author: Stone, J.

text:
    FREMONT CANNING CO. v. PERE MARQUETTE RAILROAD CO.
    1. Parties — Actions—Joint Ventures — Partnership.
    While it appeared that plaintiff and another firm were jointly interested in the shipping and selling of peaches, and plaintiff attended to the buying and loading, the other firm to selling the peaches for one-half the profits, plaintiff was rightly permitted to recover for the failure of defendant railroad company to provide sufficient cars, pursuant to a preliminary order and arrangement with the plaintiff with whom the contract relations for shipping freight were concluded by defendant, the evidence showing, also, that damages were claimed for peaches which the plaintiff was forced to can and in which the other firm was not jointly interested.
    2. Carriers — Freight—Delay in Furnishing Cars.
    Where plaintiff claimed that it ordered refrigerator cars from defendant railroad company in which to ship peaches, having, previously to the order, advised defendant that a large number of cars would be needed to move the crop in that vicinity, that defendant neglected to provide refrigerator cars as they were needed and requested, so that plaintiff had to can the peaches and was compelled to use inferior and soft fruit, evidence tending to support the claims was properly submitted to the jury as a question of fact, under the terms of Act No. 300, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6531).
    3. Same — Trial—Instructions.
    It was also proper to charge the jury that the dispute was whether the cars were furnished, as requested, and if they were not furnished, whether there was a reasonable excuse; that the goods were perishable, that defendant’s duty was not confined to furnishing cars for the village that plaintiff shipped from, that the railroad could not discriminate and must treat all shippers alike, that it was plaintiff's duty to do everything it could to take care of peaches which were left on its hands by reason of defendant’s failure to furnish cars, that if it used such peaches in the canning factory and they had deteriorated in value and plaintiff suffered damages accordingly, the verdict should be for that amount, provided the damage resulted from defendant’s failure to furnish refrigerator cars, that it was no defense that persons who should have furnished ice for the cars failed or neglected to provide ice, nor was it a sufficient defense that defendant placed more cars at the point of shipment during the season than plaintiff ordered if defendant failed to furnish cars on the dates for which plaintiff ordered them.
    4. Damages — Mitigation—Carriers.
    Where plaintiff showed that, because of the failure of a common carrier to furnish refrigerator cars for shipping peaches, plaintiff sustained a loss and was obliged to use soft peaches in its canning factory, and that it minimized the damages by saving such fruit as was fit for canning, claiming as a part of its damages the waste resulting from the defective peaches, defendant could not complain of the measure of damages adopted.
    5. Evidence — Written Contract — Bill of Lading — Railroads.
    Although bills of lading which were not shown to be genuine were incompetent as evidence of delivery of the freight to the carrier, any error committed in receiving them was cured by the reception in evidence of receipted freight hills covering the same ground and showing the same facts.
    6. Carriers — Negligence.
    It was also proper to submit to the jury plaintiff’s claim that the cars were delayed in transit to the place of consignment, supported by its testimony and contradicted by evidence offered by the defendant.
    7. Same — Weight oe Evidence.

      Held, that there was evidence supporting a verdict for plaintiff’s entire claim and the judgment should not be reversed as excessive.
    Error to Newaygo; Barton, J.
    Submitted January 28, 1914.
    (Docket No. 76.)
    Decided April 7, 1914.
    Rehearing denied June 4, 1914.
    Case by the Fremont Canning Company against the Pere Marquette Railroad Company for damages to freight, delay in shipments and in providing cars, etc. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Parker, Shields & Brown (Seward■ L. Merriam, John C. Bills, and William J. Branstrom, of counsel), for appellant.

      Hall & Gillard, for appellee.
   Stone, J.

This is an action of assumpsit brought to recover damages upon three separate and distinct causes of action, which are set forth in three separate counts. Counsel upon both sides, in presenting the questions to be considered, have treated the counts separately, and we will attempt to pursue that course in disposing of the case.

In and by the first count of the plaintiff’s declaration it alleges that in 1911 it was engaged in carrying on the business of canning fancy fruits and vegetables, and also buying and selling fruits at wholesale and in car lots, and had its principal place of business at the village of Fremont, Newaygo county. The declaration alleges that the country adjacent to the village of Fremont, at the time mentioned was, and for some time prior thereto had been, largely devoted to the raising of fruits, and particularly to the raising of large quantities of peaches, and during the season of harvesting the said fruit large quantities of peaches were shipped to various points outside of Fremont by the defendant; that during the summer of 1911 plaintiff contracted with the fruit growers of Fremont and vicinity for the delivery of large quantities of peaches to be delivered to it when they should be harvested, and agreed to pay said farmers a specified price therefor, said peaches to be delivered to the plaintiff at Fremont, some to be canned and packed by the plaintiff in its factory, and some to be shipped by the plaintiff to the wholesale trade at various points in Michigan in car load lots; that as the season advanced it became apparent to plaintiff that, owing to the large crop of peaches, there would be a special need of good transportation facilities to properly dispose of said peaches when they should be harvested and delivered to the plaintiff as aforesaid; that early in the month of August, 1911, it notified the defendant, in writing, of the conditions of the peach crop in Fremont and vicinity by a letter written by Frank Gerber, the manager and treasurer of the plaintiff, to one Frank Frisby, the local agent of the defendant, company at Fremont. That letter was as follows:

“August 2, 1911.
“Frank Frisby,
“Fremont, Michigan.
“Dear Sir:
“Referring to our conversation relative to the peach crop and the necessity for better service than we have ever had before, beg to say that the more we think of this matter, the more we are impressed that to move this crop and prevent very serious losses, it will be necessary that we have different and better train service than we have had in previous years. We are addressing this letter to you and shall ask the other fruit shippers to sign same and would request that you forward the letter with your comments to the proper official of your company.
“The peach crop this year will be far greater than any previous season, and, as we are driving in the country daily, and having this peach crop in mind, we observe large numbers of small orchards which are coming into bearing and which we have never known about before. The aggregate of the crop from these young orchards are of varieties that mature during about the middle of the regular peach season, so that there is going to be a time when the movement will be extremely heavy, although we believe there will be several cars to move every day from this point from the day the season opens until it is finished.
“It seems to us that this business is of sufficient importance to your company to warrant special services with a train starting from Muskegon in time so as to place refrigerators here about 7:00 a. m.. and returning leave White Cloud at 1:00 or 2:00 p. m., and get through here around the middle of the afternoon, or in time so that connections could be made with your trains out of Muskegon.
“Trusting that you will give this matter your immediate attention, and with best wishes, we remain,
“Yours respectfully.”

This letter was also signed by E. L. Boyd, Fred Marshall, and others purporting to be fruit shippers. The following reply was received signed by F. Hartenstein, superintendent of the defendant at Grand Rapids, Mich., viz.:

“August 26th, 1911.
“Mr. Frank Gerber, Mgr.,
“Fremont Canning Company,
“Fremont, Michigan.
“Dear Sir:
“Your letter to our agent at Fremont relative to the handling of fruit business at that station has been referred to me.
“I do not think that after it is well started there will be any reason for complaint by any of the fruit shippers between White Cloud and Muskegon. I am contemplating putting in a train service there that will fulfill the requirements.
“Yours truly,
“F. Hartenstein,
“Superintendent.
“Copy to Mr. W. H. Romoser, Mr. W. J. Quinlan, Mr. F. Frisby.”

The declaration further alleges that peaches are a highly perishable commodity, and can be safely shipped only in refrigerator cars, properly iced, and will spoil if not so shipped, and not placed under ice very shortly after they have been harvested; that this is especially true as the peach harvesting season begins during the latter part of August, when the weather is very warm, and peaches require quick handling and good refrigeration in order to keep them from spoiling, all of which facts were known to the defendant; that the plaintiff had been in the canning business for a number of years, and had gained a reputation among the trade for canning and packing only first-class fruit, and especially a first-class brand of peaches; that the defendant, in consideration that the plaintiff should deliver to it by way of its business as common carrier aforesaid the peaches which it should ship in car loads, undertook and promised that it would furnish to the plaintiff at the places designated by it, and at the times designated by it, all of the refrigerator cars needed by it to load the peaches into for certain compensation and reward. It is complained that, notwithstanding the duty of the defendant, it wrongfully, unlawfully, and negligently failed and refused to place at the plaintiff’s disposal for loading peaches the number of refrigerator cars ordered by it on the date for which they were ordered, and wrongfully and negligently failed to deliver some of the cars for two or three days after the same were ordered, placed some of the cars for loading in the nighttime, when they should have been placed in the morning preceding the night; that, by reason of the wrongful conduct and neglect of the defendant, great quantities of peaches were delivered to the plaintiff which it had no way of shipping; and, before the cars ordered by the plaintiff of the defendant had been placed by the defendant, the peaches had become so soft that they could not be shipped, and were unsalable in their condition, and would have been a total loss but for the acts of the plaintiff hereinafter stated.

Plaintiff avers that when the cars did not arrive it was unable, because of defendant’s wrongful acts, to put the peaches in the cars and on ice; that the peaches had begun to deteriorate, and would have been totally spoiled when the cars did arrive; that the plaintiff, therefore, took the peaches that were beginning to deteriorate in value because of defendant’s wrongful acts and used them in its factory, canning and packing them, and thereby saving said peaches from being a total loss, and did everything in its power to make defendant’s loss, occasioned by its own wrongful act, as light as possible.

The declaration further avers that, had it not been for the wrongful acts of defendant above mentioned, plaintiff would not have been obliged to have canned and packed anything but a first-class quality of peaches, but, owing to the fact of the wilful, wrongful, and negligent acts of the defendant aforesaid, it was obliged to and did can and pack the peaches which had deteriorated, and thereby the enviable reputation of the plaintiff as a canner and packer of a first-class brand of peaches was injured and greatly damaged; that, by endeavoring to make the defendant’s loss as light as possible, and using in its factory the peaches which had deteriorated, it became and was necessary to use many more bushels of peaches than it would have taken if it had been able to use a first-class quality of peaches to obtain the same number of cans; that plaintiff had to pay its contract price for the peaches, as they were first-class when they were delivered, and would not have canned any but first-class peaches if the defendant had delivered the cars as it should have done, whereby the plaintiff paid out large sums of money for good peaches; and, solely because of the wrongful acts of the defendant as aforesaid, said peaches deteriorated in value, and the plaintiff suffered heavy losses thereby to its damage.

As we understand the plaintiff’s position, it is that the damage which it seeks to recover under the first count of its declaration is the loss which it claims it sustained by reason of being obliged to can peaches that had become soft by reason of the neglect and delay of the defendant in furnishing refrigerator cars. The plaintiff offered testimony tending to show the amount of damage sustained by it on account of its having to can the soft peaches in order to prevent such peaches from being a total loss. This testimony was given, in the main, by Mr. Gerber, manager and treasurer of plaintiff, who testified that he had had many years’ experience in the business at that place, and the testimony tended to show that the loss occasioned by the failure of the defendant to furnish cars promptly made it necessary to can 3,337% bushels of peaches, or over 10 per cent, more than it would have taken had the peaches been in good condition for canning. Estimated at a loss of 9% per cent, on the amount, brought a total loss under this count, as claimed by the plaintiff, of $1,656.03, which was the amount of damage plaintiff claimed under the first count.

The record in this case is very voluminous, and it will be impracticable to quote any considerable portion of the testimony.

Upon the trial of the case it was the claim of the defendant that there could be no recovery in the case, because it appeared that Loveland & Hinyon Company should have been joined as a plaintiff in the case. That claim is based mainly upon what appeared in the examination of the witness Gerber. He testified on direct examination as follows:

“We made arrangement with Loveland & Hinyon Company for the shipping of peaches, a joint account arrangement. This joint account arrangement contemplated that Loveland & Hinyon Company would attend to the selling of the peaches. We would attend to the buying and loading, and then we were to divide whatever profit was made in the operation. This arrangement was made about August 18th. Up to that time the Fremont Canning Company had purchased or made contracts for approximately 15,000 bushels, and very few had been delivered. * * * I cannot say accurately without my records how many peaches were required by the canning company to be used in its factory during the season of 1911. Under our arrangement with Loveland & Hinyon Company the canning company was to take whatever peaches were required for our canning operation from the peaches purchased by the joint account. We were first to take those before any were shipped. As the peaches were brought in each day, they were placed! on our platform. We kept the factory in operation, taking such peaches as were required for the operation of the factory, and the remainder were supposed to be put in the refrigerator cars and shipped. The peaches were loaded into refrigerator cars the day they were brought in, if cars were available. After the 2nd of August our field man estimated that 300 cars of peaches would be shipped. I had numerous conferences with Mr. Frisby in regard to that, and we gave him our ideas from time to time as the season progressed as to the extent of the crop. * * * When the cars were placed and loaded, they were billed out. The instructions as to the billing were given by Loveland & Hinyon Company. * * *
“Q. Whether or not you could on all of these days have had good peaches to run through the canning factory, peaches in good condition?
“A. We could have used the sound peaches as they came in to the exclusion of those that we had on hand.
“Q. Why did you use the soft peaches?
“A. Why, to minimize the loss; to keep it down.
“Q. Whose loss?
“A. The loss of all concerned.
“Q. And who is all concerned?
“A. Why, both ourselves and Loveland & Hinyon Company, and we felt that the railroad company.”

On cross-examination he testified as follows:

“We entered into a joint account arrangement with Loveland & Hinyon Company about August 18th. That may not be the exact date, but it is around that time; at the beginning of the shipping season or a day or so earlier. Under our agreement with Love-land & Hinyon Company we were to buy the peaches through .our agents from the growers, and the peaches were to be shipped in the name of Loveland & Hinyon Company to their customers, and the profits and losses divided equally after certain agreed charges were made; the charges were a labor charge, and a ■charge for the cost of the baskets, and incidental charges. The profits were to be divided equally. We paid for these peaches, and then invoiced on Love-land & Hinyon Company for them, and then they sent us on the money, and the value of the whole account was to be adjusted at the end. In reality they provided the money except for a short interval; that is, I should still further qualify that they provided the money for that portion that we shipped except for a short interval. * * *
“Q. Are you interested in the suit of Loveland & Hinyon Co. v. Pere Marquette?
“A. Yes, sir.
“Q. What is your interest in the outcome of the suit?
“A. We are interested in whatever may be recovered on the shipments in which we are interested in that joint account arrangement as I told you.
“Q. Shipments of peaches out of Fremont?
“A. And Ludington and other points where the joint account may have — where peaches may have been shipped for this joint account. * * *
“Q. State whether Loveland & Hinyon were interested in the peaches which you bought in the open market.
“A. They were.
“Q. As the season progressed?
“A. Yes, sir.
“Q. State whether they were interested in the peaches that were bought under contract from these growers.
“A. They were.
“Q. Then they were interested in all the peaches that you bought during that season?
“A. All that we bought at Fremont, and a portion that we bought at Ludington and other points.”
On redirect examination he testified:
“Q. Calling your attention to your testimony as to paying for these peaches, and then invoicing to Love-land & Hinyon Company, how did you arrive at the price at which the canning peaches were to be paid for?
“A. We arrived at the price at which the canning peaches were to be paid for with Loveland & Hinyon by calculating at the time the contract was made the probable cost of the peaches suitable for filling the orders then on our books, and the price was based upon $1 a bushel for the best varieties and the best fruit. We then determined about what prices fruit would be expected to cost us for the different grades that we were to pack or that we might pack in the ordinary course, one year with another, and we fixed the price as 70 cents per bushel for the yellow peaches that we might uée in the factory and 50 cents for the white peaches. We paid these prices to the joint account throughout the season, and this is the price we paid for peaches which became soft, and which we ran through the factory; yes, sir. * * * My object in buying peaches on the open market during the season of 1911 was to carry out the spirit of our contract with Mr. Hinyon, and also to reduce the average cost of our fruit, and increase our chance of profit. * * * Some of the peaches shipped by the Fremont Canning Company were billed Fremont Canning Company, some Loveland & Hinyon Company. * * * 99

Rebuttal:

“Now, according to the contract with Loveland & Hinyon Company on our joint account arrangement, the canning factory was to use whatever peaches it required, and we were to pay for those peaches at the rate of 70 cents a bushel for yellow peaches and 50 cents a bushel for white, which was the average price that we presumed at the beginning of the season that this fruit would cost us under the conditions that we then expected.”

Recross-examination on rebuttal:

“Q. And those were all bought from what?
“A. The joint account.
“Q. At what price?
“A. 70 cents for yellows and 50 cents for whites.
“Q. And what is the average price?
“A. Chargeable to the joint account?
“Q. No; what is the average price of the peaches which you purchased from the joint account?
“A. Oh, 67.55 cents.
“Q. Is that the estimate upon which you made your basis of loss in this case?
“A. Yes, sir.”

As tending to show what parties made the contract, the following testimony of the witness Frank Frisby, local station agent of the defendant at Fremont during August and September, 1911, appears to be pertinent :

“The Fremont Canning Company placed orders for refrigerator cars with me part of the time during those months, but most of the time with my operator. * * * We had written forms at all times; but it is handier for the shipper, I suppose, to use the phone, or tell us at the time when they may happen in the office. I accepted these orders; yes, sir. I didn’t refuse an order because they were not written on blanks; no, sir. When orders came in they were placed on file, and between the hours of 5 and 6 were wired to our car distributor at Grand Rapids. * * * I have not the record of the time these refrigerator cars ordered by the Fremont Canning Company were placed; no, sir. * * * I know in a way about the orders given by the Fremont Canning Company for refrigerator cars during the peach season of 1911. There were times when that was not entirely filled. * * * I was over to the office and around the plant of the canning company during some of the time.”

The following order was received in evidence:

“September 7th, 1911.
“Frank Frisby, Agent Pere Marquette R. R.
“Fremont, Mich.
“Dear Sir:
“Please enter our order for eight (8) full ice refrigerator cars for delivery tomorrow.
“Yours respectfully,
“Fremont Canning Company,
“Frank Gerber, Manager;”

Upon the trial the plaintiff introduced in evidence certain carbon copies .of letters written by Mr. Gerber, its manager, to the railroad commission. The witness testified as follows:

“About that time I took the matter up with the railroad commission.
“Plaintiff’s Attorney: I show you that paper and ask you what it is.
“A. A copy of a letter that I wrote to the railroad commission, carbon copy.
“Q. Whether or not there was more than one carbon copy made of that?
“A. Yes.
“Q. And, if so, to whom was it sent?
“A. To Mr. Hartenstein, the superintendent of the P. M.
“Q. Whereabouts?
“A. Grand Rapids.
“Plaintiff’s Attorney: I offer this in evidence.
“Defendant’s Attorney: We object to the letter being introduced in evidence, because it is not the first evidence.
“The Court: It will be received.
“Defendant’s Attorney: An exception.
“The Court: Let me understand you, your objection is because this is not addressed to the P. M. Railroad Co.?
“Defendant’s Attorney: That is one objection.
“The Court: What is the other?
“Defendant’s Attorney: The first objection was that that is not the original, and the original not accounted for. The other objection is that it has absolutely nothing to do with this case; it is immaterial.
“The Court: I understand you are called upon to produce a carbon copy which was sent to your company?
“Defendant’s Attorney: We were called upon to produce a carbon copy, which would be no more admissible than that copy.
“The Court: That is a matter of argument. You were called upon to produce the copy, were you not?
“Defendant’s Attorney: The carbon copy of the
original.
“The Court: All right, it will be received.”
The first letter was as follows:
“August 28, 1911. “Michigan Railroad Commission,
“Lansing, Michigan.
“Gentlemen:
“File X — 2964.
“Replying to your favor of the 25th, beg to advise that up to this time we have not seen Mr. Hartenstien, nor have we received any communication from him, since writing you on Aug. 24th.
“While we have no official information, it is reported that a special fruit service was to be inaugurated this morning, and we are informed that this train left Muskegon early this morning, but was delayed by an engine failure near Holton, so that up to this hour, 1:40 p. m., this train has not arrived here. We also understand that the local freight train due here at 10:00 a. m. had not left Muskegon at a late hour this forenoon. This, from our point of view, does not look like any improvement in the service; but we appreciate that the troubles this morning may be due to accidents which could not be avoided.
“We are very much in hopes that this matter may work out all right; but the relief must come within the next day or two, or very serious losses will result. We will write you every day advising you regarding the service, until such time as the trains are running satisfactorily, and will send copies of our letters to Mr. Hartenstein. Of course, if conditions are no better tomorrow than they are today, we will communicate with you by telephone or telegraph, and in the meantime we remain,
“Yours respectfully.
“Copy to Mr. Hartenstein, Supt.”

Other similar letters bearing date, respectively, August 29, 1911, September 5, 1911, and September 6, 1911, having been offered the following occurred:

“Defendant’s Attorney: The same objection, may it please your honor. I presume the objection I took before will cover these letters, will it?
“The Court: It may cover them, if you wish it to. They will be received.
“Defendant’s Attorney: The same objection. There is nothing appears here that a copy-of these letters has ever been brought to the attention of the railroad company.
“The Court: I understand the witness testified that they were.
“Defendant’s Attorney: He has testified that he sent them there. There is nothing here of record to prove that they have been brought directly to the attention of the railroad company.
“The Court: Submitted to the due course of mail, were they?
“Witness: Yes, sir.
“The Court: Directed to Mr. Hartenstein?
“Witness: Yes, sir.
“Defendant’s Attorney: Save an exception.”

Second Count.

Under the second count, as amended upon the trial, the plaintiff sought to recover damages which it claimed it had sustained by reason of the fact that the defendant unreasonably delayed in transit cars which had been delivered to it, containing baskets, and consigned to the plaintiff. The evidence tended to show that there were 12 such cars. The numbers and initials, the point of shipment, the bill of lading and date of shipment, the date of their arrival according to defendant’s wheel report, the. number of days in transit, the distance traveled, and the miles per day that the cars made were put in evidence before the jury.

It was the claim of the plaintiff that most of these cars were unreasonably delayed in transit, by reason of which it sustained a loss by having to buy other baskets and go to a large expense of express charges, etc., and the expense of cartage from other towns, etc., to get' other baskets on account of the delay of the cars in transit." In determining the time, and in showing the delay, the court permitted the bills of lading to be introduced in evidence as tending to show the dates when the shipments commenced, and the points of shipment; and the defendant’s wheel report, or record, was also put in evidence as to the dates the cars arrived in Fremont.

The reception in evidence of the bills of lading over the objection and exception of defendant’s counsel is urged as reversible error. It appeared that most or all of the bills of lading had been received by the plaintiff by mail from the consignors. The objection of the defendant was that the bills of lading were unproved, that their genuineness was not shown, and that they might have been filled out by anybody, and that it was just as necessary to prove their genuineness as it would be to prove the genuineness of an original letter before it was received in evidence, and that the same constituted a contract, if valid. It should be stated that accompanying the bills of lading were freight bills for the charges purporting to be issued at the Fremont station of defendant, and to be an account of the plaintiff with the Pere Marquette Railroad Company, in which' the billing station was given, and ■ the waybill number and date, which corresponded with the bills of lading. These freight bills appear to have been receipted by the defendant company, and there is some question whether the objection to these freight bills was because of lack of genuineness, or whether that objection was specifically called to the attention of the court, although it appears that defendant’s exception was announced as covering all the papers.

The testimony upon the question of damages on account of the failure of the plaintiff to get the baskets within a reasonable time tended to show that the plaintiff had suffered damage in the sum of $338.85, as testified to by the witness Gerber. It included the amount expended for express charges, certain charges for hauling the baskets from Grant, Holton, and other points where it was claimed the plaintiff had to go to obtain the baskets, also storing charges for having to provide for the storage of the baskets finally brought in by defendant, which came too late to be used that season, as well as an item of interest. .

Third Count.

The third count was based upon a claim of the plaintiff that the defendant wrongfully failed to place a car load of cans, which arrived on August 22d, at a place where they could be unloaded by the plaintiff; it being claimed that the car was placed upon a siding, at a distant point not accessible to the plaintiff, and that it was not placed upon the. plaintiff’s siding until 5 o’clock p. m. of August 24th. The evidence tended to show that the agent’s attention'was called to this, as well as the superintendent’s office at Grand Rapids, and that by reason of this delay the fruit which was intended to be placed in the cans was greatly depreciated; the plaintiff claiming a damage of 30 cents a bushel, or $5.1, as the total amount of damage under this count.

The trial resulted in a verdict and judgment for the plaintiff in the sum of $2,043.88, the exact amount claimed by the plaintiff in its evidence.

There was a motion at the close of the plaintiff’s case, made by the defendant, for a directed verdict in its favor, and also another like motion at the close of the testimony in the case, both of which were denied, and exceptions taken.

There was a motion by the defendant for a new trial, upon the grounds that the plaintiff wholly failed to make out a cause of action against the defendant, as alleged in its declaration, or any count thereof; because the evidence offered and received upon the trial of the cause wholly failed to support the allegations of plaintiff’s declaration, or any count thereof; because the entire evidence offered and received at the trial of said cause did not prove a cause of action against the defendant; because there was no proof in the case to sustain the verdict of the jury; that the verdict was not supported by the evidence offered and received in the trial of the cause; because the verdict of the jury was against the weight of the evidence offered, and was contrary to law, and against the just rights of defendant; because the amount of damages assessed by the jury was excessive, and not sustained by the proof; because the court erred in not granting defendant’s motion to direct a verdict; because the evidence wholly failed to show that the defendant was guilty of any negligence which was the direct or proximate cause of defendant’s damages; and because the court erred in submitting the case to the jury under the pleadings and proofs in the case.

This motion for a new trial was denied, and the reasons given for denying the same were duly excepted to by the defendant. Defendant has brought the case here upon writ of error, and there are 86 assignments of error in the record. These have, however, been classified, and will be considered under the different heads presented by the appellant.

It is the claim that, under the undisputed facts in the case, if there is a cause of action at all, it is in favor of the joint account arrangement between the Fremont Canning Company and Loveland & Hinyon Company.

We think that the evidence in the case clearly shows that a contract with the defendant for the furnishing of these refrigerator cars was made with the Fremont Canning Company, the plaintiff. The orders were given by the Fremont Canning Company, and were accepted by the defendant, and there was a contractual relation between the plaintiff and the defendant for the furnishing of the cars. We think the law of this question has been settled by this court in the following cases: Sisson v. Railroad Co., 14 Mich. 489 (90 Am. Dec. 252) ; McRoberts v. Lyon, 79 Mich. 25-31 (44 N. W. 160) ; Wolkins v. Knight, 134 Mich. 347-349 (96 N. W. 445).

It should be borne in mind that the peaches which were canned, and on which it is claimed the damages arose, were not joint account peaches, but belonged to the plaintiff; the plaintiff having the right to take peaches from the mass for canning. But we think the fact controlling that, the contract having been made with the plaintiff, the cars were not ordered by the joint account, but were ordered by the plaintiff. We do not think that there was any error committed by the trial court upon this point.

It is next contended by the appellant that, even if the Fremont Canning Company were a proper party plaintiff, there can be no recovery, because cars were furnished within a -reasonable time, as appears by the evidence.

By section 8 of Act No. 300 of the Public Acts of 1909 (3 How. Stat. [2d Ed.] § 6531), it is provided as follows:

“Every railroad shall, when within its power so to do, and upon reasonable notice, furnish suitable cars to any and all persons who may apply therefor, for the transportation of any and all kinds of freight in car load lots. Every common carrier shall have sufficient cars and motive power to meet all requirements for the transportation of passengers and property which may reasonably be anticipated. In case of insufficiency of cars at any time to meet all requirements, such cars as are available shall be distributed among the several applicants therefor, without discrimination between shippers, or between points of shipment, whether ' competitive or noncompetitive: Provided, preference may be given to shipments of live stock and perishable property.”

A thorough examination of the testimony in the case and the authorities cited by counsel satisfy us that a question of fact was here involved, and that the same was properly submitted to the jury by the trial court.

In its charge to the jury the court, after quoting the statute above referred to, said:

“It is not disputed but what the canning company in this case placed their orders with the Pere Marquette Railroad Company from time to time for the cars, that is, for a certain number of cars; there is no material dispute as to the number of cars they ordered upon a given date. The dispute is whether those cars were furnished, and, if they were not furnished, whether there was a reasonable excuse for not so furnishing those cars. * * * ”

After again alluding to the statute, the court said:

“This we must concede was perishable property. Now, gentlemen, you must take into consideration the duty of the railroad company under this statute. Their duties are not confined to the village or city of Fremont, nor to the furnishing of cars to the Fremont Canning Company. Their duty is to all shippers of that class, as well as every other class. They cannot discriminate. They cannot give preference. They must treat all alike. Now, in your deliberation of the testimony in this case, you must bear that carefully in mind that the Pere Marquette Railroad Company is a common carrier undertaking under the laws of this State to serve the whole people of this locality, the whole people of the locality which is covered by their system, not by one division of that system, but by the whole system; bear that carefully in mind, that they have a duty to perform to all who are in the business of shipping.”

Referring to the first count of the declaration, the court charged the jury as follows:

“I charge you that it was the plaintiff’s duty when the cars did not arrive on the days for which they were ordered, if you find this to be the fact, to do everything in its power to take care of the peaches which could not be shipped because of the failure to furnish cars, and if you find from the evidence that the plaintiff, in good faith, and for the purpose of taking care of the peaches, and doing all it could to prevent loss, used the peaches in its canning factory, and that said peaches had deteriorated in value because of the failure to furnish refrigerator cars, and if you find from the evidence that the plaintiff did sustain damage in using peaches in their deteriorated condition, then you must determine from the evidence what that damage was, and return a verdict for the plaintiff for that amount.
“I charge you that the measure of the plaintiff’s damage in this case, if you find that the plaintiff is entitled to recover, is the loss it sustained by reason of using soft peaches in the factory, instead of using' peaches in good condition, if you find that the peaches became soft because of the failure of the defendant to furnish refrigerator cars. Mark that, gentlemen, that is important.
“I charge you that it is no defense to this action that the defendant did not have any refrigerator cars of its own, and obtained its refrigerator cars from the Armour Car Lines. If the defendant accepted orders for refrigerator cars to be placed at Fremont in the season of 1911, it was its duty to furnish them, regardless of the fact that it did not own them itself; and 'therefore, it is no defense that it could not get these cars from other people when it wanted them, or that it didn’t have them itself. * * *
“I charge you that it is no defense if these cars had to be iced by any company or persons; it would be no defense to this company if the persons who were to furnish the ice for the cars failed or refused or were unable to furnish the ice. * * *
“I charge you that the fact, if you find it to be a fact, that the defendant placed more cars at Fremont during the entire season than the plaintiff had ordered for the entire season, this fact will not excuse the defendant, if it did not furnish the cars on the dates for which they were ordered, if you find that the defendant had reasonable notice to furnish the cars, and it was within its power so to do.”

At defendant’s request, the court charged the jury as follows:

“No. 7. I charge you that the defendant cannot be held liable for inability to furnish cars, when furnishing the same would interfere with the general business of the company and the rights of the shippers.”
“No. 12. I charge you that the defendant cannot be held liable in this case, if you find that it was unable to furnish cars ordered by the plaintiff, because of a sudden and unusual press of business, or if prevented from so doing by wreck or derailment, or by storm, which destroyed the telegraph service, or by a strike or refusal of the men engaged in icing cars to ice the same in time so that the cars could be transported and delivered by the defendant at the time requested by the plaintiff. I qualify that, gentlemen, Ño. 12, by saying that that does not go to the original instance, but it is something that must be overcome by them, and you are allowed to consider that proposition showing the delay of such number of cars as might have been interfered with on that account, no more and no less.”
“No. 22. I charge you that if you believe from the evidence that the defendant has met and overcome the presumption of negligence established by the plaintiff and has excused its failure to promptly furnish refrigerator cars, your verdict must be for the defendant. That would apply to the first count.”

We think that a question of fact was here involved, and it was properly submitted to the jury, whether the cars were furnished within a reasonable time.

The next point urged by appellant is that the plaintiff’s damages are too remote and speculative.

We are unable to agree with counsel in this position. The evidence offered by the plaintiff tended to show that, instead of visiting upon the defendant the full amount of damages which might have been claimed by the plaintiff, to wit, the entire loss of the peaches because of the failure of the defendant to furnish refrigerator cars, the plaintiff sought to minimize the damages, and make them as small as might be, and in so doing used the defective peaches for canning purposes. It is the claim of the plaintiff, however, that in so doing a larger quantity of peaches were necessarily used because of their damaged condition, and that the difference in amount, as testified to by the witness Gerber, is claimed for damages in the case. It further appeared that the testimony of the witness Gerber was based upon his prior experience there as manager of the plaintiff company, and is shown by the following excerpt from his testimony:

“Q. I want you to explain to the jury how you arrived at the amount of damage you sustained on account of these peaches which you canned were overripe.
“A. Our only method of arriving at that was by a comparison with the results of previous years when conditions were about normal, and we have to know about the amount of fruit required for a case which we figure the unit of, each different class of product.
“Q. Did you prepare an estimate of the pack of 1910?
“A. Yes, sir.
“Q: Did you prepare a record of the pack in 1911?
“A. Yes, sir.”

To this class of testimony the defendant objected, on the ground that it was incompetent, irrelevant, and immaterial, and for the further reason that it was too remote; that what comparisons may have been made in other years had nothing to do with the case.

The court said:

“I understand that that is confined — you are now speaking of 1910, and all the fruit, do I understand, in 1910, was in normal condition for packing when packed?
“Plaintiff’s Attorney: That is our theory, your
honor.
“Witness: A. Yes; I figured a normal season.
“The Court: And it is the season immediately preceding the one that they claim there was a loss süffered by reason of not being a normal condition. I will receive it.”

The further objection was then made that it was too remote and speculative. The objection was overruled, and exception taken. We do not think that the defendant is in a position to complain of the rule or measure of damages adopted in the case.

The next objection urged by appellant is that the court erred in the admission and exclusion of testimony, and in the charge. Complaint is specifically made here that the plaintiff offered in evidence, and the court received, over the objection of defendant’s counsel, certain letters, above referred to, written to the Michigan railroad commission. It is urged that the letters received were carbon copies of letters written by the plaintiff to the railroad commission. The objection to their introduction was: First, that they were not the best evidence because not the originals, and the originals not accounted for; second, that they were irrelevant, and had nothing to do with the case, and were immaterial. A carbon of an original may more appropriately be called a duplicate than a copy.

We have looked in vain for any objection that these letters were incompetent, or were self-serving statements, and therefore inadmissible in evidence. Certainly, from an examination of this record, it cannot be said that the attention of the court was challenged to this point. Manifestly, the letters were material, and had something to do with the case, and it seems to us that it was the duty of defendant’s counsel to have directed the attention of the court to their incompetency, and to the fact that they may have been self-serving statements. They covered matters that were fully testified to by the witness Gerber, and this witness was subjected to a thorough cross-examination. We find no objection or exception sufficient to warrant us in saying that the reception of the letters in evidence was reversible error.

Second Count.

1. The first objection urged is upon the admission of testimony under the second count. It is the claim, under this objection, that the plaintiff was permitted to and did introduce in evidence a number of bills of lading to cover the cars in question, without first showing that they were genuine bills of lading, or contracts made by the defendant.

It is our opinion that these bills of lading when first offered, their genuineness not having been proved, were incompetent as tending to prove the dates on which the cars and baskets were delivered to the defendant for transportation. These bills, however, were accompanied by freight bills, one of which was as follows:

“Freight bill. Date of issue, August 14, 1911. Consignee, Fremont Canning Company. Freight Bill No. 650. Issuing station, Fremont. To Pere Marquette Railroad Co., Dr., for charges on articles transported. Billing station and route, New Richmond. Waybill number and date, 12, 8/11. Car initial and number, C. B. & Q. 104861. Number of packages, articles, and marks. Baskets. Weight, 20,000. Rate, 8%. Freight charges, $17.00. Received payment for the company 8/15, 1911, F. Frisby, Rx Agent. Total, $17. Stamped on it Fremont Canning Company, Paid August 15th, 1911.”

This accompanied the following bill of lading:

“Pere Marquette Railroad Company. Straight Bill of Lading — Original—Not Negotiable. Received subject to the classifications, at New Richmond, Michigan, August 11th, 1911, from E. E. Weed & Company. Consigned to Fremont Canning Company. Destination, Fremont. Car initial, C. B. & Q. No. 104861. Car baskets; weight, subject to correction, 20,000. Class or rate, 8%. E. E. Weed & Company, Shippers. W. E. Johnson, Agent.”

Here we have accompanying the bill of lading the freight bill purporting, to be receipted in full by the defendant company. We have been unable to find by any specific objection that the genuineness of this receipted freight bill was challenged by defendant’s counsel, or that the attention of the court was called to the fact that its genuineness had not been proven. It cannot be said, therefore, that that objection was made. We think that any error which there might have been in ruling that the bills of lading were receivable in evidence was cured by the fact that they were finally accompanied by the receipted freight bills virtually covering the same ground, and containing the same statements. We are of opinion that there was no reversible error in the admission in evidence of the bills of lading and freight bills accompanying them.

2. It is next urged that the cars were moved with reasonable dispatch. This, we think, became a question of fact, and was properly submitted to the jury in the charge of the court. Upon that subject the court charged the jury as follows:

“As to the plaintiff’s claim under the second count, I charge you that it is for you to determine from all the evidence in the case whether there was any unreasonable delay in the movement of the cars containing baskets from the various stations from which they were shipped to the plaintiff at Fremont, Mich. And if you find that there was a delay in the movement of these cars, or any of them, then you must determine from the evidence in the case whether or not the plaintiff was damaged by such-delay; and, if you find that the plaintiff was so damaged, then you must determine the amount of its damage from the evidence in the case.
“I charge you that, if there was an unreasonable delay in the movement of the cars of baskets, then the plaintiff was justified in obtaining baskets from any source from which it could obtain them, using due diligence, its best efforts, and good faith to obtain the same at the least expense possible, and then you will determine from the evidence whether or not it suffered any damage in getting such other baskets, and in keeping said baskets on hand after the season was over, and this amount you will find and return a verdict for the plaintiff. That is qualified, gentlemen, to the expense of recovering other baskets.
“I charge you that the plaintiff is not seeking to recover in this case for any difference between the price that it had to pay for baskets from other parties and the price which Weed & Co. would have furnished baskets to it for. They are not undertaking to recover for that at all. The plaintiff claims that it has been injured and damaged because the defendant unreasonably delayed the movement of the basket cars, and that it had to go to extra expense to get baskets for that reason.
“If you find from all the evidence that the plaintiff is correct in its claim, then you will determine the amount of the damage which it has sustained, and include such amount in your verdict.”

3. As we understand counsel, the claim is here made that Loveland & Hinyon Company were interested in this basket transaction, and therefore the plaintiff cannot recover. We have already covered that point in discussing the first count.

Third Count.

We are of opinion that the court did not err in submitting the case under the evidence relating to the third count of the declaration.

An examination of the other assignments of error leads us to the conclusion that there is no reversible error in the record. We do not think that it can be said that there was no evidence to support the verdict and judgment, nor that the amount of recovery was excessive. It is true that the recovery was for the identical sum claimed by the plaintiff in the case; but there was evidence to support it. This was a question for the jury. We cannot say that the verdict was against the weight of the evidence.

The judgment of the circuit court is therefore affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. Moore, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    MILLSPAUGH v. SCHULTZ.
    1. Trial — Conduct of Attorney — Error.
    Upon, the trial of an appeal from justice’s court, tlie statement of plaintiff’s attorney that there was a judgment of $200 in the justice’s court, which was interrupted hy defendant’s counsel and which the court told the jury to disregard, was not so prejudicial as to constitute reversible error.
    2. Pleading — Justice of the Peace — Damages.
    In the absence of any demurrer, or objection to the evidence, interposed in justice’s court, in an action upon an injunction bond, the declaration, which was based on only one breach, that had been determined by decree in chancery to have taken place, leaving only a question as to the amount of damages, will be held sufficient on error.

      Error to Wayne; Mandell, J.
    Submitted January 27, 1914.
    (Docket No. 160.)
    Decided April 7, 1914.
    Assumpsit in justice’s court by Theodore F. Millspaugh against Frederick E. Schultz and others for the breach of a bond given in an injunction suit. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Charles Bowles, for appellants.

      William C. Stuart, for appellee.
   Moore, J.

In November, 1908, the plaintiff purchased, upon contract, a city lot on La Salle street, Detroit. Defendants Schultz and Schultz were the owners of the adjoining lot on the west. The plaintiff began the erection of a house on his lot. He had built the basement, put a subflooring on the first floor, the studding was up and sheeted, the roof was on, a chimney built, and some work had been done on the interior of the house. In January, 1909, the defendants Schultz and Schultz obtained an injunction restraining further building operations. At this time a bond was required and given in the sum of $500 running to the plaintiff, signed- by the defendants Schultz and Schultz as principals, and by defendant Willis as surety. Part of the condition is as follows:

“Now, therefore, if the court shall eventually decide that the complainants in said cause were and are not entitled to said writ of injunction, and that the same was wrongfully sued out, in that event, if the said complainants shall pay or cause to be paid to the said Theodore F. Millspaugh such damagés as he may have sustained by reason of the wrongful suing out of said writ of injunction, then this obligation is to be void, otherwise to remain in full force.”

The chancery case was heard and a decree entered April 22, 1911, dismissing the bill. Said decree contained the following:

“And it is further ordered, adjudged, and decreed that the said defendant may bring an action at law to recover any damages he sustained by reason of the injunction issued against him in this cause against the principals and surety who executed the bond filed in this cause to save said defendant harmless for any damages he should sustain by reason of the issuing of said injunction in this cause.”

It does not appear that any appeal was ever taken from that decree.

On June 3, 1911, this suit was commenced in justice’s court. The justice’s return shows the following:

“The plaintiff declares in an action of assumpsit on all common counts, specially on a bond, claims damages $500 or under; the defendants plead general issue. The said cause was tried by court. That on the 1st day of November, 1911, I rendered judgment in favor of plaintiff and against defendants for $200 damages and $3.25 costs. And I do further return that the affidavit and bond herewith returned were delivered to me on the 6th day of November, 1911, and the costs of suit and appeal fees were at the same time paid.”

The record also shows that a bill of particulars was filed as follows:

Rent on said property for the period of one year, the length of time that plaintiff was delayed hy reason of the injunction granted to said Schultz in the completion of the building on the property No. 559 La Salle avenue.. $250 00
Depreciation in materials in the house in being
exposed to the weather...................... 250 00
Total..................................... $500 00

The bond declared upon was the bond given in the injunction suit and from which we have quoted. The following appears in the record:

“Mr. Sevald: In justice’s court a judgment of $200—
“Mr. Bowles: I take an exception to that remark.
“The Court: It is improper, and the jury is instructed to disregard such remark.
“Mr. Sevald: I offer in evidence a chancery case, Frederick E. Schultz and Dorothy C. Schultz, Complainants, v. Theodore F. Millspaugh; and I introduce. * * *
“Mr. Bowles: I wish to object to any evidence
under the plaintiff’s declaration; it is insufficient.
“The Court: The objecton may be noted. You may proceed, and I will take the matter under advisement.”
From a verdict and judgment in favor of the plaintiff the case is brought here by writ of error.
It is claimed the following is reversible error:
“Mr. Sevald: In justice’s court a judgment of $200.”

It will be noted from what we quoted that immediately upon objection the trial judge stated the remark was improper, and the sentence was never completed. In this connection we may say that some testimony was offered bearing upon the damages sustained because of the loss of rents. It is said the admission of this testimony was error. The court told counsel and the jury that the case must go to the jury for recovery only for damage or injury to the material.

Counsel for appellant seem to proceed upon the theory that the jury will not heed what is said by the trial court. We cannot so assume.

It is urged as error that the court declined to exclude all testimony under the declaration and to direct a verdict in favor of defendants. This is based upon the claim that the declaration did not comply with the provisions of section 10378, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13092), which reads:

“When an action shall be prosecuted in any court of law, upon any bond for the breach of any condition other than for the payment of money, or shall .be prosecuted for any penal sum for the nonperformance of any covenant or written agreement, the plaintiff, in his declaration, shall assign the specific breaches for which the action is brought.”

It is not necessary to decide whether this statute relates to a bond where there is, as in this case, but a single breach.

This case was commenced in justice’s court. The language of Justice Cooley, in Wilcox v. Railroad Co., 43 Mich. 584 (5 N. W. 1003), is germane here:

“It is no new thing to have an objection of this sort to the pleadings in justices’ courts raised before us. As the proceedings in those courts are commonly managed by parties unlearned in the law, defects in their allegations, when tested by the rules of art, are to be expected in almost every case which is at all complicated. If every such objection were disregarded, pleadings in justices’ courts would in effect be dispensed with. Every plaintiff might allege as much or as little as he pleased, and recover without regard to his allegations. If every one were sustained which would be good if made to pleadings in courts of record, the parties in justices’ courts would be driven to the employment of legal assistance in every case, and these courts, which are intended for the easy and inexpensive redress of wrongs not of great magnitude, would cease to accomplish their purpose. This court has adopted neither the one course nor the other. It has required the plaintiff in justices’ court to apprise the defendant fairly of the cause of action relied upon, but when this has been done, the court has refused to regard formalities or technicalities. The object of the declaration is fully accomplished when the defendant is fairly apprised by it of the grounds of the plaintiff’s claim, so that he need be under no misapprehension as to what matters are to be litigated on the trial. Hurtford v. Holmes, 3 Mich. 460; Daniels v. Clegg, 28 Mich. 32.
“Does the declaration in this case accomplish this purpose? It certainly informs the defendant what he is sued upon. The contract is recited, and defendant is notified that claim is made against him upon it, and upon nothing else. The contract itself specifies the conditions of liability, so that defendant knows there can be no recovery unless performance of these is proved. It is said the declaration does not count upon an assignment. But it counts upon a promise made to another, and upon which there could be no recovery except upon the proof of an assignment. The very claim to recover upon the paper was a claim as assignee, for it was only as assignee that plaintiff could have a right to it. Moreover, the paper was made payable to the railroad company or order, and there was an indorsement upon it by E. D. Kinne, as assignee, which fairly notified the defendant that Mr. Kinne claimed to have become entitled in some manner to order the payment to be made to a transferee. It is true this indorsement might have been more formally made; it might and ought to have assumed the form of an assignment, with such recitals as would have shown Mr. Kinne’s authority; but the question now is whether the defendant was thrown off his guard or misled by any defects, and not whether the pleadings might have been made more perfect. We must judge of this upon all the facts, and not upon the face of the papers alone.
“What the defendant ought to do in every case in which the declaration is supposed to be fatally defective, is to demur, and thereby bring the defect at once to the attention of the court, before parties have been put to trouble and expense in preparing for trial. No doubt he has a legal right to abstain from doing this, when the defects, in substance, are such as cannot by any intendment be supplied or overlooked, but this course is not conducive to justice, and courts will not countenance it any farther than they may feel compelled to do so. When the defendant fails to demur, he tacitly concedes the sufficiency of the declaration, and the court will hold him to .this concession, whenever this can be done without probable injustice.”

See, also, Carmer v. Hubbard, 123 Mich. 333 (82 N. W. 64).

In the instant case, if the defendants had in the-justice’s court demurred to the declaration, or objected to the testimony because the requirements of the statute had not been observed, the declaration could at once have been amended. This was not done. The bond was before the parties. The decree in the chancery case determined it had been breached. The parties knew that the only question was whether plaintiff had been damaged, and, if so, how much. The defendants pleaded the general issue, and a trial was had upon the merits. We do not find any reversible error.

The judgment is affirmed.

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


author: Brooke, J.

text:
    PEOPLE v. SEGAL.
    1. Criminal Law — Witnesses—Indorsement on Ineormatiow.
    Although the prosecuting attorney should indorse on the information names of witnesses who are material, in a prosecution for obtaining money under false pretenses, it was not erroneous to permit the prosecuting officer, who notified the counsel for respondent on the day after he learned their names that he intended to apply for leave to add to the information names of witnesses who, on the trial, gave testimony relative to matters brought out by other witnesses at the preliminary examination.
    2. Same — Evidence—Ealse Pretenses.
    Evidence that the accused owed $300 upon a previous transaction with the complaining witness, who made a second loan of $500 on representations of respondent that he wanted the money to engage in a deal from which he expected to derive large profits, was not improperly admitted on the trial, as bearing on the matter of intent.

      3. Same — Fraud.
    Testimony that the respondent claimed to own three car loads of potatoes, which he did not, in fact, have, tended to support the charge that he obtained the loan by false pretenses.
    4. Same — False Representations.
    The false pretenses must refer to some existing fact, and . statements concerning what would occur in the future are not a sufficient basis for the charge.
    5. Same.
    Evidence held to present a question of fact as to the making of false representations and as to respondent’s intent to deceive.
    Exceptions before sentence, from the superior court of Grand Rapids; Stuart, J.
    Submitted January 29, 1914.
    (Docket No. 137.)
    Decided April 7, 1914.
    Harry Segal was convicted of obtaining money by false pretenses.
    Affirmed.

      Grant Fellows, Attorney General, Earl F. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      Edward N. Barnard, for respondent.
   Brooke, J.

Respondent stands convicted of having obtained the sum of $500 under false pretenses from one Josephine Klepeck. The facts as testified to by witnesses on behalf of the people are as follows: Respondent was acquainted with and lived near Mrs. Klepeck on the same street in Grand Rapids. On March 13, 1909, he went to her and represented to her that he then had three car loads of potatoes which he wished to ship to a rabbi in San Francisco; that he needed $500 to complete the shipment; that he would make $3,000 out of the deal, and would return the $500 to her in three weeks. Two days later respondent moved away from the vicinity, and shortly thereafter moved to New York. Respondent denied making any false representations, admitted having received the money and giving a note therefor, and admitted that he had paid nothing upon the note.

The first two assignments of error in the brief for respondent relate to the ruling of the circuit judge permitting the prosecuting attorney to add certain names to the information immediately preceding the opening of the trial. It appears that the prosecuting attorney was sworn and testified that he learned the names of the witnesses in question on the 14th of November, 1911, and notified respondent’s attorney the following day that he would apply for leave to add the names to the information. The trial was started on the 17th of November. It appears to be the contention of the respondent that because the prosecuting attorney learned at the time of the examination that certain testimony would have to be supplied by witnesses other than those produced upon the examination, he should have ascertained the names of such necessary witnesses earlier than he did, and that it was error for the court to permit the indorsement of the names in question upon the showing made. The evidence which these witnesses were produced to give tended to show that the respondent had not, at any time near the time when he secured the money from Mrs. Klepeck, shipped three car loads of potatoes, or any other number of car loads of potatoes, out of the city of Grand Rapids. The same evidence was given at the examination, but was given by one whose knowledge was only gained through hearsay. It is apparent that the respondent was not surprised or prejudiced in any way by the order made. The rule as contended for in the brief of respondent’s counsel is recognized, but we do not think it was applicable in the instant case.

It appears that in December, 1908, the complaining witness had loaned $300 to respondent and taken a note therefor. This transaction occurred some three months prior to the $500 transaction upon which the prosecution of respondent is based. Error is assigned upon the statement made by the prosecuting attorney in his opening statement touching this note, and upon the ruling of the court in permitting it to be introduced in evidence. Respondent admitted that the $300 note, as well as the one for $500, was unpaid. Inasmuch as intent is one of the ingredients of the crime with' which respondent stood charged, we are of opinion that the statement in question and the admission of the earlier note was not erroneous. People v. Henssler, 48 Mich. 49 (11 N; W. 804).

Error is assigned upon the refusal of the court to direct a verdict of not guilty, based upon the contention that the prosecution had not shown a false representation as to an existing fact or past event. Cases are cited on behalf of respondent which demonstrate the entire correctness of his position if the facts make them applicable. It is quite clear that all of the representations made by the respondent were not representations of an existing fact or past event. Some of them were representations as to what would occur in the future, and his promises in relation thereto. There is, however, one statement which clearly refers to an existing fact, and that is that respondent, at the time he applied to Mrs. Klepeck for the loan, was the owner of three car loads of potatoes. Where several false representations are made,- one or more of them referring to existing facts or .past events, while others refer to future events, it is sufficient to warrant a conviction if the people can show a false representation as to an existing fact, if that false representation was a part of the moving cause which induced the complaining witness to part with her money.

It is urged that to constitute the offense three things must concur: The intent to defraud, a false pretense, made with intent to defraud, and the fraud accomplished (People v. Wakely, 62 Mich. 297 [28 N. W. 871]); and that the people failed to show all three of these elements. This contention seems to rest upon the fact that respondent denied upon the stand that he made the representations as claimed by the complaining witness, and that in securing the money from her he had no intention to defraud. We are of opinion that the relations existing between the parties, the lack of business experience of the complaining witness, together with all the circumstances surrounding the transaction, coupled with the conduct of the respondent immediately after the loan was negotiated, in absenting himself from the city of Grand Rapids, and his failure to return, afforded sufficient ground for the jury to find, in spite of his evidence to the contrary, that the respondent deliberately undertook, by means of false pretenses, to cheat and defraud the complaining witness out of her money.

Error is assigned upon the admission of certain testimony. We have examined these assignments with care, but are of opinion that no error was committed by the trial court in relation thereto.

The conviction is affirmed, and the court below is directed to proceed to judgment.

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


text:
    HIRDES v. OTTAWA CIRCUIT JUDGE.
    1. Witnesses — Privilege—Husband and Wife — Adultery.
    Where plaintiff claimed that defendant gave the wife of plaintiff intoxicating liquor and made her incapable of resisting, and had sexual relations with her while she was drunk, the wife was not prohibited from giving testimony by 3 Comp. Laws, §10213 (5 How. Stat. [2d Ed.] § 12857), which makes the testimony of the wife incompetent in an action brought in consequence of adultery; for the wrong charged by plaintiff is not adultery but assault and rape.
    2. Same — Process—Rape—Mandamus—Capias.
    And it was not erroneous to deny defendant’s motion to quash the writ of capias ad respondendum issued by plain- . tiff, based principally on the affidavit of plaintiff’s wife, so that a writ of mandamus will not issue to vacate such order.
    Mandamus by Mike Hirdes against Orien S. Cross, circuit judge of Ottawa county, to compel respondent to vacate an order denying relator’s motion to dismiss a writ of capias in an action brought against him by Leonard Vis.
    Submitted March 28, 1914.
    (Calendar No. 25,913.)
    Writ denied April 7, 1914.

      DTekema, Kollen & Ten Cate, for. relator.

      Smedley, Linsey & Lillie, for respondent.
   Stone, J.

Relator was arrested by the sheriff of Ottawa county on a writ of capias ad respondendum, issued out of the circuit court for said county at the suit of Leonard Vis. Relator was held to bail in the sum of $2,000 on an order made by the respondent, which bail relator gave. Attached to the writ were three affidavits; one of Leonard Vis, the plaintiff, one of Maggie Vis, his wife, and one of Harry Vis, his brother.

The relator contends that the action was one of criminal conversation of relator with Maggie Vis, the wife of plaintiff. Counsel for respondent contends that the action was for assault and rape committed upon the wife of Leonard Vis, and the furnishing of her with intoxicating liquors; she being a minor. It is the claim of relator that the affidavits of Leonard Vis, the plaintiff, and of his brother, Harry Vis, show that they were made entirely on information and belief. It can properly be said that the statement of the material facts essential to maintain the writ must be found, if they exist, in the affidavit of the wife. Relator made a motion that the court dismiss the writ of capias, for the reason that the affidavits were not such as could be made the basis of a writ of capias to deprive relator of his liberty for the reasons set forth in the motion, which are substantially as follows: (1 and 2) That the affidavits of Leonard Vis and Harry Vis show affirmatively that they were not based upon the personal knowledge of affiants, but upon information and belief. (3) That the affidavit of Maggie Vis, accompanying the other affidavits, and upon which the writ in said cause was issued, was the affidavit of the wife of the plaintiff; that the cause of action set forth in said affidavit of said plaintiff is an action of criminal conversation of the defendant, Mike Hirdes, with the wife of said plaintiff, and that said affiant, Maggie Vis, could not testify to the allegations contained in her said affidavit in the trial of said cause, because of the language of our statute (section 10213, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 12857), which reads as follows:

“But in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.”

Respondent denied the motion, and relator prays for mandamus to compel respondent to discharge the writ.

In the affidavit of Leonard Vis, he swears that the said Mike Hirdes, contriving and wrongfully and unjustly intending to injure him and deprive him of the comfort, fellowship, society, aid, and assistance of his said wife, and alienate and destroy her affection for him, on the 20th day of March, 1913, at the city of Zeeland; wrongfully, wickedly, and unjustly debauched and carnally knew deponent’s wife, and did then and there have sexual intercourse with her, as deponent is informed and believes. In another part of the affidavit the plaintiff states that the defendant caused the said wife to become intoxicated in order that he might carry out his wicked purpose of seducing her, as he was informed and believed. The affidavit further states that affiant makes the affidavit for the purpose of procuring a writ of. capias ad respondendum, and claims that he has a just cause of action against the said Mike Hirdes, and is damaged in the sum of $10,000. The affiant then refers to the accompanying affidavits of his wife and brother.

It is necessary that we should critically examine the affidavit of the wife, Maggie Vis. She therein states that she was 20 years of age, the wife of Leonard Vis, and resided with him in the city of Zeeland; that on the 20th day of March, 1913, in the absence of her husband, Mike Hirdes came to deponent’s home and furnished her with a quart of whisky, part of which she drank, and became intoxicated; that the said Hirdes then and there took advantage of deponent’s condition, and had sexual intercourse with her; that she did not have will power enough, being in an intoxicated condition, to resist the actions of said Mike Hirdes, which purpose he could not have accomplished had she not been intoxicated. We quote from the affidavit:

“Deponent further says that she gave the said Mike Hirdes no occasion whatever to think or believe that she would be open and subject to his embraces, and that in order to have sexual intercourse with her he first procured the liquor, gave it to her, and caused her to be intoxicated. * * * Deponent further says that she refused to have sexual intercourse with him, whereupon he procured this liquor, and, while in the state of intoxication, and not being able to resist, he took advantage of her and had sexual intercourse,”

as above stated, and that the facts stated in said affidavit were within her personal knowledge.

The affidavit of Harry Vis states that on the 20th day of March, 1913, the said Mike Hirdes came to the home of his brother, where deponent and Maggie Vis were, and furnished a quart of whisky, and induced deponent and Maggie Vis to drink a part thereof; that soon after deponent left the house, and Mike Hirdes continued to stay there with the said Maggie Vis.

The respondent denied the motion, for the reason that the charge involved was not one of criminal conversation, but one for assault, and assault with rape, and the unlawful furnishing of liquor to a minor. It appears that at the time the motion was argued the plaintiff in the suit had filed his declaration.

It is our opinion that we have no right, in considering the questions involved, to examine the allegations of the declaration, but the matter must be disposed of upon the condition existing at the time of the arrest of the relator,- for, if the affidavits were not sufficient to warrant the arrest upon the writ, they cannot be aided by a subsequent pleading of the plaintiff. The important question is whether the affidavit of Maggie Vis contains such a statement of facts as would permit her, as a witness at the trial of the case, to testify that she was assaulted and ravished by said Mike Hirdes.

In the case of Stoudt v. Shepherd, 73 Mich. 588 (41 N. W. 696), Justice Campbell said that the words “seduction” and “debauch” are, in civil cases, very generally used as substantially similar terms, and that he did not think it important which word was used in the pleadings.

Upon the trial of the case under a proper declaration, would it be competent for the wife, Maggie Vis, to testify that the said Mike Hirdes furnished her with whisky, and caused her to become so intoxicated that she was not in a condition to resist the action of said Hirdes, and that, while, in such condition produced by him, he had sexual intercourse with her, she not being able, by reason of -such intoxication, to resist his acts and conduct? We are of opinion that it would be competent for her to so testify, and, should those facts be shown to the satisfaction of a jury, that they would be warranted in' finding that the conduct of the said Hirdes, under such circumstances, amounted to rape.

In the case of People v. Croswell, 13 Mich. 427 (87 Am. Dec. 774), Justice Cooley, after defining the crime of rape, used the following language:

“In the case of Regina v. Camplin, 1 Den. C. C. 89; same case 1 C. & K. 746, it appeared that the prisoner gave the woman liquor for the purpose of exciting her, but which had the effect to make her quite drunk; and, while' she was in a state of insensibility, he took advantage of it and violated her. The court held the act to be rape. The prosecutrix showed by her words and conduct, up to the latest moment- at which she had sense or power to express her will, that it was against her will that intercourse should take place. It was no answer to the charge, therefore, that she had no opposing will at the moment when intercourse actually took place, since the prisoner had actually mastered it by means of the stupefying drug, which was the same, as was well remarked by one of the judges, as if it had been overcome by a blow. * *_ * If the woman was insensible, some'degree of physical force must actually have been employed by the prisoner; and no more resistance is required by the law, in any case, than the condition of the woman will permit her to make. * * * The outrage upon the woman, and the injury to society, is just as great in these cases as if actual force had been employed; and • we have been unable to satisfy ourselves that the act can be said to be any less against the will of the woman when her consent is obtained by fraud than when it is extorted by threats or force.”

In 38 Cyc., at pages 1426 and 1427, it is said:

“So, if ability to resist is taken away by administering drugs, even though the woman may be conscious, sexual intercourse with her is rape. * * * And if the woman is intoxicated to the extent of being unable to resist, the act is without her consent and is rape” — citing many cases.

Especially should this be the rule if the state of intoxication is produced by the defendant. To the same effect see Commonwealth v. Burke, 105 Mass. 376 (7 Am. Rep. 531) ; State v. Atherton, 50 Iowa, 189 (32 Am. Rep. 134). See note to State v. Warren, 232 Mo. 185 (134 S. W. 522), reported in Ann. Cas. 1912B, 1043-1049.

In such a case we think that the statute of this State above referred to would not prohibit the wife from testifying, because the charge would not be that of adultery, but of an assault and ravishment. People v. Upton, 169 Mich. 31 (135 N. W. 108); Totten v. Totten, 172 Mich. 565 (138 N. W. 257).

In the case of Egbert v. Greenwalt, 44 Mich. 245 (6 N. W. 654, 38 Am. Rep. 260), the cause of action was for the alleged criminal conversation with the plaintiff’s wife. The suit was in the common form of an action on the case. The whole testimony to prove the imputed intercourse and establish the cause of action was given by Greenwalt and his wife. The act was represented as one to which she was an involuntary party, and as having been accomplished against her will by actual force and over the stoutest resistance of which she was capable. The record contains a general exception to the court’s refusal to consider the evidence sufficient to bar the action. Justice Graves said:

“The point of the objection is understood as being that the nature of the action excluded the idea of violence, and contemplated that the wife’s participation was voluntary and not forced, and that, as the case made by the evidence negatived her consent and proved that she was debauched by violence, the action failed.
“The position is not tenable. The common law, in giving this remedy, instead of making the husband’s right of action depend on his wife’s having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent, but was overcome by force, and the action has been sustained just the same, whether, as matter of fact, her will concurred, or she was outraged by actual violence [citing cases]. And there seems to be no basis in justice or policy for the position that if the personal wrong is accompanied by circumstances of such atrocity as to elévate it to the public offense of rape the private remedy is thereby either taken away or suspended. Cooley on Torts, 86 to 90. It is not reasonable to convert the wife’s innocence into a shield to save her assailant from prosecution for his private wrong to her husband.”

In Johnston v. Disbrow, 47 Mich. 59 (10 N. W. 79), Disbrow charged the defendant below, Johnston, with having, at a certain time and place named, unlawfully, forcibly, and violently assaulted the wife of said plaintiff, compelling her by force to have unlawful sexual carnal intercourse with him (the defendant) to the injury, etc., whereby plaintiff was damaged in his reputation, and suffered in injured feelings and of being deprived of the society and assistance of his said wife, to his damage. We refer to this case because it is the claim of relator’s counsel that, if force was used by Hirdes, and he was guilty of rape, the wife should have brought the action, and not the husband. In the last-cited case, Chief Justice Marston, in speaking for the court, said:

“While it may be true as argued that the reputation of the plaintiff should not suffer because of such a wrong committed by force and against the will of his wife, yet that the matter would become a subject of unpleasant comment and injure his feelings cannot well be questioned, and the right to recover damages therefor is well settled in this State (Scripps v. Reilly, 38 Mich. 23), and no evidence as to the amount thereof in dollars and cents need be proven on the trial. The jury, in view of all the facts, are qualified to fix the amount thereof. The fact that the wife of the plaintiff also has a cause of action for the same injury and would be entitled to recover damages on account of injured feelings, is no answer to the right of this plaintiff to recover. His right to maintain the action grows out of his marital relations with the person upon whom the wrong was committed. And this right is not possessed by others, so that the fears expressed that all the relatives and neighbors of Mrs. Disbrow might maintain separate actions and recover damages on account of injured feelings is not to be seriously feared.”

See Cooley on Torts, p. 226; Berger v. Jacobs, 21 Mich. 215-220. At the last-named page this court said:

“But, on the other hand, for any damages accruing to the husband from the assault and battery upon the wife, as for loss of her assistance and society, * * * he-alone could sue.”

See Velthowse v. Alderink, 153 Mich. 217 (117 N. W. 76, 18 L. R. A. [N. S.] 587, 15 Am. & Eng. Ann. Cas. 1111).

The provision (section 10213, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 12857), above referred to has been in our statute at least since 1861, and existed at the time the above decisions were rendered.

We think that, in support of the state of facts set forth in the affidavit of Mrs. Vis, she would be a competent witness upon the trial of the case, and that it cannot be said that the affidavits for the writ of capias were defective or insufficient.

In our opinion, the circuit judge did not err in so holding, and the writ of mandamus must therefore be denied, with costs against relator.

McAlvay, C. J., and Brooke, Kuhn, Osteandee, Bied, Moore, and Steere, JJ., concurred.