text:
    TOWNSHIP OF ROCKLAND v. OXNAM.
    1. Highways and Streets — Paving Contracts — Time—Extension — Unreasonable Delay — Bona Pides — Question for Jury.
    In an action by a township against contractors who had agreed to build a macadam road to recover damages for nonperformance of the contract, where it appeared that in the fall of the year the work was to be done the time for performance was extended to the next summer and the engineer certified the work as being from 93 per cent, to 97 per cent, completed, and a new engineer taking charge in the spring ordered a good deal of the work taken up and done over, and the work not being done within the time allotted, upon a certificate of the engineer that it was being unreasonably delayed, it was completed by the township, as allowed by the contract in case of unreasonable delay, and the first engineer acted in good faith, held, that it was a question for the jury whether plaintiff’s second engineer acted in bad faith.
    2. Same — Paving Contracts — Instructions.
    An instruction on the finality of the certificate of the first engineer and that it was a question, for the jury whether the second engineer acted in bad faith, held, proper as based on sufficient evidence of fraud and bad faith of the second engineer.

      Error to Ontonagon; Cooper, J.
    Submitted June 26, 1917.
    (Docket No. 29.)
    Decided September 27, 1917.
    Assumpsit, by the township of Rockland against James W. Oxnam and others for the nonperformance of a road contract. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      John Jones and Michael J. Doyle, for appellant.

      Van Slyck & Walsh, for appellees.
   Stone, J.

This is an action of assumpsit to recover damages for the nonperformance of a contract between the plaintiff and the defendants Oxnam and Adair, by which the latter agreed to build a macadam road for the plaintiff. The declaration contained a special count on the contract, and also the common counts. The plea of the defendants Oxnam and Adair was the general issue, with notice that the engineer, Bacco, when he took charge of the work in the spring of 1914, was, fraudulently actuated by a desire not to build the road in accordance with the plans and specifications, but by finding fault with the work of the first engineer, Therrien, and at the expense of said defendants, to build an entirely different and more expensive road; that in making his demands, and in requiring the rebuilding of certain portions of said road, which had been accepted by said former engineer as from 93 per cent, to 97 per cent, completed, he was not acting in good faith; that his conduct constituted a continuing breach of said contract up to the day the work was taken over by said plaintiff; that any delay there may have been was attributable solely to the capricious, wanton and fraudulent demands of said Bacco; and that in issuing his certificate that the work was being unnecessarily delayed he acted in bad faith. There was also a notice of set-off. At the trial a verdict was directed in favor of the defendant the Title Guaranty & Surety Company. A reversal is here sought of the judgment in favor of the defendants Oxnam and Adair, but no reversal is sought as to the defendant the Title Guaranty & Surety Company.

It appeared that on July 30, 1913, the plaintiff entered into a written contract with the defendants Oxnam and Adair, whereby the latter agreed to build a macadam road, in conformity with certain specifications attached to said contract, and made a part thereof, for the consideration of $20,592. The specifications called for 5 miles of macadam road between certain designated places — the width of the road to be 20 feet; the macadam to be 9 feet wide, and to be 6 inches thick when rolled. Plans, profiles, and cross-sections were made a part of the specifications. All clearing, grubbing, excavations, etc., were to be done by the contractors, who were also to do all leveling, grading, surfacing, etc., and to lay the stone, furnish the materials, and all machinery and implements except roller and grader, to furnish all labor, and to put the road in complete order for use, and leave the ground in a neat condition. The work was to be done under the supervision of an engineer to be hired by the township board. Variations of location, profile, size, and dimensions might be made, as required by the exigencies of construction, pursuant to determination of the engineer. The macadam was to be formed of three courses of stone; the lower or first course being coarse stone, the second course to be of finer stone, and the third course being of finely broken stone, which was intended to bind or cement the other courses together, and to act as a dressing for the road. The engineer had authority to stop any portion of the work, if in his judgment the weather was such as to prevent the same being properly done. The decision of the engineer, on matters in difference between the contractors and the township board, was to be final and conclusive, and the work was to be done according to his directions. Paragraph 43 of the specifications provided that:

“Monthly payments will be made by the township board to the contractor for the work performed upon presentation by him of the proper certificate of the engineer in a sum not to exceed eighty (80%) per cent, of the amount then due; the remainder of the twenty (20%) per cent, will be paid upon acceptance of work by the township board.”

The engineer could order the discharge of incompetent workmen, was authorized to give directions and make determination necessary to give due and full effect to the specifications, and all material and workmanship were subject, at all times, to his inspection, and was required to be repaired or replaced when ordered by him. According to the contract the work was to be completed by December 1,1913. It was provided, however, in the specifications, that extension of time might be allowed, if the work was stopped by the engineer, because of weather conditions. By paragraph 37 of the specifications it was provided:

“If at any time the work under contract should be abandoned, or if at any time the engineer should judge, and so certify in writing, that said work or any part thereof, is unnecessarily delayed, or that the contractor is executing the same in bad faith, then and in that case the township board shall notify the contractor to discontinue all work under this contract. They may employ other parties to complete the work in such manner as they may decide, and charge the expense of said labor and material to the contractor, which expense shall be deducted from the moneys due him under this contract. In case these expenses shall exceed the sum which would have been payable under contract, if the same had been completed by said contractor, his bondsmen shall pay the amount of excess to the township board.”

Work was begun on this road in the summer of 1913, and continued until October 21, 1913, at which time the engineer, Therrien, ordered the work stopped for that year, because of weather conditions, and pursuant to the contract the township board was notified to that effect, whereupon the board extended the time for the completion of the contract until July 15, 1914. On October 22,1913, said engineer gave the fifth estimate, in which he stated certain portions of the road were 93 to 97 per cent, complete, and pursuant to which said defendants received their last payment in the year 1913. Work was resumed by said contractors in May, 1914, under a new engineer — one Bacco. He required considerable work to be done on those portions of the road which were estimated as from 93 to 97 per cent, completed in the last estimate given in 1913. It was his claim and that of the township board that this work was necessary to bring the road up to a proper cross-section, and that the road was badly rutted, and that the condition had been brought about through traffic over the road during the fall of 1913 and the spring of 1914, and also to some extent by the hauling of rock over this partially completed portion of the road by the contractors.

It was the claim of the contractors on the trial, and there was testimony to that effect, that the work done from section 129 to section 264, practically three miles, had been constructed under the direction and supervision of thé first engineer, and had been certified by him as being from 93 per cent, to 97 per cent, completed, and that when the second engineer came on the job in the spring of 1914 he required that this work be torn up and done over. Upon this subject defendant Adair testified:

“Q. What did he require you to do to that portion? What did he say and direct you to do to that portion ?
“A. To put the roller on and rebuild the road. We had 112 days’ rolling on that the year before. We had one roller running night and day until we got 1Í2 days. We had it rounded up nicely so that we got 93 per cent, and 95 per cent, and 97 per cent, on all those sections. He just took a big roller, and put in the spikes, and ground it up, and knocked out 112 days’ rolling.”

It was the further claim of said defendants that to complete that portion of the road, as done under the direction of the engineer, required the placing of only a small amount of No. 3 rock, which had been placed along the sides of the road ready to be put on as final dressing. Said defendants further claimed upon the trial that said new engineer acted in bad faith in said matter, that he was unreasonable and arbitrary, and was not governed by the plans and specifications, and that this unnecessary work in 1914 cost said defendants approximately $4,000, and that compelling them to do this work was a breach of the contract on the part of the plaintiff. There was also testimony to the effect that the result was to make the road an 8-inch road, instead of a 6-inch road, and that the requiring of work on these portions of the road which had been reported as from 93 per cent, to 97 per cent, completed was a cause of the delay in the completion of the contract. The work was not completed by July 15, 1914. The township board did not compel the contractors to quit work at that time, and work was continued until August 24, 1914, at which time the engineer made and delivered to the township board a certificate to the effect that the work on this road was being unnecessarily delayed. Thereupon the township board notified the contractors, the said defendants Oxnam and. Adair, to discontinue work on this contract, and the township board took the job over, and completed it. There was evidence to the effect that some of the men quit work while defendants were in charge, because they had not received their July pay, and refused to go back to work unless paid, all of which defendants claimed was because of the extra work required by the engineer. The record contains a stipulation to the following effect:

“In this cause, in order to reduce the size of the bill of exceptions herein, and to render it unnecessary to include therein a great amount of testimony bearing only on the respective claims for damages of the plaintiff herein, and the defendants Oxnam and Adair herein, it is stipulated and agreed by the said plaintiff and the said defendants Oxnam and Adair, by their respective attorneys, that at the trial of this cause the plaintiff introduced in evidence certain testimony, which, if believed by the jury, tends to show that the said plaintiff had expended upon the road contemplated by the contract introduced in evidence in this cause, the sum of $3,471.22 over and above the price provided in, said contract to be paid to the defendants Oxnam and Adair for building said road, and that the defendants Oxnam and Adair introduced at the trial of said cause certain evidence which, if believed by the jury, tends to show that the said defendants Oxnam and Adair expended, in and about the construction of said road, the sum of $3,765 over and above the said contract price, and that the sum of money so expended by the said defendants Oxnam and Adair, as a reasonable value, was the actual value of the work done.”

It appears that at the close of defendants’ testimony counsel for the plaintiff said:

“We move for — perhaps not for a directed verdict, but, under my view of the case, I don’t see anything at all to sustain anything going to the jury on the questions raised by the special defense. The only question here is whether, under the contract, in good faith, the engineer gave his certificate. I submit, as a matter of law, that your honor should hold that there is nothing impeaching the good faith of that certificate on the evidence as it now stands.
“The Court: I think I will leave the matter as a question of fact for the jury.
“Plaintiff’s Counsel: Then the next question is this:
I take the position, that, even if the certificate was in bad faith, for the purpose of argument, the undisputed evidence is that, whether rightly or wrongly given, these contractors assented to it.”

Thereupon further testimony in rebuttal was introduced by the plaintiff. There were no requests to instruct the jury by either party. The case was submitted to the jury in a lengthy charge covering the issues, and the trial resulted in a verdict and judgment for the defendants Oxnam and Adair in the sum of $1,063.44 damages. The plaintiff made a motion for a new trial upon the grounds that the verdict was contrary to law. and the evidence; that it was against the weight of evidence; that it was excessive; that the undisputed evidence shows that the contract sued on, for breach of which by plaintiff the jury awarded the damages assessed, was voluntarily abandoned by the defendants (Oxnam and Adair), and said contract assumed by the plaintiff, at said defendants’ request; that the motion of plaintiff to direct a verdict for plaintiff should have been granted; and that there is no evidence in the case warranting a verdict for defendants Oxnam and Adair, against plaintiff, or in submitting the same to the jury. The learned circuit judge filed his reasons for denying said motion, and held that the verdict was not contrary to law or to the evidence; that it was not against the weight of the evidence, or excessive; that the question of abandonment of the contract by the defendants was a disputed question of fact, properly submitted to the jury; and that there were disputed questions of fact, and the motion of plaintiff to direct a verdict in its favor was therefore properly denied, and there was evidence in the case to sustain the verdict of the jury. To which refusal to grant a new trial plaintiff duly excepted. The plaintiff has brought the case here for review, and assigns error as follows:

“(1) There was no evidence that warranted the trial judge in submitting the case to the jury.
“(2) The undisputed evidence in the case established that the defendants Oxnam and Adair had failed to comply with the conditions of the contract for the diligent prosecution of the work; that the engineer, whose jurisdiction and authority were absolute in the premises, duly certified that the work was not being duly prosecuted by the contractors.
“(3) That thereupon the plaintiff township properly and lawfully took over the completion of the work and finished it; that the cost of such finishing (plaintiff’s damage) was $3,471.22. These three propositions are undisputed in the evidence. The trial judge should have directed a verdict for plaintiff, and error is assigned for his failure so to do.
“ (4) The undisputed evidence shows that there was no breach of contract on the part of plaintiff — there was no evidence that warranted the trial judge in submitting to the jury the question whether plaintiff breached the contract, and the court erred in submitting that question to the jury.
“(5) The undisputed evidence establishes that in any event'the contract was abandoned by the defendants Oxnam and Adair, and taken over by the plaintiff with their consent, and plaintiff assigns* error on the court’s failure to direct a verdict for plaintiff accordingly.
“(6) The estimates offered in evidence were but ‘estimates,’ and not final and conclusive, as held by the trial judge, and his instructions to the jury along that line were erroneous.
“(7) The court erred in refusing to grant plaintiff’s motion for a new trial.”

The appellant claims that there are two questions involved:

(1) Did the court err in submitting to the jury the question whether the engineer, Bacco, in the year 1914, wrongfully or in bad faith required the said defendants to bring those portions of the road, which had been estimated at various percentages of completion by the previous engineer, up to what he claimed was a proper cross-section?
(2) Did the court err in submitting to the jury, as a question, of fact, whether the plaintiff had the right to take over the work in August, 1914?

It is urged by counsel for the appellees that no question is raised by appellant in its assignments of error that can be of any avail. No objection or exceptions were taken to the admission of evidence, and it is said that the court was not requested to direct a verdict in the case, and that objection cannot be now raised to such submission, especially as the court’s attention was not called to any point here urged by a proper-request; and Stuart v. Holt, 166 Mich. 549 (131 N. W. 1100), is cited. It is also urged that there is no assignment of error to any portion of the charge, and that a general assignment that “his instructions to the jury along that line were erroneous” is too general; and Plumb v. Hecla Co., 157 Mich. 562, 572 (122 N. W. 208), is cited.

We think there is much force in these criticisma of the assignments of error, but we are disposed to treat the first question raised upon its merits. In the course of its charge the court said:

“It is the claim of the defendants that the engineer who took charge of this work in the summer of 1914 was unfair, and acted in bad faith, and, acting in bad faith, that he compelled them to do a lot of work over, which had been approved by the engineer of the year before. I charge you, gentlemen, that the engineer of the year before was just as much the engineer of the township as the engineer of the second year. If he did approve of the work as it was done, and so certified, then his action was final; that is, the engineer of the second year had no right to override the action of the engineer of the first year. He had no more authority than the engineer who was acting there the first year. The township, having selected the engineer for the first year, was bound by the work of the engineer of the first year, and could not override it by employing another engineer, and the second engineer disannroving of the work already approved, if such was the case, by the engineer of the first year. ' I am simply stating to you, gentlemen, the claim of the defendants. The claim of the defendants is that this was done; that, when the second engineer came there, he did not act in good faith, and that he compelled these defendants to do a lot of work over; that work which had been satisfactory to the first engineer did not meet with the approval of the second engineer, and that he required the defendants, in order to get his approval, and get any money under the contract, to rebuild a large portion of this road. That is really the question in dispute upon this set-off, as to whether or not any such circumstances occurred, and that will be a question entirely for your determination, gentlemen.- * * * I refer to these facts only so far as I think it necessary to explain to you the law involved. The question for your determination will be upon that question as to whether or not the second engineer by reason of acting in bad faith, and by reason of what he did there, delayed these defendants from completing the contract, and whether the condition which existed, which the plaintiff finally considered ground for taking over the contract, was the fault of the defendants in this case.”

It seems to be the claim of appellant that it was not in any way bound by the estimate, and the following quotation is made from 9 Corpus- Juris, p. 778, and notes:

“Where the compensation is payable in installments as the work progresses, the final payment becoming due on the completion of the work, and certificates of approval are required as a condition precedent to the right to demand payment, the certificates given during the progress of the work are not regarded as conclusive that the work therein certified to was properly performed, and the architect may properly refuse a final certificate on the ground that the work has not been properly done.”

In our opinion, the foregoing is not inconsistent with the charge of the court, which was dealing with the question of the claimed bad faith of the second engineer. A reference to some of the cases cited in the volume named, especially the cases of Hebert v. Dewey, 191 Mass. 403 (77 N. E. 822); and Ashland, etc., Cement Co. v. Shores, 105 Wis. 122 (81 N. W. 136), will show that the above language might well be qualified, by stating that such certificates are generally treated as final, as to all matters within the knowledge of the engineer at the time of giving them. This, however, does not dispose of the question of the claimed bad faith of the second engineer, which was the question with which the trial court was dealing. We think there was evidence which warranted the instruction given. There was no. evidence or claim of any collusion or bad faith on the part of the first engineer. In our opinion, the question could not be disposed of as a matter of law, and there was no error in the instruction given. In support of the charge, counsel for appellee cite Wildey v. School District, 25 Mich. 419, and Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78). It follows, that, had the assignments of error been duly specific, they would not have been availing.

In our opinion the> second, question was involved in the first, and both questions were dependent upon the good or bad faith of the second engineer. The record discloses sufficient evidence of fraud and bad faith on the part of the said engineer to warrant the charge of the court. The court did not err in refusing a new trial.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SERGEANT v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Master and Servant — Personal Injuries — Railroads — Evidence — Question eor Jury.
    In an action by a railroad switchman to recover for personal injuries due to being caught between the beam at the front of a switch engine and a post in a fence through which a side track passed into a building as he jumped off the footboard of the engine on which he had been riding, held, on conflicting evidence, that it was a question for the jury whether the engine was operated at an excessive speed.
    2. Same — Personal Injuries — Contributory Negligence.
    Recovery could not be denied on the ground of contributory negligence of plaintiff in riding on the footboard of the engine where the only evidence on the subject was that of the engineer that the supposition was that the footboard was a proper place for switchmen to be and that he had a right to expect them there.

    3. Same — Personal Injuries — Negligence—Instructions.
    An instruction that the jury would be warranted in finding that it was the duty of the engineer to stop if steam was blowing in his face and obscured his vision for any considerable length of time; that it .was defendant’s claim that the engineer was exercising due care and was on the lookout for signals and did not see any; that he did not see any and that the engine was not being run at a negligent rate of speed, and that if this was the case, it was for the jury to determine whether it was his duty to stop until his vision was cleared, was correct.
    4. Appeal and Error — Excessive Verdicts — Denial oe Motion eor New Trial.
    Where the question of excessive verdict is raised in a personal injury action, by a motion for new trial, and the motion is denied, and the reasons therefor filed, but no exception is filed, the question will not be considered on appeal.

      Trial — Argument of Counsel — Harmless Error.
    The misconduct of counsel for plaintiff in a personal injury action, in referring to the circumstances of an accident to a passenger alighting from a train, and relating a conversation with counsel for plaintiff in another action as to the right.of recovery and the subsequent death of the plaintiff in such other action, is harmless error where the question of an excessive verdict has not been preserved for review.
    6. Same.
    Any misconduct of counsel for plaintiff in an action for damages for personal .injuries in referring to the fact that certain persons were fortunate enough tj receive their pay from the railroad company, meaning plaintiff’s attending physician in particular, is harmless error, where the testimony relating to who had paid plaintiff’s medical bill, on which the statement was based, was stricken out by the court and the jury warned to disregard it.
    Error to Kalamazoo; Weimer, J.
    Submitted June 25, 1917.
    (Docket No. 120.)
    Decided September 27, 1917.
    Case by Ben H. Sergeant against the Grand Rapids & Indiana Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Campbell, for appellant.

      Lombard, Hext & Washburn, for. appellee.

       On contributory negligence of railroad employee in riding on engine, see note in 14 L. R. A. 552.

   Stone, J.

This case comes before this court on writ of error to the circuit court for the county of Kalamazoo, to review a judgment in favor of the plaintiff on a verdict of $4,500, damages and costs, in an action to recover damages for personal injuries sustained by the plaintiff on February 2, 1916, in the city of Kalamazoo, about 9:30 o’clock p. m., when he was in the employ of the defendant as a switchman in the yard switching crew, and while engaged with the switching engine and others of the crew in proceeding to take a car out from the premises of the Kalamazoo Gas Company. The injury occurred when he stepped off the footboard at the front of the engine, as it reached the entrance of the gas company’s premises, and was caught between the beam at the front of the engine and the post of the gate at the north side of the engine. The only negligence charged and relied upon against the defendant is that of the éñgineer, Wads-worth,. in that he ran the engine at too great a rate of speed along the side track toward the car to be coupled onto, and failed to slow down or stop, on the signal given by plaintiff.

The switching crew consisted of Wadsworth, engineer; Layne, fireman; Neill and the plaintiff, switch-men. The tracks of the defendant run north and south at the location. The plant of the Gas Company is west of the railroad tracks and on the west side of Pitcher street, which the plant adjoins. Pitcher street runs north and south between the railroad tracks and the gas plant. The width of the street between curbs is 41 feet. There is a fence on the east side of the gas plant, being on the west side of Pitcher street. The side track enters into the premises of the gas plant through an opening or a gate in that fence. The distance from the post at the north side of the gate to the west curb of the paved part of the street was 11 feet 4 . inches. The side track connects with another track at a point south of the entrance to the gas premises and east of Pitcher street. From that switch the side track runs northwesterly on a curve across Pitcher street to and onto the gas company’s premises. The inside of the curb is on the southerly side of the side track. The distance measured along the side track from the switch to the entrance of the gas plant is 186 feet. The operation in which the plaintiff was injured was in proceeding to take out the car which stood on the side track on the premises of the gas company, just inside of the entrance to the plant. The plaintiff testified that the car stood 4 or 5 feet inside the gate, while the engineer testified, “probably 2 feet, maybe 3 feet; I wouldn’t want to say.” The engineer and fireman were on the switch engine. The engine was headed north. The engineer was on the right-hand side of the cab of the engine, and on the outside of the curve facing the front of the engine. The fireman was on the left side, or inside, of the curve. All of the witnesses agree that another car had been moved and placed upon a side track away from the switch; that the engine ■ was then backed south far enough to clear the switch; that the switch was thrown by the plaintiff; that the engine was started from a full stop and run onto the side track to the car to be taken out; that Neill, the other switch-man, had been protecting Pitcher street — that is, he stood in the center of the street to warn people who might be passing on the street; that the plaintiff, after throwing the switch, stepped, onto the right-hand side of the footboard at the front of the engine as it moved along the side track. He rode there until the engine arrived near the entrance to the gas plant, and then jumped off, and was caught between the beam at the front of the engine and the post at the north side of the entrance, and seriously injured. There was a conflict in the evidence as to the speed of the engine. The engineer testified that when the engine crossed Pitcher street it was moving 2 or 3 miles an hour. The fireman testified that it was going probably 4 miles an hour, which was the highest rate the engine made after leaving the switch, and that when the engine hit the car it was going about 2 miles an hour. Neill, the other switchman, who had stepped onto the footboard in front of the engine at the left side as the engine ran along the side track, and who stepped off before the plaintiff did, testified that at the time he stepped off the footboard of the engine it was going 5 or 6 miles an hour, he should judge. The following is a part of his testimony:

“Q. Now, isn’t it a fact that you.got off that car because it was going so fast you thought it was going to bump into the other car?
# “A. Yes, sir; I saw it was going to bump in all right; that is the reason I got off, of course.
“Q. How fast was it going? You have some idea how fast that engine was going at that time?
“A. Five or six miles an hour, I should judge.
“Q. At that time you got off, it was going that fast?
“A. I should judge so; yes, sir.
“Q. At that time you jumped off from it, what was the distance from the curb to the car?
“A. I think it went right up to the fence when I went off.
“Q. You went clear up to the fence?
“A. I went clear up to the fence. That would be on the left-hand side of the engine. I do not remember whether the engine slowed down any before it hit the car or not. I couldn’t say.”

The plaintiff testified as follows:

_ “Q- In crossing Pitcher street, did you give the engineer any signals with reference to stopping or slowing down?
“A. Yes, sir. The front end of the engine was about the center of the street when I made him the first signal; that was the “easy” signal; that means slow down.
“Q. How did you give it?
“A. With the lantern (indicating). I was where he could see me at that time. I gave him another signal after we had traveled a few feet. It was done quite quickly; it had to be. I should judge the engine was going about 10 or 11 miles an hour at the time I gave him the signal. It was a little over 2 rods from this standing car. We were towards 2 rods from the standing car when I gave him the stop signal. That was very soon after the other. No attention whatever was paid to the first signal I gave. No attention whatever was paid to the second signal.
“Q. Did the engine-continue to keep up its speed?
“A. It forged ahead. At the time I jumped off, the speed of the engine was about 12 miles or more.
“Q. Why did you jump?
“A. To save myself from injury. The danger I jumped to keep away from was so I wouldn’t get caught between this engine and this standing car. * * *
“Q. In what way were you injured?
“A. I was caught between the end of the pilot beam and the gate post, and turned in between, as the engine went by the gate post. When I first discovered the standing car, I was on the footboard of the engine. The car was standing about 4 or 5 feet inside of the gate.”

The engineer, in his testimony, denied that he got any signal from the plaintiff to slow down; he testified that he was where he could have seen signals of the plaintiff, had he given any; that he knew the plaintiff was there on the footboard on the right-hand side of the engine. He testified:

“The point at which I saw Sergeant on the running board, he was on the right side in plain view, until we struck the sidewalk; then I could not see him. * * * He was not making any use of his lantern the last time I saw him. I did not see him make any use of it as I approached the car. * * * At the time I proceeded through this gate and up to the car, I supposed that these two men (Neill and Sergeant) were on the running board. I did not see them. The supposition would be that there was the proper place for them to be. I had a right to expect they were there. * * * I was going about 2 or 3 miles an hour when I crossed Pitcher street. Sergeant was on the running board at that time. I saw him at the time we crossed Pitcher street. It was in the open. The steam from the stack on the locomotive prevented my seeing him when we got farther along.”

The engineer further testified that he drove- the car, when he struck it, possibly 4 or 5 feet;"that he pushed it far enough so that, after he stopped the engine, the other switchman passed between it and the end of the engine to assist the plaintiff.

It is undisputed that the defendant had not, at the time of the injury, nor prior thereto, elected to be governed by the provisions of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.), and in his declaration the plaintiff claimed, the benefit of the provisions of said act.

The assignments of error relied upon relate to (1) the negligence of the engineer operating the engine; (2) improper and prejudicial arguments by plaintiff’s counsel to the jury.

On the subject of the negligence of the engineer, it is urged that the court erred in refusing defendant’s first request, that there could be no recovery, and the verdict must be for the defendant. Assignment No. 11, that the court erred in overruling defendant’s motion, made at the close of the testimony, to direct a verdict for the defendant. This motion was made as prescribed by Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.). In its charge to the jury the trial court said:

“The vital question in this case is ‘whether the engineer, Wadsworth, in the operation of the engine, was guilty of negligence; that is, whether he ran the engine towards the standing car in a careless, reckless, and negligent manner, and whether such negligence was the proximate cause of the injury.”

Error is assigned upon the following part of the charge: >

“You would be justified, if you find that the steam was blowing in the engineer’s face, or in his vision, perhaps, I should say, to obscure his vision for any. considerable, appreciable length of time, you would be justified in finding it was his duty to stop, and not proceed, when his vision was obscured. But if it was simply a momentary matter, an inappreciable length of time, an instant, you would not necessarily be bound to say it was his duty to stop.”

Also upon the following:

“It is the defendant’s claim and theory, as stated through Mr. Wadsworth, that he was exercising due care and caution; that he was not running at a negligent rate of speed; that he was looking out for signals and did not see any; that the plaintiff did not give him any, or, if he did, the view was obscured. If that was the case, and it is for you to say whether or not it was, it was his duty to stop until his vision was cleared; and that would depend upon what you find, from the evidence, the amount of steam to have been, if any, and the duration of time it continued.”

It is urged by appellant, in argument, that the controlling fact is that plaintiff had no business to be on the engine at all; that his duty and work did not require that he should ride or be upon the engine; and that he rode there voluntarily, and for his own convenience, rather than walk 186 feet, from the switch to the car to be coupled to. It is argued that:

“If an employee voluntarily stands upon the foot-board of an engine moving toward a car to make a coupling, the employer owes to him no greater duty than it would owe to any trespasser, not to wantonly injure him, and would not be liable for any negligence less than gross negligence. The engineer owed no greater duty to the plaintiff. It is not a question of contributory negligence. The question is whether an employee can voluntarily place himself in a position of danger, where he is not required to be, and where he has no business to be, and, if he is injured, not wantonly, impose on his employer or fellow servant a duty and liability such as is sought to be imposed on the defendant in this case. I contend that he cannot. So far as the plaintiff is concerned, it is immaterial whether the engineer came against the car easy or hard, going 2 miles an hour, or 12 miles. He had no business to be on the footboard at all, when the impact was made or at any other time.”

We cannot agree with counsel here. It is not necessary for us to say that the court will take judicial notice that switchmen usually ride upon the footboard of a switch engine, and that the footboard is for that purpose; for upon this record the only evidence upon the subject is that of the engineer, who testified that:

“The supposition would be that that [the footboard] was the proper place for them [the switchmen] to be. I had a right to expect they were there.”
• “A short time ago — some years ago — I had the pleasure -of sitting with a lawyer in the trial of a case in which a woman had been injured. She was getting off the train, and the train had just started, and she says, ‘Why, I want to get off’; and the conductor says, ‘Hold on, I will help you off,’ and kindly and gently took hold of her hand and assisted her down, and in doing so, gentlemen of the jury, it brought her arm around in that way (indicating) and injured one of those nerves in connection with the spinal cord.

In our opinion, the only question upon this branch of the case is whether or not the engineer was negligent in the operation of the engine as it approached the car. The negligence predicated, and upon which recovery was based at the trial, was the claimed excessive rate of speed that the engine was operated, as it approached the standing car, because of which claimed excessive rate of speed, and failure of the engineer to obey signals to slow doNn and stop, given by the plaintiff, he, in an attempt at self-preservation was obliged tó jump from the footboard upon which he was standing, rather than bé jammed between the .engine and the standing car. Upon the rate of speed there was a conflict in the evidence, and hence a question of fact for the jury. There were many circumstances tending to corroborate the testimony of the plaintiff as to the speed of the engine, the effect upon Neill when he alighted, the fact, as testified to by the engineer, that he drove the car when he struck it 4 or 5 feet, all of which circumstances were for the consideration of the jury. We are of the opinion that the court did not err in submitting, or in the manner of submitting, this question of the negligence of the engineer in the particular indicated, to the jury.

This brings us to consider the claimed improper and prejudicial arguments by plaintiff’s counsel to the jury. In his argument to the jury one of plaintiff’s counsel said:

“Defendant’s Counsel: I will object; I will take an exception to that, and ask for a ruling on it.
“Plaintiff’s Counsel: It is but an illustration.
“The Court: I do not understand counsel claims that for an argument.
“Plaintiff’s Counsel (continuing) : I want to say to you, gentlemen, of the jury, when counsel came to me and asked me to assist him in the trial of that case, I said to him, ‘Where are the damages in this case; how ,can you show damages?’ He says, ‘Wait until the trial is over.’ In less than two years from that time, gentlemen of the jury, that woman was asleep in her grave.”

Counsel for appellant claim that the above statement was highly prejudicial on a material point, viz., the result of plaintiff’s injury. There is no claim here that the verdict was excessive. That question was raised by a motion for a new trial. The motion was denied, and the reasons therefor were filed; but there was no exception filed, as appears by this record. The matter of excessive verdict, therefore, is not before us. The statement in no way has any bearing upon the questions at issue before this court. We doubt if the statement affected the merits of the case in any degree. Whether used as an illustration, or otherwise, it was improper matter; but we do not think it calls for a reversal of the judgment.

Another of plaintiff’s counsel in his argument said:

“We find these local people here were, somehow or another, fortunate enough to receive their pay from the railroad.”

This referred to some of the medical testimony, and particularly to that of Dr. Ames, plaintiff’s family physician. Upon objection, the court stated that the testimony had been stricken out, and that it was improper to comment upon it. In its charge the court referred to the subject as follows:

“An inquiry was made by counsel for the plaintiff of the plaintiff’s family physician, Dr. Ames, as to who had paid the doctor’s bill. I instructed you at the time to disregard that, and I am requested now to remind you of it again, and it is proper to do so. So I say to you that it is absolutely immaterial, for the. purposes of this case, as to who paid Dn Ames’ bill. • It appears that the plaintiff himself did not pay it; therefore he cannot recover for it. If he had paid it himself, it would be a question for you to determine whether or not he should recover for it in this case; but, not having paid it, it does not enter into this case at all, and has no bearing upon the issue here. It is no evidence of liability or negligence on the part of the defendant.”

Why counsel for plaintiff referred to this matter, as relating to Dr. Ames, it is difficult to understand, as Dr. Ames was plaintiff’s witness and physician. It is said that the reference was to another physician. If so, it might relate to the amount of damages or injury. Even if improper, we think this court would hesitate to reverse a case under the circumstances here shown, in view of the remarks of the trial court and the charge upon the subject.

Upon the whole record we are unable to find reversible error, and the judgment of the court below is therefore affirmed.

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


text:
    GOLDBERG v. PARKER.
    Corporations — Foreign Corporations — Bankruptcy—Receivers— Chattel Mortgages — Estoppel.
    The receiver in bankruptcy of the property of a foreign corporation which is engaged in business in the State without compliance with the law relating to the transaction by foreign corporations of business within the State, is es-topped to raise the question of the invalidity of a mortgage of corporate chattels in an action of replevin to recover such chattels, he having no greater rights than the corporation.
    Case-made from Ontonagon; Cooper, J.
    Submitted June 22, 1917.
    (Docket No. 128.)
    Decided September 27, 1917.
    Replevin by . Louis Goldberg, receiver of the Brule Timber Company, a bankrupt, against John Parker. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      John Jones, C. W. Stilson, and B. M. Goldberg, for appellant.

      Van Slyck & Walsh, for appellee.
   Stone, J.

This is an action of replevin for the alleged unlawful detention of “two dappled gray mares, two horse collars, and part of one double harness.” The facts were all stipulated except the value of the property. Four cases were instituted by the plaintiff against different defendants, but they were all submitted as one case upon the same statement- of facts. The finding of the court was as follows:

! “It appears from the stipulated facts that the Brule Timber Company, a- Minnesota corporation, engaged in business in the State of Michigan without ever having complied with the laws of Michigan relative to foreign corporations doing business in this State; that such company became indebted to Richard J. Knee-bone in the sum of $2,500, and to secure the payment of such debt gave Mr. Kneebone (on May 25, 1915) a chattel mortgage covering the property involved in these cases. Later (and on June 30, 1916) the Brule Timber Company was adjudicated a bankrupt in the State of Minnesota by the Federal court. Knee-bone took possession of the property involved in these suits, and these defendants' held the property for him at the time the suits were started. Louis Goldberg was appointed receiver of the Brule Timber Company, and started these suits, as such receiver. The claim of the plaintiff is that the chattel mortgage is void because the Brule Timber Company was never authorized to do business' in the State and could not make a valid contract in this State. It is conceded by the plaintiff that the corporation itself could not raise the question of the validity of the mortgage, because it could not take advantage of its own wrong, but plaintiff claims that, as the representative of the creditors of the corporation, he can do so. The creditors of the corporation necessarily secured the benefit of the indebtedness of the company to Mr. Kneebone. Twenty-five hundred dollars extended to the corporation would increase its assets to that extent, and therefore the creditors would benefit thereby in bankruptcy.
“The wrong of the Brule Timber Company therefore inured to the benefit of the creditors of such company, and they are not in any better position to take advantage of the wrong of the corporation than the corporation, itself would be. There has been but one case cited which covers the question.
“In Re Naylor Manfg. Co., 135 Fed. 206, the identical question involved in these cases was decided, and it was held that the trustee in bankruptcy was in the same position as the company, and could not raise the question of the legality of a contract entered into by a foreign corporation in the State of Pennsylvania, such corporation not having been authorized to do business in that State, and the trustee being the trustee of such corporation in a bankruptcy proceeding.
“A judgment will be entered in each case in favor of the defendant, and against the plaintiff and his surety on the replevin, bond.”

A judgment was thereupon entered in the instant case in favor of the defendant for $500 and costs, and it was conceded that there was evidence tending to show the value of the property to be equal to the, amount of the judgment. The plaintiff moved for and proposed amended findings of fact and conclusions of law in accordance with his claim, which were refused by the trial court, and exceptions were duly taken. The plaintiff brings the case here for review, by case-made after judgment.

By appropriate assignments of error, the single question involved is raised, viz. whether the chattel mortgage here* involved shall be held to be valid and enforceable in this case in favor of the defendant and Mr. Kneebone, as against the attack made herein by the plaintiff upon the validity thereof. It would be well at the outset to inquire what object and reasons are back of the legislation which provides for the admission of foreign corporations to transact local business within this State. Those reasons are well stated in volume 19 Cyc., at pages 1301 and 1302, as follows:

“The object of the statutes is to protect domestic citizens doing business with such corporations, and they are not to be construed, in the absence of clear provision to such effect, as rendering contracts void as against such citizens. To so construe them would render them instruments - of fraud and oppression to those for whose protection they were intended. It is not intended to devolve upon persons dealing with such corporations the duty and risk of ascertaining whether the statute has. been complied with. Otherwise stated, the doctrine, as laid down in many of the cases, is that, if the State does not intervene, and if the party for whose protection the statute was enacted does not rescind it, the corporation is estopped thus to set up its own violation of the law in avoidance of its contracts.”

See Clay Fire & Marine Ins. Co. v. Manufacturing Co., 31 Mich. 346.

In Showen v. Owens Co., 158 Mich. 321, at page 333 (122 N. W. 640, at page 645), we said:

“The court found, and the evidence warranted the finding, that the defendant through its agent was transacting local business in the State, and the fact that such business upon the showing made was unlawful should not relieve the defendant, but it should be held to assent to the same remedies which would have attached if it had done the business lawfully. It is estopped to set up in its defense the unlawfulness of its transactions. Ehrman v. Insurance Co., 1 Fed. 471; Hagerman v. Empire State Co., 97 Pa. 534; Sparks v. Accident Ass’n, 100 Iowa, 458 (69 N. W. 678); Lafayette Ins. Co. v. French, 18 How. (U. S.) 404.”

The foregoing case is cited and approved in the case of Kuennan v. Guaranty Co., 159 Mich. 122, at page 127 (123 N. W. 799, at page 801), where this court said:

“The same "conclusion is arrived at, and for the same reason, when it is considered that the construction company is estopped to assert the invalidity of its contracts made in this State. Showen v. Owens Co., 158 Mich. 321 (122 N. W. 640.)”

In Rough v. Breitung, 117 Mich. 48, at page 56 (75 N. W. 147, at page 149), this court said:

“We are forced to the conclusion from this record that this was a corporate contract, and void under the law above cited. While the corporation might be estopped to plead such a contract in its defense, it cannot maintain an action upon, it without annulling the law.”

' The cases cited by counsel for plaintiff in which a recovery on the contract was denied were cases in which the delinquent corporation sought the aid of our courts in enforcing, the contract.

In Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697), where this court was dealing with Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), being “An act to regulate the carrying on of business under an assumed or fictitious name,” Justice Steere said:

“As this act involves purely business transactions, and affects only money interests, we think it should be construed as rendering contracts made in violation of it unlawful and unenforceable at the instance of the offending party only, but not as designed to take away the rights of innocent parties who may have dealt with the offenders in ignorance of their having violated the statute.”

By the stipulated facts it appears that the mortgage was made in good faith and for a valuable consideration, and there is nothing to show that Mr. Kneebone had any notice or knowledge that the Brule Timber Company had not fully complied with the law relating to foreign corporations. Our attention has not been called to any authority holding that, in the absence of fraud or bad faith, the receiver occupies any different position than the corporation itself would occupy. The good faith of Mr, Kneebone and the adequacy of the consideration of the mortgage are not questioned.

In Marine Savings Bank v. Norton, 160 Mich. 614 (125 N. W. 754), the action was brought against a trustee in bankruptcy to reform a chattel mortgage so as to include after-acquired property. The court permitted such reformation, holding that:

“The trustee in bankruptcy, under the bankrupt act, takes the property of the bankrupt at the date of the adjudication, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities imposed upon it in the hands of the bankrupt. York Manfg. Co. v. Cassell, 201 U. S. 352 (26 Sup. Ct. 481), citing Thompson v. Fairbanks, 196 U. S. 516 (25 Sup. Ct. 306).”

See, also, Kalamazoo Trust Co. v. Merrill, 159 Mich. 649 (124 N. W. 597) ; Wasey v. Whitcomb, 167 Mich. 58, 85 (132 N. W. 572).

In Kalamazoo Trust Co. v. Merrill, supra, Justice Brooke, speaking foxrthis court, quoted with approval the following language from Collier on Bankruptcy (7th Ed.), p. 810e.

' “It is well settled that a trustee takes, not as an innocent purchaser, but subject to all valid claims, liens, and equities. Thus he has no better title than the bankrupt had, and is affected with every equity which would affect the bankrupt himself, if he were asserting the same rights and interests. A trustee in bankruptcy stands in the shoes of the bankrupt, and has no better title than he, in the absence of fraud, or of attaching or judgment creditors at the time of the filing of the petition. Where a right of action passes to the trustee, any defense, legal or equitable, which might have been raised against the bankrupt’s claim may be raised against the trustee.”

We think this language is very applicable to the instant case.

The case In re Naylor Manfg. Co., 135 Fed. 206, cited by the learned circuit judge, is in point. While it is not the decision of a court of last resort, it is very persuasive, and is in accord with our own decisions.

The conclusion reached by the trial court was both legal and just, and its judgment is affirmed.

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


author: KUHN, C. J,

text:
    RODENHOUSE v. DE GOLIA.
    1. Real Property — Land Contracts — Assignments—Fraud—Evidence — Sufficiency.
    On a bill by the assignee of a contract for the purchase of land, against his assignor for the recovery of the consideration paid, evidence held, sufficient to show fraud and misrepresentation by the assignor.
    2. Same — Land Contracts — Taxation—Statutes.
    Act No. 91, Pub. Acts 1911, § 8 (1 Comp. Laws 1915, § 4275), providing that no suit may be maintained for the foreclosure of a land contract on which the tax provided by such act has not been paid, being a tax measure, is intended for the purpose of compelling the payment of the tax imposed, and the requirements of the law are fully met where the tax is paid before the decision of the court and the conclusion of the hearing.
    3. Same — Land Contracts — Assignments—Consent of Vendor-Evidence — Sufficiency.
    Evidence held, insufficient to show that the owner of a contract for the sale of real estate consented verbally to a transfer by the contract purchaser to another of such purchaser’s interest in the contract.
    Appeal from the superior court of Grand Rapids; Dunham, J.
    Submitted July 26, 1917.
    (Docket No. 2.)
    Decided September 27, 1917.
    Bill by Albert Rodenhouse against William E. De Golia, Henry H. D. Langereis and others to set aside a deed and sale on the ground of fraud. Defendant Langereis filed a cross-bill for the forfeiture of a land contract. From the decree rendered, defendant De Golia appeals.
    Affirmed.

      Don E. Minor, for plaintiff.

      Hartley E. Hendrick, for appellant.
   KUHN, C. J,

This bill was filed to obtain equitable relief arising from a situation created by the following facts:

On November 1, 1908, H. H. D. Langereis, one of the defendants, was the owner of a certain lot in the city of Grand Rapids, which on that date he sold upon land contract to Sherman B. Thomas and wife for $2,100. Thomas paid $500 down, and was to pay $10 on the first of each month thereafter, with interest at 6 per cent. On August 23,1913, Thomas and wife sold their interest in this property to Sylvester Vreeland and Celia B. Vreeland for the sum of $2,200. A new • contract was made out to the Vreelands, and the contract of Langereis to Thomas was not assigned by Thomas and wife to Vreeland. The terms of this new contract were, $215 to be paid down on the date of the transaction and the balance at the rate of $15 or more on the 23d day of each month thereafter until the balance due was paid, with interest thereon at 6 per cent. Upon the failure to make any payment, the grantors could either declare the contract forfeited or exercise their option to enforce collection thereof in a suit at/ law. The contract also provided that the Vreelands should not assign nor transfer it, nor lease or sublet said premises, without the previous assent of the Thomases indorsed thereon. It further provided that if the Vreelands violated or neglected to fulfill any of the covenants or agreements therein, they should forfeit all right or claim thereunder and be liable to removal therefrom in the same manner as is provided by law for a tenant that holds over premises contrary to his lease, and notice to quit and of forfeiture were each waived in writing.

Soon after this sale, Thomas and wife sold their interest in this contract to Langereis for $800. The first payment on the contract of August 23d was paid to Langereis instead of to Thomas, and was paid on September 23, 1913. Thereafter the Vreelands continued to pay their monthly payments to Langereis until June, 1914. This payment was not made. On July 23, 1914, Vreeland paid the installment due and payable on the contract for that month, and thereafter kept up the monthly payments until November, 1914, which payment also was not made, and neither the June nor November, 1914, payments had been made up to the date of the hearing of the suit. Payment was then resumed by Vreeland, and on December 21, 1914, he made that monthly payment and each subsequent monthly payment until April, 1915, and this payment was passed. Payment was again resumed, on May 21, 1915, and continued until July 23,1915, when the last payment was made, leaving unpaid at the time of the suit $45 and interest, being the monthly payments for June and November, 1914, and the April, 1915, payment. There was therefore due at that time upon the contract by its terms these three monthly payments and interest and taxes and all the payments due upon the contract by its terms after the month of July, 1915. On the date of the sale by the Thomases to the Vreelands there was $1,030 still due Langereis, but Langereis paid $800 in his purchase of the Thomas interest in the contract, so that Langereis still had due him for the property $1,830 and some additional interest and taxes.

On October 7, 1915, the Vreelands assigned all their interest in the Thomas contract to William E. De Golia, and on October 15th following, De Golia assigned all his interest in that contract to Albert Rodenhouse, the consideration being a- lot in the city of Grand Rapids and an automobile, the total value of the property in question being $700. De Golia also gave to plaintiff, as a part of the consideration, his note for $65, secured by a mortgage back on plaintiff’s lot in like amount.

When Langereis learned that De Golia had bought the Vreelands’ contract, he called up De Golia and told him to leave the property alone, because he would not consider any transfer whatever, and upon learning that Rodenhouse, the plaintiff, had bought the property from De Golia, he also got into communication with Rodenhouse and told him that he was the owner of the property and that De Golia had no right to sell. Rodenhouse thereupon asked him to be allowed to keep the place and make the payments, but Langereis would not allow this. The plaintiff thereupon sought a return of the lot and automobile from De Golia, and learned that the lot had been transferred to a brother of De Golia’s, and that the automobile had been sold to one Jack Williams, one* of the defendants. The plaintiff thereupon, filed his bill, setting up these facts, and prayed that the lot and automobile be returned to him. Defendant William E. De Golia answered, and Langereis also filed an answer in the náture of a cross-bill, praying that .the contract running from the Thomases to the Vreelands be declared forfeited to him, as the assignee and owner, and that De Golia and the plaintiff be declared to have no right, title, or interest therein.

After hearing the case, the trial judge decreed that the defendant Langereis is the owner of the lot in question, free and discharged from any interest, claim, or title thereto or therein by the Vreelands, William De Golia, Frank De Golia, or Albert Rodenhouse, the parties to this suit; that the deed from William E. De Golia to Frank De Golia is void, and that Frank De Golia quitclaim all his right, title, and interest therein to Albert Rodenhouse; that the mortgage by William E. De Golia to Albert Rodenhouse be declared null and void; that the assignments of the contract from the Vreelands to William E. De Golia and from him to Albert Rodenhouse be declared null and void; and the decree also provided that the court does not, in any manner, dispose of any question between Albert Rodenhouse and De Golia, or any person, so far as the automobile involved in the transaction is concerned. From this decree defendant William E. De Golia is the only one to appeal.

Plaintiff’s bill charges the defendant William E. De Golia as being guilty of fraud and misrepresentation, to the deception and injury of the plaintiff. This the trial judge found was fully substantiated by the proofs, and with this conclusion we agree. The record is conclusive that De Golia knew, when he first began to deal with the plaintiff, having a copy of the Vreeland contract in his possession, that he was prohibited by its terms from transferring or assigning, as well as renting, the premises without the consent of Langereis. Notwithstanding this, he told the plaintiff that he had authority to make the transfer. In this connection there should also be considered his haste in closing the deal, for the reason, as he admits, that he did not want the plaintiff to get aw¡ay; that the note which was taken from the defendant Williams was negotiated and put out of De Golia’s hands the following day; and his immediately deeding the lot to his brother, Frank De Golia, for the reason, as he admits, that the plaintiff had told him he was going to try to get the lot back. The bad faith of De Golia appears throughout the entire transaction. .

On the trial of the case, the attorney for William E. De Golia made a motion to strike from the record the contract that had been introduced in evidence by the plaintiff, together with all evidence in relation thereto, because it appeared that the mortgage tax provided for in Act No. 91, Public Acts of 1911 (1 Comp. Laws 1915, §4268 et seq.), had not been paid. Langereis testified that he had not paid the tax on the contract because he did not know it was necessary, and the tax was in fact paid to the county treasurer after the hearing was begun, but before the case was submitted to the court for a decision. We see no merit in the contention that the result reached by the trial judge should be changed because of his failure to grant the motion which was made. It is clear that the purpose of the section referred to, being a tax measure, is to compel the payment of the tax imposed, and, having been paid before the decision of the court and before the conclusion of the hearing, the requirement of the law was fully met. Such was the order of this court in Nelson v. Breitenwischer, 194 Mich. 30 (160 N. W. 626).

Counsel for the appellant in his brief argues and contends that the record shows that Mr. Langereis had verbally consented to the transfer, of this property by the Thomases, to the Vreelands, and that by so doing, he waived the right to enforce that clause of the contract without the written consent of Mr. and Mrs. Thomas, and that by passing the payment that had become due from the Vreelands and accepting payments thereafter, he again waived the right of declaring a forfeiture by reason of such past payments. Whether or not Mr. Langereis verbally consented to a transfer of the property is a question of fact which was decided adversely to appellant’s contention by the trial judge, with whose conclusion we are in full accord, his reasons therefor being stated as follows:

“It is also the claim of the Vreelands, as well as the claim of De Golia, that Langereis gave his oral consent to the Vreelands to sell their interest in this property that they had therein by virtue of the -land contract above mentioned of date August 23, 1913, and De Golia also claims that before he purchased this interest from the Vreelands on October 7, 1915, he had the oral consent of. Langereis to purchase this interest from the Vreelands. While this is the testimony in part and in substance of both Vreeland and his wife and William E. De Golia, there are other portions of their testimony that is touch more conclusive that Langereis never gave any such consent thereto. Both the Vreelands, as well as the De Golias, testified, in substance, that Langereis told them that he would consent to nothing with reference to the transfer of the Vreeland contract until everything was squared’up, all payments made, and De Golia testified that he agreed with the Vreelands that he would pay all of the amounts due to Langereis, but he did not make such payments, and has never made them, or any part thereof. On October 7, 1915, Sylvester Vreeland and wife assigned their interest in said contract of date August 23, 1913, to William E. De Golia; eight days thereafter William De Golia assigned all his interest under that contract to Albert Rodenhouse.
“To my mind it is clearly apparent, and I so find as a matter of fact, that the Vreelands and De Golia never had the consent of Langereis for the assignment of said contract by the Vreelands to De Golia, and that immediately after October 7, 1915, De Golia knew that Langereis was displeased with such sale and assignment, and that he would not acquiesce therein.
“I also further find that, by reason thereof, De Golia, eight days after receiving his interest in said contract, sold and assigned it to Albert Rodenhouse.”

We are unable to agree that any of the contentions advanced by counsel for appellant in his brief would justify us in reversing the decision made in the court below, and therefore affirm the decree, with costs to the appellee.

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


author: Kuhn, C. J.

text:
    PARSONS v. E. I. DU PONT DE NEMOURS POWDER CO.
    1. Navigable Waters — Rights of Public — Rights of Riparian Owners.
    The public has the right to use a navigable stream in its fluid state for navigation purposes and in its frozen state for the purpose of traversing its surface, with due regard to the rights of riparian owners to its use for their own purposes.
    2. Same.
    Frozen navigable rivers are public highways and the traveler ordinarily has the paramount right of passage as necessarily incident to the reasonable enjoyment of his right, but it must be exercised in common with such uses as the frozen surface of the river is adapted to.
    3. Same.
    Where a gas reducing plant discharges warm water into a stream and melts the ice in the winter time for some distance and makes the ice soft around the opening and causes the accumulation on the surface of the open water of a substance resembling ice, the owner must, in the exercise of its rights, proceed in such a manner as to least endanger the lives of skaters on the ice and others.
    4. Negligence — Holes in Ice — Barriers—Question for Jury.
    In an action against the owner of a gas reducing plant to recover for the death of plaintiff’s son, due to falling into the river through soft ice at an open place caused by the melting of the ice by the discharge of warm water from the plant, held, that it was a question for the jury whether defendant should not have taken means to provide some barrier or guard, or have given warning of the dangerous condition of the ice.
    5. Death — Witnesses—Death by Drowning — Presumptions.
    Where there are no eyewitnesses to the instantaneous death of a boy by drowning by falling through soft ice in a river while skating, it must be presumed that he was in the exercise of due care at the time of his death.
    6. Negligence — Death by Drowning — Contributory Negligence —Question for Jury.
    In an action against the owner of a gas reducing plant for the death of a boy seven years old by drowning caused by falling, while skating, through soft ice near an opening in the ice caused by warm water from the plant, there being no eyewitnesses to the accident and it appearing that the scum that gathered on the opening had the appearance of dark ice, it was a question for the jury whether decedent was guilty of contributory negligence.

    Error to Bay; Coumans, J.
    Submitted June 14, 1917.
    (Docket No. 47.)
    Decided September 27, 1917.
    Case by Amos J. Parsons, administrator of the estate of Verne Oscar Parsons, deceased, against the E. I. Du Pont De Nemours Powder Company for the negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      De Foe & Converse and C. A. Higgs, for appellant.

      Weadock & Duffy (Russell H. Neilson, of counsel), for appellee.

       This case will be annotated on the question of liability of one wbo renders ice unsafe for skating or travel, L. R. A. 1918A.

   Kuhn, C. J.

The son of the plaintiff, Verne Parsons, aged 7 years and 3 or 4 months, was drowned while skating on the Saginaw river at Bay. City, Mich., in the latter part of the afternoon of January 12, 1915. The Saginaw river is one of the large navigable rivers of this State, and as it passes through Bay City on its course to Saginaw Bay, it divides for a distance into two channels, the east channel being the main channel of the river. The west channel, where the accident occurred, is about 200 feet in width, and is also conceded to be a navigable stream, having been used for a great many years for commercial purposes, and during the winter months has been used by the public generally for skating, fishing, and drawing of logs, hay, and ice. The defendant company owns and operates a plant which faces upon the Saginaw river on this west channel. This plant is used for the manufacture, among other things, of charcoal, acetate of lime and wood alcohol. One of the buildings of the plant, which is known as the “still house,” is used by the company for the purpose of reducing the gas obtained from the reduction of wood to charcoal, into its various chemical properties. After the gases have been gathered from the retorts, they are conveyed to the still house and passed through a series of condensors, where by the use of water the gases are condensed to a liquid state. The company, in order to properly reduce these gases to a liquid state, have installed 12 pumps,- which are used for pumping the water from the Saginaw river, conveying it to the plant, forcing it around the condensors, and then returning it to the river through a sewer. This use of the water raises its temperature from that of the water taken from the river to that of about 70 or 80 degrees. About a million gallons are used each day. ’By the returning of this amount of warm water to the river during the winter months the ice is melted at the place where the sewer empties into the river, creating an open place, the size of which at the time of the accident was about 65 feet across the river and 115 feet along the shore. At the time of .the drowning there were no barriers or guards or notices of any kind around this opening in the ice, and for a distance of 6 or 7 feet from the open water the testimony shows.the ice was thin and soft and unsafe. There was also testimony to show that this open water was covered with a tar scum, which did not look unlike the ice, and which was described by one of plaintiffs witnesses, in answer to a question, as follows:

“Q. Give the jury some idea of what that scum or substance laying there is like as you approach it on the ice; what it looks like.
“A. Kind of dirty, soapy like stuff, tar mixed with it, floats around on the surface; it looks as though it was good ice.”

Plaintiff’s decedent, on the day in question, left his home during the absence of his father from the house, but with the permission of his sister, who was at home taking care of him, and went to the river to skate. Upon his father’s return, the boy was reported missing, and the father, with others, went to the river to find him. They found the skate tracks on the ice, leading up to the open water, indicating that he had broken through the soft ice as he approached the opening, and after a search, the body was found in the river near where the skate tracks ended.

This action was brought under sections 10427 and 10428, 3 Comp. Laws (3 Comp. Laws 1915, §§ 14577, 14578), known as “Lord Campbell’s act,” and commonly called the “death act.” The trial judge directed a verdict for the defendant on. the ground that the plaintiff had not established any negligence on the part of the defendant, or that the plaintiff’s decedent was free from negligence at the time of the accident. Whether or not the trial judge was correct in directing a verdict for the reasons stated is the question before us for determination.

That the defendant company had the right to the use of the ice abutting to the land on which its plant was located is not questioned by counsel in this case. In fact, counsel for both parties cite practically the same authorities, and the difficulty rather is in their application to the facts in this case. We cannot accede to the contention that the plaintiff’s decedent was a trespasser. This was concededly a navigable stream, and the public had a right to use it in its fluid state for navigation purposes, and also had a right to traverse its surface, when congealed, with due regard to the rights of the riparian owners to its use for their own purposes. Neither of these rights, however, could be exercised to the exclusion of the other, and the rule seems to be well stated in Woodman v. Pitman, 79 Me. 456 (10 Atl. 321, 1 Am. St; Rep. 342), where it is said:

“Frozen navigable rivers are public highways, and the traveler ordinarily has the paramount right of passage as necessarily incident to the reasonable enjoyment of his right, but it must be exercised in common with such uses as the frozen surface of the river is adapted to. One such use is the harvesting of ice, a use that may impede travel. Both are common rights, and both may be lawfully exercised; but both cannot be enjoyed at the same spot at the same time, because the one may be there destructive of the other, so that it may be reasonable for that use, giving the larger public benefit to restrict other uses to a narrower compass, but it cannot lawfully monopolize the whole right to the utter destruction of all other rights.”

In an early case, French v. Camp, 18 Me. 433 (36 Am. Dec. 728), Chief Justice Weston said:

“It is contended, that the defendants had an equal right to cut a hole in the ice, to water their horses or other cattle, or for other purposes. Assuming that the defendants have as good a right to the use of the water, as the plaintiff or the public generally had to the right of passage, the use of a common privilege should be such as may be most beneficial and least injurious to all who have occasion to avail themselves of it. To cut a hole in the center of a road upon the ice, or so near it as to entrap a traveler, is a wanton and unnecessary disturbance of the right of passage. It is making an improper use of a part of the river, lawfully appropriated for the time being, to a different purpose. It is a direct violation of that great principle of social duty, by which each one is required so to use his own rights as not to injure the rights of others.”

See, also, Board of Park Com’rs v. Diamond Ice Co., 130 Iowa, 603 (105 N. W. 203, 3 L. R. A. [N. S.] 1103, 8 Am. & Eng. Ann. Cas. 28); Pennock v. Mitch ell, 17 Ont. L. Rep. 286, 14 Am. & Eng. Ann. Cas. 363.

Applying the principles of these decisions to. the facts before us, we think it reasonable to hold that it was the duty of the defendant, in the exercise of its rights, to proceed in such a manner as to least endanger others in the exercise of the rights which the law accorded to them. They, by the operation of their plant, made unsafe a portion of the river which otherwise would have been safe for the public’s right of passage thereover, and in our opinion it was at least a question for the jury to determine whether or not, in the exercise of reasonable prudence, the defendant should not have taken means to provide some barrier or guard, or have given warning to the public of the dangerous condition of the ice, which had been created by it.

Neither are we satisfied that we should say, as a matter of law, that the plaintiff’s decedent was guilty of contributory negligence. It must be kept in mind that this boy met an instantaneous death, and, there being no eyewitnesses, so far as the record shows, of his death, there is the presumption that he was in the'exercise of all due care upon his part. He was still of tender years, and, considering all of the circumstances in the case — the fact that there was testimony to show that the scum which gathered on the opening had the appearance of dark ice; that he did not skate into the opening, but broke through the ice before reaching it — we are of the opinion that this question should have also been submitted to the jury.

The judgment must be reversed, and a new trial granted, with costs to the appellant.

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


text:
    SPARKS v. LORD.
    ■ 1. Evidence — Parol Evidence — Admissibility — Contracts — Omissions.
    In an action to recover the balance of the contract price for installing a heating plant in a residence, parol evidence is admissible to supply an omission in the schedule attached to the written contract relating to the degrees of temperature at which the house was to be heated.

    2. Trial — -Right to Open and Close — Pleading—Court Rules— Admissions.
    Under Circuit Court Rule No. 42, § 3, providing that-whenever in an action the defendant, by notice accompanying his plea, waives the benefit of the general issue and admits the facts alleged in the plaintiff’s declaration, but attempts to defeat plaintiff’s recovery by set-off or recoupment, or by affirmative defense which, if true, defeats plaintiff’s recovery, such defendant shall have the opening and closing in the taking of testimony and in the argument, where a defendant by plea waives the benefit of the general issue and admits facts alleged in declaration, claims the right to open and close and files notice of recoupment, he does not admit away all right of defense in case and has the right to open and close.
    3. Appeal and Error — Set-oef and Recoupment — Verdicts.
    A plaintiff cannot complain of a verdict in favor of defendant on his claim of recoupment for less than the evidence warrants, where the latter does not appeal.
    4. Set-oee and Recoupment — Verdicts—Miscarriage oe Justice —Statutes—Remittiturs.
    In an action to recovei the balance of $145 due on a contract, in which the defendant filed a counter claim for $129.80, and there was evidence to sustain the allowance of the counter claim in full, and the jury returned a verdict for $2.14 for defendant, any error of the court in requiring a remittitur of $20 by subtracting the sum of $125 from $145 and of the jury in returning a verdict for the defendant, the latter not having appealed, did not, under Act No. 89, Puh. Acts 1915 (3 Comp. Laws 1915, § 14565), and Act No. 314, Pub. Acts 1915, chap. 50, § 28 (3 Comp. Laws 1915, § 13763), result in a miscarriage of justice except as to the excess sum allowed defendant and the case was affirmed on condition that defendant file a remittitur of the $2.14.
    Error to Berrien; Bridgman, J.
    Submitted June 21, 1917.
    (Docket No. 104.)
    Decided September 27, 1917.
    Assumpsit by Claud R. Sparks and Jacob F. Schaefer, copartners as Sparks & Schaefer, against John S. Lord for a balance due upon a contract for the installation of a heating plant. Defendant filed a plea and notice of recoupment. Judgment for defendant. Plaintiff brings error.
    Affirmed, conditionally.

      Charles H. Kavanagh, for appellants.

      Cady & Andrews, for appellee.

       On admissibility of parole evidence to vary, add to, or alter a written contract, see note in 17 L. R. A. 270.

   Kuhn, C. J.

This controversy arises out of a dispute over the installation of a heating plant by the plaintiffs in the house of the defendant. Plaintiffs are copartners in the hardware business in Berrien Springs, Mich., and also install in residences and other buildings hot water boilers and radiators, with equipment, furnished by the American Radiator Company. The connection piping is installed according to plans furnished by the company and made by the Honeywell Heating Specialty Company, of Indiana. In the latter part of the year 1914 the plaintiffs entered into a written contract with the defendant to install a boiler in the defendant’s residence and connect the same with radiators into a heating system or plant. The contract price was $437, and various payments were made on the contract until the balance due was reduced to $145, which amount is admitted by defendant to be still due and unpaid. The contract contained a clause which purports to guarantee the apparatus to be capable of heating the rooms in which the radiators are placed to temperatures mentioned in the schedule attached, during the- coldest winter weather. In the schedule attached, although it provided spaces for the insertion of the temperatures, apparently the figures were omitted and nothing appeared in the spaces provided therefor.

After the installation of the plant, the defendant claimed that it did not heat his house to his satisfaction and according to the contract, and after taking the matter up with the plaintiffs, he wrote a letter to the American Radiator Company, making a complaint. A man was sent out by this company to inspect the plant, who reported that there was nothing wrong with it, but found fault rather with the method of firing and because defendant had only burned wood instead of coal. The Honeywell Company also sent an expert to examine the plant, who reported that it was in perfect condition. In November, 1915, the defendant, however, had a plumber tear out the pipes and install some of a larger size, which it is claimed remedied the difficulty, and that thereafter the plant heated the house satisfactorily.

This suit is brought on the written contract for the $145 still due. The defendant in his plea waived the benefit of the general issue and admitted the facts alleged in the plaintiffs’ declaration, and filed a plea and notice of recoupment with bill of particulars attached. The proofs tended to show the defendants’ counterclaim to be $129.84, which included the cost of installing the new pipe and expenses in connection therewith. The case being submitted to the jury, they returned a verdict of $2.14 in favor of the defendant, and thereupon the plaintiffs made a motion for a new .trial, which was granted, unless defendant consented within 15 days to remit upon the record the sum of $20; the trial judge being of the opinion that there was no evidence that would warrant an allowance of damages to the defendant exceeding $125. The amount of $20 was arrived at as being the difference between $125, the amount which, in the judge’s opinion, the defendant had proved, and the $145, being the amount of plaintiffs’ claim. The defendant filed a written consent to remit the $20.

Various assignments of error are urged. We will consider those which seem to us of sufficient importance' to warrant it.

It is contended that the court erred in admitting evidence of a verbal agreement that the house was to be heated to a. temperature of 72 degrees for the purpose of showing what a reasonable temperature should be; that the contract being silent upon the question of temperature, it was not proper to admit any testimony with reference to the same. An examination of the contract is very convincing, however, that in its. preparation the degrees of temperature were inadvertently omitted from the schedule therein provided, and we think it was entirely proper to supply this by parol evidence. See Stahelin v. Sowle, 87 Mich. 124 (49 N. W. 524); Beld v. Darst, 146 Mich. 143 (109 N. W. 275).

Another question raised is: Did the defendant, by waiving the general issue under subdivision 3 of Circuit Court Rule No. 42 and claiming the right to open and close the case, admit away all his right of defense in the case? We think not, for while the rule itself provides that, by the waiver, the defendant admits the facts alleged in the plaintiff’s declaration, it further provides that if the defendant attempts to defeat the plaintiff’s recovery by set-off or recoupment, defendant shall have the opening and closing in the taking of the testimony and in the argument on the trial of the cause. This right was given him on the trial of this case, and we think properly so, under the rule.

It is also urged that the court, under the circumstances of this case, did not have any power or authority to compel a remittance by the defendant upon the record; that the verdict of the jury finds no justification in the evidence; and that the judge should have granted a new trial, instead of compelling the remittance, as he did. The jury assessed the damages in the instant case, and it is, of course, impossible to tell how they arrived at the verdict they did, which, under the evidence, is clearly erroneous. Counsel have had some difficulty, in their argument and briefs, in determining the exact amount that the testimony shows the defendant was entitled to recoup. We are satisfied that there is testimony warranting the jury in awarding the defendant $129.84 damages in the way of recoupment, which is somewhat in excess of the amount that, in the opinion of the trial judge, the defendant was entitled to recoup. However, the defendant raised no question with reference to that, not having appealed, so that the plaintiffs have nothing to complain of concerning this discrepancy. It is likewise clear, however, that the circuit judge should have added to the $20 the sum of $2.14, the amount of the verdict given, in favor of defendant. We are very much in doubt about the correctness of the practice here adopted by the circuit judge. The record shows, however, that costs were taxed in favor of the defendant in the sum of $62.50, as, by virtue of the fifth subdivision of section 14892, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 13688, subd. 5, unless the plaintiff recovers judgment of at least $100, the defendant is entitled to his costs. In our opinion it is made to appear that, by the remittance, the plaintiffs are in precisely the same position that they would have been had a verdict been rendered for them in the sum of $20, which should have been, in our opinion, $22.14. It does not appear, therefore, that the plaintiffs have suffered any injury by the verdict being originally wrong or by the action of the trial judge. The principal facts have been determined by a jury. We think it is an instance where the recent statute passed by the legislature (Act No. 89, Pub. Acts 1915, 3 Comp. Laws 1915, § 14565), and also section 28, chap. 50, of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 13763), should be applied, and that we should not reverse the case, because it has not been made to affirmatively appear that there has been a miscarriage of justice (Barras v. Barras, 192 Mich. 584 [159 N. W. 147]), except as to the $2.14 now noted.

A new trial will, however, be granted, unless the defendant consent, within 15 days, to remit the additional amount of $2.14, as indicated in this opinion. In case the amount is remitted, the case will be affirmed.

Stone, Osteandee, Bied, Mooee, Steeee, Beooke, and Fellows, JJ., concurred.