author: McAlvay, J. Grant, C. J.

text:
    MICARI v. MONROE STONE CO.
    Master and Servant — Injuries to Servant — Proximate Cause —Evidence—Sueeicuenoy.
    In an action by a servant for personal injuries resulting from a fall from a tram car, evidence examined, and held, that it left the cause of plaintiff’s injury entirely to conjecture, and that it was not error for the circuit court to direct a verdict for defendant.
    Error to Monroe; Lockwood, J.
    Submitted April 17, 1908.
    (Docket No. 24.)
    Decided October 5, 1908.
    Case by Angelo Micari against the Monroe Stone Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Willis Baldwin and John J. Kiley, for appellant.

      Fred L. Vandeveer, for appellee.
   McAlvay, J.

Plaintiff was injured while employed by defendant in its stone quarry. The stone was taken from the place it was quarried on a four-wheeled tram car along a track to a turntable, and then down a track to the foot of the incline, where it was hoisted up into the mill, emptied, and returned to the track and pushed back to the quarry. The turntable was the central point of several diverging tracks which ran from it to different parts of the quarry. Plaintiff and another who worked with him had used the car in question for about 14 months before the accident. They were paid by the ton or load. When the car was loaded, it was pushed to the turntable, where it was turned onto the main track, and started down the incline, which was considerable. From the turntable to the foot where the car stopped was 170 feet, and on this trip one of the men usually rode, in order to control the speed of the car by standing on the brake lever. This brake was a simple contrivance, consisting of a lever and a shoe. One end of the lever was fastened near one end of the car by a strap iron bolted through the end, and also to the side of the car. It was a piece of oak

two by four inches, and about five feet long. It extended along the side, and a few inches beyond the end, of the car. This lever could be raised and lowered to allow the friction to be applied to the wheels of the car. The shoe was a piece of 2-inch oak plank 20 inches long and 10 inches wide. It was cut curving in at each end to fit the rims of the wheels, and was fastened to the lever by an iron strap bolted on each side of it, and passing up each side of the lever with a bolt through both straps, and the lever in such position that, when let down, it pressed between and fitted to the rims of the wheels. The curved parts were covered with rubber for the purpose of increasing the friction of the brake, and making it more effective. This shoe was held in place and prevented from slipping' out and beyond the rims of the wheels by an iron rod on its inside next to the side of the car bent at each end at right angles; the ends passing through near the upper and lower edges of the shoe with threads and nuts to hold it secure, leaving on the back side a rod seven or eight inches between the angles, upon which was an eye-bolt through which this rod passed, allowing the shoe to be raised and lowered, and holding it from getting away from the side of the car. This eyebolt passed through the frame of the car, and was held by a nut which could be reached from under the car. The accompanying diagram shows the side of the car and the lever shoe and attachments of the brake.

The injury to plaintiff occurred on Wednesday, January 30, 1907. On the preceding Monday this brake was repaired by defendant’s blacksmith, who put new rubbers on the shoe and tightened some of the bolts. He did not go under the car. There had been some snow, and the men did not work after these repairs until Wednesday morning. Plaintiff and his helper had loaded the first load of the day, weighing about two tons, and brought the car to the turntable. It was run onto the track to the mill, and both men got on to put more weight on the lever because the track was slippery. Plaintiff stood on the brake lever towards the front end of the car. His helper was near the end of the lever towards the back end of the car. The car went downgrade at considerable speed, and, when within 40 feet of the foot of the incline, plaintiff fell off, and his arm was run over. The injury required amputation. Both men on the car testify that the brake shoe slipped out and down over the wheels, and plaintiff was thrown off.

The negligence declared and relied upon by plaintiff was defective appliances and neglect of inspection. The defective appliance complained of is the eyebolt which passed through and was held with a nut under the car body. No evidence was offered by defendant, but at tbe close of plaintiff’s case a motion was made for an instructed verdict in its behalf. This motion was granted. After stating the facts, the court gave his reasons for such action as follows:

‘ ‘ This action is brought to recover damages from the defendant. It appears that the car and the brake were the ones usually used in quarries. No complaint is made of the construction of either. They were suitable for the purpose. No want of repair was apparent from 10:30 o’clock Monday, when the new rubbers were put on, until the plaintiff fell off. Plaintiff testifies that they were good, and worked all right. There is no testimony tending to show any specific trouble with the brake or any part of it before the accident, at the time of the accident, or following the accident. This car was used following the accident by plaintiff’s partner and others. It does not appear that any one examined the car after the accident, and no testimony as to the condition of the brake after the accident has been offered. The only testimony as to what occurred at the time of the accident is given by the plaintiff and his partner, who were standing upon the lever, and by a workman who stood 60 feet away. All that the two parties on the lever can say íb that they think the brake slipped. They think the screw bolt was loose. This testimony is very indefinite. It is not shown that any of the bolts on the brake were loose, and no description of any condition that could have caused the plaintiff to fall is given. The cause of plaintiff’s fall is left purely to conjecture. His partner did not fall, the brake did not come off, and there is absolutely no proof of any specific defect in the brake immediately after the accident, nor at any other time. The plaintiff, who had used it, knew of no defect, and his partner, who used it three or four days after the accident, knew of no defect, and no witness described any defect. The plaintiff in his testimony is very uncertain as to why he fell off. It was a frosty morning, and there was snow and ice. The cause of plaintiff’s fall is purely conjectural. The car and brake were not unsafe in character. No want of repair is pointed out in the testimony, except that he described the running off the track by this car at the turntable four or five days after the accident. I say, gentlemen, there is no proof in this case showing any duty upon the defendant which it has failed to perform. There is no specific showing in this case of why this man fell off that brake. There is no showing of what bolt was loose, or, if loose, why loose or how loose, whether a nut was loose, or whether a thread had stripped, or whether the wood had given way — no proof of anything that would tend to show what was specifically the matter with the brake. Therefore there is no proof of negligence in this case.
“It has been claimed by the plaintiff that one of the grounds of negligence is want of inspection. I cannot see that there is any proof of want of inspection on the part of the defendant. For myself, I cannot see, and don’t believe, the law requires an employer to inspect a simple thing like a dump cart or a farm wagon. It perhaps is not necessary to determine that in this case, but it seems to me unreasonable, and I hold it is not the law, for a man to inspect a farm wagon to see whether all the bolts are on, whether the king bolt is in place and the nuts on the hounds, and whether it is safe before letting a hired man go out to haul a load of manure. This man had been using the car for 14 months, and was as competent to know whether the car was in condition as any man, and I think that, under the circumstances in this case, thei’e is no want of inspection, and further, I think it is shown that this man knew his duty to report the want of a shoe, and a man was provided by the company to make the repairs when reported, and they were made on Monday, and the car was all right, he said, after that. I think, in view of these facts, and other reasons I have not enumerated, there can be no recovery in this case. Your verdict therefore will be not guilty.”

Upon the verdict so instructed a judgment was entered.

Errors are assigned to all of the conclusions of the court in this charge, and we are asked to set aside the judgment. If the court was correct in his conclusion that the evidence did not disclose the cause of the injury, but left the matter to be guessed at, it will be unnecessary to enter upon a discussion of other questions in the case. The plaintiff and his helper testified through an interpreter. They were the only persons present who could relate the facts and know the cause of the accident. Their testimony is uncertain and contradictory. From a careful examination of all the evidence on the part of the plaintiff, we are forced to agree with the court that the proximate cause of this injury is purely conjectural, and plaintiff could, not recover. This court has repeatedly held that verdicts cannot be rendered upon negligence, the proof of which is uncertain, leaving the question open to guess, conjecture, and speculation. Powers v. Railroad Co., 143 Mich. 379, and cases cited.

It will be unnecessary to consider any other questions raised.

Judgment is affirmed.

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

Grant, C. J.

I concur in the opinion of Justice Mc~ Alvay. The construction of this car was as simple as that of a farm wagon. When any repairs were needed, it was the duty of the workmen in charge of the car to notify the blacksmith. Joseph Micari, plaintiff’s partner, notified the blacksmith that the brake needed fixing. The blacksmith soon came and fixed it. The only trouble was “that the rubber kind of wore out.” Plaintiff and his partner had used this car for 14 months, and there had been no trouble with the brake, except the wearing out of the rubber. Plaintiff testified that the blacksmith tightened the nuts with a wrench on the Monday morning; that he (plaintiff ) saw him do it. Joseph Micari testified that, “if anything got wrong, I would tell him [the blacksmith] to fix it, and the blacksmith would bring his tools down there and fix the car.” This witness testified that, before the accident, the car was all right, and that this loosening was very sudden. Plaintiff’s expert witness (Michael Perrini) testified:

“Sometimes when extra strains are put on bolts, they will break, and sometimes they will strip the threads right off the bolts. I couldn’t tell whether the bolt broke; or the thread stripped off the bolt; or whether the nut worked off. I wouldn’t give an opinion. I don’t know.”

The plaintiff also testified that there was snow upon the ground, and that, when he stepped on the brake, “I pressed the brake, and slipped off. I don’t know whether it was snow or the brake that slipped off.” Furthermore, the plaintiff stood on the front of the car, instead of upon the side. He testified that he knew the danger in standing in front, that he could as well have stood upon the side, and that he could have chosen the position he wanted to stand in.

Under these facts, I think the court was correct in directing a verdict for the defendant.

Blair and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LITTLE v. BOUSFIELD & CO.

    1. Master and Servant — Personal Injuries — Cause of Injury —Circumstantial Evidence — Sufficiency.
    In an action against a master for the death of a servant by being caught by a set screw while attempting to replace a belt upon a pulley, evidence examined, and held, that though no witness testified that the set screw, rather than the belt, caused the injury, the circumstantial evidence made the question one for the jury.
    2. Same — Negligence—Contributory Negligence —Proximate Cause — Question for Jury.
    Evidence examined, and held, that the questions of defendant’s negligence, deceased’s contributory negligence, and the proximate cause of the injury, were all for the jury under proper instructions.
    3. Same — Assumption of Risk — Violation of Statutory Duty.
    A servant does not assume the risk of the violation by the master of a statutory duty imposed for the servant’s protection.
    4. Statutes — Enactment—Validity—Amending and Repealing Acts.
    Act No. 89, Pub. Act 1905, limiting the liability for negligent injuries resulting in death, in actions prosecuted under the survival act, does not conflict with section 25, article 4, of the Constitution, prohibiting the amendment and repeal of statutes by reference to their titles only.
    5. Damages — Personal Injuries Resulting in Death — Statute —Effect of Repeal.
    The repeal of Act No. 89, Pub. Acts 1905, limiting the liability for negligent personal injuries, in cases where death results, and the action is brought under the survival act, did not affect pending cases.
    Error to Bay; Collins, J.
    Submitted May 7, 1908.
    (Docket No. 102.)
    Decided October 5, 1908.
    Case by Lulu L. Little, administratrix of the estate of Alvah S. Little, deceased, against Bousfield & Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed conditionally.

      Gillett & Clark, for appellant.

      De Vere Hall (J. H. Patterson, of counsel), for appellee.

       Rehearing denied December 21, 1908.

   Moore, J.

This is a personal injury case. The plaintiff recovered a verdict for $7,293.75. The case is brought here by writ of error. Plaintiff is a sister of Alvah S. Little, whose injury forms the basis of the action. He was injured July 24,1905. Defendant owns and operates a factory for the manufacture of wooden pails and tubs. Logs are sawed into short bolts and the bolts into blocks, from which the staves are made. This work was done on the ground floor of the mill. These blocks are thrown into an elevator which carriers them to the second floor of the mill. The elevator sometimes clogged, stopping the elevator and the shaft which operated it. This shaft obtained its power from a countershaft 30 feet away. These shafts were 8 or 10 feet above the floor. The ends of the countershaft were supported on heavy timber posts. There was a heavy belt tightener supported in a wooden frame nearly beneath and near the shaft which pressed against the lower side of the belt, and was held in place by a heavy weight. The belt connecting these two shafts was of leather eight inches wide. On the day of the injury Mr. Little was employed as helper on the machine which split the bolts into blocks. Charles Blaine was operating the machinery of the bolter. When the elevator clogged and the elevator shaft stopped, the belt stopped with it, but the countershaft kept on revolving, so that the pulley on the countershaft slipped under the belt as it revolved until the belt slipped sidewise off the pulley and dropped upon the shaft. This was what usually happened when the elevator clogged. It was the practice in defendant’s mill, after the clogging was remedied, for the man who was helping on the bolter to take a ladder and climb to the countershaft, and lift the belt from the shaft, and put it upon the pulley by hand. Mr. Little had been working for the defendant a number of years. While working there he had occasion before the accident to replace the belt many times. Photographs were offered in evidence showing the shaft, the pulley, and their surroundings. At the left or west end of the shaft is a collar to prevent any end play of the shaft. In this collar on the day of the injury was a square-headed set screw projecting about half an inch. At the right or east end of the shaft was the pulley upon which the belt ran. The distance from the collar to the pulley was stated by plaintiff’s witnesses as two feet. Defendant’s superintendent gave its distance as two feet, four inches. There were two ladders which were usually kept within a few feet of this shaft. One of these ladders was a long ladder, with iron hooks at the top that go over the shaft. Defendant’s superintendent testified that the long ladder was made for use in climbing to the shaft. Plaintiff’s witnesses testified that both of these ladders could be, and were, used by the men to climb to the shaft and replace the belt. There was testimony that the short ladder was usually used. It was lighter and easier to handle, and it was claimed that the man using it could get nearer his work. On the day of the injury the elevator clogged, and the belt dropped off the pulley upon the shaft. Mr. Little took the short ladder, and climbed to replace the belt. Some of the witnesses saw him start to climb the ladder. After he reached the top their attention was called by an outcry, and they saw him pulled over the shaft. After being carried over the top of the shaft, it is claimed that his body could not pass between the shaft and the timbers. The revolving shaft gradually twisted the clothing from his body, so that his body was stripped bare, and he was hanging by the clothing of his legs and ankles when the shaft was stopped. His left arm was bare and had been torn off between the elbow and the wrist, and was lying on the floor. He was also cut across the nose. He was taken to the hospital, where the stump of his arm was amputated. He remained in the hospital about three weeks, and was confined to his house for two weeks thereafter. In July, 1906, he commenced an action for the recovery of damages. Later than this he died. The suit he had commenced was discontinued and this one was commenced.

The question of the connection between the injury and death is a controverted question. The case was submitted to the jury on plaintiff’s theory that, at the time of the accident, Little received a blow on the side of his head which, with his other injuries, aggravated his previously existing ear trouble, and that the accident also contributed to his death by lessening his powers of resistance to disease. It is defendant’s theory that his death was due to disease, entirely independent of the injury. It is plaintiff’s theory that the sleeve on the left arm of Mr. Little was caught by the set screw on the west end of the shaft. The defendant claims that there is no proof that he was caught by the set screw; that the cause of the accident is conjectural, it being more probable that his hand was caught between the belt and the pulley. The declaration contains five counts. Upon the trial all of these counts were abandoned, except the fourth one. A motion to direct a verdict was made at the close of the evidence. This was denied. A motion for a new trial was made on the ground that the verdict was against the weight of the evidence, and that the damages were excessive and unreasonable. This motion was overruled, the circuit judge filing his reasons therefor in writing, which were to the effect that the verdict was not ágainst the weight of evidence, and was not excessive.

The principal questions involved, as stated by counsel for appellant in his brief, from which we quote—

“Are based on the refusal of the court to direct a verdict for the defendant, and upon his overruling of defendant’s motion for a new trial. An important question, also, is whether the measure of damages should be governed by Act No. 89, Pub. Acts 1905, which limits the damages recoverable in fatal cases to the pecuniary loss of the next of kin. This act was in force at the time of the injury, also when this action was commenced, and at the time of the first trial and disagreement, but was repealed before the second trial. The other questions involved refer principally to the admission and rejection of evidence, the refusal of requests to charge, and the charge as given.”

We may say at the outset that, as to the assignments of error relating to the admission of testimony, we have examined them carefully, but do not deem it necessary to discuss them. As to those assignments of error, we think they are not well taken. This is true, also, of the other assignments of error to which we do not further refer.

The fourth count in the declaration reads as follows:

“ Plaintiff further alleges that under the provisions of section 8 of said Act No. 113 of the Laws of this State for the year 1901, as amended, it then and there became and was the duty of defendant to have provided the said belting with a proper safeguard and said shaft with a loose pulley to receive such belt when so forced off. Plaintiff avers that defendant then and there knowingly and wrongfully omitted its duty in that behalf, in that it knowingly and wrongfully failed to provide such belting with any safeguard and such shaft with a loose pulley to receive said belt when so forced off, in consequence whereof, as intestate was so replacing such belt on said pulley in the manner so provided, and in the exercise of due care on his part, the clothing of his left arm was caught by said set screw and he involved in said moving shaft, and thereby seriously, dangerously and permanently injured, as hereinafter set forth, so that in consequence thereof on, to wit, the 8th day of December, 1906, he died, to plaintiff’s great damage, to wit, in the sum of $10,000.”

Later in the declaration was a detailed statement of the accident and its effect upon the deceased, as claimed by the plaintiff.

It is insisted the court should have, directed a verdict:

(1) Because the case was conjectural.

(2) Because no negligence was proved.

(3) Because deceased was guilty of contributory negligence.

(4) Because the negligence complained of was not the proximate cause of the injury.

(5) Because the risk was assumed.

Each of these propositions is argued at great length. The portion of the statute referred to in the declaration which is material here reads as follows:

“It shall also be the duty of the owner of any factory, or his agent, superintendent or other person in charge of the same, to furnish or supply, or cause to be furnished or supplied, in the discretion of the factory inspector, where machinery is in use, proper shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys. All gearing or belting shall be provided with proper safeguards, and wherever possible, machinery shall be provided with loose pulleys. All vats, saws, pans, planers, cogs, set screws, gearing and machinery of every description, shall be properly guarded when deemed necessary by the factory inspector.” Act No. 113, Pub. Acts 1901, § 8.

1. Upon this branch of the case the judge charged the jury:

“Plaintiff cannot recover unless you find that the injury was caused in the precise way alleged in the declaration. The declaration alleges that the sleeve of the deceased was caught by the set screw, and does not claim that the accident was caused in any other way. If, therefore, you find that the injury was caused by the catching of intestate’s clothing on the collar, shaft, pulley, or belt, instead of the set screw, or by the catching of some part of intestate’s person or clothing between the belt and the pulley, or in any other manner, except the catching of plaintiff’s sleeve on the set screw, then you cannot find a verdict for the plaintiff, even if you find that defendant was negligent in some other respect.”

It is argued that it is entirely conjectural what caused the death of Mr. Little, and that the evidence indicates he was caught by the belt, instead of his clothing being caught by the set screw. It is true no witness swore that the set screw did the mischief. It is equally true that no one swore the injury was caused by the belt. There was, however, much circumstantial evidence from which the inference could be fairly drawn that the set screw caught in the sleeve of the deceased, and did the mischief. The question as to how the injury was caused was within the province of the jury. Morton v. Railroad Co., 81 Mich. 423.

2, 3, and 4 may be considered together. Three large photographs were introduced in evidence showing the situation. The witnesses described what they saw and heard just before, during, and immediately after, the accident. We think the testimony was such that as to each of these propositions it was the duty of the trial judge to submit them to the jury under proper instructions. This he did.

5. It is insisted the risk was assumed. That contention is no longer tenable under Swick v. Cement Co., 147 Mich. 454, and the recent cases of Layzell v. Coal Co., and Capeling v. Coal Co., in which opinions were handed down this term. A reversal is urged because: (b) The jury should not have been permitted to find that death resulted from the injury, (c) A new trial should have been granted. (1) The verdict was against the weight of the evidence. (2) The verdict was excessive. (d) The damages should have been governed by Act No. 89, Pub. Acts 1905.

(6) It is insisted that death was not the result of the injury, but that deceased had “recovered from the injury, and that his death was caused by disease not traceable to his injury. A great deal of evidence pro and con upon that branch of the case was given. We think the testimony made a question for the jury, and they were properly instructed in relation thereto.

(c) The trial judge filed his reasons in writing for overruling the motion for a new trial, and found the verdict was not against the weight of the evidence. If we follow the rule stated in Hintz v. Railroad Co., 132 Mich. 305, and Line v. Railway Co., 143 Mich. 163, and the cases therein cited, we think it clear we ought not to disturb the verdict because against the weight of evidence. The judge also found the verdict was not excessive. For reasons which will appear later, we deem it unnecessary to' discuss that feature of the case.

(d) Should the damages have been governed by Act No. 89 of the Public Acts of 1905 ? Counsel for the appellee says no, because that act was repealed before the last trial, and before the verdict and judgment. He insists that Act No. 89 simply related to the remedy, and that, when it was repealed without a saving clause, and given immediate effect, even though Mr. Little was hurt and this action was begun while the law was on the statute book, when it was repealed, plaintiff can recover the same as though the law never existed. It is also insisted that Act No. 89 is void because contrary to a provision of the Constitution reading:

“No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.” Constitution of Michigan, art. 4, § 25:

Act No. 89 is as follows:

“An act to prescribe the measure of damages in actions for negligent injuries to persons where deaths result, and where the actions are prosecuted under the survival act, and to provide for the distribution of the amounts paid on account of such damages, without participation by creditors of the deceased.
The People of the State of Michigan enact:
“Section 1. In all actions for negligent injury to persons hereafter prosecuted by the executor or administrator of an injured person, under the statute which declares that said actions shall survive, the measure of damage in each case, shall be such a sum as the court or jury shall deem fair and just with reference to the pecuniary injury, resulting from the death of the injured person, to those persons who may be entitled to such damages under the law providing for the distribution of personal property left by persons dying intestate, and. the amount recovered or paid in settlement of such damages shall not be subject to the claims of creditors of the deceased, but shall otherwise be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate.
“Sec. 2. All acts or parts of acts in anywise contravening the provisions of this act are hereby repealed.
“ This act is ordered to take immediate effect.”

We think a reading of the title of the act and the act itself shows that it does not come within the constitutional provision quoted. Act No. 89 was construed in Davis v. Railroad Co., 147 Mich. 479, where it was held that its provisions did not control as to cases pending when it took effect. The record discloses that, if its provisions apply to the case at bar, the measure of damages at the time of the first trial of the case would amount to $4,528, while the jury upon this trial, proceeding upon the theory, under the instruction of the court, that Act No. 89 did not control, assessed the damages at the sum of $7,293.75. We think the repeal of Act No. 89 did not affect pending cases, and, unless plaintiff will remit the amount of the judgment to $4,528 with legal interest from the date of the first trial, the judgment will be reversed.

In case she does so remit, the judgment will be affirmed. Defendant should have costs of this court.

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

       Withheld from publication pending rehearing.


author: Grant, C. J. Ostrander, J.

text:
    CITY OF NILES v. BENTON HARBOR-ST. JOE RAILWAY & LIGHT CO.
    1. Corporations— Consolidation — Street Railroads — Action Against — Estoppel.
    Where a street-railroad company, formed by the consolidation of two previously existing companies, was sued upon a liability of one of the constituent companies, it could not urge the invalidity of its own organization.
    2. Street Railroads — Contracts—Ultra Vires.
    Where the charter of a street-railroad company authorized it to build from the State line to a certain city, and to make any connections or extend any spurs into any part of the county in which the city is situated and certain other counties, a contract by which the company acquired franchise rights in another city of the same county was not ultra vires.
    3. Pleading — Special Defense — Ultra' Vires — Necessity of Notice.
    In a suit against a street-railroad company, formed by the consolidation of two previously existing companies, upon a contract made by one of the constituent companies, the defense that the contract was ultra vires is not available unless specially pleaded as required by Circuit Court Rule 7.
    4. Novation —What Constitutes — Street Railroads — Franchises.
    A street-railroad company is not relieved of its obligation to pay an agreed portion of the cost of a street pavement already laid, as provided by the ordinance granting its franchise, though a section of the ordinance obligates the company to diligently prosecute its application to the railroad commissioner for permission to cross the tracks of a steam railroad upon that street at grade, and provides that unless that permission is obtained the ordinance shall be void at the option of the city; a previously existing company, liable for the cost of the paving, having been released as a part of the consideration for the granting of the franchise.
    5. Street Railroads — Franchises—Cost of Paving — Construction.
    If the obligation of a street-railroad company, imposed by its franchise, to pay a part of the cost of a street pavement already laid, was conditional upon its obtaining permission of the railroad commissioner to cross the tracks of a steam railroad at grade, as provided by another section of its franchise, it could not defeat an action for the agreed amount without a showing of diligence in prosecuting its application, and a refusal.
    6. Same — Conditional Franchise.
    Under a franchise providing that upon the nonperformance of certain conditions the franchise shall be void, at the option of the city, the grantee has the right to build, notwithstanding nonperformance of the conditions, in the absence of action by the city in the exercise of its option, and the company is not relieved of any of the obligations imposed by the accepted franchise.
    7. Same — Franchise—Acceptance—Sufficiency.
    A written acceptance of a street-railroad franchise, signed in the name of the company, by its president and secretary, with the seal of the company attached, is prima facie a good acceptance.
    Error to Berrien; Des Voignes, J., presiding.
    Submitted May 12, 1908.
    (Docket No. 47.)
    Decided October 5, 1908.
    Assumpsit by the city of Niles against the Benton Harbor-St. Joe Railway & Light Company for an amount due for certain paving. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Humphrey 8. Gray and M. L. Howell, for appellant.

      J. J. Van Riper, City Attorney, G. M. Valentine, and Hdson B. Valentine, for appellee.
    This case was tried before the court without a jury. The court made a finding of facts and of law as follows:
    “ On the 30th day of March, 1905, the St. Joe River Traction Company, a corporation, organized and existing under Act No. 35, Laws 1867, applied to the city council of Niles for an ordinance granting to it, its successors, assigns, lessees, etc., to construct, maintain, own, and operate a street railway in said city of Niles. On said 30th day of March, 1905, an ordinance granting such franchise was duly passed by the city council, and among other provisions contained in said ordinance appeared the following:
    ‘ ‘ ‘ Seo. 3. Inasmuch as Front street from Main street to the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, is now paved with brick and the South Bend & Southern Michigan Railroad Company has agreed to pay a part of the expense thereof, which amount has been heretofore determined and agreed upon, and whereas, said South Bend & Southern Michigan Railway Company has now surrendered all rights in and to said street, grantee agrees that it will pay four-fifths of the entire amount so agreed upon to be paid by the said South Bend & Southern Michigan Railway Company, being the sum of, to wit: three thousand dollars, and agrees to pay the same with interest in three equal annual installments, on July 1st, of each of the years A. D. 1905, A. D. 1906, and A. D. 1907.’
    “ On the 21st day of April, 1905, the St. Joe River Traction Company, by Henry C. Mason, its vice president, and Humphrey S. Gray, its secretary, filed an acceptance of said ordinance and franchise in writing, thereby obligating itself to pay to the city of Niles the said four-fifths of the entire amount for which the said South Bend & Southern Michigan Railway Company was to pay for its share of the paving of said Front street, as provided in section 3 of the ordinance just above referred to. That neither the sum so stipulated and provided for in said ordinance, nor any part thereof, has been paid by the St. Joe River Traction Company. That on the 25th day of January, 1906, an agreement of consolidation and merger of the St. Joe River Traction Company with the Southern Michigan Light & Power Company, under the name of Benton Harbor-St. Joe Railway & Light Company, was filed and recorded within the office of the secretary of State at Lansing, Mich., by virtue of Act No. 197, Pub. Acts 1891, and thereafter the two corporations formed a single corporation, and from that time to this they have continued to operate said railway under said merger and consolidation, into a single and new corporation, under the laws of the State of Michigan. That the St. Joe River Traction Company ceased to have a legal existence, and was merged into said defendant company, together with all its capital stock, franchises, etc., appertaining thereto, together with all the properties and rights of said corporation, roal, personal, or mixed, on or about January 25, 1906. Under the statute permitting the merger and consolidation of the constituent companies into the defendant corporation, as hereinbefore set forth, the defendant assumed and became liable to pay all the debts, liabilities, and duties of said St. Joe River Traction Company to the same extent as if such liability had been originally incurred by it. * * *
    “ It therefore follows that the plaintiff is entitled to recover in this action for the payments due on July 1,1905, and July 1,1906, as set forth in their declaration, with interest to be computed at the rate of 5 per cent, per annum instead of 6 per cent, as claimed in plaintiff’s computation, and a judgment may be so entered accordingly, with costs to be taxed against the defendant.”
    Counsel for defendant filed 38 exceptions, some to the finding of facts, some to the finding of law, and some to the refusal to find other facts. There are 31 assignments of error.
   Grant, C. J.

(after stating the. facts). The most important assignments of error are grouped by counsel for defendant under two heads.

1. It is insisted that the contract between the City of Niles and the St. Joe River Traction Company was ultra vires, both as to that company and the consolidated company, and also that the consolidation was not authorized by the statutes of Michigan then in force. Defendant acquired, by the act of consolidation, all the franchises, rights, and property of the St. Joe River Traction Company, and thereby became obligated to pay all its debts and liabilities. It cannot in this proceeding assert the invalidity of its own organization. Shadford v. Railway, 130 Mich. 300. The contract between the city and the St. Joe River Traction Company was not ultra vires. The precise point urged is that under its charter it had no authority to extend its road into the city of Niles. Its declared purpose in its charter is not alone to construct a street railway from the State line between Michigan and Indiana to the city of Benton Harbor, but also to make any connections' or extend any spurs into any part of that county and certain other counties. The city of Niles is situated in Berrien county. Furthermore, this defense is not available, as no notice was given of it under Circuit Court Rule 7. Wachsmuth v. National Bank, 96 Mich. 427 (21 L. R. A. 278).

2. It is insisted that the contract with the St. Joe River Traction Company depended for its validity upon the consent of the railroad commissioner to a grade crossing over the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and, as this was not obtained, the contract became impossible of performance, without consideration, and void. That provision of the ordinance upon this subject is as follows:

“Grantee agrees to prosecute diligently its application to secure a grade crossing over the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company on Front street; and it is agreed that if the right to make such crossing is not granted and the tracks on Front street not constructed as above required within one year from the acceptance hereof, then all rights under this ordinance shall cease, if the council of the city of Niles so direct, and this ordinance shall terminate and be void.”

There are three answers to this claim:

(a) The South Bend & Southern Michigan Railway Company, in its contract with the city of Niles, had agreed to pay a certain part of the cost of paving the street as a consideration for the granting of a franchise. The street had been paved, the amount agreed upon, and that company had already paid two-fifths of the amount. The agreement by the city to release the South Bend & Southern Michigan Railway Company from further payment, and on the part of that company to surrender its franchise in Front street, the granting of the franchise to the St. Joe River Traction Company in the street, and the assumption of the obligation on the part of the trac* tion company to pay this portion of the payment, appear to be a part of the same transaction. The obligation on the part of the South Bend Company was transferred to, and assumed by, the traction company. It is a fair presumption from this record that the city released the one upon' the assumption of the obligation by the other. There was therefore a complete novation. Section 3 of the franchise to the St. Joe Traction Company reads as follows:

“ Inasmuch as Front street from Main street to the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company is now paved with brick, and the South Bend & Southern Michigan Railway Company had agreed to pay a part of the expense thereof, which amount has been heretofore determined and agreed upon, and whereas said South Bend & Southern Michigan Railway Company has now surrendered all rights in and to said street, grantee agrees that it will pay four-fifths of the entire amount so agreed to be paid by said South Bend and Southern Michigan Railway Company and agrees to pay the same with interest in three equal annual installments on July 1, of each year A. D. 1905, A. D. 1906, and A. D. 1907.”

The agreement to pay was unconditional, and did not depend upon the future construction of a street railway upon Front street, or securing the right to cross the railroad track at grade. The South Bend Company had made an absolute agreement to pay a certain amount, and had paid a part as agreed. The traction company agreed to pay four-fifths of this expense. Why it was four-fifths instead of three-fifths is not explained by the record. It may have been a mistake in writing four-fifths instead of three-fifths, but we have no evidence by which to determine that there was a mistake.

(b) If the payment of this amount was conditional upon obtaining permission from the proper authorities to cross the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company bn Front street at grade, and the failure to obtain such permission, this record, as the learned circuit judge found, fails to show such diligent prosecution. All the record shows is a petition to the railway commissioner asking permission, and that a time and place be named, and notice thereof “given to your petitioner when and where all parties interested in such crossing may be heard.” There is no evidence that there was any hearing or any production of evidence or any denial on the part of the commissioner. The court properly found “that no proof has been shown denying the right to make the crossing.” The burden of proof was upon the St. Joe River Traction Company and its assignee to show that it had performed the contract. The record only shows that such permission was not obtained.

(c) The agreement was not that, upon inability to obtain a crossing at grade, the contract should be absolutely void. The court found that permission to cross the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company was not necessary to make the franchise valuable, because the track could pass under the Michigan Central Railroad track without crossing the other, and that therefore there was no physical impossibility of performance. We are not concerned with the reasons why they did not agree that the contract should be absolutely terminated upon the failure, after diligent prosecution, to obtain a grade crossing. It is sufficient to know that they did not make such a contract, but did agree that the failure to obtain this crossing and to construct the tracks within the time prescribed should operate to make the contract void only at the option of the city of Niles. Until the city has exercised that option the defendant, as assignee of the traction company, retains its right to construct a railway thereon. It placed the sole power to declare the contract ended in the city of Niles. I see no objection to the validity of this provision.

3. It is urged that the court should have found that there was no acceptance of the ordinance shown by the St. Joe River Traction Company. A written acceptance was served upon the city. It was signed in the name of the St. Joe River Traction Company, by its president and secretary, and the seal of the corporation attached. This made a prima facie case of acceptance. Kirkpatrick v. Eastern Milling & Export Co., 135 Fed. 144.

4. The errors assigned, upon the omission to find certain facts, become immaterial to consider, in view of the fact that they arise upon the articles of association of the various companies which were introduced in evidence, were a part of the record, and have been considered by us, as they were by the circuit judge, in arriving at our conclusions. We see no occasion to. discuss the question further. No material findings were made without evidence to support them.

The judgment is affirmed.

Montgomery and Hooker, JJ., concurred.

Ostrander, J.

I concur in the result; as to the second point upon the first ground — (a)—stated in the opinion of Chief Justice Grant.

Blair, J., concurred in the result.


author: Montgomery, J.

text:
    MAYER v. MAYER.

    1. Divorce — Alimony—Decree—Finality.
    A decree for alimony, in a case of divorce a vinculo, made without reservation, either in the decree itself or the statute, of power to amend or modify, although payable in installments, is final, and cannot be changed after enrollment.
    2. Judgments — Foreign Judgments — Action—Decree eor Alimony.
    Where a decree for divorce, passed in another State, containing no reservation of power to amend or modify, granted the wife for her support a certain amount per month, to cease upon her -death or in case she should marry again, and for the support of the children a certain amount per month until they should arive at majority, and the statutes of the State in which the decree was granted reserve power to the court to modify such decrees with respect to the allowance for children, the decree was final as to the payments due to the wife, and an action for accrued payments was maintainable in our courts; but as to the payments for the children, the decree was not final, being subject to modification in the foreign State, and an action thereon could not be maintained here.
    3. Divorce — Alimony — Degree — Eneorcement — Contempt— Statute.
    Act No. 230, Pub. Acts 1899, conferring authority to enforce by proceedings for contempt orders for the payment of alimony “ made in any suit for divorce,” does not authorize such pro-, ceedings in a suit brought in this State to enforce a decree for alimony made by a court in another State.
    Appeal from Wayne; Brooke, J.
    Submitted June 15, 1908.
    (Docket No. 92.)
    Decided October 5, 1908.
    Bill by Sarah Mayer against Ignatz Mayer to enforce the terms of a decree for divorce. From a decree for complainant, and an order adjudging defendant guilty of contempt for noncompliance with said decree, defendant appeals. Decree modified, and contempt order set aside.

      Willard E. Warner, for complainant.

      Frazer, Griswold & Slyfield, for defendant.

       Rehearing denied November 30, 1908.

   Montgomery, J.

Complainant and defendant were formerly husband and wife. On the 20th of April, 1896, the district court of the first district of Oklahoma passed a decree dissolving the marriage between the parties, and awarding the custody of five minor children of the parties to the defendant upon the following terms and conditions :

“The said children are to be sent to the public schools during the school year, and said children are not to be sent out to work unless by permission of the court or judge. The plaintiff is to have the right to visit the said children at their home between the hours of 9 a. m. and 9 p. m. on Wednesdays and Saturdays of each week without interference or molestation from the defendant, the court reserving the right to modify the order in regard to the children at any time.”

The decree further adjudged that the complainant should pay to defendant as alimony for the support of herself the sum of $25 per month, payable monthly, such payments to cease on defendant’s death or in case defendant should marry again. The decree then proceeds as follows:

It is further ordered that the plaintiff pay to the defendant for the support and maintenance of the children the sum of ten dollars per month for each of said children, payable to the defendant monthly, said payments to continue until each of the said children shall have arrived at the age of twenty-one (21) years, or shall have married, or until the further order of the court. As a condition precedent to the payment of alimony by the plaintiff; the defendant is required to turn over to the plaintiff his books, literary, and professional, also the instruments of his profession now being in the possession of the defendant, also his private papers, pictures, and photographs, and the plaintiff may withhold the payment of said alimony until this order is complied with, the cost of packing and shipping to be paid by the plaintiff.”

The complainant, who was the defendant in the divorce proceedings, afterwards removed to New York, and the defendant removed to the city of Detroit, in this State, and complainant later also removed to the city of Detroit and filed the bill in this case, which sets up, in substance, that she has substantially complied with all the terms of the decree on her part, but that the defendant has failed to make payments of the amount of alimony due to complainant of |25 per month, that he has failed to keep up the payments awarded to her for the care and support of the children, and that there is now due on each item a large sum of money. The circuit judge found that there was unpaid to complainant for her support at the date of the decree $1,700.50, and that there was unpaid to complainant of the sums which she was entitled to receive for the support of the children $3,172.34, and gave a decree for the total amount of $4,872.84, payable forthwith. The decree not having been complied with, upon proper proceedings had, the defendant was adjudged guilty of contempt for failure to comply with the decree, and an appeal has been taken to this court from the original decree, and also from the order adjudging the defendant guilty of contempt, and the questions involved in both orders are before the court for determination.

The case presents three questions:

First. Whether a decree for alimony made in a court of a sister State, where no reservation of a right to modify the decree appears in the decree itself, and where no such right is conferred upon the court by statute, is such a final determination of the rights of the parties as to create an obligation enforceable in our courts.
Second. Whether the award of money for the care and support of the children, as in this case where there is a reservation in the decree of a right to modify or change the order, either in the statute or in the decree itself, is such a final decree or order as is enforceable in the courts of this State.
Third. Whether, if such decree is either wholly or in part enforceable within this State, it may be enforced by proceedings as for contempt on the failure of the delinquent to comply with the order of the court in chancery.

The case of Barber v. Barber, 21 How. (U. S.) 582, affirms the right of a wife under a judicial decree of separation from bed and board who has been awarded alimony by the courts of the State of New York, payable in installments, to maintain a suit in equity in a court of the United States in the State of Wisconsin by her next friend to enforce the payment of such alimony. It was said in the course of the opinion:

“Courts of equity will interfere to compel the payment of alimony which has been decreed to a wife by the ecclesiastical court in England. Such a jurisdiction is ancient there, and the principal reason for its exercise is equally applicable to the courts of equity in the United States. It is that when a court of competent jurisdiction over the subject-matter and the parties decrees a divorce, and alimony to the wife as its incident, and is unable of itself to enforce the decree summarily upon the husband, that courts of equity will interfere to prevent the decree from being defeated by fraud. The interference, however, is limited to cases in which alimony has been decreed. Then only to the extent of what is due, and always to cases in which no appeal is pending from the decree for the divorce or for alimony. * * *
“ The parties to a cause for a divorce and for alimony are as much bound by a decree for both, which has been given by one of our State courts having jurisdiction of the subject-matter and over the parties, as the same parties would be if the decree had been given in the ecclesiastical court of England. The decree in both is a judgment of record, and will be received as such by other courts. And such a judgment or decree, rendered in any State of the United States, the court having jurisdiction, will be carried into judgment in any other State, to have there the same binding force that it has in the State in which it was originally given. For such a purpose, both the equity courts of the United States and the same courts of the States have jurisdiction.”

This case was cited as an authority in Dow v. Blake, 148 Ill. 76, and in Wagner v. Wagner, 26 R. I. 27 (65 L. R. A. 816), and, if the holding be limited to a case in which a final award of alimony has been made in a sister State, with no power reserved in the court, in the decree itself or inherent in the court under the law, either the common law or the statute law, to modify or amend the decree as to the amount, its authority should be said to remain unshaken. It will be noticed that, as to the award of alimony to the wife in this case, the decree contains no reservation of authority to subsequently modify the decree. The statute of Oklahoma was introduced in evidence by the defendant, and the only provision which bears upon the power of the court in such cases is as follows:

“When á divorce is granted, the court shall make provision for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.” 2 Rev. Sfcat. Okla. § 4838.

It will be seen that this limits the statutory authority to modify the decree to the subject of the allowance for the support and education of the minor children. It is contended in the brief of the defendant’s counsel that this right exists in a court of equity independent of statute. We do not agree with this contention. On the contrary, we think the authorities generally sustain the proposition that a decree for alimony in a case of divorce a vinculo, made without reserve, although payable in installments, is final, and cannot be changed after enrollment of the decree. See Sampson v. Sampson, 16 R. I. 456 (3 L. R. A. 349); Livingston v. Livingston, 173 N. Y. 377 (61 L. R. A. 800); Kamp v. Kamp, 59 N. Y. 220; Erkenbrach v. Erkenbrach, 96 N. Y. 456. In most of the States the power to amend the decree as to alimony is reserved to the court by statute, but in the absence of such reservation of authority, or of a reservation in the decree itself, we think the determination should be treated as final. We think the decree for the arrears due the wife is within the authority of the court, and should be affirmed. But different considerations control as to that portion of the decree which found in favor of the complainant for the arrears in payments for the support of the minor children.

A well-considered case, which has become a leading case upon this question, is thalt of Lynde v. Lynde, reported in 41 App. Div. ( N. Y.) 280, in 162 N. Y. 405 (48 L. R. A. 679), and in 181 U. S. 183. In that case an action was brought in the supreme court of New York to recover upon the final decree of the circuit court in chancery of the State of New Jersey, which New Jersey court had adjudged that the plaintiff was entitled to recover of the defendant $7,840 and a counsel fee of $1,000, and that the defendant should pay to her permanent alimony at the rate of $80 per week from the date of the decree, and to give security for the payment of the several sums directed, etc. On the hearing of this case, the appellate division held that, in so far as the decree of New Jersey adjudged the defendant to be indebted to the plaintiff in a certain sum at the date of its rendition, it was a final adjudication, and entitled as such to recognition in the court of a sister State, established a debt against the defendant, and had extraterritorial value and force. It also found that, so far as the decree made provision for the payment of alimony in the future, it remained subject to the discretion of the chancellor and lacked conclusiveness of character, and recovery was therefore limited to the amount found due at the date of the decree. From this decision both parties appealed to the court of appeals, where, upon a very full discussion of the subject, and a full review of the case of Barber v. Barber, supra, the court affirmed the judgment. From this decree both parties again appealed to the Supreme Court of the United States. The opinion was delivered by Mr. Justice Gray, and contains the following:

“The decree for the payment of $8,840 was for a fixed sum already due, and the judgment of the court below was properly restricted to that. The provision of the payment for alimony in the future was subject to the discretion of the court of chancery of New Jersey, which might, at any time, alter it, and was not a final judgment for a fixed sum.”

The conclusion reached in Lynde v. Lynde has been followed in Page v. Page, 189 Mass. 85, in Israel v. Israel, 148 Fed. 576, 79 C. C. A. 32 (9 L. R. A. [N. S.] 1168), and in Sistare v. Sistare, 80 Conn. 1, while the authority of the case is questioned in Wagner v. Wagner, 26 R. I. 27 (65 L. R. A. 816). In speaking of the latter case, the supreme court of Utah, in Hunt v. Monroe, 32 Utah, 428 (11 L. R. A. [N. S.] 249), says:

“This is the only case decided after the Lynde Case * * * which holds to the doctrine that a judgment like the one at bar may be sued on in a sister State before the State court * * * has fixed an absolute sum due and payable at some time prior to the bringing of the action thereon.”

So far as our examination has extended, we have also failed to find any other case in which the doctrine of the Lynde Case has been either misapprehended or repudiated.

It follows from what we have said that the decree, in so far as it contains an award for the arrears in payments accruing to the defendant for the care and custody of the minor children, should be reversed, without prejudice to the right of the complainant to apply for relief to the court in Oklahoma. See, also, Nixon v. Wright, 146 Mich. 231.

The remaining question is whether the remedy by proceedings as for contempt is open in this case. In the absence of a statute authorizing attachment for nonpayment of permanent alimony, it has been held in this State that such remedy is not open. See North v. North, 39 Mich. 67. We have a statute, however, which provides (Act No. 230, Pub. Acts 1899):

“ Every court of record shall have power to punish by fine and imprisonment, or either, any neglect or violation of duty * * * in the following cases: * * * The disobedience or refusal to comply with any order of such court for the payment of alimony, either permanent or temporary, made in any suit for divorce.”

It is to be noticed that the authority conferred by this statute is limited to suits for divorce. The present suit is not a shit for divorce. It is a suit brought for the purpose of obtaining a money decree based upon a judgment of another State, and does not call upon the court to consider the question of divorce at all. As was said in Page v. Page, 189 Mass. 85:

“ In this Commonwealth the authority to grant alimony is now derived wholly from the statutes. * * * Upon this petition, therefore, we cannot make any inquiry as to the proper amount to be allowed as alimony, nor can the order of the Maine court as to alimony be enforced in any of the ways set forth in our statutes. * * * We can
have no part in the matter until the question of amount has been there settled, and even then we cannot make use of the statute proceedings because they are not applicable.”

The order adjudging the defendant guilty of contempt will be set aside. The decree below is modified as indicated by this opinion, and the defendant will recover costs of this appeal, to be applied upon the decree awarded complainant.

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


author: Ostrander, J.

text:
    JORDAN v. WALKER.
    1. Sales — Contract—Evidence—Sufficiency.
    In an action of assumpsit for breach of a contract for the sale of certain pickles, evidence consisting of correspondence of the parties examined, and held, not to show sufficient certainty as to quantity and quality to constitute a contract.
    2. Same — Offer and Acceptance — Conditional Acceptance.
    An acceptance is not rendered conditional by a statement therein of a proposed method of measurement corresponding to the trade manner which would be understood by both parties as the proper method, whether stated or not.
    3. Appeal and Error — Reversal—Relief Granted — Judgment on Set-off.
    Where the issues in an action of assumpsit for breach of contract were submitted to a jury with instructions to allow the amount of a set-off pleaded by defendant, and a judgment was rendered for plaintiff, to review which defendant brought error, plaintiff not appealing, the court, on reversing the judgment without granting a new trial, entered judgment for defendant for the amount of his set-off.
    Error to Kent; Perkins, J.
    Submitted June 15, 1908.
    (Docket No. 96.)
    Decided October 5, 1908.
    Assumpsit by John J. Jordan, William M. Jordan, and Frank E. Jordan, copartners as Jordan Bros. Co., against George E. Walker for breach of contract for the sale of certain pickles. There was judgment for plaintiffs, and defendant brings error.
    Reversed, and judgment upon his set-off entered for defendant.

      McDonald & Powers (if. A. Nichols, of counsel), for appellant.

      D. O. French and James A. Lombard, for appellees.
   Ostrander, J.

The court below ruled that a valid written contract existed between the parties for the sale by the defendant to the plaintiffs of two tanks of pickles, the same to be the first tanks packed by the defendant in the season of 1907. If there was such a contract, it is to be found in correspondence of the parties here set out. It should be stated that the business of plaintiffs is purchasing pickles from those who salt or cure them, and, after subjecting them to further treatment, selling them to the trade. Defendant is owner of a salting station, and he buys cucumbers from the growers, salts and sells them. Plaintiffs had previously purchased pickles of defendant. There had been oral negotiations between them with respect to the purchase by plaintiffs of the 1907 crop, followed by some correspondence not here material. A letter written by the plaintiffs to the defendant, dated June 20, 1907, contains the following:

“If you will let us have 3,000 bushels, vat-run, counting 5,000 to the bushel, at $1.00 per bushel, we to furnish casks, it will help us out some.”

The reply, dated June 27th, reads:

“ I will place your order for two tanks of vat-run to be taken out early in the fall when cured at the $1. This was what I figured on letting you have the time I called at your office. Barrels you furnish and price f. o. b. factory.
“ P. S. I will give you the first two tanks filled.”

The answer to this was:

“ Your letter received stating that you would let us have two tanks of vat-run at $1.00 per bushel, f. o. b. W. Carlisle six bushel to 45-gal. cask, we to furnish casks. We presume this is about two thousand bushel you will let us have, as we judge your tanks will hold about one thousand bushel each. Is it possible for you to enter our order for another thousand bushel? We would like to have another thousand bushel bought to protect us on sales.”

To the last letter defendant made no reply. Whether all three or only the last two of these letters are considered, it is contended there is an offer on the part of defendant to sell two tanks of pickles, the first ones filled, vat-run, at $1 a bushel, barrels to be furnished by plaintiffs, price f. o. b. at plaintiffs’ station. The expression in the last letter “six bushel to 45-gal. cask” is not, under the testimony, a modification of the proposal, or a condition attached to its acceptance. It is the statement of the trade manner of measuring quantities, understood by both parties, whether stated or not. Defendant testified that “45 gallons is considered by all packers as six bushels.” See 1 Beach on Modern Law of Contracts, § 56. We are impressed, however, that the quantity of pickles and their quality, so far as dependent upon the size of the pickles, was, and was understood to be, matter for further negotiation. Pickle tanks are not uniform in size, nor is there a recognized minimum or maximum size, and “vat-run” may mean pickles counting all the way from 3,000 to 6.000 pickles to the barrel. Defendant had no tanks holding 1,000 bushels or near that quantity. Plaintiffs had seen his tanks. One of the plaintiffs testified upon the subject of “vat-run ” as follows:

“ Q. Now, I want to ask you, Mr. Jordan, whether or not the price for vat-run pickles would be higher as the number of pickles to the cask is increased ?
“A. Yes, sir; a cask of pickles, running from 5,000 to 6.000 to the cask, would be worth more than pickles running from 4,200 to 4,400 count. On vat-run pickles that will count between 5,000 and 6,000, they are worth about 10 cents a bushel more than pickles that will count 4,000 to 4,500.”

So in various market quotations, introduced'by plaintiffs to establish the amount of their damages, it appears that quotations are, for the most part, made with specifications as to the count. For example:

“ Chicago, August 10,1907; 500 casks vat-run 3,200 to 3,500 counts at $7.50 per 45 gallon, without barrels, or $1.25 per bushel, f. o. b. Ind.
“ Chicago, August 17, 1907; vat-run pickles 3,000 to 4.000 bushels; 4,000 to 4,500 count, f. o. b. Inch, per bushel, $1.50.”

It is to be noticed that in the letter of June 30th plaintiffs specify a 5,000 count. Defendant’s offer does not specify, nor does the reply thereto specify. And as to the quantity of pickles sold, the difficulty of finding an agreement in the letters themselves is illustrated by the testimony given by plaintiffs:

“Q. Were you not claiming that Mr. Walker had agreed to furnish you 3,000 bushels of pickles in the months of August, September, and October for the reason that pickles had gone up ?
“A. I had expected all the time that I was to get the
3.000 bushels. I expected 3,000 bushels because he said he would give us two tanks, and I meant 1,000 bushel to the tank. I mentioned it in my letter of June 38th. He did not tell me anything about what his tanks would hold in his letter of June 37th. He did not contradict my statement that the tanks would hold 1,000 bushels each until his letter of August 13th, when he said one tank would hold about 40 bushel, and the other 440. At that time pickles had gone clear up.”

Again:

“Q. Then, in order that you might actually know what you were getting, he could [should] have answered your letter ?
“A. He should have done so to make it clear; but, as he did not say anything, we presumed he meant 1,000 bushels in a tank. He did not deny it. Choice vat-run pickles are nice and straight, and a fair count to the bushel; 5,000 or 6,000 count is a nice count to the barrel. Vat-run are quoted 4,500 to the barrel, and from 5,000 to 6.000 to the barrel. Five to six thousand is a nice vat-run. Ordinarily the run is about 4,500. I have seen 6.000 count for pickles four inches long and over in them. It depends on how many small pickles are in the barrel. You could have nearly all four-inch pickles if there was enough midgets in them to make a 6,000 count to the barrel, but I do not think that would be called a vat-run. Some three to four thousand is a coarse vat-run. I do not care to buy them. Forty-five hundred to the barrel is a fair run.”

We think we are not warranted in saying that a mutual agreement existed. We have not overlooked the fact that later in the season defendant, in one of his letters, stated that the first two tanks of pickles held 40 bushels and 420 bushels, respectively, and that still later he wrote, “ I do not hold myself holding.” Nor have we overlooked the line of decisions of which Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462, is one, in which case it is held that a contract for the sale of a certain number of carloads of lumber, at a fixed price per thousand feet, is not void for uncertainty because not specifying the quantity to be contained in a carload; it appearing there was a minimum and a maximum carload, depending upon the size of the cars. See, also, Holland v. Rea, 48 Mich. 218; Hickey v. O’Brien, 123 Mich. 611 (49 L. R. A. 594); Miller v. Tanners’ Supply Co., 150 Mich. 292. The subsequent statements of defendant do not aid in a construction of the language in which the contract, if it exists, is to be found, and the difficulty with respect to certainty of quantity and quality is not removed by language which indicates want of mutual understanding upon these most material subjects. The case, casually examined, may appear to be a close one; but careful examination has forced the conclusion that in finding that a contract existed the court below was in error. The judgment is reversed, with costs of both courts, and no new trial of this issue will be granted.

Plaintiffs owed defendant September 6, 1907, a balance, growing out of other transactions, of $494, which has not been paid. Defendant, with his plea, gave notice of set-off, contending at the trial that a verdict for this sum should be directed in his favor. The court instructed the jury to allow this sum to defendant in any verdict they might render, with interest at the rate of 5 per cent. It must be assumed that this direction was followed, being, in effect, a verdict of the jury in favor of defendant for this sum. The right to set off the demand of defendant in an action upon a special agreement to recover unliquidated damages is not discussed in the briefs. See 3 Comp. Laws, § 10075; Holland v. Rea, 48 Mich. 218, 225. Plaintiffs have not appealed.

Under these circumstances, in reversing the judgment in favor of the plaintiffs, we enter a judgment in this court in favor of the defendant for the sum of $494, with interest at 5 per cent, from September 6, 1907.

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


text:
    WELCH v. JACKSON & BATTLE CREEK TRACTION CO.
    1. Trial — Instructions—Requests—Refusal—Prorpiety.
    Where requests to charge are presented in such multitude and length as to make it difficult to analyze and arrange the material into ^orm, no impropriety arises from a refusal of all of them and the giving by the circuit judge of a proper charge in his own language.
    3. Master and Servant — Injuries to Servant — Negligence of Master — Evidence—Sufficiency.
    In an action against an electric railroad company for injuries to a conductor in a rear-end collision, evidence examined, and held, to make a question for the jury whether the brakes upon plaintiff’s car were in a reasonably safe condition, and whether there was fault on defendant’s part in failing to discover the defect.
    3. Same — Assumption of Risk — Knowledge of Defect — Instructions — Sufficiency.

      Held, also, that the testimony was not conclusive that plaintiff knew there was anything out of condition about the car, and that defendant’s rights were fully protected by instructions to the effect that if plaintiff had either actual or constructive knowledge of the defective condition of the car he must, be held to have assumed the risk, and could not recover.
    4. Same — Concurring Cause — Negligence oe Fellow-Servant.
    The jury having found that the defective brake on plaintiff’s car was a contributing cause of the injury, the defendant was not excused by the fact that the operatives of the leading car, fellow-servants of plaintiff, were also guilty of negligence contributing to the injury by failing to observe a safety rule.
    5. Negligence — Concurring Causes.
    Two contributing causes of an injury are concurring where the concurrence of both was essential to produce it.
    6. Master and Servant — Injuries to Servant — Railroads — Negligence oe Dispatcher — Question por Jury.
    In an action against an electric railroad company for injuries to a conductor in a rear-end collision, it was error to submit to the jury the question whether it was negligence for the train dispatcher to send out a crippled car and then to send out plaintiff’s car, with a defective brake, to follow it, there being no evidenoe that the dispatcher knew the brake to ’be defective.
    7. Evidence — Experts—Opinions—Propriety—Train Orders— Negligence.
    Where, in view of the knowledge possessed by the train dispatcher of an electric railroad as to the defective condition of the oars affected by an order, it was not negligence for him to give an order that one should follow the other between certain stations, experts in electric road management should not be permitted to testify that the giving of the order, under the circumstances, was negligence.
    Error to Calhoun; North, J.
    Submitted June 16,1908.
    (Docket No. 67.)
    Decided October 5, 1908.
    Case by Alpha W. "Welch against the Jackson & Battle Creek Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Sanford W. Ladd, for appellant.

      Richard Price, for appellee.
   Montgomery, J.

This action was brought by plaintiff to recover for injuries received while acting as conductor on one of defendant’s cars. The injuries complained of arose out of a rear-end collision on defendant’s road at a place known as “Bear Creek Crossing,” between Battle Creek and Marshall, at a point about 11 miles east of Battle Creek. The car upon which plaintiff was riding at the time of the injury was limited car No. 32, train No. 12. It collided with local car No. 47, train No. 10, both being east bound. The negligence charged in the various counts of the declaration was, first, in sending out car No. 47 in a defective and disordered condition from Battle Creek to Albion ahead of plaintiff’s car, and in issuing the order to plaintiff to follow No. 47, without informing plaintiff of the condition of the car; second, failure to keep the car and equipment and braking apparatus on plaintiff’s car in a reasonably safe condition, or to adjust the machinery which controls the pressure of air or braking apparatus; third, failure to use reasonable and proper care in inspecting plaintiff’s car, brakes, and air equipment and braking apparatus.

Car No. 47 left the Albion shops, which are about 1£ miles west of Albion, east bouhd for Jackson on the morning of the accident. It arrived at Jackson, left Jackson west bound for Battle Greek, passing the shops at Albion. Mr. Berry was the conductor and Mr. Barker the motorman of this car. The first trouble that the car had that morning was on the trip west from Jackson to Battle Creek, at Dickey’s switch, about a mile and a half west of Marshall and about 11 miles east of Battle Creek. When the local car arrived at Battle Creek, Mr. Barker, the motorman, ran the car to the freight house, and Mr. Berry, the conductor, reported its condition to the dispatcher. Mr. Barker telephoned to the Michigan Traction Company’s repair shop, and had some men come up to repair the car. The car was in Battle Creek 20 or 30 minutes. The conductor’s only knowledge of the condition of the car was the report of the motorman made to him. The motorman reported to the conductor that the car had been repaired, and that he, the motorman, was ready to go. Mr. Berry then called up the dispatcher and reported that the car had been repaired. The dispatcher issued the following order to local car No. 47, which was train No. 10:

“To Conductor and Motorman at Battle Creek: Meet No. 7 at Battle Creek double tracks. Run ahead of No. 13.”

No. 7 was composed of the limited car No. 33 running west. The same car, when running east, was known as train No. 13. The local car, train No. 10, east bound from Battle Creek to Marshall, started out after receiving the order just set forth. The first trouble which this car had which was noticed after leaving Battle Creek was at Ceresco Hill, which is about midway between Marshall and Battle Creek, and about 7 or 7£ miles east from Battle Creek. The motors smoked, and there was trouble with them. The car was losing ground and running behind time. The distance from Ceresco Hill to Bear Creek Crossing was about 4£ miles, and the local had trouble all the way. The conductor of the local car knew that the car was losing time and was having trouble from Ceresco to Bear Creek Crossing. There were torpedoes and a flag on the local car. The local car continued to run until it got to Bear Creek Crossing, when the car broke down. After it stopped, the limited crashed into the local, and plaintiff received the injuries which furnish the basis of this action. As the local car was on Bear Creek Crossing, Mr. Aueringer got off, and went with a flag back to flag the limited car.

The limited car No. 33 started out on the morning of the accident from Albion shops at 6:35 east bound for Jackson. On the trip to Jackson 10 or 13 stops were made. At one of these stops, about three-fourths of a mile west of North Concord, the car ran past the point where some section-men wanted to get off. With this exception, the brakes on the car apparently worked all right. Coming out of Jackson, west bound, the limited car made six stops before .it made the stop at the car shops west of Albion. The motorman reported nothing wrong with the brakes, although it was his duty to report them as being out of order at the shops if he discovered anything wrong. He testified, however, that the car acted funny that morning; that it did not act right to him; that he had trouble again with the car in Jackson approaching up Jackson street. He also said that the car differed from other cars, and “sometimes I got the response that I should when I applied the air, and other times I did not;” that there were other stops when he thought he was going by, but did not goby. In response to the question, “You were not able to get action of the brakes,” he answered:

“ Sometimes I was and sometimes I was not. I made a good stop, just as good as the car ever made, and then again it did not act as it ought to, required more air than it ought to stop it ” — and that the car had been acting that way all the morning.

He further testified:

“ I think that is where the trouble was, the air feeding slow. It was feeding slow all the morning. It did not take the air the way that some cars do. It took the air very slow. I never studied the air brake business, and I don’t know. I think the difficulty was that. I could not swear positive. I thought that was the trouble, in the air. I had them act that way before.”

He explains not having reported the condition of the car by saying that he was not positive that it was oift of order. He did not discover just what the matter was.

“ The car was not acting just exactly right. I never had anything to do with the repairing and building of cars myself.”

The motorman testified that he thinks he said to the plaintiff that he “did not see why those brakes were not working all right. They were up in good shape;” but that he was not positive whether he told him just the exact condition or not. Plaintiff, however, testified that he had no recollection of any such conversation, and that he did not know or have any intimation that there was anything wrong with the brakes on this car.

The order upon which plaintiff’s car was running was as follows: “ No. 10 runs ahead of you to Albion ” — signed by the dispatcher. As No. 10 was regularly due at Albion before plaintiff’s train was due to leave Battle Creek, this order was notice to plaintiff that the local car was ahead of them and behind time. In other words, plaintiff’s train No. 12 would have been given a clear track had No. 10 been on time and ahead of the limited car No. 12. Bear Creek Crossing, where the accident occurred, was at the foot of a descending grade, and around a curve, when a car was running east from Battle Creek to Jackson, as were train No. 10 and No. 12 just prior to the accident. The testimony on behalf of the plaintiff tended to show that motorman Kelley, as soon as he received the warning from the flag, undertook to bring his car to a stop with the use of the brakes, but that, as he found he was not going to be able to stop in the distance, he reversed the car, but testifies that he thinks he would have done better if he had stuck to the brakes.

A rule of the company was introduced as follows:

“Bulletin No. 103.
“Albion, Mich., Dec. 19, 1903. “To Conductors and Motormen:
“ If at any time the track is obstructed, or a train is delayed for any cause and cannot make its running time, yoa will protect such obstruction or your train with flags and torpedoes. A flag must be sent back at least fifteen transmission poles, the first torpedo to be placed on the rail at a distance of fifteen poles from place of obstruction, the second at a distance of twenty-five poles, and to remain in such position until the train that is to be flaged has arrived or flagman is called in. When flag is called in, the flagman will place another torpedo twenty feet from the last one put down, to indicate that flagman has been called in, taking up the first torpedo put down. A train running over one torpedo will stop at once. Two torpedoes twenty feet apart indicates flag has been called in, and proceed cautiously until you ascertain track is all clear. * * * When flagman is to be called in from the west, motorman will give four long blasts of the whistle, when called in from the east, give six long blasts of the whistle.
[Signed] “E. S. Loomis, Superintendent.”

The case was submitted to the jury under instructions which embodied the following propositions: First, that the trainmen of both trains Nos. 10 and 12 were fellow-servants of the plaintiff, and that for any injury resulting from the negligence of such fellow-servants the plaintiff could not recover; second, that the train dispatcher was not a fellow-servant of the plaintiff or of the trainmen, but was a vice-principal; third, that it was a question for the jury as to whether the train dispatcher was guilty of negligence in sending out train No. 10 in its crippled condition after receiving a report from motorman Barker that it was out of repair, and in directing train No. 12 to follow train No. 10 upon the order given to the conductor of train No. 10; fourth, that it was also a question for the jury to determine as to whether the braking apparatus on the car of train No. 12 was out of repair and in an unfit condition for use, and as to whether the defendant was guilty of negligence in failing to inspect and repair this car; fifth, that, if the defendant was found to be guilty of negligence in either of the two particulars stated, either as to the issuing of the order to plaintiff’s car to follow No. 10 in its crippled condition without notice of its being in such condition, or in the failure to inspect and keep in repair the braking apparatus of No. 12, the plaintiff would be entitled to recover, even though negligence of a fellow-servant of the plaintiff concurred with that of the defendant in producing the injury, provided the jury should find that the plaintiff would not have been injured but for the negligence of the defendant either in its failure to use reasonable care in adjusting the brakes on the limited car, or in issuing the order given to plaintiff in view of the alleged condition of the local car.

The record contains 108 assignments of error. There were presented to the trial court 75 requests to charge.' The court undertook to give a connected charge to the jury, and refused these requests to charge, stating as a reason that their number and length were such that it was not possible to read them over, pass upon them, and arrange the order of the acceptable requests, and because many are so similar as to lead to confusion if given. Some criticism is made of this disposition of the requests. We have examined these requests, and find that they cover 85 pages of the printed record. It is not surprising that the circuit judge found difficulty in analyzing and arranging that amount of material into form, or that he should have thought it better to give in his own language the rules of law which should .govern the jury in their deliberation. The practice of presenting voluminous requests is certainly not to be encouraged any more than is the practice of assigning error upon every ruling of the trial court in the expectation of at some time in the future sifting the wheat from the chaff, and presenting the case to this court in a manner to be readily grasped and understood. In the defendant’s brief an attempt has been made to group the assignments of error, and counsel has discussed several distinct questions, which will receive consideration in the order he has adopted.

It is first contended that a verdict should have been directed for the defendant. This contention rests upon various grounds, and, of course, involves the question of whether there was negligence in any of the particulars alleged in the declaration; and, secondly, whether, if there was such negligence, such negligence was the proximate cause of the injury to the plaintiff. It is enough for the present to say that there was some testimony from which the jury might have found that the braking apparatus on the car in control of the plaintiff was not in a reasonably safe condition, and that there was fault on the part of the defendant in failing to discover it, as the testimony shows that the practice was to inspect these cars, including the braking apparatus, every evening when the cars ran into the repair shop at Albion. Nor is the testimony conclusive that plaintiff knew that there was anything out of condition about the car, and the defendant’s rights were fully protected in this regard by the instruction of the circuit judge to the effect that if he had either actual or constructive knowledge of the defective condition of his car — referring to the braking apparatus — he could not recover in consequence of any injury resulting to him by reason of such defective condition, because, under such circumstances, he would be held to have assumed the risk incident to operating the car in its known condition, and in instructing the jury that constructive knowledge would arise if the circumstances were such that, in the exercise of reasonable care in the discharge of his duties, he could not have learned of the defective condition of the car; that in such case he would be charged with knowledge; and that, if in such circumstances he continued to operate the car before it was repaired, he assumed the risk and could not recover.

It is contended that the accident could not have happened if rule No. 103 (that providing for placing torpedoes on the track as a warning when the car is disabled) had been observed, and that the failure to observe this rule was the proximate cause of the injury to plaintiff, and that, as this failure to observe the rule was the negligence of a fellow-servant, the plaintiff’s case must fail. We cannot say that this negligence was the sole proximate cause of the injury. Under the instructions given, the jury must have found that the accident would not have happened but for the defective brake or other negligent act of the principal. There was evidence from which the inference might be drawn that the defective brake was a contributing cause of the injury. The relation of this cause to the injury was direct, and the defendant was not excused by the fact that a co-servant’s negligence also contributed to the result. Pittman v. Railroad Co., 231 Ill. 581; Southern Pacific R. Co. v. Allen (Tex. Civ. App.), 106 S. W. 441; McDonald v. Railroad Co., 108 Mich. 7. The two contributing causes must be held to be concurring where, as in this case, if plaintiff’s contention be supported by the proofs, the concurrence of both was essential to produce the injury. See Pittman v. Railroad Co. and Southern Pacific R. Co. v. Allen, supra;, Northern Pacific R. Co. v. Poirier, 67 Fed. 881, 15 C. C. A. 52, 53; 2 Labatt on Master and Servant, § 814, and cases cited in note 3.

A more serious question arises from another feature of the case, namely, the submission to the jury of the question of whether it was negligence for the train dispatcher to send out the local in its crippled condition and to send out the limited to follow the local, and permitting so-called experts to testify that in their opinion such an order was improper. We feel constrained to hold that in both of these rulings the circuit judge erred. In dealing with this question, it is to be kept in mind that whatever defect, if any, there was in the braking apparatus of car No. 32, was, so far as this record shows, not known to the train dispatcher. It was not reported to him. In giving the order for the running of the two trains, then, the dispatcher had the right to assume that No. 32 was in proper condition, even if it be assumed that he was bound to know that car 47 was crippled. Was it a negligent act to send out car 47 ahead of plaintiff’s train, in view of the rules of the company ? This must be determined by deciding what the dispatcher had reason to apprehend. It is possible that some delay of the limited might have been apprehended; but if the train crew of the local had observed the rules of the company, and the car of the limited had been in condition, and the braking apparatus working properly, it is perfectly clear that no collision of the two cars could have occurred. This being so, it is equally clear that the issuing of the order was not negligence, and it is still more clear that the so-called experts should not have been permitted to give an opinion that it was. The case should have been put to the jury upon the single question of whether there was fault in the inspection of the braking apparatus of No. 12, and, if there was, whether the defect in such apparatus, which might have been discovered by a proper inspection, was a contributing cause to the injury of the plaintiff.

The judgment is reversed, and a new trial ordered.

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


text:
    RUTHRUFF v. FAUST.
    1. Sales — Action for Price — Instructions—Propriety.
    In an action on the common counts for the price of a cultivator sold, it being defendant’s claim that the cultivator had never been completed by plaintiff according to contract, an instruction relating to the right of a party to rescind a contract on the ground of fraud or false representation was properly denied as not being within the issues in the case.
    2. Same — Instructions—Assumption of Facts.
    It appearing that defendant had given a note for the purchase price, plaintiff requested an instruction that defendant having received the consideration named in the note, and held the same until maturity, was estopped to deny liability upon the note. Held, that the instruction was properly refused as assuming as a fact the defendant had received the consideration, the question at issue in the case.
    3. Same.
    It appearing that the note was given to a third person, and that plaintiff was not entitled to rely upon it, but must rely upon the contract of sale, instructions basing his right of recovery upon the note were properly refused.
    4. Trial — Argument of Counsel.
    It being the duty of the court, and not of counsel, to lay down to the jury the rule of law which should guide them in their deliberations, it was not error for the court to refuse to permit counsel to argue to the jury their duty to deduct defendant’s damages from the amount due plaintiff and give plaintiff a verdict for the balance.
    Error to Washtenaw; Kinne, J.
    Submitted June 16, 1908.
    (Docket No. 22.)
    Decided October 5, 1908.
    Assumpsit by Louis Ruthruff against Lewis N. Faust for goods sold and delivered. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Lee N. Brown, for appellant.

      John P. Kirk, for appellee.
   Montgomery, J.

This action originated in justice’s court. Plaintiff declared orally on all the common counts for the value of a certain cultivator bought by the defendant of plaintiff. Defendant pleaded the general issue. The defendant recovered before the justice, and plaintiff appealed to the circuit court. On the trial in the circuit court the plaintiff offered testimony tending to show that in the spring of 1904 he sold the defendant a cultivator for the stated price of $30, reserving title in himself until the full purchase price was paid. The defendant’s testimony tended to show that at the time the cultivator was delivered to the defendant, it was agreed that certain attachments, consisting of shields, teeth, and center tooth connection, and an extension axle, were to be furnished before the cultivator was complete. The defendant took the cultivator home and used it in 1904, and also in the spring of 1905. The plaintiff called upon defendant for payment, and he refused to pay unless the cultivator should be made complete by furnishing the extension axle, but offered to pay if the extension axle should be furnished. It appears that the note in question was made payable, not to the plaintiff, but to D. M. Osborne & Co., and at the close of the testimony the defendant made the point that the promise, if any, was to

D. M. Osborne & Co., and that there could be no recovery. Plaintiff’s counsel then stated:

“We have declared upon the common counts. We have not declared upon any note.”

The court held that, inasmuch as the declaration was on the common counts, and the evidence had been received, without objection, tending to show a sale between the parties to the suit, he would submit the case to the jury, and further stated that he did not think the paper was admissible in the case at all. The court submitted to the jury the question of whether the sale included the extension axle, and charged the jury that if it did, and plaintiff refused to furnish the extension axle, the defendant was entitled to recover, but that if the sale did not include the extension axle, the plaintiff was entitled to recover.

The plaintiff submitted the following requests:

“(1) To entitle a party to rescind a contract on the ground of fraud or false representation, he must act promptly upon his discovery of the fraud, and must restore the party to the same condition that he would have been in had not the contract been made.
“(3) The defendant in this case, having received the consideration named in the note, and held the same until maturity of said note, is now estopped from denying liability under the same.
“(4) This note should be considered as any other promissory note, with the simple addition of a security clause.
“(5) The burden of proof in case like one at bar is shifted, and the defendant must prove his position by way of confession and avoidance by a fair preponderance of testimony.”

Errors are assigned in this court upon refusal to give each of these requests, and it is also assigned as error that the court refused to allow plaintiff’s counsel to argue to the jury that it was the duty of the jury to subtract defendant’s damages from the amount due the plaintiff and give plaintiff judgment for the balance. There is no error assigned upon the charge of the court as given. The case must be determined upon the assignments of error as made. The first request of plaintiff relates to the subject of rescinding the contract on the ground of fraud or false representation. It is obvious that it has.no application whatever to this case. There was no charge of fraud or false representation in the making of the contract, but the defendant contended that the contract had not been complied with. The third request to charge is faulty in that it assumes that the consideration named in the note had been fully received by the defendant, and that he was therefore estopped. The question of whether the full consideration for the note had been received by the defendant, was the very question in controversy in the case. The fourth request is that the note should be considered as any other promissory note, with the simple addition of a security clause, and the fifth that the burden of proof is shifted to the defendant to prove his position by way of confession and avoidance. These two requests appear to be based upon the contents of the note; and, as the note does not appear in the record in the case, we are unable to say how appropriate they might have been if we had the note for examination. It is obvious, however, that the plaintiff was not in a position to rely upon this note, as it was not a note payable to him at all, but he must have relied upon the contract. i

The one remaining assignment of error is without merit. It was not the province of plaintiff’s counsel to lay down to the jury the rule of law which should guide them in their deliberations. This was the duty of the court, and not of counsel. The assignments of error do not present the question of whether the proper rule was laid down by the court. It should be remarked, however, that the question of the application of a rule that, where the defendant has accepted the benefit of a part performance of a contract, the plaintiff may recover upon the quantum meruit, as held in Allen v. McKibbin, 5 Mich. 449, if it had been properly presented by the assignments of error would perhaps, in the present case, turn upon the question of whether title to this property had passed to the defendant, or whether, under the contract, as testified to by the plaintiff, the title still remained in him at all times.

We find that none of the assignments of error are well founded, and the judgment will be affirmed.

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