author: Hooker, J.

text:
    LEGGETT v. CITY OF DETROIT.

    1. Eminent Domain — Contracts to Relinquish.
    A oontract, whereby a municipality relinquishes its right to exercise the power of eminent domain, is void as being against public policy.
    2. Municipal Corporations — Deeds—Releases from Future Assessments.
    A condition subsequent in a deed to a city that the grantor shall be released from future assessments for opening streets is void.
    3. Dedication — Streets.
    Where a landowner conveyed land to a city for streets, by a deed containing a condition that certain parcels of land retained by him should be exempt from assessments for opening streets, and afterward dedicated a plat showing the land conveyed as streets, and recognized his dedication by the sale of lots, the right of the public to the streets was established.
    4. Equity — Praotioe—Bill of Review — Answer—Waiver.
    Answering to an original bill in the nature of a bill of review filed by a person not a party to the suit, waives the right to appeal from the order permitting such bill to be filed.
    Appeal from Wayne; Donovan, J.
    Submitted April 13, 1904.
    (Docket No. 49.)
    Decided July 16, 1904.
    Bill by John W. Leggett against the city of Detroit to set aside a deed. From a decree for complainant, defendant appeals; and from an order allowing Albert U. Widman to file a bill in the nature of a bill of review, complainant appeals.
    Decree reversed, and appeal of complainant dismissed.

      Bowen, Douglas, Whiting & Murfin, for complainant.

      Timothy E. Tarsney (John W. McGrath, of counsel), for defendant.

      Corliss, Andrus, Leete & Joslyn, for intervening petitioner.

       Rehearing denied December 22, 1904.

   Hooker, J.

Virginia avenue, in Detroit, extends westerly from Woodward avenue. Complainant, Leggett, and others owned land extending from Woodward avenue to Hamilton Boulevard, and some years ago platted the same, calling the plat the £ £ Peerless Addition. ” Virginia avenue was then in existence. The Peerless Addition lies upon both sides of it. At that time Second and Third avenues had not been opened as far north as Virginia avenue; some, if not all, of those streets, being opened only to a point some blocks south of Virginia avenue. Leggett and his associates made a deed of the lands belonging to them, which would be required for the purpose in case these streets should be extended through the proposed Peerless Addition, and sent it, with the following letter, to the common council:

“ March 21st, 1903.
“ To the Hon. the Common Council.
Gentlemen: The undersigned herewith respectfully submit a deed of a strip of land for your street purposes and respectfully ask its acceptance by your honorable body.
[Signed] “ Prank E. Snow,
" John W. Leggett,
" Joseph C. Hough,
“By B. W. Whiting,
“ Their Attorney in Fact.”

The matter was referred to a committee, and the deed, in a modified form, was subsequently accepted. This was a quitclaim deed of such land, and contained a statement that the remaining property—

“ Shall forever be excluded from any and all assessment «districts which may hereafter be made to defray the expenses of opening and condemning such portions of Crawford street, sometimes called Hamilton Boulevard, Second avenue, and Third avenue, or any or either of them, or extension or extensions thereof, as are not now opened. The condition of this deed being that if said last above-mentioned described property is hereafter assessed or included in any assessment district for the purpose of defraying the expense of opening and condemning the now urn. opened portions of Crawford street, Second avenue, and Third avenue, or extension or extensions thereof, or any or either of them, then and in that event, and on the happening thereof, the premises hereby conveyed shall each and all of them immediately and at once revert to and again become the property of the said first parties, their representatives or assigns, together with all and singular the hereditaments and appurtenances thereto belonging or in any wise appertaining. To have and to hold the said above-described premises to the said- party of the second part, and to its successors, to the sole and only proper use, benefit, and behoof of the said party of the second part, and its successors, forever; subject to the restrictions above contained.”

The deed was made in March, 1893, and is alleged to have described the premises subject to reversion, as the undivided one-third of the lands in dispute. Subsequently steps were taken by the city to open one or more of said streets, and, after buying the interests of his associates, Leggett filed the original bill in this cause. That bill prayed the reformation of the deed by striking out the words “one-third” in the description in the reversionary clause, and the conveying of the proposed opening of the street. A demurrer to this bill was filed upon the grounds (1) that the city had no authority to contract an exemption from a special assessment 'of this kind; (2) if made, it had no authority to perform such contract; (3) that the -complainant was chargeable with laches. Upon hearing this demurrer was sustained. An amended bill was then filed. This bill prayed tha-t the deed be set aside, and that complainant be decreed to be the owner of the land conveyed thereby. An answer was filed, and hearing had. The court decreed that the agreement was an unlawful one; that the deed conveyed no title to the city, which title still remained in complainant. This decree was dated ■January 12, 1903, and the calendar entries state that it was signed, filed, and entered on February 10, 1903, and that complainant’s costs were taxed on April 3, 1903. On July 7, 1903, Albert-U. Widman applied for leave to file a bill in the nature of a bill of review, claiming to be a purchaser from one Ferguson — who purchased from complainant — of a lot fronting on Virginia avenue and Second avenue; that said lot would be seriously injured by the' vacation of said Second street under said decree; and that the decree was erroneous. The petition alleged further that a new and confirmatory deed of the land was executed, delivered, and recorded, conveying the title of certain persons interested in said land to the city of Detroit* subsequent to the making of the assessment upon complainant’s property for the opening of Second avenue* complained of in his bill. Other reasons were stated, which need not be set forth. This petition was heard and granted on July 14, 1903. On July 17th the city filed a claim of appeal from the decree, and on July 24th complainant filed a claim of appeal from the order allowing the bill of review to be filed, and on July 25th proof of service of notice of the last-mentioned claim of appeal was filed. August 11th case was settled and filed, and it was returned to this court on September 22d.

Counsel for complainant assert that the order permitting a bill in the nature of a bill of review to be filed was improper, for the reason that Widman was not a party to the original bill. On the other hand, petitioner’s counsel maintain that a bill in the nature of a bill of review stands on a different footing from a bill of review, and may be filed, on leave granted, by one interested in and affected by the decree, although not a party to the suit. The principal questions in the case relate to the controversy between complainant and the city over the deed. This is a different case from that of Coit v. City of Grand Rapids, 115 Mich. 493 (73 N. W. 811). In that case the city contracted for land upon which to build an outlet for a sewer.. In doing so it was not acting in the capacity of a State agency, but rather in its corporate capacity, for the benefit of its inhabitants, as contradistinguished from the public of the State at large. The giving of this deed was perhaps preliminary to the filing of a plat of the Peerless Addition, which plat shows Second and Third streets and Hamilton Boulevard as streets. This plat is not before us, but it is stated that the plat “contains no reservation,” and the dedication ‘c describes the property platted by metes and bounds,” and the street and avenues “as deeded and accepted by the common council.” Our understanding is that this was recorded soon after the acceptance of the deed, though the bill states that it was platted on or about February 17, 1893, while the proof shows that the deed was accepted on April 4, 1893.

in the present case the most that can be claimed is that, in anticipation of a possible extension of certain streets, the council accepted a quitclaim deed of land contingently necessary upon a condition subsequent, to the effect that the land should revert if an assessment should be made against the grantors’ land for the expense of any future opening of these streets to the north or south. It is not clear when the city then attempted to open these streets, but apparently it was several years after it accepted the deed. Meantime the complainant has sold lots by his plat to 15 or 16 persons. The evidence shows that this deed contains a condition, which, if performed, requires the city to exempt complainant’s property from assessment for the specified purpose.

The case has been argued upon the theoiy that the city had attempted to make such an undertaking as the consideration for the deed. We have held that the right of' eminent domain cannot be bartered away, and that contracts to do so by the legislature or any agencies of the State are ineffectual and void, as being against public-policy. It was so held in Re Opening of First Street, 66 Mich. 42 (33 N. W. 15), where a city had promised a-railroad company immunity from the opening of streets across its property. The case was discussed in Woodmere Cemetery v. Roulo, 104 Mich. 600 (62 N. W. 1010); Wabash R. Co. v. Defiance, 167 U. S. 102 (17 Sup. Ct. 748). We consider that proposition elementary, and do not cite other authorities. In the present case the city has not agreed that it will not take any of this particular property by virture of the power of eminent domain. It has, however, accepted a deed upon condition that, should it do so, it will omit this property from assessment districts, and will relieve it from contribution to the expense thereof. In the opening of streets a city acts as an agency of government. In that respect the case differs from the case of Coit v. City of Grand Rapids, 115 Mich. 502 (73 N. W. 811), where, as already said, it was providing for a sewer, which is a matter of municipal interest, rather than of general public or State interest. In performing the functions of such agency, it has no private or municipal interest, and it has no power except such as is prescribed. It is given no authority to say that a given parcel of land shall never be taken as a highway, nor has it authority to agree that some or all lands which would be benefited by the establishment of a highway shall have immunity from contribution. The statute requires it to establish an assessment district, which must include all lands benefited. It cannot do less. If it can agree to omit one parcel, it may omit many. It cannot determine in advance the amount of benefits chargeable to one or more such parcels, for the law says that is for a jury.

In this case it was necessary to take land through several blocks, paying adequate compensation. If such taking involved the removal of buildings, or the disturbing of large business interests, the damages would be correspondingly large, while the benefits thereto might be small. In such case such damages would necessarily be chargeable upon other lands in the assessment district, of which complainant’s lands, consisting of many valuable lots, might form an important part. If they are exempt by reason of this alleged contract, the burden must of necessity fall with undue weight upon the remaining lands within the district. It would only be necessary to make enough such contracts to exempt the entire assessment district, thereby depriving the council of any power to condemn land, for want of a source from which to compensate the owners of the land to be condemned. Properly and lawfully distributing the burden is as much a part of the duty of the city as the exercise of the power of taking the property.

It is not clear that it could exercise the power at all if it can be said to have deprived itself of the power to make a statutory assessment district by absolving a considerable portion of the property actually benefited from liability to contribute. It may be that by deeding land this entire addition has been paid its full and just share of the cost of opening the street, but we cannot know this. Neither can the common council know it until the benefits have been determined in the method provided by law. The effect of action by the common council cannot be to deprive future councils of power in the premises. See Wabash R. Co. v. Defiance, 167 U. S. 100 (17 Sup. Ct. 752). It was there said:

“While municipalities, when authorized soto do, doubtless have the power to make certain contracts with respect to the use of their streets, which are obligatory upon them (New Orleans Gas Co. v. Light Co., 115 U. S. 650 [6 Sup. Ct. 252]; New Orleans Water-Works Co. v. Rivers, 115 U. S. 674 [6 Sup. Ct. 273]; City Railway Co. v. Railroad Co., 166 U. S. 557 [17 Sup. Ct. 653]; City of Indianapolis v. Coke Co., 66 Ind. 396; City of Indianapolis v. Trust Co., 140 Ind. 107 [39 N. E. 433]), the general rule tó be extracted from the authorities is that the legislative power vested in municipal bodies is something which cannot be bartered away in such manner as to disable them from the performance of their public functions. These bodies exercise only such powers as are delegated to them by the sovereign legislative body of the State. Such powers, however, are personal to the municipalities themselves, and, being conferred for the benefit of the whole people, in the absence of authority to that effect, cannot be bestowed by contract, or otherwise, upon individuals or corporations in such manner as to be beyond revocation.”

Another suggestion in this connection is this: We have learned that the legislature may exercise the power of eminent domain, although it shall have previously delegated it. If so, will it be claimed that this action of the council has deprived it of power in the premises to impose the burden upon the property benefited. See Woodmere Cemetery v. Roulo, 104 Mich. 602 (62 N. W. 1010); Township of Harrison v. Board of Sup’rs of Schoolcraft Co., 117 Mich. 217 (75 N. W. 456). We are of the opinion that a contract such as is sought to be inferred from this condition is not within the authority conferred upon the city, and that the case is distinguishable from Coit v. Grand Rapids, supra, in the important particular mentioned; this city not, as in that case, acquiring property for its own (in a sense) private purposes.

It remains to inquire whether the public right is nevertheless forfeited by the failure of the city to comply with the condition which the grantor saw fit to insert in his deed. This was not a condition precedent, the performance of which was essential to the vesting of the title in the city in trust for the public. If it were, it would do no more than to make the deed void. In that event he, as well as others, was chargeable with notice of the fact, as he is presumed to know the law. The delivery of this deed was followed by the record of a plat, in which we understand that these streets were shown, and in which it was asserted that they had been deeded to and accepted by the city. This was a publication to the world of an intention to dedicate to the public these lands for streets — a purpose which we do not discover to be stated in the deed, nor fairly inferable from it. The evidence shows that complainant has recognized this dedication in his sales, and we think it effective to establish a public right. This view of the case renders it unnecessary to discuss other points, except to say that we think that complainant has no standing in this court in his attempted appeal from the order in the case of Widman. From the understanding that we get of it, that was an original bill in the nature of a bill of review, filed by leave of court. Answer was filed, and the case was at issue. If this was done before the appeal was attempted, the right was waived, if it would otherwise have existed. We think, however, that the order was not appealable. Maxfield v. Freeman, 39 Mich. 64; Beecher v. Rolling Mill Co., 40 Mich. 308; Jennison, Chancery Practice, 213.

The decree is reversed, and bill dismissed, with costs of both courts, as to the city. The appeal is dismissed as to •petitioner, Widman, with costs.

Moore, C. J., and Montgomery, J., concurred. Carpenter and Grant, JJ., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HUDSON v. COLUMBIAN TRANSFER CO.
    ■4. Warehousemen — Breach op Contract — Damage by Fire-Insurance.
    Defendant, a warehouseman, agreed to store plaintiff’s goods in a certain building and the plaintiff had them insured as located in said building. The warehouseman, however, placed them in another building, where they were destroyed by fire. Held, in an action to recover their value, that it was immaterial whether or not they would have been damaged if stored in the building agreed upon.
    3. Contracts — Interpretation—Understanding.
    The meeting of minds, which is necessary to the formation of a contract, is determined by the expressed intentions of the parties, which may be wholly at variance with their secret intentions or understanding.
    ■3. Warehousemen — Liability por Loss op Goods.
    A warehouseman, who stores goods in a different building from that agreed upon, is liable to the owner in case of their loss by fire.
    Error to Kent; Perkins, J.
    Submitted April 15, 1904.
    (Docket No. 46.)
    Decided July 16, 1904.
    Assumpsit by Horace A. Hudson against the Columbian Transfer Company for the value of goods destroyed by fire while stored in defendant’s warehouse. There was

      judgment for plaintiff, and defendant brings error. Affirmed.

      Hatch & Wilson, for appellant.

      Smedley & Corwin, for appellee.
   Montgomery, J.

This action is brought to recover the value of goods stored with the defendant as warehouseman, and destroyed by fire. The record contains 38 assignments of error, but, when the facts are stated as evidently found by the jury, the case lies within a narrow compass.

The parties are not quite agreed in their statement of the case, but an examination of the record convinces us that there was ample testimony tending to show that defendant, in March, 1901, contracted and used for storage the building known as 21 and 23 Campau street, in the city of Grand Rapids, and also controlled the fourth floor of an adjoining building, known as the Hopson-Haftencamp building.

In March, 1901, plaintiff made a contract to store the goods in question with defendant for hire, on the fourth floor of the building known as 21 and 23 Campau street. This statement is denied, but the question was submitted to the jury, and found in favor of the plaintiff. The plaintiff thereupon took out insurance on his goods as located • in the building known as 21 and 23 Campau street, but whether this fact was communicated to the defendant is a matter of dispute; and, as this question was not submitted to the jury, the plaintiff’s rights are to be determined upon the assumption that notice of the insurance was not given. The goods were taken from plaintiff’s house, and were stored by defendant not in the building known as 21 and 23 Campau street, but in the Hopson-Haftencamp building, where, without negligence on the part of defendant, they were destroyed by fire. The circuit judge charged the jury that, if the contract was as claimed by plaintiff, he was entitled to recover, but that, if not satisfied by a fair preponderance of evidence that such an agreement was made, there could be no recovery..

Complaint is made of the failure to present certain special questions to the jury. Two of these questions relate to whether the goods would have been damaged if they had been stored in the place agreed upon, and the probable extent of such damage. Clearly, if defendant is liable at all, the answers to these questions could not have affected the recovery, for, as to any damage which the goods would have sustained if stored in the place agreed upon, the plaintiff had secured indemnity by insurance, which was lost by defendant’s breach of contract.

The other questions asked for the defendant’s understanding of the agreement, and were preferred upon the theory that, as the minds of the parties must have met, the defendant’s failure of understanding would answer plaintiff’s claim of a contract. This is a fallacy. What is meant by “meeting of minds” is the agreement reached by the parties and expressed.' As is well said in Brewington v. Mesker, 51 Mo. App. 348:

“The meeting of the minds which is essential to the formation of a contract is not determined by the secret intentions of the parties, but by their expressed intention, which may be wholly at variance with the former.”

See, also, 9 Cyc. 244, 578; Browne v. Hare, 3 H. & N. 484.

The question, then, is whether, under the facts as found by the jury, the plaintiff was entitled to recover. We think this question should be answered in the affirmative. The theory of the plaintiff’s case is that the defendant broke its contract- of bailment, and subjected the property to a risk never contemplated by plaintiff, nor assumed or assented to by him. In such a case the rule is general that the bailee assumes the risk of the destruction of the property. The defendant was guilty of a technical conversion of plaintiff’s property. See Lawson on Bailments, § 20; Martin v. Cuthbertson, 64 N. C. 328; Lane v. Cameron, 38 Wis. 603. A case precisely in point is that of Lilley v. Doubleday, L. R. 7 Q. B. Div. 510, which case is cited with approval in Bradley v. Cunningham, 61 Conn. 485 (23 Atl. 932, 15 L. R. A. 679), and followed in Line v. Mills, 12 Ind. App. 100 (39 N. E. 870).

The other questions presented have been examined, but «do not, we think, require further discussion. We discover no error in the case.

Judgment affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., did not sit.


text:
    SIPES v. MICHIGAN STARCH CO.
    1. Master and Servant — Negligence—Fellow-Servant.
    A jury have a right to infer that directions, given by one servant to another in the presence of the master, who makes no comment, are approved by him. ■
    2. Same — Negligence—Set Screws.
    Failure to cover and properly guard set screws, which the factory inspector has ordered covered, is evidence of negligence. 2 Comp. Laws, § 5349.
    3. Same — Assumption oe Risk — Statutory Duty.
    As the assumption of risk is the result of a contract of employment, and the employer cannot legally contract to violate a statute, the servant does not assume the risk due to an omission of a statutory duty on the part of the employer.
    ■4. Same — Knowledge oe Servant.
    It cannot be said, as a matter of law, that a servant should have known of that which could not lawfully exist.

      S. Personal Injuries — Contributory Negligence — Set Screws.
    Where a servant was injured by an- exposed set screw in a revolving shaft, which, according to some of the testimony, he could not have seen in the dim light, and which had been, left exposed in violation of a statutory duty, and he had. been directed by a fellow-servant, in the presence of the vice-principal, to stand in a position where his clothes could be caught by the set screw, a refusal to direct a verdict for the defendant on the ground of' contributory negligence was proper.

    Error to Grand Traverse; Mayne, J.
    Submitted April 14, 1904.
    (Docket No. 59.)
    Decided July 16, 1904.
    Case by George H. Sipes against the Michigan Starch Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      W. H. Foster (Bowen, Douglas, Whiting & Murfin, of counsel), for appellant.

      Pratt & Davis (Russell C. Ostrander, of counsel), for appellee.

       For right of servant to recover for injuries caused by projecting screws in shafts and other moving machinery, see note to Ford v. Mt. Tom Sulphite Pulp Co., (Mass.) 48 L. R. A. 96.

   Montgomery, J.

This is an action of trespass on the <case, brought by the plaintiff against the Michigan Starch Company, a corporation, to recover damages for personal injury received in defendant’s factory on September 35, 1903.

The plaintiff is 53 years of age, and had been 35 years a carpenter and joiner. Some time prior to the time of his injury he was employed by the defendant company as a carpenter, and to do such work as might be required in the repairing of the factory. The defendant’s factory is a three-story brick, built with a basement under the entire factory, in- which some of the machinery is located. The place where the plaintiff was injured is at the west end •of the factory, and about 13 feet from the north wall. It is a corn elevator, used to convey corn from the basement to the third floor of the factory. There is one shaft running north and south and another running east and west. The end of the north and south shaft rested on a pillow-block, or “bridge tree,” so called. The east and west shaft was about 4 to 4£ feet above the north and south shaft. Where the north and south shaft rested on the pillow-block was a coupling or collar, which was fastened to the shaft with a set screw extending, and just north of this coupling about two feet was the boot into which the shaft ran, which was used for the purpose of carrying the grain from the basement up. On the upper shaft was a pulley and belt. The north and south shaft on which the plaintiff was hurt was about 30 inches from the floor, which would be the distance from the basement floor to the top of the bridge tree. The bridge tree was built of timbers running north and south and east and west. The largest piece is an 8 x 8, 3 feet 2 inches long; the next is a 6 x 6, which is 2 feet 2 inches long; and. the top piece is 1-J x 6, which is about 14 inches long. On the north side of the elevator was a ladder going from the basement floor to the main floor of the building, on which a man could work to adjust the pulley. The north and south shaft, on which the plaintiff was injured, is a slow revolving shaft, making about 30 revolutions per minute. The plaintiff stood upon the top of the bridge tree with the shaft revolving between his feet from east to west. He was facing the north, working at a pulley that was about four feet up from the bridge tree on which the plaintiff was standing, and was right abreast of him. The set screw caught him on the inside of the bottom of his overalls and twisted and injured him. He got upon the bridge tree and took the position that Mr. Parish had occupied. He saw the shaft revolving, but observed nothing else. The set screw extended about three-fourths of an inch. He saw the shaft revolving, and supposed that he was far enough away from it. He did not look to see if his clothes were coming-in contact with the revolving shaft. He did not make any examination whatever to see if there were any danger by occupying the position upon the bridge tree. Electric lights had been put in the plant for use when necessary, but while the plant was undergoing repairs workmen with the plaintiff tore out the electric wires. The set screws in the •factory were ordered covered by the deputy factory inspector, William Mummery, on the 11th day of July, 1902. Notice was given to Mr. Bauer, president of the company, who ordered the set screws throughout the factory covered. There was testimony that the set screws in the factory and the one in question were covered immediately after the notice was given, but the cover had been knocked off this one. Plaintiff offered some testimony tending to show that the set screws were never covered. The plaintiff recovered, and the defendant brings error.

The points relied upon are that the plaintiff assumed the risk; that, in any view, he was guilty of contributory negligence; and in this connection that the negligence of ' Parish in directing plaintiff to stand upon the bridge to perform his work was the negligence of a fellow-servant. The last suggestion was embodied in defendant’s fourth request, in which the court was asked to charge that Parish was a fellow-servant, and concluded with a request for a ■directed verdict. The instruction asked was faulty in ignoring the fact that Falkner, who was apparently the alter •ego of the defendant, was present when the direction of Mr. Parish was given, and made no comment. From this the jury would have the right to infer that the method of doing this work resorted to by Parish and the plaintiff was not disapproved by the management.

The negligence of defendant, if any, consisted in leaving the set scew uncovered. Defendant’s counsel cite • cases to sustain their contention that it is not negligence "to leave a set screw exposed and to omit to warn an employe of its presence. There are numerous cases in which set screws are referred to as in common use, and in which it is held that their presence cannot be made the basis of an action of negligence; and, if it were not for our statute, and the action shown to have been taken under it, these cases might be deemed controlling. But the legislature ■of this State, in recognition of the danger to employés and others from exposed set screws, has enacted that set .screws shall be properly guarded when deemed necessary by the factory inspector. 2 Comp. Laws, § 5349. In the-case of defendant’s factory this had been deemed necessary, and the set screws ordered covered. The testimony is conflicting as to whether the one in question had ever been covered, but, if it had been, the covering had not been kept in place, but it had been exposed for considerable time before the injury to plaintiff. It will hardly do to say that the neglect of a statutory duty imposed for the protection of workmen is no evidence of negligence. See Marino v. Lehmaier, 173 N. Y. 530 (66 N. E. 572, 61 L. R. A. 811).

Did the plaintiff assume the risk ? In the well-considered case of Narramore v. Railway Co., 37 C. C. A. 500, 96 Fed. 298 (48 L. R. A. 68), Judge Taft deals with the question of the assumption by a servant of the risk resulting from a neglect of a statutory duty by the master in his accustomed thorough and exhaustive manner. The conclusion reached (and which we approve) is that, as the assumption of risk is the result of a contract of employment,, and as the master could not legally contract to violate a statute, he is not in a position to assert, as against the servant, the doctrine of assumption of risk, even in case the omission of such statutory duty on his part is known, to the servant. Whatever effect knowledge possessed by the servant of a breach of statutory duty may have upon the question of contributory negligence, it seems that upon reason and authority it cannot result from such knowledge that he assumed the resulting risk. In the present case it does not appear that the plaintiff had knowledge of the neglect of duty on the part of the defendant. He testifies that at this day the usual way of protecting set screws is to countersink them, so that it appears that he did not know of any projecting set screws; nor could it be said as matter of law that he should have known of what could not lawfully exist. See Jones v. Railroad Co., 127 Mich. 198 (86 N. W. 838).

Was he, then, guilty of contributory negligence in taking the position he did upon this bridge tree ? If the injury had resulted from a danger which was open to view, and which he was bound to look out for, there would be no difficulty in saying that he was guilty of negligence as matter of law; but the only danger which he in fact saw was the revolving shaft. There was testimony from which the jury might have found that in the dim light he could not have seen the set screw. He followed Parish to this position. The alter ego of his employer stood by and witnessed his direction to take the position which he took. And while neither fact may be conclusive in his favor, these circumstances may be legitimately considered in determining the question whether he acted as a man of ordinary prudence would under such circumstances. Lake Superior Iron Co. v. Erickson, 39 Mich. 492-500 (33 Am. Rep. 423); Burnside v. Manufacturing Co., 121 Mich. 115 (79 N. W. 1108). We think the question was one for the jury.

The other questions discussed have been considered, but do not call for further discussion. No error is found.

The judgment will be affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., did not sit.


author: Carpenter, J.

text:
    BUHRER v. BALDWIN.
    1. Counties — Actions—Parties—County Treasurer.
    Suit is properly brought in the name of the county treasurer, for the use and benefit of the county, to recover upon a guaranty of payment of money deposited in a bank by a former treasurer for the county.
    2. Guaranty — County Funds — Deposit in Bank.
    One who guarantees the payment of county funds, to be deposited in an unincorporated bank, is liable to the county therefor, although the contract to deposit in such bank was prohibited by statute and void.

      3. Parties — Counties—Board of Auditors.
    The board of auditors of Wayne county was not a necessary party to a suit, brought in the name of the county treasurer, for the benefit of the county, upon a guaranty of payment of money deposited in an unincorporated bank, in pursuance of a contract entered into by the county treasurer and the board of auditors of the county with such bank.
    4. Bonds — Obligee—County Treasurer.
    Where a statute required that a bond should be made to the county to secure the repayment of money deposited by the treasurer in a bank, a written guaranty of payment, under seal, indorsed on a contract by a bank to the county treasurer and board of auditors of the county, is a substantial compliance with the statute.
    •5. Same — Common-Law Obligation.
    Such bond may be supported as a common-law obligation, though it does not strictly conform to the statute.
    6. Guaranty — 'Acceptance—Notice.
    Where a contract of guaranty recites a consideration, no notice of acceptance is necessary in order to bind the guarantor.
    7. Same — Release of Guarantor — Transfer of Credit.
    Where a county treasurer gave a check for the amount due the county from a bank to his successor, who deposited the check in the same bank, the transaction was not such a payment as would release one who had guaranteed the payment of the fund.
    Error to Wayne; Frazer J.
    Submitted April 8, 1904.
    (Docket No. 26.)
    Decided July 16, 1904.
    Assumpsit by Charles A. Buhrer, treasurer of Wayne county, for the use and benefit of said county, against Stephen Baldwin, Jesse H. Farwell, and Merrill B. Mills on a contract of guaranty. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Tarsney & Fitzpatrick, for appellant Baldwin.

      F. II. & G. L. Canfield, for appellants Farwell and Mills.

      Ormond F. Hunt, Prosecuting Attorney (C. D. Joslyn, of counsel), for appellee.
   Carpenter, J.

August 30, 1895, Alexander I. McLeod, county treasurer of Wayne county, the board of auditors of said county, and A. Ives & Sons, a copartnership engaged in the business of banking in the city of Detroit, entered into a written agreement whereby said A. Ives & Sons agreed to “receive and safely keep all such surplus funds of the county of Wayne as may be offered or deposited by the treasurer and board of auditors of said county, and to reimburse and pay the same to said treasurer or his successor in office, or whoever may be lawfully entitled to receive the same, whenever called for, and to pay interest on said surplus funds * * * at the rate of 3\ per cent, per annum, to be computed on daily balances.” On the same day the defendants signed a writing guaranteeing “the full payment of any and all sums and balances which may become due to the treasurer of the county of Wayne or his successor in office upon or by virtue of the above and foregoing agreement, according to the terms and conditions thereof.”

At the expiration of the term of office of said Alexander I. McLeod there was a balance in the hands of said A. Ives & Sons, deposited by virtue of the foregoing agreement, of $5,630. A check for this amount was given by said McLeod to plaintiff, his successor in office. Plaintiff, instead of having the check cashed, passed the same to his credit as county treasurer on the books of said A. Ives & Sons, who, about 15 months thereafter, became insolvent. This suit is brought to obtain this balance by -enforcing the contract of guaranty. It is brought in the name of the county treasurer, “for the use and benefit of the county of Wayne,” by the prosecuting attorney of said county. Plaintiff recovered verdict and judgment in the court below. Defendants seek to reverse that judgment, for several reasons.

It is insisted that the suit cannot be maintained in the name of the county treasurer. We think this objection is answered by Berrien County Treasurer v. Bunbury, 45 Mich. 79 (7 N. W. 704).

It is insisted that no action can be maintained on tbe writing signed by defendants, because it was executed in violation of law. The law in question is Act No. 393 of the Local Acts of 1879, § 1. This act made it—

“The duty of the county treasurer of the county of Wayne to deposit daily his entire receipts from all sources, and all moneys, drafts, or checks on hand, to the credit of the county of Wayue, in such bank or banks, incorporated, under the laws of this State or the United States, as may be designated by the treasurer and the board of auditors of said county as the depository of the funds of the county.”

The act makes it a felony for the county treasurer to violate its provisions. It is contended that as A. Ives & Sons was a partnership, the deposit in question in its bank was prohibited and made a felony by this statute, and that, as a. consequence, the undertaking of the defendants was an illegal contract, which cannot be enforced. If this suit is to be regarded as the personal suit of the county treasurer, who has violated the statute, there would be great force in this contention. It is earnestly insisted that the court should so regard it; and it is said that, if this action should, fail, the county will lose nothing, since it is fully indemnified by the bond of the county treasurer. We cannot regard this suit as the personal suit of the county treasurer. The form of the declaration, the prosecution of the suit by the prosecuting attorney, the objection already discussed and disposed of, all indicate that it is a suit by the county to recover its money. The fact, if it be a fact,, that the people of the county of Wayne have double security for this money, is a circumstance of no legal importance. If they are so secured, the officials of that county, and not this court, have the right to determine to which security they will first resort. They have determined to resort to the obligation of defendants. Nor does this record enable us to say with certainty that the sureties on the treasurer’s bond are now responsible. It cannot, therefore, be said that the county will not lose its. money if defeated in the present action.

Assuming this suit to be the suit of the county to recover the money illegally deposited with A. Ives & Sons, does the statute prevent the enforcement of the contract ? Did the legislature, in enacting the statute of 1879, intend that those who agreed to make good a loss to the people, caused by a violation of that law, should be released from their contract ? No such legislative intent is expressly declared in the statute. Shall it be inferred ? The learned trial judge, in speaking of the statute, said:

“It simply means that this was a protection to the-money of the people * * * against the county treasurer depositing it in a place that the lawmakers deemed insecure. * > * * This statute was not enacted for the purpose of preventing the county getting back their money. * * * It seems to me it would be a very unreasonable interpretation of the statute” to hold, “because a public officer violates the law, and does an -act that he has no-right to do, that therefore the people lose their money.”

This reasoning, in our judgment, is sound, and is sustained by authority. In Deming v. State, 23 Ind. 416, suit was brought to foreclose a mortgage securing the payment of school funds. These funds were loaned on property which was subject to a prior incumbrance, in violation of law, requiring such money to be loaned on unincumbered property. In opposition to the suit it was contended that the mortgage was void, and could not be enforced. This defense was declared untenable, and the reasoning of the court so thoroughly covers this case that we insert it in this opinion:

“These provisions [the statutory provisions respecting loaning on incumbered land] defining the duty of the auditor were obviously intended as safeguards for the preservation of the fund. Their whole tenor indicates a careful purpose of the legislature to make every loan secure beyond any contingency. This, too, was unquestionably the only object sought to be attained. Should we hold that the mortgage is void because the auditor chose to disregard that provision of the statute which required him to make no loan upon lands incumbered, we should. defeat the very object of the law, and enable the party who had obtained the loan by taxing the good nature of the auditor to pocket the money obtained, without being required to refund it. And this, too, it may be, not at the expense of the auditor or his sureties; for after the lapse of ten years his official bond may furnish no indemnity whatever, and the school fund must sustain a loss which its owners, the inhabitants of the township, had no power to prevent. Their agent, the auditor, * * * might thus by design squander their fund at his pleasure. Every instinct of justice revolts at the proposition, and the conscience is at once shocked by the claim of exemption made by the borrower upon such a pretext. * * * The general rule of law that a contract prohibited by statute is void is familiar, and we do not lose sight of it. It is a wholesome rule in every case where it is properly applicable. The general doctrine as to such contracts is that the courts will not enforce them, nor aid in the recovery of money paid in pursuance of their terms; but parties who have contracted in violation of law will be left without remedy whenever they are in pari delicto. The plain reason and purpose of the rule commends it to every enlightened judgment. It is to secure obedience to the statute which has forbidden the thing to be done, and thereby aid in accomplishing the legislative intention. Thus the violation of public law is often punished, and thereby obedience to it secured. But the rule is properly applied only where the reason upon which it is founded exists. ‘The law ceases with the reason thereof,’ and it is a grave error to regard it as a merely arbitrary rule, applicable to all contracts which are prohibited by statute. It is generally applicable, because the thing prohibited is usually immoral, or against public policy. Gaming contracts, contracts made on the Sabbath, contracts of champerty and maintenance, and many others of like nature might be mentioned as examples. But sometimes contracts are prohibited for the mere protection of one of the parties against an undue advantage which the other party is supposed to possess over him. In such cases the parties are not regarded as being equally guilty, and so the rule is not deemed applicable, though both have violated the law.”

In Scotten v. State, 51 Ind. 52, school funds had been loaned upon a promissory note upon which appellant was surety, contrary to a statute which, required such loans to be “secured by mortgage upon real estate.” It was held that, under the authority of Deming v. State, supra, the note was enforceable against appellant as well as his principal. See, also, National Bank v. Matthews, 98 U. S. 621; In re Burt, 12 Blatchf. 252 (Fed. Cas. 2,209); Lester v. Howard Bank, 33 Md. 558 (3 Am. Rep. 211); Savings Bank of San Diego Co. v. Burns, 104 Cal. 473 (38 Pac. 102); Brittan v. Oakland Bank of Savings, 124 Cal. 282 (57 Pac. 84, 71 Am. St. Rep. 58); Bibb v. Miller, 74 Ky. 306.

It is insisted that the board of auditors of Wayne county was a necessary party to this suit. While the board of auditors was a party to the original contract, the money was to be paid to the county treasurer, and the writing signed by defendants contains no reference to the board of auditors, but guarantees “the full payment of any and all sums and balances * * * to the treasurer of the county of Wayne or his successor in office.” We do not think the board of auditors should have been joined as plaintiff for a breach of this contract. See Sprague v. Wells, 47 Minn. 504 (50 N. W. 535).

It is insisted that defendant’s obligation does not comply with the statute heretofore cited (Act No. 393 of the Local Acts of 1879), which provides that “said bonds shall be made to the county” (Id. § 2). As already indicated in this opinion, the bond does run to the county treasurer for the county. This we think a substantial compliance with the statute. See Tevis v. Randall, 6 Cal. 632 (65 Am. Dec. 547). It may also be said that this bond may be supported as a common-law obligation, though it does not technically conform to the statute. See County of Bay v. Brock, 44 Mich. 45 (6 N. W. 101).

It is insisted that defendants are not bound by their guaranty, because they have never been notified of its acceptance. We think the true theory upon which guarantors are entitled to notice of acceptance is that their undertaking is a mere offer, and does not become a binding contract until such notice. See Davis v. Wells, 104 U. S. 159. It results from this theory that guarantors are entitled to notice of acceptance only when their undertaking can be construed to be an offer of guaranty. When, however, that undertaking recites a consideration, though, as in this case, that consideration is merely nominal, conclusive evidence is furnished that the guaranty has been made with the assent of the obligee, communicated to the guarantors; and in such cases notice of acceptance is unnecessary. See Davis v. Wells, 104 U. S., at page 167; Davis Sewing Machine Co. v. Richards, 115 U. S., at page 527 (6 Sup. Ct. 173); Taylor v. John A. Tolman Co., 47 Ill. App. 264; Lawrence v. McCalmont, 2 How. (U. S.) 426; De Cremer v. Anderson, 113 Mich., at page 580 (71 N. W. 1090).

It is claimed that the contract was performed, and the defendants released from their obligation, by the delivery of the check of Treasurer McLeod to Treasurer Buhrer, and his redeposit of the same with A. Ives & Sons. Really this amounted to no more than a transfer of credit from the outgoing to the incoming treasurer on the books of A. Ives & Sons. This transaction, according to the authorities cited in defendants’ brief, did amount to a payment by the former treasurer to his successor. But it was in no sense a payment by A. Ives & Sons of the balance due from them “ to the treasurer of the county of Wayne or his successor in office.”

It results from these views that the judgment of the court below should be affirmed, with costs.

Moore, C. J., and Montgomery, J., concurred. Grant and Hooker, JJ., did not sit.


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    HARDEN v. CITY OF JACKSON.
    ¡Municipal Corporations — Personal Injuries — Defective Sidewalks.
    A city is not liable for injuries to a person, received by a fall caused by his cane going through a crack between two planks with decayed edges, where the walk was in a reasonably safe condition for persons not using canes.
    Error to Jackson; Peck, J.
    Submitted June 9, 1904.
    (Docket No. 4.)
    Decided July 16, 1904.
    Case by Thomas Harden against the city of Jackson for personal injuries. There was judgment for plaintiff, and •defendant brings error.
    Reversed.

      Albert O. Reece (John W. Miner, of counsel), for appellant.

      Richard Price, for appellee.
   Hooker, J.

The plaintiff was injured by a fall upon a .sidewalk upon the main street in the city of Jackson,in front of a hardware store. This walk was made of plank nearly two inches thick, and had been down some years. It had been broken in spots, and there was evidence that there had been some decay, and that the walk had been repaired in several places, both by putting in new in place of broken planks, and by nailing sheet iron or boards over broken or decayed places. The evidence is suggestive of diligence in the matter of repairs, and it was also shown that the walk was inspected a few days before the accident, which ■occurred in the following way: The plaintiff walked with a crutch and cane. At a point where the walk was laid over an area, the cane suddenly went through the walk, letting the plaintiff fall. He testifies as follows about the transaction:

“ I was standing in front of Crone & McGraw’s hardware store — the east window — and the car came down and stopped in front of the Hibbard House, and I started, going to take it; and as I started I put my cane forward,, and, when I bore on my cane on the boards, I went right-through, and the cane went down. I was walking with a. cane and a crutch — the cane in my right hand, and the crutch under my left arm. I always put the cane ahead of my foot, then made my step. * * * When the cane-went through the walk I was shocked, I went through so-quickly. I didn’t know anything at all, and, the first thing I knew, Mr. Weatherwax came out and lifted me up. I was almost picked up as soon as I was down. One man handed me my crutch, and another man my cane, and as he picked up my cane I saw a hole or dozy spot in the walk; and that is the last I saw of Main street for ten months. The cane was through a hole, and hanging-on the walk, and the hole was the size of the end of the cane. The wood around it was kind of dozy, I should say. That is the only thing I could tell. * * * I did not-know before I placed my cane on this weak spot that it would let me through. This walk was on the north side of Main street, and the place where I fell was opposite the junction of Main and Francis streets. The walk there was very bad. I should say it was dangerous, because there were holes there. It was patched with tin or iron and with extra pieces of wood. I could not remember how long this piece of walk was down. My place of business was right upstairs opposite this piece of walk. It had been patched since it was put down. There was a new walk put down there originally by Mr. Bader. It was an old walk — probably been down ten or twelve or fourteen years. It had been patched because there were holes there and dangerous places. The planks had broken out between each other. There were several rotten places. I should think the holes were occasioned by rot. There were strips of tin put in some places, probably two or three or four inches wide. I have seen pieces of iron put there, three or four inches wide, to cover over cracks. It had been in this general condition, with holes, rotten places, and patches, for several years. * * * There was no hole where I put my cane before I put my cane there. When the man handed me the cane, he pulled the cane right out, and there was a hole just the size of the cane— right there in the dozy spot.”

On cross-examination he said:

“ I could not look to see where I put my cane all the time.
“Q. Now, if you hadn’t been going to the car, Mr. Harden, do you think there was anything about the character of that spot that would have attracted your attention as you passed by ?
“A. No, sir; I don’t know that there was anything that would have attracted my attention.
“Q. You looked at this spot after you pulled your cane out?
“A. I could not help but see it. I didn’t pull my cane out. Another man pulled it out and handed it to me. I saw the spot after the cane was pulled out. There was a round hole in it, the size of the largest part of the cane. I fell with my whole weight on the cane. The hole was between two boards. All I could see of it there was the round hole. The last I ever saw of that spot was when I left there that night.
Q. You claim that there was nothing else about that place that' would have attracted your attention, even if you had not been hurrying for the car ?
“A. I don’t think it would.
The Court: Were there two planks and boards came close together ?
“A. They came close together, but there was a dozy spot, I should think about that long (indicating about eighteen inches), between the two. boards — part on one and part on the other.
Q. Now, in walking with your crutch and cane, when you came over on your cane you threw your full weight on it, did you not ?
“A. Yes, sir. I am sure I looked at the exact spot, because I saw them pull the cane out. I don’t know who it was that pulled the cane out.”

This is a fair sample of other testimony which may be said fairly to indicate that this was an old walk, which was being made to do service by such repairs as were from .time to time necessary.

It is contended that, even if the edges of the two planks between which the plaintiff’s cane passed were beginning to rot, it was not observable from above, and the defect was therefore a latent one; and, in support of this contention, counsel cite the fact that no witness testified to noticing any decay before the accident. It appears that the planks were in a condition at that place reasonably safo for persons’ feet, and that the accident became possible only by reason of the fact that plaintiff depended upon a cane for support, which is said to be not such ordinary use as the walk is provided for. Upon plaintiff’s part, counsel urge that, while comparatively few lean on canes or are supported by crutches, the aged and infirm have done so from time immemorial, and that it is one phase of ordinary travel, for which walks are provided, and a walk that has cracks wide enough for a cane to go through, or spots weak enough to give way under a cane, is, within the statute, a walk not in good condition and reasonably fit and safe for travel.

Sidewalks of plank are in common use. We may take judicial notice of the material and mode of construction ordinarily adopted, as well as the methods and period of use. We know that they are often made of cheap lumber, and that they begin to deteriorate early. If laid tight when put down, the boards soon shrink and cracks open. The edges of the boards, being of the sappy portion of the timber, get dozy and begin to decay a long time before the heart is affected. Knots shrink and drop out, leaving knot holes. It is not to be expected that a sidewalk will be taken up and relaid as soon as the cracks open, and the edges of the board show signs of decay, or knot holes appear. To do this would make board walks the most extravagant kind of walks. Where they are built of heavy plank, what has been said applies with greater force. The undisputed proof in this case shows that this walk was kept in repair by mending. That is a proper custom, for in no other way can the reasonable life of a walk be secured. There is no proof of a serious decay in the walk at the place where the cane went through. If it was visible at all, it was, at most, a dozy place, clearly shown not to be dangerous to the ordinary pedestrian. There is no doubt that the legislature authorized sidewalks for ■the use of the lame and aged, as well as for the able-bodied and young, but we know that the former classes should, and usually do, use greater care than' the latter find' necessary. A man walking on crutches knows the common method of building sidewalks. He knows that the edges of boards decay and knots drop out, and instinctively he learns to avoid putting his crutches in holes or cracks. We think it is not negligence for a city to use its plank walks, although they have cracks and knot holes through which a cane or crutch would go, acting upon the expectation that the traveler must know that they are practically unavoidable, and are common to all sidewalks, long before they are sufficiently worn to justify pulling them up and building anew. The city has a right, in the maintenance of its walks, to expect a reasonable degree of care from all persons; and, when its walks are safe for the ordinarily prudent use, there is no negligence. If there were no walks the pedestrian might still fall, and the crutches of the infirm go down in holes made by animals, or in soft places. An accident from such a cause would be a casualty. So, too, there may be casualties upon walks. The cities are not insurers of those who walk on sidewalks, and, even though injured without negligence on their part, the same is no more than a casualty, if the walk is as good as such person has a right to expect. Such is this accident. As in cases of snow and ice, there is a limit to the duty of the municipality. Bigelow v. City of Kalamazoo, 97 Mich. 121 (56 N. W. 339); Weisse v. City of Detroit, 105 Mich. 482 (63 N. W. 423); Leslie v. City of Grand Rapids, 120 Mich. 28 (78 N. W. 885); Jackson v. City of Lansing, 121 Mich. 279 (80 N. W. 8); Lee v. City of Port Huron, 128 Mich. 536 (87 N. W. 637, 55 L. R. A. 308). We are of the opinion that a walk should not be said to be unfit and not reasonably safe for travel when a cane will go through the cracks, even if dozy edges of the planks are what make it possible.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.


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    CITY OF ST. JOSEPH v. VAIL.
    Taxation — Suits by City — Wards.
    Under 1 Comp. Laws, § 3863, providing that taxes shall become a debt to the township, ward, or city from the persons to whom they are assessed, a suit should be brought by the city and not the ward to recover taxes assessed in a ward for city purposes and made collectible by the city treasurer, although each ward has a supervisor and a separate tax roll.
    Error to Berrien, Coolidge, J.
    Submitted June 10, 1904.
    (Docket No. 151.)
    Decided July 16, 1904.
    Assumpsit by the city of St. Joseph against Leona F. Vail for taxes. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      James O’Hara, for appellant.

      N. A. Hamilton, for appellee.
   Hooker, J.

A tax of $162.47 was assessed against the defendant on the tax roll of the Third ward of the city of St. Joseph. She refused to pay the tax, and the city brought an action in its own name, as plaintiff, to recover said tax. A verdict and judgment being rendered for the city, the defendant has brought error; contending that the tax is by statute made due to the ward, and not the city, and therefore the city cannot recover.

Counsel bases his contention upon section 3863,1 Comp. Laws, which provides:

“(3863). Sec. 40. The taxes thus assessed shall become at once a debt to the township, ward, or city from the persons to whom they are assessed.”

In St. Joseph each ward has a tax roll, and it is argued that this is a debt due to the ward. It is not claimed that there is any method by which the ward can collect this tax, either by suit or otherwise. On the contrary, it seems to be admitted that it cannot. There is nothing to indi-' cate that it has power to expend or otherwise dispose of the money if it could collect it. The city treasurer collects the taxes, and the law directs what disposition shall be made of them; i. e., for city purposes. Clearly this money does not belong to, and this tax is not a debt to, the ward. Whether there are places where wards may he said to be entitled to sue under this statute, we cannot say, though it is within legislative power to create such. In this case these taxes were a debt due to the city, and the action was properly brought.

Judgment affirmed.

The other Justices concurred.


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    MOWRY v. MOWRY.
    • 1. Conveyances — Incumbrances — Purchase Price — Parol Evidence.
    An agreement by the grantee in a deed to pay a mortgage on the land may be shown by parol.
    2. Equity — Remedy at Law — Mortgages.
    Where complainant had conveyed a portion of his premises to defendant, in consideration that defendant would pay a mortgage, covering the land conveyed as well as other land retained by the grantor, a suit at law, to recover damages of the grantee for failure to pay the mortgage, would not afford an adequate remedy, as the complainant had a right to have the premises conveyed to the grantee first sold on a foreclosure of the mortgage.
    Appeal from Branch; Yaple, J.
    Submitted June 10, 1904.
    (Docket No. 8.)
    Decided July 16, 1904.
    Bill by William P. Mowry against Charles A. Mowry, Hannah Mowry, and others to compel the foreclosure of a-mortgage. From a decree for complainant, defendants Mowry appeal.
    Affirmed.

      H. H. Barlow and Burt E. Barlow, for complainant.

      Newberry & Humphrey and Palmer & Palmer, for appellants.
   Carpenter, J.

March 30,1885, complainant conveyed by warranty deed two tracts of land — one containing 160 acres, and one containing 79 acres — to his son, the first-named defendant. There was inserted in this deed immediately after the description of the land, the following clause: “ Subject to all mortgages or claims that may be against said described land at this date.” At that time the 160-acre tract was incumbered by a purchase-money mortgage securing the payment of $2,000. This mortgage also covered 80 acres of the home farm of complainant. Complainant filed this bill against his son and Hannah, his son’s wife, and the other defendants, who are the owners of said mortgages, alleging the foregoing facts, and that his said son, the defendant, in consideration of said conveyance, agreed to pay said mortgage, and prayed that said mortgage be foreclosed, and that said 160-acre tract of land so conveyed to his son be first sold to satisfy the decree.

Defendants Willis H. and Mary A. Alden, who own the mortgage under consideration, do not appeal. We have, therefore, no occasion to determine whether or not the mortgagor has the right to compel a mortgagee to foreclose his mortgage.

Defendants Charles A. and Hannah Mowry, who do appeal, insist that defendant Charles did not agree to pay said mortgage. This was a question of fact, upon which, the testimony was conflicting. The learned trial judge,, who heard that testimony in open court, decided that h& did. We think this decision correct. Strohauer v. Voltz, 42 Mich. 444 (4 N. W. 161), and Canfield v. Shear, 49 Mich. 313 (13 N. W. 605), are authorities for the proposition — if such authorities are needed — that it was competent to show by parol testimony that this agreement was made.

We cannot agree with defendants’ contention that complainant had an adequate remedy at law. It is true that, if he had waited until his property had been taken upon the foreclosure of the mortgage, he could have recovered compensation by a suit at law. See Strohauer v. Voltz, 42 Mich. 444 ( 4 N. W. 161). But inasmuch as he had a right, unless the assertion of that right prejudices the mortgagee (and in this case it is to be presumed that it does not), to have the property conveyed to defendant first sold to pay the mortgage, to the end that he may preserve his own property (see Cooper v. Bigly, 13 Mich. 463), the remedy at law was inadequate.

The decree of the court below should be affirmed, with costs.

The other Justices concurred.


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    BERNARD v. PITTSBURG COAL CO.
    1. Master and Servant — Personal Injuries — Defective Machinery — Fellow-Servant—Cause of Injury.
    Where, in. an action for injuries to a servant due to alleged defective machinery, plaintiff testified that the brake attached to a steam hoist gave way and that he heard the teeth rubbing against the foot brake, defendant is not entitled to a directed verdict because plaintiff testified, on cross-examination, that the engineer’s taking his “foot off released the brake,” where it appeared from the evidence that, if certain notches in the brake bar had performed their intended office, the brake would not have been released when the engineer took his foot off.

      2. Same — Evidence—Contradictory Statements.
    Plaintiff’s testimony, on direct examination, that the brake “gave way,” was not destroyed by his cross-examination to the effect that the engineer evidently put his foot down and caused the brake to move, and that was what caused the machinery to move, where it appeared, from further cross-examination, that the plaintiff did not intend to testify that the engineer loosened the brake after he had set it.
    8. Same — Contributory Negligence — Direotion of Superior.
    The court will not direct a verdict for defendant on the ground that the plaintiff, a fireman, was negligent in obeying the directions of his superior fellow-servant, an engineer, in oiling a derrick chain, although there was a safer method than the one chosen by the engineer.
    A Same — Contributory Negligence — Remote Contingency.
    Plaintiff was not negligent, in not closing the doors of a derrick to guard against the contingency of a fall, which was so remote that no ordinary man could have foreseen it.
    5. Same —Assumption of Risk — Knowledge — Defective Machinery.
    A servant does not assume the risk of a defect in machinery of which he has no knowledge and of which he is not bound to know as a matter of law.
    6. Same — Evidence—Defective Machinery — Subsequent Con- . DITION.
    A brake bar is admissible in evidence for the purpose of showing the method of its operation, without evidence to show that it was in the same condition as when the plaintiff was injured by reason of an alleged defect in it.
    7. Same.
    It is not competent to show how a brake bar worked a year after the accident, where it appears that it had a new catch plate and was therefore a different appliance.
    8. Same — Declaration as Evidence —Admissions—Letter to Counsel.
    Where defendant introduced in evidence the original declara-,, tion, which had been amended, for the purpose of showing the plaintiff was not injured in the manner claimed at the trial, it was competent for the plaintiff to introduce a letter, written by him to his counsel at the time the suit was commenced, to show that he did not make the admission in the original declaration.
    9. Trial — Instructions—Issues—Error.
    A charge that the only issue in the case was one of defective machinery was not error, where it appeared from the entire charge that the jury could not have understood from such statement that they should disregard any of the defendant’s claims.
    10. Infants — Parties—Amendments—Error.
    A suit, commenced by a minor by his next friend, may be prosecuted by the minor on his arriving at his majority by amending the record, but a judgment in his favor will not be reversed for failure to amend, unless such failure was prejudicial to the defendant.
    Error to Chippewa; Steere, J.
    Submitted June 15, 1904.
    (Docket No. 26.)
    Decided July 16, 1904.
    Case by Frank Bernard, Jr., an infant, by his next friend, against the Pittsburg Coal Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      E. 8. B. Sutton (Warner & Sullivan, of counsel), for appellant.

      John W. Shine {M. E. McDonald, of counsel), for appellee.
   Carpenter, J.

Plaintiff was a fireman on a steam, movable derrick at De Tour, Mich., in defendant’s employ. The derrick moved on a high trestle 20 feet above the dock, and elevated coal to a still higher trestle, from which it was loaded into vessels for fuel. On the 23d day of June, 1900, plaintiff sustained the injuries which occasioned this suit.

According to plaintiff’s testimony, he was injured while assisting the engineer, his superior, in putting in its place on a revolving drum on the derrick the hoisting chain, which had been detached for the purpose of oiling in a barrel of oil which stood on the dock underneath. To raise the chain and bring it to its proper place it' was attached to a rope which was coiled two or three times around the revolving drum. As the drum revolved, the chain was drawn toward it, the plantiff holding the loose end of the rope to prevent its slipping. Connected with this drum was a brake which prevented its revolution when properly applied. The engineer applied this brake by placing his foot on a lever. Upon one side of the bar of the brake were notches to fit into a Catch plate and holcf the brake in, position, and thus prevent the revolution of the drum when the engineer, having applied the brake, removed his foot. As the end of the chain to which the-, rope was attached reached him, the engineer shut off the steam, thus stopping the revolution of the drum. He then applied the brake, removed his foot — presumably expecting that the notches on the brake bar would hold the brake in place — and attempted to attach the chain to the drum. In consequence of a defect — the notches on the side of the brake bar being worn — the brake slipped from its. place, the heavy weight of the chain caused the drum to revolve, and violently jerked the rope in plaintiff’s hands and threw him to the dock underneath, thereby occasioning his serious injury.

The issue was submitted to a jury, and resulted in a verdict and judgment for the plaintiff. We are asked to reverse that judgment upon several grounds.

It is contended that the court should have directed a verdict for the defendant on the ground that plaintiff’s testimony shows that his injury resulted, not from defendant’s negligence in providing an unsafe brake, but from the negligence of the engineer in handling that brake. On direct examination plaintiff testified that the brake-“gave way;” that he “heard the teeth rubbing against, the foot brake.” But it is claimed that this testimony is to be disregarded because on cross-examination he testified that the engineer’s taking his “foot off released the brake.” Unless it must be inferred from this testimony that the brake did not give way, a court cannot say that the jury shall not credit plaintiff’s testimony given on direct examination that it did. It does not follow that, because the brake was released when the engineer removed his foot, the defective notches on the brake bar did not occasion the brake to slip from its position. When the engineer’s foot was on it, the brake was held in place by his weight, aided by the notches on the brake bar fitting into the catch plate. Because the notches in their defective condition did not hold the brake, it was technically true that when the engineer removed his foot the brake was released, though it is also true that it would not have been released had the notches performed their intended office. We cannot say, therefore, that the jury were bound to infer from this testimony, as defendant contends, that the engineer was not using these notches at all to keep the brake in place.

It is also urged that plaintiff’s testimony given on direct examination is destroyed by the following portion of his cross-examination:

Q. And he [the engineer] evidently put his foot down, and caused that brake to move, and that is what caused the machinery to move ?
“A. Yes, sir.”

That the plaintiff did not intend by this answer to deliberately testify that after the brake had been set the engineer went and loosened it, is shown by the following quotation from the cross-examination which immediately followed:

“Q. If he hadn’t put his foot on it, you would not have had the accident ?
“A. Yes, sir.
“ Q. And as he disengaged this brake — you understand, loosened it?
“A. Yes, sir.
“ Q. That set the drum rolling ?
“A. When he set the brake ?
“ Q. I say when he unfastened the brake, that would set the drum rolling, turning ?
“A. I don’t quite understand you.”

The subject of the cross-examination was then changed. A court would invade the province of a jury if it should say that because of testimony of this character, given on cross-examination, no credit whatever can be given to what the witness had testified on direct examination.

It appears from the testimony that there was a safer method of oiling the chain than the one adopted on this occasion, and that, if the doors of the derrick had been shut, plaintiff would not have fallen to the dock. It is urged that plaintiff cannot recover, because he was guilty of contributory negligence in participating in this unsafe method, and in not closing the doors. We cannot assent to this contention. The engineer — plaintiff’s fellow-servant and superior — and not plaintiff, chose this method. The case must be much clearer than this to justify our saying that, as a matter of law, an employe is guilty of contributory negligence in obeying the directions of such a superior. See Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205, 210.

Nor can it be said that plaintiff, as a matter of law, was negligent in not closing the doors to guard against the contingency of his falling from the derrick. That contingency was so remote that no ordinary man could have foreseen it.

It is also urged that plaintiff had previous knowledge of the defect. By this we assume it to be claimed that plaintiff assumed the risk. According to plaintiff’s testimony, he did not know of the defect in question, nor can it be said as a matter of law that he had occasion to know it. We cannot, therefore, say that he assumed the risk. See Corbett v. American Screen Door Co., 133 Mich. 669 (95 N. W. 737).

It is contended that the court erred in admitting in evidence the brake bar in question without evidence that its condition at the time of the trial in 1902 was the same as it was in 1900, and also in not permitting defendant to show how the appliance operated the year after plaintiff was injured. We do not understand that this brake bar was offered in evidence for the purpose of showing the particular defect which it is claimed occasioned plaintiff’s injury. Indeed, its offer was coupled with testimony •showing that the catch plate was a different one. We assume that the brake was produced in order that the jury-might understand the method of its operation more clearly than they could from the words of any witness. We think it was admissible for this purpose. We think, too, that the court correctly refused to permit defendant to show the way this appliance operated the following year, because at that time it had a new catch plate and was therefore a different appliance.

Plaintiff’s first declaration in this case charged that the injury to plaintiff occurred when the chain was being lowered. Before the suit came to trial, the declaration was amended to conform to plaintiff’s claim, as heretofore stated. It was the position of defendant, testified to by its witnesses, that plaintiff was actually injured when the chain was being lowered. To support this claim defendant introduced in evidence, against plaintiff’s objection, the original declaration. For the purpose of proving that he was not responsible for the alleged mistake in the declaration, plaintiff was permitted to introduce in evidence a letter in which the circumstance of the injury was set forth substantially as claimed in this suit, written by him to his counsel about the time suit was commenced. It is contended that the court erred in admitting this letter in evidence. When defendant used the original declaration as an admission made by plaintiff — and its right to do sois doubtful (see Smith v. Davidson, 41 Fed. 172; Holland v. Rogers, 33 Ark. 251; Mecham v. McKay, 37 Cal. 154; Vogel v. D. M. Osborne & Co., 32 Minn. 167 [20 N. W. 129]; Corbett v. Clough, 8 S. Dak. 176 [65 N. W. 1074]) — it seems to me clear that plaintiff had a right to prove that he did not make the admission. It follows that there was no error in the ruling under consideration. See Stewart v. People, 23 Mich. 73 (9 Am. Rep. 78); Eherenkrook v. Webber, 100 Mich. 321 (60 N. W. 761).

Complaint is made because the court said in his charge to the jury that the only issue in the case was one of defective machinery. The reading of the entire charge makes it clear that the jury could not have understood from this statement, as contended by defendant, that they should disregard any of its claims. On the contrary, the effect of this statement was to prevent a verdict for plaintiff, unless the jury found that his injury resulted from defective machinery. The charge was a clear statement of the rules of law applicable in the case and carefully guarded defendant’s rights.

When this suit was commenced, plaintiff was a minor, and it was brought in his name by his father as next friend. When the trial occurred plaintiff had reached his majority, and it is insisted that the suit cannot be prosecuted under the original declaration. It is well settled that plaintiff, on arriving at his majority, may, if he elects, prosecute a suit commenced when he was a minor by his next friend. See Tucker v. Wilson, 68 Miss. 693 (9 South. 898); Clements v. Ramsey, 4 S. W. 311, 9 Ky. Law Rep. 172; Reed v. Lane, 96 Iowa, 454 (65 N. W. 380); Lasseter v. Simpson, 78 Ga. 61 (3 S. E. 243); Sims v. Renwick, 25 Ga. 58; Holmes v. Adkins, 2 Ind. 398; Shuttlesworth v. Hughey, 6 Rich. Law (S. C.), 329 (60 Am. Dec. 130). It seems proper in such a case by a formal amendment of the record to show that the suit is prosecuted by plaintiff himself. This may be done either by striking out the name of the next friend (see Sims v. Renwick; Lasseter v. Simpson, supra), or by a suggestion of record that plaintiff has attained his full age (see Shuttlesworth v. Hughey; Clements v. Ramsey, supra). We should not, however, reverse a judgment for a failure to make such an amendment, which it seems may be made as a matter of course (see Clements v. Ramsey, supra), unless that failure was in some manner prejudicial to defendant. As the record stands, it indicates that the next friend, and not plaintiff himself, is responsible for any costs that might be awarded defendant. See Holmes v. Adkins, supra. If, therefore, defendant had prevailed in this suit, it might possibly have contended that its right to collect its costs from plaintiff was prejudiced by the failure to make the amendment under consideration, though it is probable that in that case its rights would have been protected by an amendment nunc pro tunc. But, as plaintiff recovered judgment and costs, we are unable to see how defendant was in any manner prejudiced.

We do not think that the record contains any error, or that any other complaint of the defendant demands discussion.

The judgment of the circuit court is affirmed, with costs.

The other Justices concurred.


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    KWIECINSKI v. NEWMAN’S ESTATE.
    1. Witnesses — Matters Equally Within Knowledge of Deceased.
    A physician is a competent witness to prove the value of items appearing in his books which had been admitted in evidence without objection, in a proceeding by him to recover from the estate of a deceased person the value of medical attendance and services rendered the decedent.
    2. Evidence — Physicians—Services.
    The fact that a physician treated other persons than the deceased in the same house is irrelevant in a suit to recover for his services.
    S. Witnesses — Cross-Examination — Matters Equally Within l Knowledge of Deceased.
    A party who introduces testimony equally within the knowledge of a deceased person cannot complain because the opposite party examines the witness further upon the subject.
    Error to Wayne; Brooke, J.
    Submitted June 15, 1904.
    (Docket No. 11.)
    Decided July 16, 1904.
    Wenceslaus K. Kwiecinski presented a claim against the estate of Teresa Newman, deceased, for medical services. The claim was disallowed by the commissioners, and claimant appealed to the circuit court where there was judgment for claimant, and defendant brings error.
    Affirmed.

      Sumner Collins and Stanton Clarice, for appellant;

      Ira A. Leighley, for appellee.
   Hooker, J.

The appellee is a physician, and filed a claim against the estate of Teresa Newman for medical attendance furnished to her. The claim, which was disallowed by the commissioners, was sustained, in part, at circuit, and defendant has appealed.

The deceased was a housekeeper at the rectory of a Father Yanden Driesse, in Detroit, and died there November 21, 1901, and many of the services were rendered at the rectory. To establish his claim, the books of account of the plaintiff were introduced without objection. There was other evidence that he attended her professionally.

The plaintiff was asked the following questions, viz.:

“The entries on pages 148, 149, 150, and 151 (marked Exhibit 1) were made by me in the regular course of my business on the dates that they bear in the book, and the account as shown in those pages is the account of Teresa Newman. (Exhibit 1 offered in evidence.)
“Q. Were the charges made reasonable charges for the services performed and medicine delivered to her ?
“A. Yes, sir.
“Mr. Collins: I object to that, under the statute— whether there were medicines delivered to her.
“Q. For services performed ?
“Mr. Collins: I object to that.
“Mr. Leighley: That is not equally within her knowledge. Even if she were alive, she could not swear as to the value of the services, unless she is proven to be an expert.
“The Court: I will take an answer to the question. (Defendant excepts.)
“Q. If they were delivered to her, and the services were rendered to her.
“A. Yes.”

We think the plaintiff was competent to testify to the value of the items proved by the book, and that such was the purpose and effect of his testimony. It would be hypercritical to reverse the case on this ground, especially in view of the colloquy given above.

The court refused to permit defendant to show upon cross-examination of plaintiff that plaintiff treated Fr. Vanden Driesse or others at the rectory during the period covered by this bill. It was immaterial, and, if true (and we think it appears in the case), it would have no tendency to discredit the books or plaintiff’s claim.

It is unnecessary to allude to other questions, further than to say that the defendant introduced plaintiff’s testimony about the receipt, thus opening the door to further examination by his counsel upon a subject equally within the knowledge of deceased. In re Bennett’s Estate, 52 Mich. 419 (18 N. W. 195); Lilley v. Insurance Co., 92 Mich. 159 (52 N. W. 631); Beardslee v. Reeves, 76 Mich. 661 (43 N. W. 677).

The judgment is affirmed.

The other Justices concurred.


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    SCHLOSS v. SCHLOSS.
    Landlord and Tenant — Destruction op Building — Eviction-Rent.
    Entry by the lessor upon the rented premises, for tbe purpose of repairing a building damaged by fire, and from which the lessee has removed, does not amount to an eviction which will relieve the lessee from paying rent during the repairs, where the lessee retains the key, suggests certain changes in the' building, and moves into it after its completion.'
    Error to Wayne; Frazer, J.
    Submitted June 15, 1904.
    (Docket No. 27.)
    Decided July 16, 1904.

      Assumpsit by Emanuel Schloss against Albert W. Schloss and Murray Schloss, copartners as Schloss Brothers, for rent. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Bernard B. Selling, for appellants.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for appellee.
   Hooker, J.

The defendants leased certain premises— i. e., a store building — for a term of years, and entered into possession. A few months after, the building.was rendered untenantable by fire, and the defendants moved out, but retained the key. The plaintiff entered soon after, and began the reconstruction of the building, without saying anything upon the subject to the defendants at the time, though they were cognizant of the facts, and, a few weeks later, requested certain changes in the building. After its completion, defendants moved in, and have remained there since, paying the rent monthly,,as provided by the lease. This action was brought upon the lease to recover the rent for the period that defendants were out of the building. The plaintiff recovered, and defendants appeal; claiming that the conduct of plaintiff was an eviction, which relieved them from payment of the rent during that period. The parties appear to agree that the destruction of the building did not relieve defendants from their covenant to pay rent. The circuit judge found an implied assent to plaintiff’s entry, which precludes the theory of an eviction. Although the defendants were not consulted before plaintiff’s entry, they kept the key, and acquiesced in what he did. We think the conclusion of the circuit judge justified by the proofs.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

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    WHEELER v. BOARD OF CONTROL OF STATE PUBLIC SCHOOL.
    Constitutional Law — Obligation op Contracts —Right to be Sued — State Institutions.
    A statute, taking from the board of control of the State public school the right to sue and be sued, does not impair the obligation of contracts previously made with the board.
    Error to Branch; Yaple, J.
    Submitted June 16, 1904.
    (Docket No. 125.)
    Decided July 16, 1904.
    Assumpsit by John A. Wheeler and Joseph A. Pitkin, copartners as Wheeler & Pitkin, against the board of control of the State public school upon a contract for installing a steam heating plant. Defendant had judgment on •a plea in abatement, and plaintiffs bring error.
    Affirmed.

      Osborn & Mills, for appellants.

      Charles A. Blair, Attorney General ( Charles W. McGill, of counsel), for appellee.
   Grant, J.

Plaintiffs brought suit against the defendant upon a contract for installing a heating plant in the State public school at Coldwater. At the time the contract was made the statute provided:

“The members of said board shall constitute a body corporate under the name and style of the Board of Control of the State Public School with the right of suing and being sued, of making and using a common seal and altering it at pleasure.” 1 Comp. Laws, § 2021.

In May, 1903, prior to the commencement of this suit, the legislature took away from this board of control its •corporate powers, thereby repealing the provision authorizing it to sue and be sued. Act No. 143, Pub. Acts 1903. The defendant filed a special plea in abatement, to which the plaintiffs demurred. The demurrer was overruled, and the plea sustained. The right to sue and be sued conferred upon the board by the original act did not form a part of the contract. The State may grant the right to bring suit against it, and it may at any time take that right away, without impairing the obligation of its contracts. Beers v. Arkansas, 20 How. 529; Board of Public Works v. Gannt, 76 Va. 455; Ex parte Alabama, 52 Ala. 231 (23 Am. Rep. 567); Board of Sup’rs of Sanilac Co. v. Auditor General, 68 Mich. 659 (36 N. W. 794).

Judgment is affirmed.

The other Justices concurred.


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    HARRIS v. RORABACK.
    Deeds — Conditions Subsequent — Buildings.
    Where a deed contained a condition that the grantee, his heirs and assigns, would not occupy the premises except for one dwelling house on each lot, a subsequent grantee may be enjoined from erecting a two-story building designed for a dwelling in each story.
    Appeal from "Wayne; Rohnert, J.
    Submitted June 14, 1904.
    (Docket No. 16.)
    Decided July 16, 1904.
    Bill by Albert S. Harris and others against Edwin C. Roraback and another to restrain the erection of a dwelling. From a decree for complainants, defendants appeal.
    Affirmed.

      William P. Corbett (Henry C. Walters, of cqunsel), for complainants.

      William F. McCorkle, for defendants.
   Carpenter, J.

The parties to this suit are owners of lots on Woodland avenue, in the city of Detroit. The platters of this property placed in their conveyance of defendants’ property, which ran to defendants’ immediate grantor, the following restriction: “ That the said second party, his heirs and assigns, will not opcupy said premises except for one dwelling house to each lot.” A similar restriction was placed in the conveyance of the property owned by complainants, and in all the conveyances on said avenue except one, and the owner of that excepted lot has complied with the restriction. Defendants have planned and started to build on their lot a two-story building, designed for two dwellings — one to occupy the ground floor, and one the second floor — each of which has a separate entrance and a separate cellar. Complainants contend that this structure is forbidden by. the above-quoted language in the deed, and they bring this suit to enjoin its erection. They obtained a decree in the court below, and defendants have appealed to this court.

The decision of this case depends upon the proper construction of the restriction in the deed. We cannot agree with defendants that the force of this language is in any way impaired by the fact that the land contract which preceded the deed contained the words “ a dwelling house,” instead of the words “ one dwelling house.” If these two expressions have the same meaning, the land contract cuts mo figure in this case. If they have different meanings, ■there is nothing to indicate that full force shall not be given to the language of the deed, which was the- last expression of the parties. In my judgment, we can safely construe the restriction from its own language, and without looking outside that language. While there is authority for saying that, in construing this language, we should resolve doubts in favor of the defendants (see Stone v. Pillsbury, 167 Mass., at page 337 [45 N. E. 768], and authorities there cited), it is none the less our duty to give said language its obvious meaning: We are to construe the language in accordance with the intention of the parties to the deed. In construing it, we should not assume that the restriction was inserted solely for the benefit of the grantor. The purpose of the restriction is to benefit not merely the grantor, but every owner of property and every resident on the street. Such a restriction assures-purchasers that property will be devoted in a specified, manner to residence purposes, and has a tendency to increase its value. And we think it not improper to say that it may fairly be inferred in the case at bar that this' restriction and its general observance have increased the value of defendants’ property.

In ascertaining the intention of the parties to the deed containing this restriction, we obtain, in our judgment,, little aid by discussing defendants’ contention, with which we do not agree, that “one” refers to “house,” and not to “ dwelling.” We obtain infinitely more aid by looking' at the sentence as a whole, and thus determining its obvious-meaning. When the parties agreed not to occupy said premises, “except for one dwelling house,’’they obviously intended to agree, and they did therefore agree, that no building should be thereon erected which could not be described as one dwelling house. In the sense in which words are ordinarily used — and we must presume these' words to be used in that sense — a building planned and designed for two or more dwellings cannot properly be described as one dwelling house. I think we are bound to hold that by the language in question the parties- to this deed intended that no house except one planned and designed for a single dwelling should be erected. The case of Gillis v. Bailey, 21 N. H. 149, is an authority which supports our conclusion. Hutchinson v. Ulrich, 145 Ill., 336 (34 N. E. 556, 21 L. R. A. 391), relied upon by defendants, is opposed to this decision. It appeared in that case that, at the time the deed containing the restriction in question was made, flats or apartment houses like that which defendants were seeking to erect had been erected and were then in common use within a short distance of the lots purchased by defendants. This circumstance., which was given great, if not controlling, weight, distinguishes that case from the one before us, for here no such buildings had been erected in the vicinity at the time the deed containing the restriction was made.

The case of Stone v. Pillsbury, 167 Mass. 332 (45 N. E. 768), also relied upon by defendants, is more clearly distinguishable. It was there decided that a building designed and planned as the residence of a single family might, without any change either in its exterior or interior, while used as a residence for a single family, also be used as a gold-cure sanitarium, without violating a restriction like the one in question. No such question is involved in this case. The question here is not how a building planned and designed as the residence of a single family shall be subsequently used, but it is whether a building designed and planned for two separate residences is properly described as one dwelling house. As already stated, we think it is clear that it is not.

The decree of the court below will therefore be affirmed, with costs.

The other Justices concurred.


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    BURKE v. BURKE.
    Divorce — Alimony.
    Evidence examined and held that the amount of alimony awarded by the circuit court on granting a divorce was proper.
    Cross-appeals from Kalamazoo; Adams, J.
    Submitted June 15, 1904.
    (Docket No. 21.)
    Decided July 16, 1904.
    Bill by Eola L. Burke against John H. Burke for a divorce. From the decree rendered j both parties appeal.
    Affirmed.

      N. H. Stewart, for complainant.

      L. N. Burke (Dallas Boudeman, of counsel), for defendant.
   Carpenter, J.

From a decree granting complainant a divorce and alimony, both parties appeal. The single question raised by the appeal — and that is purely a question of fact — is whether the amount of alimony awarded was proper. It is sufficient to say that an examination of the testimony convinces us that neither party has a just right to complain of that award.

The decree of the circuit court will therefore be affirmed. Complainant will recover her taxable costs, less the amount already awarded for her disbursements.

Moore, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.