text:
    PIEHL v. PIEHL.
    1. Trial—Recalling Witness—Discretion oe Court.
    Allowing a witness to be recalled to explain his former testimony is within the discretion of the court.
    2. Same—Question por Jury—Explanation by Witness.
    Where a witness, on being recalled, testifies in direct conflict with his previous testimony, the reasonableness of his explanation is for the jury.
    3. Novation—What Constitutes.
    The requisites of a novation are a valid prior obligation to be displaced, the consent of all parties to the substitution, a sufficient consideration, the extinction of the old obligation, and the creation of a valid new one.
    4. Same.
    Where the original debtor, after agreeing with a third party to pay the debt, dies before the creditor is informed of the arrangement, there is no novation.
    5. Same—Evidence.
    Where suit is brought by one brother against another for a debt owing plaintiff by their father, on the theory of a novation, evidence that defendant promised his father to give his brother and sister each the amount sued for is immaterial.
    Error to Cheboygan; Shepherd, J.
    Submitted November 30, 1904.
    (Docket No. 296.)
    Decided December 14, 1904.
    Assumpsit by Frederick Piehl against Daniel Piehl for money had and received. There was judgment for plaintiff, and defendant brings error.
    Beversed.
    Plaintiff- and defendant are brothers. Their father, Frederick Piehl, Sr., lived in Canada, where he died in April, 1900. He had three sons and one daughter. In 1895 he transferred to the defendant all his property, except some money, on condition that he take care of him the rest of his life. The property was worth about #1,500. The validity of the contract with his father is not assailed, and it appears conceded that he performed it. It was claimed by Catherine, the daughter, that, in consideration of the transfer, defendant agreed to pay her $400 upon her father’s death. For this she brought suit and obtained a judgment, which was reversed by this court. Ebel v. Piehl, 134 Mich. 64. The declaration is upon the common counts in assumpsit. A bill of particulars was- demanded and furnished, as follows:
    “Amount due from Frederick Piehl, Sr., to Frederick Piehl, Jr., for cash loaned by said Frederick Piehl, Jr., to Frederick, Sr., at various times from 1877 to 1886, which said indebtedness Daniel Piehl assumed at the time he received an assignment of Frederick Piehl’s property in 1896, and then and there promised and agreed to pay said amount to Frederick Piehl, Jr., upon the death of Frederick Piehl, Sr.—$400.00.”
    The plea was the general issue, with notice of set-off. The declaration is based upon the doctrine of a novation. The case was tried upon that theory, and the court submitted it to the jury upon that theory, stating that it was essential for the jury to find:
    1. That the father, Frederick Piehl, Sr., was indebted to Frederick Piehl, Jr., in the sum of $400.

      2. That the father turned his property over to defendant with the distinct promise on his part that he would pay his brother that $400.
    3. That plaintiff assented to that agreement, discharged his father, and looked to defendant for payment.
    4. That defendant promised the plaintiff to pay the $400.
    The jury rendered a verdict for the plaintiff.

      Frost & Sprague, for appellant.

      M. F. Guinon, for appellee.
   Grant, J.

(after stating the facts). It is urged that there is no evidence of an indebtedness from Mr. Piehl, Sr., to the plaintiff: When the plaintiff rested his case there was no such evidence. One Julia Mosser was called by the plaintiff to sustain his case, and she testified on direct examination as follows:

Q. Was there anything said by the old gentleman at that time that they were making that agreement why he should pay Fred that $400 ? A. No.

“ Q. Didn’t give any reasons ? A. No.”

After plaintiff had rested, defendant moved to strike out plaintiff’s testimony, and to direct a verdict for defendant. One of the reasons was that no original indebtedness had been proved. This question was argued just before a recess of the court. Upon the reassembling of the court, plaintiff recalled Julia Mosser, and she testified as follows:

“I did not understand the questions asked me as to the reason for grandfather directing Dan Piehl to pay Fred Piehl $400, and I desire to change my testimony.

Q. Will you state to the jury what your grandfather said as to the reason of having Dan pay Fred the $400 ? A. Well, he said he owed it to Fred, and Uncle Dan was to pay it.”

On cross-examination she testified:

‘11 have talked with the attorney since I gave my testimony this morning. They explained my testimony to me —what they wanted, and what it meant. I do not know what I did not understand, and cannot remember any more. All I know is that he got the money, and he was to pay Uncle Fred and Aunt Kate. He owed Uncle Fred $400, and Uncle Dan was to pay that after his death. I cannot remember the conversation when Uncle Dan was there; it is too long ago.”

The recall of this witness was in the discretion of the oircuit judge. Whether her explanation was reasonable was a question for the jury. It is true that the testimony upon her second examination is in direct conflict with that given on her first. While it may be difficult to understand how she could have misunderstood the question and answer given by her on her first examination, yet such matters are for the jury. The only control the trial court has over them is by motion to set aside the verdict, if, in, its judgment, it is against the weight of the evidence.

The meritorious question is, Was there evidence of a contract of novation ? The court correctly instructed the jury upon the requisites of such a contract, to wit, a valid prior obligation to be displaced, the consent of all parties to the substitution, a sufficient consideration, the extinction of the old obligation, and the creation of a valid new one. 21 Am. & Eng. Enc. Law (2d Ed.), p. 663; Dean v. Ellis, 108 Mich. 240; Fuller & Rice Lumber & Manfg. Co. v. Houseman, 117 Mich. 553; Cornwell v. Megins, 39 Minn. 407. Plaintiff was not present when the contract between defendant and his father was made. He was in Michigan. He could not discharge his father and agree to the substitution of the defendant as his debtor until he had knowledge of such agreement. There is no evidence that he knew of such agreement until after his father’s death; there could therefore be no novation, neither was there one according to his own version of his conversation with defendant after his father’s death. He testified that he attended the funeral; that on his return he went to defendant’s house “to ask him if my father had left anything for me. I had looked over in Canada, and I could not find anything. * * * I came here as a brother, and asked you simply if father has left anything for me or not. ” Nowhere in his testimony does he intimate that he stated to defendant, or even hinted at, such a contract as the one upon which he now relies. The sister, Mrs. Ebel, testified to the same effect as she did in Ebel v. Piehl, supra, namely, that her father said to defendant:

“When I am dead I want you to give sister Kate $400, and your oldest brother (plaintiff) $400. I told you that when you got the money.”

There is nothing in this or any other of her testimony to indicate that her father owed plaintiff, and that defendant agreed to pay it. The father, one of the parties to the claimed tripartite agreement, died before plaintiff knew, or at least had assented to, the contract. He had not notified either his father or the defendant that he discharged the one and accepted the other. He could not consummate the agreement after his father’s death. The court should, upon this record, have directed a verdict for the defendant.

In the event of a new trial it is proper to say that all testimony that the defendant promised to give his sister $400, or any other of his father’s children $400, is immaterial, and should be excluded.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J. Hooker, J.

license: Public Domain

text:
    McKERNAN v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    1. Street Railways — City Firemen—Personal Injuries—Actions—Pleading—Amendment.
    In an action by a fireman against a street-railway company for injuries resulting from collision with a street car passing an engine house as plaintiff emerged therefrom, riding on the rear of a fire engine, it was claimed that the declaration would not support a recovery based upon negligence of the motorman at any time before he had actual knowledge that the engine was coming out of the engine house. Defendant had verdict, and on error it insisted that the verdict settled that there was no negligence after the*discovery of plaintiff’s exit, and that therefore the questions raised by appellant as to imputed negligence, etc., were immaterial. Held, that, as the evidence covering plaintiff’s whole case was received without objection as to the pleadings, the court on error could not assume that an amendment would have been refused, and would consider the whole case.
    2. Same—Passing Engine House—Rules—Construction.
    In an action by a fireman against a street-railway company for injuries resulting from collision with a street car passing an engine house as plaintiff emerged therefrom, riding on the rear of a fire engine, a rule of the railway company requiring that cars, when passing engine houses, must not go faster than four miles an hour, should not be construed as applying only to the space directly in front of an engine house, and to impose on the motorman no obligation to approach the engine house at a reduced rate.
    3. Same—Rule—Duty Imposed.
    The existence of this rule would not add to the railway’s obligations to the public, so as to make its violation negligence per se, but was evidence bearing on the question whether a faster rate was in accordance with careful management, and if plaintiff had knowledge of it, it might have a bearing on the question of his contributory negligence.
    4. Imputed Negligence—Fellow-Servants—City Firemen.
    The negligence of the driver of a fire engine was not imputable to the engineer, who, in the performance of his duty, was riding on the rear end of the engine when it collided with a street car.
    Error to Wayne; Rohnert, J.
    Submitted June 9,1904.
    (Docket No. 5.)
    Decided December 22, 1904.
    Case by John McKernan against the Detroit Citizens’ Street-Railway Company for personal injuries. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Orla B. Taylor, for appellant.
    Brennan, Donnelly & Van De Mark, for appellee.
   Montgomery, J.

This is an action to recover for injuries sustained by the alleged negligence of the defendant. The case was submitted to the jury, resulting in a verdict for defendant. The testimony on the part of the plaintiff tended to show the following facts: At the time of the accident the defendant was operating a single-track railway upon Congress street, in the city of Detroit. Electric cars were operated in an easterly direction over this track. Eire engine house No. 19 is located on the north side of Congress street, between Chene street, on the west, and Joseph Campau avenue, on the east. The distance from Chene street to Joseph Campau avenue is 881 feet. The engine house is 686 feet east of Chene street. The block being a very long one, there is a trolley station 271 feet west of the west lot line of the engine house. The engine-house lot is 55 feet in width, the building extending from the east line of the lot to within 13 feet of the west lot line. There are two 10-foot doorways, through which the engine and hose cart gain entrance to the street. These doors are separated by a space of 5 feet. Each doorway has two doors, which swing outward, and when opened can be seen from the corner of Chene street. At the time of the accident the hose cart came out of the west door,' and the engine out of the east door. Congress street is 60 feet in width. The paved portion of the street is 30^-feet in width, the car track is 4 feet and 7 inches wide, and the distance from the track to the curb line is-12 feet and 10 inches. .The engine house is 31 feet from the curb line, and there is a brick-paved runway, with a fall of a little over 2 feet, leading down to the street. The fire engine weighed 9,600 pounds. It was about 12 feet long from the front end of the suction pipes to the back end. The suction pipes stick out about 2 feet behind the rear wheels. Three horses were used to draw the engine. In order to handle it as it emerged from the engine house, it was necessary to take a course in a southwesterly direction to the southerly side of the car track, gradually turning to the west.

The plaintiff at the time of the accident was the engineer of the fire engine. As such, it was his duty, when the engine left the house, to take his position at the rear end of the engine, between the suction pipes. He had nothing whatever to do with the management of the horses.

The accident occurred on September 25, 1900, at about 11:30 in the forenoon. It was a warm, clear day. The car was proceeding in an easterly direction at a speed which is variously estimated from 8 to 15 miles an hour. Just after the car passed the trolley station, the .hose cart emerged from the west door of the engine house. Capt. Ortwine and the driver, Kemberling, were upon the seat of the hose cart. The bell was rung before starting and while leaving the engine house. The ringing continued until the hose cart was clear out into the street. Kemberling turned westerly and proceeded about 50 or 60 feet in the car track, when Ortwine called his attention to the fact that the approaching car had not stopped in the usual manner. He then turned to the left, out of the track, and the back end of the hose cart, as it swung out of the track, cleared the car by about 2 feet. The car was about 100 feet from the hose cart when Kemberling turned off the track. Thus the car passed the hose cart about 100 feet westerly of the engine house lot line, or about 113 feet from the house itself.

Just as the hose cart passed the car, the engine came out of the house. Lieut. Murphy and Schneider, the driver, were seated upon the engine seat. Plaintiff was standing upon the rear of the engine, between the suction pipes. After clearing the doors of the house, Schneider drove in a southwesterly direction across the car track. The engine was nearly across the track, when the car struck the right hind wheel with great violence. The engine, weighing nearly 5 tons, was tipped over, the tire of the wheel, 2 inches wide and seven-eighths of an inch thick, was cut in two, and plaintiff was severely injured. The collision occurred practically on the line of intersection of the west lot line with the car track. The motorman was an experienced man, and was entirely familiar with the location of the engine house. He heard the alarm, and he saw the horses just as they were coming out of the house. He states that the track was slippery and wet. There was evidence, however, that it was a warm, clear day, and that the track was dry.

Evidence of experts was given as to the distance within which a car could be stopped when going at various rates of speed. Witness Smith testified that a car going at the rate of 10 miles an hour could be stopped in 80 feet, and at 7 miles an hour in 50 feet, and at lesser rates in a correspondingly less distance. Witness Haire fixed the distance at 100 feet and 60 feet, at the rates of 10 and 7 miles, respectively. Cole, the motorman, says that his schedule time was 12 miles an hour, and that when the car was in proper shape he could make stops in a car length—about 30 feet.

A rule of the company reads as follows:

“Motormen, when passing schools at the time of commencement or the letting out of same, or when passing by •engine houses, must not go faster than four miles an hour.”

The circuit judge submitted to the jury the question of defendant’s negligence, but held that the defendant’s rule cut no figure in the case. The circuit judge also held that the negligence of the driver of the fire engine should be imputed to the plaintiff, and that:

“ The negligence of the fire people [evidently meaning the driver] in not looking and listening before they came out of the engine house relieved the company from liability for any negligence on the part of the motorman in violating any rule which required him to keep his car in check in approaching an engine house, up to the moment when the motorman had knowledge that the apparatus was coming out of the house.”

It was strenuously insisted on the argument in this court that the form of the plaintiff’s declaration was such as to preclude a recovery based upon negligence of the motorman at any time before he had actual knowledge that the engine was coming out of the engine house, and that the jury must have found, under the court’s instruction, that there was no negligence on the part of the motorman after discovering the fire engine, and that therefore the questions discussed by appellant became immaterial. It is not altogether clear that the jury would understand from the charge that the question of the motoman’s negligence was the only one left for consideration; but, however this may be, the record shows that the plaintiff’s whole case was covered by the testimony, and it does not appear that any question was made as to the sufficiency of the pleading to cover the case made. We cannot assume that, had such a point been made, the circuit judge would have refused an amendment. See Ross v. Township of Ionia, 104 Mich. 320; Findlay v. Railway, 106 Mich. 700; Garn v. Lockard, 108 Mich. 196; Thomas v. Railroad Co., 114 Mich. 59; Robinson v. Railway Co., 103 Mich. 607.

The circuit judge apparently construed the rule above quoted as imposing no obligation upon the motorman to approach the engine house at a reduced rate of speed, but was of the opinion that the four-mile limit was fixed for the period of time when the car was actually passing the forty-two feet in front of the engine house. We think such a construction renders the rule wholly ineffectual to accomplish any good. As pointed out by plaintiff’s counsel, if the west line of this engine house had been reached by the car with no apparatus coming out of the house, the safety of all concerned would have been best assured by the car being speedily removed from in front of the engine house. The real purpose of this rule was evidently to challenge the attention of defendant’s employés to the necessity of approaching the engine house with the car under control, and fixing a speed of four miles an hour as a safe limit.

The existence of this rule did not add to the defendant’s obligations to the public, as shown by the opinion of Mr. Justice Hooker, filed herewith. If, however, knowledge of this rule was possessed by the plaintiff, this might have a distinct bearing upon the question of his contributory negligence.

Was the negligence of the driver of this engine imputable to the plaintiff, in such sense as that, if the driver was guilty of contributory negligence, recovery by the plaintiff is precluded? We think not. Whatever may be the rule as to joint undertakers where one may be said to be the agent of the other, or between employer and employé, where one is clearly the agent of another, or between a driver and a mere volunteer, in which case, perhaps, an implied agency may be said to exist, we are unable to see why, in a case like the present, where two fellow-servants having duties to perform, the one wholly distinct from the other, are severally engaged in the performance of such duties, the negligence of one should be imputed to the other. The cases are numerous in which the courts have refused to apply the doctrine of imputed negligence in such, cases. u

A case in point is Bailey v. Jourdan, 18 App. Div. 387. In that case two policemen were sent out in an ambulance to secure a prisoner. One drove the wagon. The other (the plaintiff) was inside the ambulance. A collision occurred, to which the negligence of the driver contributed. It was held that, as the plaintiff had nothing to do with the driving, but as this was a separate and independent duty, to which his fellow policeman was assigned, the negligence of the latter could not be imputed to him.

Cray v. Railroad Co., 23 Blatchf. 263, is an'instructive case. In that case the question presented was whether the negligence of a locomotive engineer was to be imputed to a fireman on his engine, as contributory negligence, in an action brought against a stranger road for injuries sustained by the fireman in a collision. It was held that the negligence of the engineer was not so imputable to the fireman. It was said that, although the plaintiff was a fellow-servant of the engineer, he was a subordinate, and had no control over the movements of the locomotive. Upon the facts found, he was no more accountable for the misconduct of the engineer than a passenger would be.

The same rule was conversely applied when it was sought to impute to the plaintiff, an engineer, the negligence of his fireman, who was a fellow-servant. Chicago, etc., R. Co. v. Chambers, 68 Fed. 148. See, also, Hobson v. Milk Co., 25 App. Div. 111, and Seaman v. Koehler, 122 N. Y. 646. And speaking generally, the rule is that, when one is injured by the negligence of a third person concurring with that of a fellow-servant, the contributory negligence of the latter constitutes no defense. 1 Thompson on Negligence, § 505. There are cases holding that, where two are engaged in a joint enterprise, the one is the agent of the other, in such sense that the negligence of either will be imputed to the other. Cass v. Railroad Co., 20 App. Div. 594; Yahn v. City of Ottumwa, 60 Iowa, 429; Omaha, etc., R. Co. v. Talbot, 48 Neb. 627. These cases rest upon the ground of agency, and do not at all militate against the doctrine stated above. Our own case of Mullen v. City of Owosso, 100 Mich. 103, applied the doctrine of imputed negligence to one sui juris who voluntarily becomes a passenger with another in a vehicle driven by that other. That case has support in adjudicated cases. Brickell v. Railroad Co., 120 N. Y. 290. But that case does not go so far as to impute the negligence of one fellow-servant to another.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

The other Justices concurred.

Hooker, J.

(concurring). The plaintiff was injured while riding upon a fire wagon or truck as it emerged from an engine house, being struck by a street car as it was crossing the track. Counsel for the plaintiff were allowed to prove that the defendant had directed its employes to reduce the speed of cars to four' miles an hour when passing schoolhouses and fire-engine stations. This took the form of a printed regulation which was distributed among such employés as had the control or driving of cars.

Two claims might be made for this evidence: (1) That a failure to observe the rule was per se negligence; (2) that it was evidence bearing upon the question of whether a faster rate was in accordance with good railroading.

We consider it unnecessary to cite authorities to prove that a railroad company may lawfully make rules and regulations, and, were the question before us, we might perhaps say as much in regard to its obligations to conduct its business under such rules and regulations as would be required to relieve it from the dangers incident to looseness of management and method; and we have little doubt that a failure to provide rules necessary to the ordinary safety of good railroading might constitute actionable negligence, if followed by disaster and injury, in favor of patrons, if not of employés. But the law recognizes the right of the railroads to make rules for their own convenience and benefit, and the courts would be likely to uphold as reasonable a rule, made out of abundant caution, having for its object the reduction of danger to a point far below that attained by ordinarily prudent management, which is the common test prescribed by law. And it would be unfortunate if such a practice were to be penalized by permitting the fact of extraordinary care to increase the responsibility imposed by law, the natural if not inevitable consequence of which would be to induce reluctance to adopt new measures and regulations. There are many rules made by railroads, and they are subject to. greater or less changes from time to time. We have said more than once that courts and juries cannot be allowed to make rules and regulations and prescribe methods for railroad management. They may determine whether certain conduct is negligent or not, but the test is not, or should not be, their abstract notions of railroading, but, rather, the condition of the science and practice of good railroading. Experience may demonstrate that rules designed to facilitate the business or to diminish danger are disappointing and unwise, for unforeseen reasons, and in such cases, as the object of the departure from ordinary practice may not give immunity, neither should the departure make a new and arbitrary standard of care, from which the railroad cannot safely depart. It is a significant fact that it has been seldom claimed that the omission to follow a rule made by the company constitutes negligence. But one case has been called to our attention—i. e., Dublin, etc., R. Co. v. Slattery, L. R. 3 App. Cas. 1163—where it has been held that it was evidence of negligence. The question received no discussion, except the following brief mention:

“ The only negligence alleged against the appellants was that the express train from Dublin did not whistle before or as it passed through the station, and it was suggested that, had it whistled, it would have acted as a caution to Slattery, and he would not have attempted to cross the line, and, further, that, as a person accustomed to the ways of the station, he would expect that a train passing through without stopping Would give notice, by a whistle, of its approach. As to the necessity for whistling, Rossiter, the engine driver, called for the appellants, stated that it was his duty, with express trains, to whistle passing every station; and although it would, as it seems to me, be difficult to lay down an abstract rule as to the necessity of whistling, it may be taken that the orders given to the engine drivers showed that the appellants considered whistling, under the circumstances, to be a reasonable and proper precaution, and it might have been, and I think it was, right to tell the jurors that, if they found this precaution neglected on this occasion, they might consider it to be evidence of negligence on the part of the appellants.”

In a country like our own, where the law compels engineers to sound the whistle at all rural crossings, there is no diversity of opinion upon a failure to give the alarm. We would perhaps feel the same regarding an omission to follow a practice so uniform as to be generally known, and expected by the public, though not a statutory duty; and the question of negligence would not depend upon the existence of the rule, so much as upon the practice, and the right of the public or the person injured to expect its observance. The regulation might constitute some evidence tending to show this, and that it was negligence in the particular case to omit to follow it; but we can think neither that the failure to observe this rule, in and of itself alone, is per se negligence, nor that it necessarily proves a practice, though it was perhaps admissible in that case in connection with other proof upon that subject. That is all that can be said to have been decided by the case cited. While the foregoing is the extent to which the above-mentioned rule should be carried, there are doubtless many regulations of which even that could not be said. All of the details of railroad management (i. e., the running of trains) are worked out under rules, the disregard of which at times may be unavoidable. An absence of elasticity in their observance might mean disaster and death, and it would be the height of injustice to say that evidence of such disregard is evidence, per se or prima facie, of negligence; and, manifestly, of the many rules which have no direct bearing upon the question of safety, yet which may be in a way connected with the circumstances of a disaster, neither ought to be said.

Allusion has been made to the infrequency of adjudications upon this question. Proof of rules has often been introduced to prove contributory negligence through disobedience of them by employés. Manifestly such cases have no bearing upon a case like the present. There are a few, however, where attempts have been made to predicate negligence to third persons upon them. Eliminating such of these as involve a mutual knowlege of, and right to rely upon, the observance of a known and settled practice, thereby differing from the record before us, and such as are based upon the duty of a master to promulgate rules necessary for the protection of his servant, we have few l®ft. All that we have found were considered in the case of Fonda v. Railway Co., 71 Minn. 448, where Mitchell, J., speaking for a unanimous bench, said:

“Its rules [are] intended only for the guidance of its own employés in the operation of its cars. We think this was error. There was no evidence that the plaintiff had any knowledge of the existence of these rules, or of any custom, based upon 'them, as to the manner of operating cars; hence his conduct could not have been in any way affected or influenced by them. It is not claimed that these rules require or permit anything that is inconsistent with reasonable care. The theory upon which they were offered was that they tended to show what duty the defendant owed to the public in the operation of its cars, and hence that a violation of any of them, being a breach of such duty, constituted actionable negligence, or at least was evidence of it. Private rules of a master regulating the conduct of his servants in the management of his own business, although designed for the protection of others, stand on an entirely different footing from statutes and municipal ordinances designed for the protection of the public. The latter, as far as they go, ■fix the standard of duty towards those whom they were intended to protect, and a violation of them is negligence in law or per se. But a person cannot, by the adoption of private rules, fix the standard of his duty to others. That is fixed by law, either statutory or common. Such rules may require more or they may require less than the law requires;' and, whether a certain course of conduct is negligent, or the exercise of reasonable care, must be determined by the standard fixed by law, without regard to any private rules of the party. Under some circumstances, such rules may become an important factor in the application of legal principles to the conduct of a person—as, for example, where the rule was known to him, and he governed, or had a right to govern, his conduct accordingly. Such was the case of Smithson v. Railway Co., 71 Minn. 216. In that case the rule was known to, and obligatory upon, both the party injured and the party guilty of the alleged negligent act. Each was bound to know that the other might and could regulate his own conduct on the assumption that he would obey the rule. . Some of the cases cited by counsel come within this class, and hence have no application here. Others were cases of servants against their masters, in which the. gist of the action was the failure of the master to perform his absolute-duty to his servants to make and promulgate rules which, if observed, would give reasonable protection to his employés. These cases are equally inapplicable. Some are cases of municipal ordinances, which, for reasons already given, are not in point. There are a few cases which support plaintiff’s contention, but in none of them is the question considered or discussed at any length, and in some of them no reason whatever is given for the decision. The only reason assigned in any of them why such evidence is admissible is that it is in the nature of an admission by the party promulgating the rule that reasonable care required the exercise of all the precautions therein prescribed. Georgia Railroad v. Williams, 74 Ga. 723; Lake Shore, etc., R. Co. v. Ward, 135 Ill. 511. The fallaciousness and unfairness of any such doctrine ought to be apparent on a moment’s reflection. The effect of it is that, the more cautious and careful a man is in the adoption of rules in the management of his business in order to protect others, the worse he is off, and the higher the degree of care he is bound to exercise. A person may, out of abundant caution, adopt rules requiring of his employés a much higher degree of care than the law imposes. This is a practice that ought to be encouraged, and not discouraged. But if the adoption of such a course is to be used against him as an admission, he would naturally find it to his interest not to adopt any rules at all. To treat the adoption of such rules as an admission against the party would involve the same principle as treating repairs or improvements made after an accident as an admission of prior defects—a doctrine long since repudiated by this court, and now repudiated by most of the courts of the country. Morse v. Railway Co., 30 Minn. 465. If we could hold, as a matter of law, that these rules required nothing more than was required in the exercise of reasonable care, their admission would be error without prejudice, but an examination of them satisfies us that we cannot so hold.”

Among the cases relied upon to support the plaintiff’s contention in the Minnesota case is Maxwell v. Eason, 1 Stew. 514. An action was brought against a ginner of cotton to recover for cotton lost by fire. The case recognized the rule that the test of negligence was the usual custom of ginners as to carrying fire, and it was said that the defendant’s custom was admissible, also, if conformable to the general usage. Manifestly this must be the limitation, or extraordinary and commendable caution will establish a rule of greater diligence for the prudent than the law does for the ordinary person. We are impressed by the reasoning of Mr. Justice Mitchell, and the soundness of the rule enunciated by him. It should not be held that, where the ordinances of a city authorize a speed of 20 miles an hour, a rule of the company requiring caution by its motormen, through a direction to slow down to 4 miles an hour in front of schoolhouses, thereby establishes that rate as the maximum limit of reasonably safe railroading. Were it to do so, there would be much force in the possible claim that such a regulation should be extended to other places where children may be in the habit of congregating or may happen to be gathered together, and that a failure to so extend it is negligence. It does not follow from a contrary rule that a motorman may go recklessly or negligently through or past all places at the maximum speed. The law regulates this by rules which do not depend upon the existence or nonexistence of corporate regulations. It neither permits corporations to legislate away their responsibilities by rules, nor imposes discriminating liabilities upon them by reason of their efforts to lessen public danger.

I concur in the reversal of this judgment upon the ground that the negligence of the driver was not imputable to the plaintiff.

The other Justices concurred.


author: Montgomery, J.

text:
    BUXTON v. AINSWORTH.
    1. Highways and Streets—Law of the Road—Meeting of Vehicles—Duty to Turn Out.
    One driving on a highway need not turn to the right, so that all of his vehicle is to the right of the center, if he turns far enough so that a passing vehicle, without turning at all, may-pass safely.
    2. Same—Collision—Gross Negligence.
    Testimony that defendant drove rapidly on a highway at night, without looking for vehicles approaching from the opposite direction, and by the exercise of ordinary care could have seen plaintiff’s vehicle with which he collided, justifies submission of the issue of gross negligence.
    3. Negligence—Gross—Instructions—Definition of Terms.
    Where the questions of willfulness, wantonness, and recklessness are submitted, those terms should be defined, so as to prevent their being understood as mere words -of emphasis, and therefore as referring to the doctrine of comparative negligence, which does not obtain in this State.
    4. Same—Discovered Peril.
    In order to entitle plaintiff to redover, despite his own negligence, on the ground of the gross negligence of defendant, the latter must have discovered plaintiff’s negligence, or neglected the most ordinary precaution in failing to do so.
    5. Damages—Personal Injuries—Care and Nursing—Proof'of Value.
    Permitting recovery for care and nursing, without evidence of their value, is error.
    Error to Ionia; Smith (Stearns F.), J., presiding.
    Submitted July 7, 1904.
    (Docket No. 41.)
    Decided December 22, 1904.
    Case by James Buxton against Thomas Ainsworth for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      JR. A. Hawley, for appellant.

      William H. Howard, Charles L. Wilson, and Morse & Locke, for appellee.
   Montgomery, J.

Plaintiff recovered a verdict and judgment of $1,000 for damages incurred in a collision between vehicles severally driven by plaintiff and defendant. The collision took place on the 8th of November, 1901, at a point about two miles north of the village of Lake Odessa. The plaintiff and his wife were returning from Ionia to their home, at Lake Odessa, in a single covered buggy. The defendant was driving north from Lake Odessa toward his home in the country. He was driving a single buggy. The testimony was conflicting as to whether it was dark or otherwise at the time of the collision. The defendant’s testimony tended to show that it was quite dark. The plaintiff and his wife, on the other hand, testify "that they were able to see the defendant approaching when at least 17 rods away. The collision occurred about 53 feet south of a small culvert or bridge. Plaintiff testified that he saw the defendant approaching while he (plantiff) was driving across the bridge. The bridge was 14 or 16 feet wide, and its approach from the south widened out about equally in each direction, and the wrought portion of the road was, at the point of collision, about 20 feet in width. This road had been newly graveled, and there was testimony tending to show that the gravel had been left as dumped from the wagon. The plaintiff testified:

“It looked as though the gravel had been dumped a load in a place; just the bigness of a wagon dropping a load, I should think. * * * The graveled part of the way had not been worked down any by travel.”

„ We do not overlook the defendant’s contention that the testimony fails to show that the gravel was left heaped up, and the criticism of the charge of the court submitting that question to the jury, but we think the testimony above quoted was clearly open to the construction that the gravel had not been leveled. The testimony shows that the travel was, after the gravel had been put on and up to the time of the collision, confined almost exclusively to a track on the easterly side of the wrought portion of the road, although there were wagon tracks upon the graveled portion, showing some travel thereon.

The plaintiff testified that on seeing the defendant coming he turned out to the right to get out of the track; that the defendant turned to his left, and to plaintiff’s right. Plaintiff then proceeds:

“When he turned out, I saw he was going to catch my horse, and I swung it back to the left just enough so he missed my horse. As he came up, coming up such a rapid speed, it frightened my horse going on the wrong side, and she made a terrible spring, and the wheels came right together, locked right in together like that. My front wheel went right over his front axle, dropped right in there. When they came together, it came so solid, my horse stripped right loose from the buggy, broke the whiffietree twice in two in the center and one end. It stripped the harness right off, and all that was left on the horse was just the bridle and the lines, and took me right out over the dashboard, and I landed out just beyond the thills, maybe ten or twelve feet from the buggy, and the horse dragged me as much as two or three rods. I stopped the horse by happening to pull on one line more than I did on the other, and wheeled her right around, and so I kept my horse. I was driving my horse on the walk, and when my horse sprang it moved the buggy back to the southeast.”

Defendant testified that it was very dark; that he was trotting his horse probably five or six miles an hour; that he never saw the plaintiff until the buggies were right together; that before he struck the plaintiff’s buggy his (defendant’s) horse turned a little to the west; that thjs was a voluntary movement of the horse, and was not guided by defendant. Defendant further testifies that he was not looking for Mr. Buxton, or anybody else, on the highway.

The plaintiff’s testimony tended to show that defendant was intoxicated at the time.

The circuit judge charged the jury as follows:

“I charge you, according to the law, that it is the duty of persons meeting each other upon any road or highway, while traveling with any vehicle, to seasonably drive to the right of the middle of that portion of the road which is wrought or worked for travel, and that if such person fails so to do he is presumably guilty of negligence.”

The court also gave plaintiff’s request, as follows:

“ If the jury believe the story of the plaintiff and his wife as to the manner of the collision—that they had turned out to the right on the west side of the road before defendant met them, leaving sufficient space for him to safely pass them by keeping in the traveled track he was driving in, then there was no fault or negligence on the plaintiff’s part; and if you find that the defendant was negligent in turning suddenly to the left in front of the plaintiff, then the plaintiff is entitled to recover such damages as he has suffered, or may suffer hereafter, from the fact of such collision.”

It is contended that these two instructions are at varianee. We do not think so. As an abstract proposition, the driver of a vehicle about to meet another team is presumptively at fault if he fails to turn to the right of the center of the wrought portion of the highway; but if the presumption that he is thus at fault is overcome by the evidence of circumstances, or if it appears that the fault, if found, did not essentially contribute to the injury, the fact that he may have been in a sense out of place does not place him beyond the protection of the law. Spofford v. Harlow, 3 Allen, 176. If, although some portion of the plaintiff’s carriage was to the left of the center portion of the traveled way, the presence of the carriage at that point in no way interfered with the passage by defendant pursuing precisely the course he was in, it is difficult to see how the fault of plaintiff in any legal way contributed to the injury so that recovery is to be denied him for an act of defendant negligent in itself. The case of Quinn v. O’Keeffe, 9 App. Div. 68, 70, is quite in point. See, also, 18 Am. & Eng. Enc. Law (2d Ed.), p. 579.

The circuit judge submitted the case to the jury on the additional theory that, even though plaintiff was negligent, “yet, if the defendant’s conduct was wanton and willful or reckless,” the plaintiff might recover. This instruction is attacked by the defendant’s counsel on two grounds: First, that there was no testimony in the case which justified the court in submitting to the jury the question of defendant’s gross negligence at all; and, second, that gross negligence was not properly defined.

We are of the opinion that there was testimony which authorized the submission of the question to the jury. The jury might have found that the defendant approached the plaintiff at a rapid gait, without looking for him, or for any other person, in the highway, and that by the exercise of most ordinary care he would have known of the plaintiff’s danger. If the jury had so found, the case would have fallen within the designation of gross negligence as defined by this court. Richter v. Harper, 95 Mich. 225; Labarge v. Railroad Co., 134 Mich. 139.

But there is much force in the contention that the instruction laid down no rule for the guidance of the jury. The language of the charge left it open to the jury to find. the defendant’s conduct wanton, willful, or reckless according to standards wholly undefined, and the instruction failed to direct the attention of the jury to the important element of so-called gross negligence; i. e., that before gross negligence can be made out which warrants recovery notwithstanding the precedent contributory negligence of the plaintiff, the negligence of the latter must have been discovered, or, the defendant must have neglected the most ordinary precaution in failing to discover it. As the charge was given to the jury, the terms “wanton,” “willful,” and “reckless” may have been considered as words of emphasis, and, so understood, defined the doctrine of comparative negligence, which does not obtain in this State. Richter v. Harper, supra.

The court permitted recovery for care and nursing, in ■ the absence of any basis furnished by proof of value. This was error, under Williams v. Village of Petoskey, 108 Mich. 260.

The other questions presented are not likely to arise on a new trial.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    WALKER v. CITY OF DETROIT.
    Tax Sale—Publication of Notice—Holidays.
    Under charter of Detroit, 1893, § 170, providing that the tax roll shall be delivered July 1st, and that “forthwith” six days’ notice by publication in the official daily paper shall be given, which shall be a demand for payment, a publication on each of the first seven days of the month, except July 4th, is sufficient.
    Appeal from Wayne; Rohnert, J.
    Submitted October 7, 1904.
    (Docket No. 42.)
    Decided December 22, 1904.
    Bill by Bryant Walker, trustee, against the city of Detroit and another to cancel certain tax sales. From the decree rendered, complainant appeals.
    Affirmed.

      Walker & Spalding, for complainant. '

      Timothy E. Tarsney (John W. McGrath, of counsel), for defendants.
   Montgomery, J.

The complainant filed a bill and supplemental bill to-cancel sales for city taxes of the years 1892, 1893, 1895, 1896, and 1898 to 1901, inclusive, and the tax of 1892 as well; also to cancel a special paving assessment made in 1889. The grounds are that the paving assessment was cut off by complainant’s having acquired title on sales for State and county taxes of 1890 and 1892; also that there is no certificate attached to the paving assessment roll showing that it was prepared and the property assessed in accordance with charter and ordinance provisions, and that the State and county title of 1892 outs off the city tax for the same year; defective publication of the July notice constituting the legal demand by the receiver of taxes for the payment of taxes—applying to the taxes of all years but 1893; defective publication of the January notice of the augmented taxes—applying to the taxes of the years 1893, 1895, and 1900.

The decree canceled the taxes of 1892 and 1899 upon condition of the payment of the face of the original tax, canceled the taxes of 1895 and 1900 on condition of the payment of the face of the original tax plus 6 per cent., and dismissed the bill as to all other taxes and the paving assessment.

The complainant acquired title to the property in January, 1896, by quitclaim deed given in lieu of foreclosure. He holds this title in trust for Susan A. Lowe, who, in March, 1893, took a mortgage upon the property. In October, 1896, the complainant got by mesne conveyance title for the State and county taxes of 1890, and in December, 1902, a title for the State and county taxes of 1892. These titles he likewise holds for Mrs. Lowe. It was not disputed that the State and county tax title would ordinarily cut off the title under the previous paving assessment sale, but it was claimed by the defendant and held by the court that, as the complainant holds these titles in trust for the mortgagee, and as the time for redemption on the tax sale for 1890 did not expire until after the taking of the mortgage, and the time of redemption on the tax sale for 1892 did not expire until after the complainant himself took title to the property, neither can be set up against the paving assessment title. Complainant appealed from the decree.

Obviously, the complainant must, in order to obtain the full relief prayed, be able not only to establish that the sale for taxes of 1892 and the paving taxes were cut off by the sale of the land for State and county taxes for the years 1890 and 1892, but also to show that the tax titles which he holds for these years have not been in turn substantially cut off by the sale of the land to the city for taxes of subsequent years.

The complainant’s bill proceeds upon the theory that the sales to the city were rendered invalid by defective notices. If they were in fact valid, it would seem that the complainant was granted greater relief in the court below than he was entitled to. We do not understand that either under the theory of the bill or in fact or law the complainant has an absolute right to be invested with the title which the city holds under its purchase, and at the same time to ask that the unpaid taxes on these lands for previous years be declared invalid.

Under the charter two notices are required to be published by the receiver of taxes—the July and January notices, so called. The January notice was admittedly sufficient except as to the sales for taxes of 1893, 1895, and 1900. The objection to the July notice is more general, and applies to all the years except 1893, and a similar criticism is made as to the publication in each year.

The charter of Detroit of 1893 (section 170) provides that the rolls shall be delivered to the receiver of taxes July 1st, and “the receiver of taxes shall forthwith, upon the reception of said tax rolls, give six days’ notice by publication in the official daily paper published in said city, and by posting the same in at least six public places in each ward, which notice shall be a sufficient demand for the payment of all taxes on said rolls.”

The question presented is whether a publication beginning on July 1st and continued for six days, but omitted on the 4th, is sufficient; in other words, whether a publication for six days out of the first seven of the month answers the requirements of this statute. We think it does. The term “forthwith” does not in all cases mean “instanter,” but may and often does have a relative meaning, and may mean “all reasonable celerity,” or “all reasonable dispatch,” “with reasonable and proper diligence.” 13 Am. & Eng. Enc. Law (2d. Ed.), p. 1157 et seq. And what is a reasonable time depends on the circumstances of each case. Anderson v. Goff, 72 Cal. 73. We do not think that the decision to omit the publication on a legal holiday ought to be regarded as such a delay as to avoid this notice. It is to be noted that the statute does not in terms provide that the six publications shall be on consecutive days. And while, in ordinary practice, the publications would naturally occur on successive days, yet, if they do in any case occur so promptly that they may be said to have taken place with all reasonable promptness, this is sufficient. It follows that the complainant has no reason to complain of the decree below.

The decree is affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    LOWE v. CITY OF DETROIT.
    Taxation—Levy—Validity—Detroit Charter—Construction.
    Failure of the board of assessors of Detroit to sign the tax roll before transmission to the council renders void the levy made thereon. Charter 1893, §§ 167, 168.
    Appeal from Wayne; Rohnert, J.
    Submitted October 7, 1904.
    (Docket No. 43.)
    Decided December 22, 1904.
    Bill by Susan' A. Lowe against the city of Detroit and another to cancel certain tax sales. From the decree rendered, complainant appeals.
    Reversed in part.

      Walker & Spalding, for complainant.

      Timothy E. Tarsney (John W. Me Grath, of counsel), for defendants.
   Grant, J.

This bill is filed to set aside certain tax sales for the years 1890, 1895, and 1900 on account of defective notices under charter provisions, and to cancel a tax of 1897 for the reason that the assessors did not sign the tax roll before transmission to the council. No other questions are raised. The objections to the notices are the same as those in Walker v. City of Detroit, ante, 538, and are determined by the opinion in that case. The tax roll for 1897 was not signed when presented to the council, but was signed after the approval of the council, and before its delivery to the receiver of taxes.

The charter (Detroit Charter 1893, p. 95, § 167) requires the board of assessors, after completing the roll, to sign it on or before the third Tuesday in April of each year, and return the same to the board of aldermen. Upon its receipt by the board of aldermen that body and the board of councilmen are required to meet and sit together as a board of review, hear appeals, etc. Id. § 168. The board of review had nothing before them to act upon except an unsigned paper. It was not a tax roll until signed. Thompson v. City of Detroit, 114 Mich. 502.

The decree as to this tax must therefore be reversed, and decree entered for complainant.

The other Justices concurred.


author: Moore, C. J.

text:
    EMERY v. IONIA CIRCUIT JUDGE.
    Mandamus — Judicial Discretion — Dissolving Injunction — Drain Commissioner.
    Where a temporary injunction is granted on a bill alleging that complainant is owner in fee of certain land upon which the drain commissioner is about to cast large quantities of water to its injury, and a motion to dissolve, on the ground that complainant is not the owner of the fee, is denied after a showing that he, in fact, holds under a land contract, the decision of the circuit judge will not be controlled by mandamus.
    Mandamus by Fred Emery and Marvin E. Kenyon, drain commissioner of Ionia county, to compel Frank D. M. Davis, circuit judge of Ionia county, to dissolve a temporary injunction.
    Submitted November 15, 1904.
    (Calendar No. 20,788.)
    Writ denied December 22, 1904.

      Nichol & Locke, for relators.

      JR. A. & W. JE. Hawley, for respondent..
   Moore, C. J.

Roswell C. Chickering filed a bill in chancery, alleging, in substance, stated briefly, that he was the owner in fee of certain real estate; that Marvin E. Kenyon, as drain commissioner, and Fred Emery, as contractor, by means of a drain were about to bring to his premises a large quantity of water without making any adequate facilities for carrying it away, thereby flooding arable land, and that he would suffer irreparable wrong if they were permitted to do so, and praying for an injunction. A preliminary injunction was granted by Judge Davis.

Defendants answered the bill, denying its allegations, and moved to dissolve the injunction (we quote from the motion) “for the reason that the court in allowing said restraining order br injunction was misled by the bill of complaint in said cause, and induced to grant the same contrary to law, said bill setting forth upon its face that the above-named complainant was the owner in fee simple of the lands described in the bill of complaint, whereas in truth and in fact said complainant was not the owner in fee of the said land.”

This was the only reason assigned. Affidavits and counter affidavits were filed, from which it was fairly established that complainant was in possession, not as the owner in fee, but under a land contract he had from the owner in fee. Judge Davis was of the opinion that complainant had interests in the land which entitled him to the protection of a court in chancery, if upon the final hearing he should establish the allegations of his bill of complaint, and overruled the motion to dissolve the injunction. Mandamus is now sought to compel him to dissolve the injunction. We have examined with care all of the files and the briefs of counsel, and think a showing is not made■> which would justify us in overruling the action of the circuit judge.

The application for the writ is denied.

The other Justices concurred.


text:
    KENYON v. BOARD OF SUPERVISORS OF IONIA COUNTY.
    1. Mandamus—Review—Conolusiveness of Answer.
    On certiorari to review the refusal of a circuit judge to issue a writ of mandamus, the application for which was heard on petition and answer, the answer must be taken as true for the purpose of the case.
    2. Drains—Construction—Use of Sewer Pipe.
    The drain law (2 Comp. Laws, § 4338) authorizes the use of sewer pipe in the construction of drains when necessary.
    3. Same — Commissioner — Letting Contracts — Duty Where Sewer Pipe Is Used.
    Where sewer pipe is to be used in the construction of a county drain, bids should be received for furnishing it. Act No. 272, Pub. Acts 1899, chap. 4, § 3.
    4. Same — Defective Proceedings — Remedy of Supervisors — Refusal to Spread Tax.
    Where the proceedings of the drain commissioner are defective in matters that do not occur until more than 10 days after his final determination, the board of supervisors may refuse to spread the tax, the remedy by certiorari provided by Act No. 272, Pub. Acts 1899, chap. 5, § 3, not being applicable to such a case. 1 Comp. Laws, § 3860; 2 Comp. Laws, § 4356.
    Certiorari to Ionia; Davis, J.
    Submitted November 15,1904.
    (Calendar No. 20,789.)
    Decided December 22, 1904.
    Mandamus by Marvin E. Kenyon, drain commissioner of Ionia county, and Fred Emery to compel the board of supervisors of Ionia county to order a drain tax to be spread upon the rolls of certain townships. To review an order denying the writ, relátors bring certiorari.
    Affirmed.

      Niehol & Locke, for relators.

      B. A. & W. E. Hawley, for respondent.
   Moore, C. J.

This is certiorari to compel Judge Davis to issue a writ of mandamus, directed to the board of supervisors of Ionia county, directing them to order a certain drain tax spread upon the tax rolls of the townships affected by the drain. A petition was filed in the court below, an order to show cause was issued, an answer was filed in behalf of the board of supervisors, a hearing was had, and the application for a writ of mandamus was denied. Afterwards the case of Horn v. Board of Sup’rs of Livingston Co., 135 Mich. 553, was decided. An application was then made to Judge Davis, asking for a rehearing of the motion referred to. After argument this application was denied, and the cause was brought to this court by writ of certiorari. The parties stipulated to waive any irregularity with reference to the last hearing before Judge Davis, which did not relate to the merits of the controversy.

The answer of the board of supervisors, which must be taken as true for the purpose of this case (see City of Benton Harbor v. Railway Co., 102 Mich. 386; Keeler v. Deo, 117 Mich. 1), in substance states: That the original application presented to the county drain commissioner did not ask for the use of drain tiles or sewer pipe in the construction of the drain. That the first order of determination omitted any reference to the use of tiles or sewer pipe in its construction. That on the 13th of July, 1903, a notice was issued of the letting of said drain, and that bids would be received therefor on the 31st of July, 1903, and that the assessment for benefits would be subject for review. That in said notice no mention was made of the use of tiles or sewer pipe in the construction of said drain. That on the 30th of July the drain commissioner divided said drain into four sections for the purpose of letting the work, and on the 31st of July the drain commissioner let the contract for the. construction of the first three of the said sections to Fred Emery (one of the parties to this litigation) for the sum of 1624; stating verbally at the time that tiles or sewer pipe would not be used in the construction of these sections of the drain, but that they would be used in the construction of section 4. The bid and contract included the digging of the drain, the hauling of sewer pipe from the railroad station to the place where the same were to be used in the drain, and placing the sewer pipe in the drain. He also stated orally that he would supply the requisite amount of sewer pipe needed in the drain, and thereupon the job of constructing section 4 and hauling the sewer pipe was let to the said Fred Emery for the sum of $910. That no offer was made to receive bids for furnishing the sewer pipe, and that no bids were ever received by the drain commissioner to furnish them. The answer states that said drain commissioner unlawfully assumed the right to supply the sewer pipe without receiving bids at a public bidding, allowing competition therefor. That on the 10th of August, 1903, the drain commissioner computed the entire cost of the drain, and included therein, for the construction of sections 1, 2, and 3, the sum of $624; the amount of the contract for the construction of section 4, $910; and 4,000 feet 12-inch sewer pipe for section 4, $1,000. That on the 31st of July, 1903, the commissioner determined that 35 per cent, of the cost of said drain should be borne by the township of Orleans, and a like amount by the township of Otisco, and the balance between the several parcels of land benefited thereby. That on the 10th of August, 1903, he apportioned 41 per cent, of the cost of said drain to the township of Orleans, and 59 per cent, to the township of Otisco. That on the same day he issued his several drain assessment rolls, and included therein the sum of $1,000 for supplying the sewer pipe to be used in the construction of section 4 of the drain. The answer alleges that said sum assessed is unauthorized by law, and is illegal and void, for the reason that in the various proceedings no notice was given that sewer pipe would be used in the construction of said drain until the day of the letting thereof, and because said drain commissioner did not receive bids for furnishing the sewer pipe needed in said drain, and because, he intended and expected to pay for the samé out of the $1,000 included in said assessment. The answer also alleges that said sum of $1,000 is excessive, and that the sewer pipe could have been readily obtained for the sum of $925, if bids had been asked therefor. The statute undoubtedly authorizes the use of sewer pipe in the construction of these drains when necessary. 2 Comp. Laws, § 4338.

Act No. 272, Pub. Acts 1899, chap. 4, § 3, provides:

“The county drain commissioner shall thereupon proceed to receive bids and let contracts for the construction of the sections, and make contracts with the lowest responsible bidder, giving adequate security for the performance of the work.”

We think a fair construction of the provisions of the statute to which we have referred indicates the purpose of the legislature to require bids for the furnishing of material where the situation is like that disclosed by the answer filed by the board of supervisors. See 20 Am. & Eng. Enc. Law (2d Ed.), pp. 1165, 1166. See, also, City of Detroit v. Wayne Circuit Judge, 79 Mich. 384.

We then come to the question, Did the board of supervisors -have the right to refuse to spread this tax ? It is claimed by the relators that, under the case of Horn v. Board of Sup’rs of Livingston Co., 135 Mich. 553, even though the proceedings were defective, the board of supervisors was not authorized to pass upon the irregularity of the proceedings and refuse to put the tax upon the rolls. In answer to that contention, counsel for respondent say that while, by the act of 1899 (Act No. 272, chap. 5, § 3), the proceedings, if defective, shall be subject to review upon certiorari, this remedy is confined to defects which existed-at the time of the final order of determination of the drain commissioner establishing said drain, as provided in section 1, chap. 4, in said act. It is contended that the acts which make the proceeding fatally defective did not occur until after more than 10 days had elapsed after the final order of determination was made by the drain commissioner, and that the remedy allowed by the act of 1899 could not apply under these circumstances, for the reason that the law does not require an impossibility. We think this position is well taken—that the relators would be without relief if relegated to that remedy, and that section 3860, 1 Comp. Laws, and section 4356, 2 Comp. Laws, apply to this situation. See Zink v. Board of Sup’rs of Monroe Co., 68 Mich. 283; Tinsman v. Board of Sup’rs of Monroe Co., 90 Mich. 882; Smith v. Board of Sup’rs of Livingston Co., 115 Mich. 202. It is proper to add that no work had been done to construct said drain at the time this proceeding was commenced.

The order of the circuit court denying the writ of mandamus is affirmed.

The other Justices concurred.


text:
    HEENAN v. FOREST CITY PAINT & VARNISH CO.
    1. Appeal and Error—Failure to Except—Estoppel to Allege Error.
    Defendant cannot object to the setting aside of a default entered for failure of plaintiff to file a bill of particulars, where the record does not show an exception to the ruling, and the order setting aside the default was acted on by defendant in amending his plea.

      2. Chattel Mortgages—Trover by Mortgagee—Evidence.
    In trover by a chattel mortgagee against a creditor of the mortgagor to recover a part of the mortgaged property, which he had replevied, a draft which furnished the consideration for the mortgage was admissible in evidence.
    8. Saving Questions for Review—Failure to Except.
    Rulings to which no exceptions are taken cannot be reviewed on error.
    4. Witnesses—Refreshing Recollection—Memorandum.
    A witness may use a memorandum in his own handwriting to refresh his recollection.
    5. Harmless Error—Evidence—Directed Verdict.
    Errors in admitting evidence are immaterial in a case where a verdict was properly directed for the appellee.
    6. Chattel Mortgages — Failure to File — Validity as to Third Persons.
    An unfiled bona fide chattel mortgage is valid as to a creditor whose claim accrued prior to its execution.

      7. Same—Validity—Fraud of Mortgagor.
    A bona fide chattel mortgage for value on goods previously obtained by the mortgagor by fraud, which is filed before the seller of the goods has taken any steps to recover them, is entitled to precedence over the claim of the seller.
    Error to Macomb; Tucker, J.
    Submitted November 16, 1904.
    (Docket No. 91.)
    Decided December 22, 1904.
    Trover by Jolin Heenan against the Forest City Paint & Varnish Company and Clarence Dryer. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Martin Crocker, for appellants.

      Byron B. Erskine, for appellee.
   Montgomery, J.

The facts in this case, so far as material for an understanding of the points involved, are as follows: Frank E. Horning, a young man of 26 years, was engaged in the retail hardware business at the village of Lenox. He desired to enlarge his business, and induced his father, James L. Horning, to put up a brick store building in said village for that purpose. James L. Horning had no connection with the business of his son, but was engaged in the manufacture of bale wire in a small way in the same village. The father purchased some lots for the proposed building, taking the title in the name of himself and the son as tenants in common, and the erection of the store was commenced. It became necessary to negotiate a loan for building purposes, and application for the same was made to plaintiff, who resides at Dryden, Mich., and conducts a private banking business at that place, and who was acquainted with James L. Horning; having had business relations with him for a number of years. On May 6, 1901, plaintiff loaned them $2,000; taking a mortgage on the real estate. The money for this loan was not paid over at once, but credit was given on the books of the bank, and it was checked out as the building progressed. November 4, 1901, James L. and Frank E. Horning went to Dryden to negotiate a further loan of $1,000 upon the building; requiring an additional sum for building purposes. This loan was also arranged with plaintiff, but, as the wives of the proposed mortgagors were not present, it was arranged that Mr. McCluskey, plaintiff’s.bookkeeper and cashier, should shortly come to Lenox and perfect the loan. At the same time Frank E. requested a loan te himself of $1,000 upon his stock of merchandise in the store. He had made overdrafts at Mr. Acker’s bank at Richmond—the Richmond Bank—and was anxious that these overdrafts be taken care of, to prevent his checks from going to protest. Frank E. was little known to plaintiff, and, on James L. indorsing the chattel-mortgage note, the loan was made. The chattel mortgage and note were prepared by Mr. McCluskey, and then and there executed. Upon the execution of the chattel mortgage and a note, a draft of $900 was given Frank E. Horning. The remaining $100 was not paid in money. The fact that the $900 was paid is not disputed.

On November 11, 1901, Mr. McCluskey, as per arrangement, went to Lenox, and made the #1,000 real-estate mortgage on the store building. The consideration for this mortgage was a note of #500 that had been previously given, the accrued interest, a draft of $460.68, and a charge of $25 as bonus. These real-estate mortgages and the chattel mortgage are entirely distinct transactions, and have no connection with each other. The money thus obtained by Frank E. Horning was all used in his business, but evidently afforded him but temporary relief. On November 7, 1901, he gave a bill of sale of his stock to his father, who was a large creditor, and who thereupon took possession, and endeavored to save something out of the business by compromising with creditors. Shortly after obtaining possession, James L. wrote a letter to plaintiff, informing him of the bill of sale; and Mr. Mc-Cluskey came to Lenox on December 18, 1901, and had James L. and Frank’s wife sign the chattel mortgage, and filed it in the proper townships. This mortgage had not been filed before, as plaintiff testified, simply through inadvertence; he being not at all uneasy about the security. The goods had all been sold and delivered before the chattel mortgage was executed, and no credit was extended by defendant or any one else while unfiled.

In December, 1901, Mr. Adams, representing the defendant company, came to Lenox in reference to this claim, and endeavored to get James L. Horning to return the goods. The latter stated that he had no right to do so, inasmuch as Mr. Heenan had a chattel mortgage on all the goods. The defendant then claimed the goods, were obtained by false representations, and proceeded to replevy the goods, but did not tender back the money received as part of the purchase money therefor. After the goods were removed from the store, plaintiff made a demand for the same, and, upon the demand being refused, brought trover for their value and recovered judgment; the trial judge directing the jury to return a verdict for the value of the goods at wholesale, adding the cost of the cartage.

Some testimony was given below tending to show misrepresentations on the part of Frank E. Horning at the time of the purchase of the goods. There is no evidence that plaintiff knew anything of the alleged fraud. Besides plaintiff’s positive evidence to that effect, and that he had never before heard of the defendant company, it was made to appear by defendant’s evidence that he could not have known of any such claim, because it was not made until December, 1901. Mr. Adams, defendant’s agent, testified that he had exclusive charge of this matter; that after the sale he was not at Lenox again until he heard of the bill of sale to James L. Horning; that it was not until December 13th, when he came to Lenox, that the defendant first discovered the falsity of the alleged misrepresentations ; and that no claim of fraud was made until December 18, 1901, defendant company up to that time believing the statements to be true.

There are 29 assignments of error, but, as these are grouped by the counsel for appellant, we need not discuss the assignments in detail.

The first point discussed is that arising over the ruling of the court in setting aside plaintiff’s default, which defendant had entered because of plaintiff’s failure to furnish a bill of particulars. The answer to this contention is that not only does the record fail to show an exception to the ruling, but the inference is a fair one that defendant was content with the order made, and acted upon it in amending his own plea, which was apparently all that defendant asked as a condition to the vacation of the default.

It is next argued that error was committed in admitting in evidence the draft which furnished the consideration of the chattel mortgage. The testimony was plainly competent, but here, again, the record fails to show any exception to the ruling.

Error is assigned upon the ruling of the court admitting in evidence an affidavit of renewal of the chattel mortgage. It is clear that this ruling did not damage defendant’s case, if the court was right in its main ruling; but this point is open to the same answer as that given to the preceding one—no exception appears to have been taken to the ruling.

The next ruling to which an exception was taken was one permitting a witness to use a memorandum in bis own handwriting for the purpose of refreshing his recollection. This ruling was right.

None of the other minor assignments merit discussion. Many of them are not based on proper exceptions, and, when exceptions are taken, the questions relate to rulings which became immaterial if the court was justified in directing a verdict.

We think the ruling directing a verdict was clearly right. The mortgage was given for a valuable consideration. There was no notice to or knowledge possessed by plaintiff of any fraud committed by Horning. Before any action was taken by defendants to reclaim the goods, their agent had notice of the mortgage which was filed at about that time. No credit was extended, nor was any action of defendant taken, on the strength of the absence of the mortgage from record. The mortgage was therefore good as against defendant. First Nat. Bank v. Guntermann, 94 Mich. 125. That the plaintiff was entitled to priority over defendant—the plaintiff being a bona fide mortgagee, and defendant having, by means of the purchaser’s fraud, been induced to invest the latter with indicia of ownership—see Zucker v. Karpeles, 88 Mich. 430; Hoffman v. Railway Co., 125 Mich. 201-205.

The judgment is affirmed.

The other Justices concurred.


text:
    CAVANAUGH v. ROBINSON.
    1. Attorney and Client—Contingent Pee—Contract—Construction.
    A contract by an attorney to procure payment of a legacy to the heirs for a contingent fee based On a percentage of the amount collected contemplates that the attorney shall perform whatever services may be necessary, including services in the taking of an appeal rendered necessary by an erroneous decision of the trial court.
    2. Same—Quantum Meruit.
    Where an attorney contracted with the agent of certain heirs to get the assets of the estate paid over to them for a contingent fee of 25 per cent, of the amount collected, and to pay to the agent one-third of such contingent fee, the fact that the agent declined to furnish a bond on an appeal, rendered necessary by an erroneous decision of the trial court, was not a breach of the contract entitling the attorney to recover on a quantum meruit, merely because he successfully prosecuted an appeal not expressly provided for in the contract, without assistance from the heirs or their agent, and was enabled thereby to make the collection.
    Error to Kalamazoo; Adams, J.
    Submitted November 16, 1904.
    (Docket No. 96.)
    Decided December 22, 1904.
    Assumpsit by Thomas J. Cavanaugh against Ellen Robinson and others for services rendered. There was judgment for plaintiff for less than the amount claimed, and he brings error.
    Affirmed.

      Alfred J. Mills, for appellant.

      Howard & Howard, for appellees.
   Montgomery, J.

The controversy in this suit is over attorney’s fees claimed by the plaintiff in a suit for the construction of the will of Jane Korth, wherein the defendants in this suit were complainants and Mary Finch was defendant. (Robinson v. Finch, 116 Mich. 180). The defendants herein are residents of Ireland. J. H. Hubbell & Co., of New York City, acted as their agents in the litigation in regard to the will, and are still acting as their agents in this matter. J. H. Hubbell & Co., acting as agents as aforesaid, first wrote to J ames E. Chandler, then an attorney at Paw Paw, Mich., in regard to the will controversy. Mr. Chandler was at that time a partner of Judge Heckert, and Judge Heckert was then the probate judge of Van Burén county, and Mr. Chandler, for that reason, not caring to act in the case, recommended to Hubbell & Co. that they employ the plaintiff in this case, Thomas J. Cavanaugh, who was then, and still is, a practicing attorney at Paw Paw.

The arrangement between Hubbell & Co. and said Cavanaugh was all by correspondence, and we insert the letters that we deem to be material to an understanding of the issue involved. The first is as follows:

“New York City, Eeb. 17, 1896.

“Thomas J. Cavanaugh, Esq.,

“ First National Bank Building,

“Paw Paw, Michigan.

“Dear Sir: In further acknowledgment of your report of December 7th, which we communicated to our correspondent in Ireland, we regret that he has advised us that his clients are not in a position to advance the necessary funds to contest the claim of the Wei dens to the assets of the estate. As we judge from your report that it will be necessary to file a bill in chancery to get a construction placed upon the will, we should like to have you advise us if you would undertake the necessary legal work on a contingent fee. Our clients are too poor to pay any court costs, or any fee for services, unless chances of success warrant you in undertaking to prosecute their interests, your fee to be wholly contingent upon your succeeding. We wish you would advise us what would be your charge in case you could get the assets paid over to the heirs of Thomas Robinson. * * *

“We shall be pleased to hear from you at your earliest convenience.

“Yours truly,

“J. H. Hubbell & Co.”

The material portion of Mr. Cavanaugh’s reply to this letter reads as follows:

“Paw Paw, 2—19—1896.

“ J. H. Hubbell & Co.,

“ 309 Broadway, New York.

Dear Sirs: Replying to your favor of the 17th inst., will say that * * * we would be willing to undertake the collection of these legacies upon a contingent fee, provided clients will forward the amount of actual costs, that is the court costs, etc. It would be necessary that $10 be advanced towards the costs, upon receipt of which we will prepare a bill and have a construction placed upon the will. Should it turn out that we were unsuccessful, clients would have to pay taxable costs, which would amount to about $40. Should our fees be contingent as indicated above, we should expect to charge clients 25 per cent, of amount collected, one-third to go to you and two-thirds to be retained by ourselves. If this matter is to be contested it ought to be attended to at once. It will take some little time to prepare a bill and some further time to have it signed by some one of the legatees. * * *

“ Very truly yours,

“T. J. Cavanaugh.”

Hubbell & Co.’s reply reads as follows:

“ New York City, March 2nd, 1896.

“ Thos. J. Cavanaugh, Esq.,

“First National Bank Building,

“ Paw Paw, Mich.

“Dear Sir: We are in receipt of your letter of the 19th ult. inclosing us a copy of the will of Jane North, deceased, for which we thank you.

“As we wrote you on February 17th, our clients are not in a position to advance the amount necessary to enable us to file a bill in your chancery court to get a construction upon the will, and before rendering ourselves liable for so large a sum as $40, we shall much appreciate your giving us as fully as you can the different points, both pro and con, upon which the judge would be called to pass. If you will be good enough to itemize the statements on a separate sheet, we shall be glad to submit them to one. of our correspondents at Detroit or Grand Rapids and request him to favor us with his views, and should his findings be favorable, we will advance you the necessary court costs to file a bill in the chancery court, asking for a construction upon the clause of the will.

“We shall be pleased if you will let us have a statement of the different points at issue at the very earliest date possible.

“Yours truly,

“ J. H. Hubbell & Co.”

Hubbell & Co. later wrote to Cavanaugh a letter as follows:

“New York City, July 14, 1896.

“Thomas J. Cavanaugh, Esq.,

‘ * Paw Paw, Mich.

“Dear Sir: We have delayed answering your communication in regard to proceedings in the above matter, until we could hear from the legal representatives in Ireland. We obtained an opinion from a well-known lawyer in Detroit in regard to the position claimed by you, and he is of the opinion that your views are correct,

“We have, therefore, decided to advance such taxable costs, amounting to not more than |40, as may be necessary to prosecute the suit, upon the terms mentioned in your favor of February 19th.

“Please, therefore, proceed at' once and advise us when you desire us to remit the costs in the case.

“ Yours truly,

“ J. H. Hubbell & Co.”

Cavanaugh’s reply is as follows :

“Paw Paw, 7—31—1896.

“ J. H. Hubbell & Co.,

“New York City.

Dear Sirs: In re Jane North estate. We will prepare bill and file just as soon as we can reach the matter, which will be in a short time now.

“ Yery truly yours,

“T. J. Cavanaugh.”

In pursuance of the contract made in these letters, the plaintiff prepared and filed a bill in the circuit court for the county of Yan Burén for the construction of the will of Jane North. This case went to final hearing, and the case was dismissed by Judge Buck, who was then presiding judge for that circuit. Mr. Cavanaugh’s letter announcing the result of the suit in the circuit court is as follows:

“Paw Paw, 3—23—1897.

“ J. H. Hubbell &; Co.,

“309 Broadway, New York.

“Dear Sirs: In re Jane Korth estate. Yesterday morning the court handed down a verbal opinion in the Robinson-Finch case, holding that a decree should be entered for the defendants, dismissing our petition. "We still think we are right in the premises, and are willing to take our chances and to perform the labor of taking this case to the Supreme Court contingently, provided, of course, that petitioners will pay actual costs. A further bond will have to be filed if it is taken to the Supreme Court. Kindly let us hear from you as to what you want done in the matter, and greatly oblige,

“ "Very truly yours,

“ T. J. Cavanaugh.”

Hubbell & Co.’s letter in reply is as follows:

“New York City, March 25, 1897.

“Thos. J. Cavanaugh; Esq.,

“First National Bank Building,

“Paw Paw, Mich.

Dear Sir: We are in receipt of your favor of March 23id and contents noted. Please inform us what the actual costs are thus far and the amount of the bond necessary to be filed to take the case to the Supreme Court, and also the proper costs of the appeal for printing, etc.

“Please send us the name of the trial judge, also in what court the trial took place and please send us a copy of your and also your opponent’s brief used on the trial. We may wish to submit them to counsel.

“Yours truly,

“ J. H. Hubbell & Co.”

Later Hubbell & Co. wrote as follows:

“New York City, April 29, 1897.

“Thomas J. Cavanaugh, Esq.,

“Paw Paw, Mich.

Dear Sir: After due reflection we have determined that the amount involved does not warrant us in giving a bond for costs. Our counsel advises us, that if Thomas W el den is still living, construction of the will is of trifling importance and it may not be worth while to appeal, but if he is dead and the property is worth it, he would appeal.

“ J. H. Hubbell & Co.”

Hubbell & Co., at the commencement of the litigation in the circuit court, advanced $15 on the costs. The costs in the circuit court amounted to $47.35, and on May 27th Hubbell & Co. remitted the balance of $32.'35. Mr. Cavanaugh, without any further or different arrangement, proceeded himself to appeal the case to this court, and this court decided the case in his favor. Robinson v. Finch, 116 Mich. 180. He announced the result of the decision of this court to Hubbell & Co. by letter on the 21st day of May, 1898.

Hubbell & Co.’s reply to this letter reads as follows:

“New York City, May 23, 1898.

“Thos. J. Cavanaugh, Esq.,

“PawPaw, Mich.

Dear Sir: We are in receipt of your favor of the 21st inst., inclosing opinion in the case of Eobinson vs. Finch, for which we thank you. We heartily congratulate you upon having the courage of your convictions in carrying this case up on appeal.

“ Yours truly,

“J. H. Hubbell & Co.”

After the decision of this court in the will case, Hubbell & Co. furnished Mr. Cavanaugh powers of attorney from the defendants, and Mr. Cavanaugh thereupon proceeded under partition proceedings to have the property involved in the will sold. The property sold for $1,255. Mr. Cavanaugh then sent to Hubbell & Co. a bill for his services and disbursements. This bill was not limited in its charges for services to the 25 per cent, agreed upon, but was made up of per diem charges for trial of the case at the circuit and in the Supreme Court. A controversy arose between the plaintiff and Hubbell &■ Co. over this bill, and by an arrangement between them this suit was instituted for the purpose of having the rights of the parties settled, Mr. Cavanaugh in the meantime depositing with the First National Bank of Paw Paw the amount in controversy.

On the trial the plaintiff recovered two-thirds of 25 per cent, of the amount realized, and in addition all disbursements made by him, less $47.37, paid to him by Hubbell ¿fe Co. Plaintiff brings error.

The sole question is whether the recovery was properly limited to the two-thirds of 25 per cent., or whether, on the other hand, the plaintiff is entitled to recover on a quantum meruit. The contention is that, fairly construed, the correspondence makes a contract to carry the case to completion in the circuit court for 25 per cent, of the amount recovered and an allowance of not to exceed $40 for costs; that the necessity for an appeal was not considered; and that, as the plaintiff did in fact render services which proved valuable to the defendants, they are bound to pay for them.

There is an appearance of abstract justice in the plaintiff’s position. He has rendered very valuable services for his clients, and will probably be somewhat inadequately paid if the judgment below stands. Nevertheless, we must "be able to find some authority in the contract before we can enlarge the agreed compensation. It will be noted that the letter of Hubbell & Co. of February 17th asks plaintiff to state what his charge would be “in case you get the assets paid over, to the heirs of Thomas Robinson.” In answer the plaintiff states the figure at 25 per cent, of the amount collected. It is probably true that neither party understood that it would be necessary to appeal the case to the Supreme Court, but their contract was broad enough to include all work essential to secure the fund to the heirs of Thomas Robinson.

It is suggested that the relations of the parties were changed by the refusal of Hubbell & Co. to put up a bond on appeal. This view is fallacious for two reasons: The original contract contemplating that the plaintiff should perform whatever services were necessary to secure the payment of the legacy to the heirs of Thomas Robinson, and containing no provision that Hubbell & Co. should bind themselves for any amount in excess of $40, they committed no breach of contract when they declined to furnish a bond on appeal. Secondly, if the view were to be accepted that such refusal amounted to a discharge of complainant, and that the original contract only contemplated a trial at the circuit, and did not contemplate at all the contingency of an appeal, we are wholly unable to find any authority for taking such appeal at the charge of the defendants. It happened that the appeal turned out greatly to their advantage. This alone is not enough to entitle the plaintiff to compensation.. There must have been an employment.

We think the court below rightly held that what the plaintiff did was in performance of his special contract, and that the appeal was taken in furtherance of his own interests..

The judgment is affirmed.

The other Justices concurred.