the action of the circuit court by mandamus in retaxation proceedings.

The writ is granted, with costs.

The other Justices concurred.


author: Hookee, J.

text:
    CAVANAGH v. TOWNSHIP OF RIVERSIDE.
    1. Personal Injuries — Defective Highways — Proof of Notice..
    In an action against a township for personal injuries caused by a defective highway, the burden of proving that defendant, had notice of the defect is upon the plaintiff, and such fact cannot be inferred from defendant’s failure to call the overseer of highways as a witness, in the absence of some evidence to indicate that he had notice.

      2. Same — Argument of Counsel — Error.
    In such an action, it was error for plaintiff’s counsel to comment to the jury on the fact that the overseer of highways was not called by defendant as a witness, and to persist in such comment after objection, where there was no evidence to show that the overseer had notice.

      3. Same — Question roe, Jury,
    Where, a few days before an accident on a highway, rain had washed the dirt from the traveled portion, leaving a hole, the length of time the hole had existed, and its notoriety, were properly submitted to the jury, as bearing on the question of notice or knowledge.
    Error to Missaukee; Chittenden, J.
    Submitted April 5, 1904.
    (Docket No. 3.)
    Decided June 7, 1904.
    Case by Ethel Cavanagh against the township of River.side for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      F. O. Gaffney (D. E. McIntyre, of counsel), for appellant.

      Sawyer & Bishop, for appellee.
   Hookee, J.

The plaintiff, while riding with her husband in a lumber wagon, was thrown from the seat and injured by the dropping of the front wheels into a chuckhole in the highway. The wagon-box was filled with wood piled crosswise, and the seat was well to the front, so that plaintiff’s feet rested outside of the wagon, upon a board 3-J inches wide, spiked to the wagon-box at right . angles. The seat consisted of a board covered by two horse-blankets and a quilt, and was about 6 inches higher than the sides of the box. The highway crossed what had once been a swamp. A corduroy road was first constructed, and this was covered by dirt and gravel.1 It had been turnpiked, the last work having been done in October previous to the accident. A few days before the accident, heavy rains washed out the dirt, and caused the chuck-hole referred to. It is claimed that no direct evidence of notice was given.

Three questions are discussed, viz.:

1. The argument by plaintiff’s counsel to the jury, i. e.:
“ Mr. E. P. Sawyer, attorney for the plaintiff, in his argument to the jury, said:
“ ‘And right there upon the front seat in this court-room sat Mr. King, the overseer of highways of this district.’
“Mr. Gaffney, Counsel for Defense: ‘I object to that, and take an exception to it.’
“Mr. Sawyer: ‘I am entitled to comment to you on the fact that Mr. King, the overseer of highways of that district, sat right there, upon the front seat in this courtroom, during the trial of the case, and that he was not called as a witness by the defense. I ask you why he wasn’t called, gentlemen of the jury. Because he would have been compelled to admit the dangerous condition of the highway at that very place.’
“Mr. Gaffney: ‘Note an exception to the remarks of counsel to the jury. I object and except to counsel stating to the jury that the overseer of highways for that district sat upon the front seat here in the court-room, and was not called because he would have been forced to admit the dangerous condition of the highway at that particular place. I desire to except to the remark because it is not true, and there is no evidence in this whole case of its existence.’
The Court: ‘ Take your exception.’
Mr. Sawyer: ‘ Mr. Gaffney will not deny but that the-overseer of highways sat upon that seat there in this courtroom.’
“Mr. Gaffney: ‘We except' to the statement. There-is no evidence whatever of it, and it has nothing to do-with this case.’
The Court: ‘Note the exception. Proceed.’
“Mr. Sawyer: ‘Oh, I don’t wonder that, my brother objects to this statement.’ t
“Mr. Gaffney: ‘I object to that, your honor. My position in this matter is a matter of law.’
“The Court: ‘Take your exception. Proceed.’
‘ ‘ Mr. Sawyer: ‘ I say that it is the province of counsel to comment on the fact that certain witnesses have not been called in the case, and that is all I have now done.’ ”
2. Whether the proofs warranted an inference of notice or knowledge by reason of the length of time the defect, had existed.
3. Contributory negligence, it being contended that the case should have been taken from the jury upon this ground.

The alleged improper remarks of counsel in his argument to the jury: Mr. King was the overseer of highways of the district in which the accident happened. The argument tended to lead the jury to infer that he had notice of the defect, and that, had he not, he would have been called for the defendant to show the fact. There are cases in which it is proper to draw inferences from the failure of parties to call particular witnesses, but, before such an inference is proper, there should be something in the case imposing some sort of duty or obligation to call such witness. See Anderson v. Russell, 34 Mich. 109; Bendetson v. Moody, 100 Mich. 557 (59 N. W. 252). This was a case where the burden of proving notice was upon the plaintiff, and it was not to be inferred from the failure of the defendant to call Mr. King, in the absence of some evidence to indicate that he had received notice. Counsel for the plaintiff admits the impropriety of the language, but asserts that it could do no harm, and that he did not pursue the matter after objection was made. We are of the opinion that the record shows that it was pursued until four different exceptions were made, and that counsel for plaintiff “had the last word” in the dialogue resulting from the improper argument.

The other points may be disposed of in a word, it being unnecessary to review the testimony, which was conflicting. It was proper to leave the length of time that the hole existed, and its notoriety, to the jury, and the same is true of the question of contributory negligence.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.