text:
    KRATZMER v. DETROIT LUMBER CO.
    1. Chattel Mortgages — Renewal—Affidavits—Statutes.
    An attempted renewal of a chattel mortgage filed nearly eight months before the expiration of the year in which it was originally filed is not in compliance with 3 Comp. Laws 1915, § 11991, providing that a chattel mortgage shall cease to be valid as against the creditors of the person making the same or subsequent purchasers or mortgagees in good faith after the expiration of one year from filing the same or a copy thereof, unless within thirty days next preceding the expiration of such year an affidavit of renewal shall he filed.
    2. Same — Renewal—Attachments—Notice.
    A renewal affidavit is not necessary in order to render a recorded chattel mortgage valid as against an attaching creditor, where public notice was given of the sale of the mortgaged property and an attorney for the mortgagee was in possession of the property and was on the point of selling the same at public auction when the property was seized by the attaching creditor.
    3. Same — Attachments—Mortgage Lien — Notice.
    Where an affidavit for the renewal of a chattel mortgage is invalid because filed more than thirty days before the expiration of the year in which the mortgage was originally filed, and an attaching creditor has both constructive and actual notice of the claims of the mortgagee before his attempt to levy an attachment at the time the property is about to be sold at foreclosure, the mortgage lien is perpetuated and remains paramount to the attachment lien.

      4. Same — Attachments — Conversion — Notice op Mortgagee’s Rights.
    The seizure and sale of personal property, which is about to be sold under a mortgage, an invalid renewal of which was filed, by an attaching creditor, constitutes an unlawful conversion' of the property where the attaching creditor had both constructive and actual notice of the rights of the mortgagee before levying its attachment.
    5. Same — Value op Property — Evidence—Damages.
    In an action by a chattel mortgagee against an attaching creditor to recover for the conversion of the mortgaged property, which was seized by the attaching creditor and sold, evidence held, sufficient to sustain a finding that the property taken and converted by the defendant had a market value at the time and place of the seizure equal to the amount of the verdict, which was for the amount of plaintiff’s lien without interest.
    Error to Wayne; Holly, J.
    Submitted January 4, 1917.
    (Docket No. 33.)
    Decided March 30, 1917.

      Trover in justice’s court by Israel Kratzmer against the Detroit Lumber Company and another for the conversion of certain property. From a judgment for defendants plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Berger & Milburn, for appellants.

      Abram Sapiro, for appellee.
   Steere, J.

On January 6, 1914, plaintiff lent $1,250 to a partnership known as the Detroit Box Manufacturing Company, located in a factory building at 21 Leland street, Detroit, engaged in the manufacture of cigar boxes, taking a note therefor secured by chattel mortgage upon its stock of machinery, lumber, fixtures, etc., “and all other goods and chattels belonging to said firm as a going business,” then “situated at 21 Leland street in the city of Detroit,” etc., which was represented to him as having cost over $4,000. The mortgage was regularly filed in the office of the city clerk on March 18, 1914. On July 8, 1914, a payment of $450 was made upon it, at which time plaintiff filed a renewal affidavit. Further payments were made, reducing the indebtedness to $800, which, being past due, plaintiff tried unsuccessfully to collect, and then engaged an attorney to enforce the mortgage, who soon took steps to foreclose the same. On April 10, 1915, he posted notice of foreclosure on the factory building of the box manufacturing company, advertising the sale for April 16,1915, which was adjourned by proper notice to April 28, 1915. Like notices were also posted in front of the city hall. At that time, the box manufacturing company was apparently in financial straits, and the factory was. not running. The record is silent as to whether any one representing the mortgagor was in charge of the property or present at the factory on April 23d, but it is shown that plaintiff’s attorney was then on the premises and in the building where the mortgaged property was located, for the purpose of conducting the foreclosure sale at the time and place advertised, and was either sitting in the office awaiting the arrival of the advertised hour, or had announced the sale and was about to offer the mortgaged property, when defend-! ant Romanski, a constable, appeared with a writ of | attachment sued out against the box manufacturing" company at the instance of the Detroit Lumber Company, and took possession. Plaintiff’s attorney testified that he had announced the sale and called for bids when the constable interfered. On cross-examination he answered as follows:

“Q. At the time the constable arrived, you had not started the sale, but were sitting in the office waiting until 12 o’clock?
“A. I think it was after 12 that the constable arrived.
“Q. Your sale was noticed for 12?
“A. Yes.
“Q. After you got through, you went ahead and made the offer of the sale while we were there after the constable had taken possession of the building and said to get out?
“A. That is true, but I had the announcement that the sale was going to take place on this property.”

Having thus “taken possession of the building” and its contents, broken up the pending foreclosure sale and ordered plaintiff’s representative to “get out,” defendants proceeded with the attachment levy, inventoried and removed the property seized, subsequently proceeding to a judgment in the attachment suit against the box manufacturing company for $490 and costs, followed by an execution levy and sale, from which defendants claim but a small part of the judgment was realized.

Demand was made in behalf of plaintiff for a return of the property so seized, both of the constable and Detroit Lumber Company, which was refused; and this action in trover was subsequently begun and tried in justice’s court, followed by an appeal to the Wayne county circuit court, where, on retrial, it was held that under the undisputed facts defendants were guilty of unlawful conversion of mortgaged property, and plaintiff was “entitled to a verdict fixed by the jury as the value of the property taken to the extent of his lien.” The jury rendered a verdict in plaintiff’s favor for $300, upon which judgment was entered for that amount.

Defendants’ assignments of error are grouped into the following propositions:

“(1) That the court erred in denying defendants’ and appellants’ motion for direction of verdict in their favor.
“(2) Because the court erred in failing and refusing to grant the defendants’ and appellants’ motion for a new trial.
“(3) Because the court erred in failing and refusing to give the defendants’ and appellants’ fifth and sixth requests to charge.
■' “(4) Because the court erred in charging the jury as follows: ‘Now, as this case is going to you, you are obliged to bring in a verdict for the plaintiff if you find that there was any value to the property that was taken from them.’ ”

The first contention is based upon the claim that under section 9526, 3 Comp. Laws (3 Comp. Laws 1915, § 11991), plaintiff’s chattel mortgage had ceased to be valid as to. creditors having a lien, over a year having expired from the time of filing it, and the Detroit Lumber Company had in good faith obtained a valid lien upon the mortgaged property by levying its writ of attachment before any renewal affidavit was filed.

Plaintiff’s, attempted renewal, filed nearly eight months before the year expired, July 8, 1914, was clearly not in compliance with the statute, and therefore of no validity. Defendants had refused to recognize plaintiff’s chattel mortgage or his attempted foreclosure under it as of any force, and no question of a seizure of the property in subordination to the mortgage under section 10318, 3 Comp. Laws (3 Comp. Laws 1915, § 12855), is involved. Neither is there any question raised as to the integrity of the demands of the respective parties against the Detroit Box Manufacturing Company. Plaintiff’s was for money loaned, and defendants’ for material sold in due course of business. Plaintiff’s loan was secured by a chattel mortgage which had been properly filed, but which he neglected to renew at the expiration of the year, leaving it open to the hazard of becoming invalid as to a subsequent purchase or mortgage, or lien obtained upon the mortgaged property in good faith while it was in the possession or under control of the mortgagor. Had the Detroit Lumber Company obtained a lien thereon in good faith by an attachment levied upon the mortgaged property while in possession of the mortgagor and before any steps were taken to foreclose, the mortgage would undoubtedly have been invalid as against such lien; but it did nothing to that end until plaintiff had exercised his right to foreclose and his agent was with the property on the premises, at the time and place advertised, offering or about to offer the mortgaged property at public sale in consummation of the foreclosure.

It stands unquestioned that the mortgage was given in good faith to secure an honest debt for money loaned, was valid between the parties to it at all times, and, after expiration of a year from the time of filing, only vulnerable to attack by those who became purchasers, mortgagees, or had obtained a lien thereon in good faith before an affidavit of renewal was filed. The year expired March 18, 1915. Being otherwise unable to collect the amount remaining due under said mortgage, plaintiff, on April 10, 1915, proceeded to foreclose the same. No irregularity in the foreclosure proceedings, as such, is pointed out. The mortgage was then in full force and in default. Defendant had not obtained any lien on the mortgaged property in good faith, or otherwise, and took no steps to do so until April 23d, at which time the property was about to be sold at foreclosure sale pursuant to notice, as before related. It is said in 2 Cobbey on Chattel Mortgages, § 597:

“Taking steps to foreclose the mortgage by advertising the property, commenced while the mortgage is in full force, obviates the necessity of refiling, though the foreclosure is not completed until the time is past for refiling. * * * The public are entitled to notice, which, after the mortgage has been once filed, can only be given, beyond the statutory time during which the record is notice, as follows, viz.: (1) By taking possession; (2) by commencing to foreclose; (3) by making a new record — that is, refiling.”

In Thompson v. Van Vechten, 5 Abb. Prac. (N. Y.) 458, involving the question of priority of claims between the contending parties, one of which depended upon a sale of a boat under a chattel mortgage by one Dunlap who had advertised it for sale but not taken actual possession when the other claim was asserted, the court said:

“On June 28, 1854, Dunlap took measures to foreclose his mortgage and sell the vessel. This was equivalent to an assumption of possession. * * * The result of the cases seems to be that, if the mortgage is duly filed, the mortgagee is placed in a position to excuse his omission to take possession; .if not filed, he cannot be admitted to explain it. See the statement of the rule and- cases by Justice Paige, in Otis v. Sill, 8 Barb. 108. That case decided that the assertion of a right of control by advertising the property for sale before an execution was delivered to the sheriff, dispensed with the necessity of refiling a mortgage, which strictly ought to have been refiled before the delivery of the execution.”

In the instant case, the testimony, though scant in details, shows more than mere assumption of possession by advertising the mortgaged property for sale. By the terms of the mortgage, in case of default, plaintiff was authorized to enter upon the premises where the property was located, take possession of and sell the same at public auction upon like notice as required by law for sales by constables. Not only was public notice of the sale accordingly given and notices posted both upon the premises where the property was located and in front of the building in which the chattel mortgage had been filed, but at the advertised time and place, for the express purpose of making this public sale, plaintiff’s authorized agent had entered upon the premises where the property was located under the right which the law gave him, the only person with and exercising any dominion over it so far as shown, and confronted defendants’ agents with assertion of his mission and purpose when they arrived and ordered him to get out. His meager admissions touching that episode leave to inference whether his reasons for complying were physical or legal. Plaintiff had the right to go upon the premises, take the property, and sell it at public sale to satisfy his mortgage. On the day of sale his agent was at the appointed place, on the premises with the property where he could exhibit it for sale and deliver it when sold without opposition or his right questioned by the mortgagor or those previously in possession, so far as shown. He not only advertised the property for foreclosure sale, but had followed the notice by acting upon his right to enter on the premises where the property was, in assertion of his authority over it for the purpose of such sale, which, under the undisputed facts, -was equivalent and amounted to an assumption of possession for that purpose not to be misunderstood.

It is not shown that defendants extended any credit to the mortgagor on the faith of an apparently clear title subsequent to the expiration of a year from the time of filing the mortgage either before or after the property was advertised for sale, and upon this record, as we view it, the primary issue between these litigants. turns upon priority of lien. Defendants had not obtained a lien in good faith upon the mortgaged property until after plaintiff commenced foreclosure, advertised the property for public sale during the requisite time, assumed dominion over and in effect taken possession of it at the place and on the day designated for the purpose of consummating the sale. Defendant had both constructive and actual notice of this before it attempted to levy its attachment. The mortgage lien was thereby perpetuated and remained paramount. Against it defendant’s seizure was, under the facts shown, an unlawful conversion of the property, and the trial judge was not in error when advising the jury that, if they found there was any value to the property taken, a verdict should be rendered in plaintiff’s favor.

Defendants further urge that their motion for a new trial should have been granted because the verdict was against the great weight of evidence and grossly excessive.

The verdict of $800 was the amount of plaintiff’s lien without interest, and is claimed to have been excessive because the property was worth and sold for but a fraction of that amount. A junk dealer called by plaintiff testified that he saw notices of this sale in front of the city hall and went to look at the property with a view to buying it when sold; that he made a thorough examination of it for that purpose and estimated a fair valuation as between $500 and $600; that “we” would not pay full cost value for “things,” but if he could buy the property at that price he would have bought it, figuring to make something out of it, and he was there on the day set for the sale intending • to bid on the property.

Under his writ of attachment, the constable was directed to seize sufficient property of the box manufacturing company to satisfy the lumber company’s claim, amounting to about $500. Presumably he did so after taking possession of the building, if sufficient property could be found. He was not called as a witness, but his inventory of property seized under the writ is as follows:

“Combination rip and cross-cut saw table; Pony planer and counter-shaft; 2 factory trucks; 1 typewriter; 40 ft. belts 3"x5"; 8 chairs; 1 wagon; 1 desk; box board machine; 2 boring machines; 1 nailing machine; 1 iron safe; 1 register clock; 30 ft. shaft; 11 hangers and boxes; 1 saw gummer; 1 rip saw; 1 barrel oil.”

This property was taken to the Detroit Lumber Company’s plant and subsequently sold in bulk, as testified by its secretary, except a safe and nailing machine which were claimed and taken by third parties. A witness of defendant testified the nailing machine was worth about $75, and the junk dealer appraised the safe at $25. The court withdrew these two articles from consideration of the jury. An employee of the lumber company testified that after they got possession of the property it was there for several months. Neither he nor the company’s secretary and treasurer, who testified the property was sold in bulk and but $30 realized from the sale, were present when it was sold.

The value of the property attached and taken was a question of fact. There was substantive proof to support the widely divergent claims of the respective parties. It appears undisputed that plaintiff, who had experience as a junk peddler himself, loaned the box manufacturing company $1,250 in cash on the machinery, fixtures, etc., in its plant; that the owners, who told him the property cost over $4,000, subsequently paid $950 of the loan; that on the date advertised for foreclosure sale to collect the remaining $300, a junk dealer who had examined the property proposed for sale with a view to purchasing it was on hand ready to bid more than $300 for what was there, deducting the highest value given by any witness for the safe and nailing machine. Defendants seized and took the property, thus preventing the sale. We are well satisfied there was competent testimony in the case from which a jury in its discretion might find that the property taken and converted by defendants had a market value at that time and place equal to the amount of the verdict. The question of its value was fairly submitted by the court to the jury in a plain and well-guarded charge. We find no occasion to disturb the result.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    SIMPSON v. PADDOCK.
    1. Statutes — Immediate Effect — Validity.
    Although, an. act of the legislature contains an immediate effect provision which is legally inoperative because the act is not one “immediately necessary for the preservation of the public peace, health, or safety,” such act will go into effect after the expiration of 90 days from the adjournment of the legislature enacting it.
    2. Municipal Corporations — Fire Department — Local Self-Government.
    A city’s fire department is distinctly a matter which concerns the inhabitants of the city as an organized community apart from the people of the State at large, and is peculiarly within the field of municipal activity and local self-government.

    3. Same — Statutes—Class Legislation — Discrimination — Firemen — Constitutional Law.
    Act No. 81, Pub. Acts 1915, providing that in all cities having full-paid members of fire departments, all officers and men receiving such pay shall be entitled without any deduction of pay to a leave of absence of one day of 24 hours in every four days and a furlough of 20 days once each year, is unconstitutional as constituting class legislation, as it applies only to a class of cities having only full-paid members of fire departments, all others, including those having only part-paid members of their fire departments, being omitted, and relates only to a particular class of employees in the cities to which it applies, confining its application only to such officers and men of the fire department as receive full pay.
    4. Same — Constitutional Law — Local Self-Government.
    Such act is also unconstitutional as constituting special legislation and as interfering with the rights of local self-government, in violation of article 8 of the Constitution.

      Certiorari to Saginaw; Gage, J.
    Submitted January 2, 1917.
    (Calendar No. 27,543.)
    Decided March 30, 1917.
    Mandamus by Charles Simpson against Hilem F. Paddock, mayor and commissioner of health and safety of the city of Saginaw, to compel respondent to put into force and effect Act No. 81, Pub. Acts 1915, in said city. From an order denying the writ, relator brings certiorari.
    Affirmed.

      Ernest A. Snow and Frank A. Rockwith, for relator.

      Robert T. Holland, for respondent.

      On the right of State to control municipal fire department, see note in 15 L. R. A. (N. S.) 575.

   Steere, J.

Plaintiff seeks by certiorari review and reversal of an order made by defendant as circuit judge for Saginaw county denying a requested writ of mandamus against Hilem F. Paddock, as mayor and commissioner of health and safety of the city of Saginaw, compelling him to put in operation, force, and effect Act No. 81, Pub. Acts 1915, entitled:

“An act to fix the leaves of absence and furloughs of certain officers and men in all cities in this State having full-paid members of fire departments.”

This act, consisting of two short sections (1 Comp. Laws 1915, §§ 3471, 3472), is as follows:

“Section 1. In all cities of this State having full-paid members of fire departments, all officers and men receiving such full pay shall be entitled without any deduction of pay to a leave of absence of one day of 24 hours off duty in every four days and a furlough of 20 days once in each year.
“Sec. 2. All acts or parts of acts inconsistent with or contravening any of the provisions of this act are hereby repealed.
“This act is ordered to take immediate effect.”

The act was approved April 27, 1915. The immediate effect provision, which was forbidden by our Constitution, unless “immediately necessary for the preservation of the public peace, health or safety,” by lapse of time is rendered of little importance, inasmuch as the act would in any event take effect at the expiration of 90 days from adjournment of the legislature which enacted it. Attorney General v. Lindsay, 178 Mich. 524 (145 N. W. 98).

At the time of the passage of this act, the city of Saginaw had a fire department consisting of 54 members regularly employed and devoting their entire time to that service, sleeping at their respective engine or hose houses. It also had 4 members, designated “call men,” who were allowed to work at other employment in the vicinity of their respective stations, where they slept, ready to respond to alarms, and received a much lower rate of compensation than those devoting their time exclusively to serving as firemen. In August following the passage of this act, plaintiff, Simpson, and some 50 other firemen of the city, presented to its council a petition requesting that the act be put into effect as soon as possible. The petition was referred “to the commissioner of health and safety,” who was the mayor. He subsequently made a report to the council discussing the matter at length, and pointed out, amongst other things, that it would cost the city approximately $7,000 per annum to put the law into operation, that under the condition of the budget for the fiscal year no funds were available for that purpose, that he was advised by the city attorney the legality of the act was questioned, and recommended that the matter be referred to the council, city attorney, and board of estimates as a committee. This report was, by resolution, received, and the recommendation concurred in. That part of the committee consisting of the “council” subsequently reported (apparently to itself) that after long discussion it was¡ decided by said committee that the law should be lo-i cally administered according to its provisions, and it was accordingly so recommended. This report contained the following:

“No money being available from the original appropriation of the salary item of the fire department fund, your committee recommends that the board of estimates be requested to authorize an additional appropriation of $5,000 for this purpose, the same to be transferred from the contingent fund.”

Neither the city attorney nor board of estimates signed this report, and the latter refused to add the recommended appropriation of $5,000 to the fire department fund, because, it was stated, of questions raised as to legality of the act, the state of the city’s finances, and local conditions as to taxation.

Thereafter plaintiff, Simpson, made demand upon defendant Paddock, as mayor and commissioner of health and safety, that he put said act into force and effect and grant plaintiff, as one of the full-paid members of said fire department, a leave of absence of one day of 24 hours in every 4 days and a furlough of 20 days once in each year. The mayor having declined, or failed, to comply with his request, plaintiff filed a petition with the circuit court of Saginaw county for an order to compel compliance. An order to’show 'cause was thereupon issued and an answer filed. Both the petition and answer were later amended, and after a hearing the writ of mandamus prayed for was denied ; the court saying, among other things :

“My conclusion is that the act in question is a violation of the right of the city to local self-government, and that, if the province of the board of estimates to determine the number and compensation of the employees for any department of the city government can be abrogated by this act, the legislature may by successive acts of this kind abrogate altogether, by piecemeal, all of the authority of the board of estimates.”

Since January 1, 1914, the city of Saginaw has been organized and conducting its municipal affairs under a charter adopted by its electors pursuant to the provisions of the so-called “home rule law.” The scheme of this charter is a commission form of government, with the mayor as chief executive and four councilmen, who, with the mayor, administer the affairs and perform the legislative functions of the city. The power to make appropriations, raise money by taxation, and in general manage the resources and finances of the city, is vested in the council, subject, however, to a negative control or power of restriction as to indebtedness and the annual budget by a board of estimates. All estimates must be submitted to said board and approved by it “before any money shall be raised, or taxes levied and collected, for the purpose of any funds mentioned in this charter,” and it is “made unlawful for the council of said city to create any indebtedness or expend any moneys as to items specifically disallowed and disapproved by said board of estimates.” For administration purposes the municipal activities are divided into five departments — health and safety, finance, public works, light, water and sewers, and parks and cemeteries, each department directly in charge of the mayor or one of the four councilmen acting as a commissioner. As commissioner of health and safety, the mayor is head of the fire department with general supervision over it, and it is urged for plaintiff that he is the proper official to put the law into effect as to the firemen under his control; the council having so decided, and there being a contingent fund of the city by which it is claimed the expenses may temporarily be defrayed until other provision is made, as it ultimately must be.

While the question of the want of available funds as justification for refusal to recognize the act is raised and discussed by counsel, we agree with the trial court that the more important and controlling issue urged in behalf of the city is the validity of said Act No. 81, which is attacked as unconstitutional and void for various reasons, amongst which are: That it is palpably a local and special act which interferes with a matter of purely local self-government in which the State at large has no direct interest, abridges the right of the city to contract, and denies it equal protection under the law, is capricious and unreasonable class legislation, and that under the provision of article 8 of the Constitution State legislation in reference to cities incorporated under the home rule act of 1909 is prohibited in matters of purely municipal concern, except through or by amendment of such, general, law.

It may be° first noted as well settled that a city’s fire department is distinctly a matter which concerns the inhabitants of the city as an organized community apart from the people of the State at large, peculiarly within the field of municipal activity and local self-government. People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); Davidson v. Hine, 151 Mich. 294 (115 N. W. 246, 15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267, 14 Am. & Eng. Ann. Cas. 352); Popper v. Broderick, 123 Cal. 456 (56 Pac. 53); Lexington v. Thompson, 113 Ky. 540 (68 S. W. 477, 57 L. R. A. 775, 101 Am. St. Rep. 361) ; State v. Moores, 55 Neb. 480 (76 N. W. 175, 41 L. R. A. 624) ; State, ex rel. Jameson, v. Denny, 118 Ind. 382 (21 N. E. 252, 4 L. R. A. 79); 1 McQuillen on Municipal Corporations, § 173.

The act in question is distinctive in the particulars that it is what is sometimes termed “city legislation” (relating only to cities) deals exclusively with a matter of municipal concern, and is class legislation, to the third degree, in that it applies only to a class of cities having full-paid members of fire departments, all others including those having only part-paid members of their fire departments being omitted, and relates only to a particular class of employees in the cities to which it applies, confining its aplication to only such “officers and men” in fire departments as are receiving “full pay.” This is not a law which seeks to protect a certain class of laborers, because of their sex, age, or other special conditions, against the imposition of long hours of steady, daily toil in dangerous or unwholesome environments detrimental to health. Those to whom it relates are not of that class nor so employed. Conceding the duty they are employed to perform when the emergency for that service arises is strenuous and dangerous, demanding particular training and ability, those experiences' are not the regular routine of their daily life. During much of the time of their employment their duties are, if not light, at least neither hazardous nor strenuous, and their environments are neither dangerous nor unhealthy. The law is not directed to bettering their surroundings or shortening their daily hours of duty. Its purpose is to give that class of employees vacations from their employment and compel the municipality to pay them full wages when absent. The mental and physical strain, hazards of the calling, and impairment of health arising from the character of the employment would seem to fall with equal force on that class in the service designated “call men” who do not receive “full pay” but are allowed to work at other employment in the vicinity of their respective hose houses, in which they are required to sleep, and who, equally with the others so far as shown, are required to respond to alarms which call them to the only strenuous and dangerous service for which firemen are employed; but these men are excluded from the class to which the law is made applicable. If it were conceded that the act is a proper exercise of the police power of the State, because essential to the public welfare in protection of the health, morals, and safety of employees engaged in a dangerous or unhealthy calling, it fails to protect all alike and discriminates between those in the same employment, exposed to like risks and dangers.

But, aside from these infirmities, the act as framed bears the brand of special legislation in the interest of those it directly benefits, rather than a beneficent general law in the public interest enacted under a legitimate exercise of police power for the general welfare of the people throughout the State at large, and is. a palpable attempt to regulate the internal affairs of cities, amounting to an unwarranted interference with their rights of local self-government under those principles declared upon that subject in People v. Hurlbut and Davidson v. Hine, supra, since recognized, emphasized, and enlarged in article 8 of our latest Constitution.

The judgment is affirmed.

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


author: Fellows, J.

text:
    VAN GORDER v. PACKARD MOTORCAR CO.
    1. Master and Servant — Workmen’s Compensation Law — Findings of Industrial Accident Board — Review.
    Under the workmen’s compensation law such portions of the findings of the industrial accident hoard as determine questions of fact, are final, if supported by competent testimony and no fraud is claimed, thus leaving open for review by the Supreme Court only such legal conclusions as were arrived at by the board.
    2. Same — Personal Injuries — Out of and in Course of Employment — Liability of Master.
    In order to render an employer responsible, under the workmen’s compensation act, there must be a concurrence of two elements, first, that the accident occurred in the course of the employment; and, second, that it arose out of it.

    3. Same — Injury Caused by Epileptic Pit — Out of Employment.
    A plumber and steam fitter, who was standing on a properly constructed scaffold, a few feet from the floor of a building, and fell to the floor in an epileptic fit and was killed, did not suffer an injury arising out of his employment so as to render the master liable for compensation under the workmen’s compensation act.
    Certiorari to Industrial Accident Board.
    Submitted January 10, 1917.
    (Docket No. 80.)
    Decided March 30, 1917.
    Mildred Van Gorder presented her claim for compensation against the Packard Motorcar Company for the death of her husband in respondent’s employ. From an order awarding compensation, defendant brings certiorari.-
    Reversed.

      Angelí, Bodman & Turner, for appellant.

      Douglas, Eaman & Barbour, for appellee.

       On construction and effect of workmen’s compensation act, generally, see comprehensive note in L. R. A. 1916A, 23; particularly on the question of injuries arising out of and in the course of employment, see pages 40 and 232 of above note.

   Fellows, J.

The findings of the industrial accident board in this case are as follows:

“On the 27th of May, 1915, Frank Van Gorder entered the employ of the Packard Motorcar Company as a steam fitter and plumber. Frank Van Gorder was standing upon a scaffold about six feet in height engaged in his work as steam fitter. He gave some orders to his helper, and a little later fell from the platform to the floor, and his skull was fractured by the fall. The fall and concussion caused his death about 24 hours later. The evidence as to the cause of the fall is very meager, being to a large extent opinion evidence. There is opinion evidence that it was an epileptic fit, dizziness, or a fainting spell. On the whole the weight of the evidence tends to show that epilepsy was the cause of the fall, and the board’ so finds the proximate cause of death was the concussion and fracture of the skull caused by the fall. This resulted because of the place where Van Gorder was working, viz., on a scaffold some distance above the floor. Injury by falling from the scaffold was one of the dangers incident to the employment, and the fall from the scaffold caused the death.”

Such portions of these findings as determine questions of fact are final, if supported by competent testimony, no fraud being claimed (Redfield v. Insurance Co., 183 Mich. 633 [150 N. W. 362]), leaving open for review by us such legal conclusions as were arrived at by the board, including the question of whether upon the facts found by the board the injury was accidental, and whether the same arose out of and in the course of the employment (Bell v. Hayes-Ionia Co., 192 Mich. 90 [158 N. W. 179]). No question is raised but that the findings concisely state the manner in which the accident occurred. Some question ■seems to be made as to the finding of epilepsy, but there is abundant testimony to sustain it. In addition to these findings, it should be stated that it was stipulated that deceased had only been in the employ of the defendant six hours, and it had no knowledge that he was subject to epileptic fits. There was undisputed testimony that a fracture of the skull might be and frequently is produced by one falling while walking on the street.

We therefore have before us the. case of a servant whose fall was brought about-by no strain, excitement, or overexertion in the performance of his service, no overheated or unhealthy condition of place of employment bringing on a temporary faintness, no misstep due to contributory negligence, no unsafe place in which to work, no negligence of a fellow servant, but a fall due to an epileptic fit and a resultant fracture of the skull, producing death.

We cannot agree with the board that the “proximate cause” of the death, as a test of negligence or responsibility and as that term is understood in the law, was the concussion and fracture of the skull. To so hold would be practically to announce the doctrine that the injury itself was its proximate cause. We have recently had occasion to consider this question in the case of Larskowski v. Railway, 193 Mich. 409 (159 N. W. 530), and there said:

“When the questions of negligence and responsibility are at issue, the finer distinctions of proximate and remote cause do not always suffice as the test of liability, and sometimes confuse. It might, and probably could, truthfully be claimed that the proximate cause of deceased’s death was his fall from the car, or, more directly, concussion of the brain, or cerebral hemorrhage, or some other yet more occult physiological injury, but such conclusions, though in one.aspect well founded, manifestly suggest no test for determining culpability.”

It is within the province of the court and its duty to determine whether, upon the facts found, the injury arose out of and in the course of the employment. There is no question but that decedent received his' injury in the course of the employment. We therefore pass to the controlling question in the case, viz.: Did the injury arise out of the employment? Was it an incident of the employment, due to it, or proceeding from it? Was there a causal connection between the injury and the employment?

The case has been ably briefed, and the cases cited have been selected with great care. The case most relied upon by the claimant is that of Wilkes (or Wicks) v. Dowell & Co., 7 W. C. C. 14, decided in 1905. In this case the facts were as follows: The workman was employed in unloading coal from a ship by means of a bucket attached to a hydraulic crane. His duty was to stand upon a stage, which was made so that he could look down the hold, and to give signals to the craneman and to guide, by means of a long staff with a hook, the bucket which was raised from and lowered into the hold by the crane. He was subject to fits, and while standing on the stage engaged in his work he was seized with a fit and fell into the hold and was severely injured. The county court judge held that the injuries sustained by the workman were not caused by an accident arising out of his employment. Upon review this holding was reversed. The English statute contains the same provision as does ours, and we are unable to distinguish this case in principle from the instant case or the two later English cases to which we shall refer, with the one exception which we do not regard as controlling, but which might have been so regarded by the English court, as we shall presently see, and that is the fact that the workman in the Wicks Case was in a place of extreme hazard, styled by Collins, M. R., as “necessary proximity to the precipice.” If this case should be followed the board was correct. But the force of this case is materially minimized by two later holdings of the English court which are incompatible with it, Butler v. Burton-On-Trent Union [1912], 5 B. W. C. C. 355, and Nash v. The Rangatira [1914], 3 K. B. 978. In the Butler Case the deceased was master of a workhouse. While sitting at the top of some stairs leading up to his private rooms he was seized with a fit of coughing which made him giddy. He fell down the stairs, receiving an injury resulting in death. He was at the time suffering from tubercular trouble. It was held that the injury did not arise out of his employment, and that there was no liability, although it arose while'deceased was in the course of the employment; that both must concur. The Nash Case arose under the following circumstances: Deceased went on shore with leave while the Rangatira was lying by the quay. He returned intoxicated about 11:15 p. m. and attempted to mount the gangway, which was properly constructed, and when about halfway up let go with one hand, and, swinging around, fell over the other rope onto the quay, receiving injuries from which he died the next day. It was held that the man had returned and was in the sphere or ambit of his employment, and therefore in the course of his employment, but that the accident was caused by his condition, and hence the injury did not arise out of his employment. The Butler and Nash Cases will therefore be seen not to be in accord with the earlier case of Wicks v. Dowell & Co., supra. In the Wicks Case the deceased fell in an epileptic fit; in the Butler Case the deceased fell in a fit of coughing producing giddiness; in the Nash Case the deceased fell while his mental faculties were dulled by intoxication. Upon principle we cannot distinguish these cases, and therefore feel that the strength of the Wicks Case is materially lessened, if not overruled, by the two later cases.

Counsel for claimant also cites Fennah v. Railway, 4 B. W. C. C. 440. In this case deceased, an engine driver, was tightening a nut in the engine. He had one knee on the engine frame and one foot on the platform. No one saw him fall, but he was next seen on the permanent way between the engine and platform in agony, and died within five minutes. While he had on at least three different occasions collapsed in a faint and lain unconscious for some minutes, he had been examined by the company’s physician a few days before and presumably found physically fit. It was held that the injury arose out of the employment and the company was liable, but the court expressly stated:

“Here the fall was caused by the work he was legitimately employed in, and the fall to the permanent way was a great shock, and would, Dr. Coen says, be sufficient to cause death.”

Counsel also cites Clover, Clayton & Co. v. Hughes, 3 B. W. C. C. 275. This case belongs to that class of cases of which our case of Schroetke v. Jackson-Church Co., 193 Mich. 616 (160 N. W. 383), is one, and we there cited and considered this case and repetition here is unnecessary.

Driscoll v. Express Co., 73 Massachusetts. Industrial Accident Board Cases, is based entirely on the Wicks Case, and we are unable to find that it has been reviewed by the Massachusetts courts.

The opinion of the solicitor of the department of labor in Re Claim E. B. Clements (Op. S. Dept. of Labor, 190) had under consideration the Federal act, which does not contain' the provision of the Michigan act now under consideration, and this was clearly pointed out in the opinion. The question there was whether the injury was received “in the course of employment,” and there, as well as here, it was held that it was. But our statute requires, something further; the injury must arise “out of”, the employment, and it is not sufficient that it arose during the employment, if it arose out of something else. We have examined with care the other cases cited by counsel, those from other jurisdictions being cases dealing with policies of accident insurance. By analogy they apply, but we do not regard them as persuasive here.

In addition to the authorities cited by counsel, we should consider the Rhode Island case of Carroll v. Stables Co., 38 R. I. 421 (96 Atl. 208, L. R. A. 1916D, 154). In this case Carroll was a hack driver in the employ of respondent, which had elected to become subject to the workmen’s compensation act. While so engaged he received an injury by falling from his seat on the hack driven by him. There was evidence that the fall was due to dizziness or unconsciousness induced by a disease from which he was suffering. The court cites with approval the Wicks Case, and must be taken on the whole as sustaining the claimant’s position, but the court also finds evidence in the case of a lurch of the hack Carroll was driving, and said:

“There is at least as much evidence that the fall was due to an unexpected and accidental lurch of the hack into the gutter and towards or against the curbstone as that it was due to dizziness or unconsciousness induced by disease. It seems to this court that the decision and the decree appealed from embody a conclusive finding of fact that dizziness or unconsciousness was not the sole cause of the fall, and that there •was evidence from which the justice could find, as he did, that the accident arose out of the employment.”

We have already referred to the Butler and Nash Cases, in which the English court reach a result opposed to the Wicks Case. An examination of the English cases demonstrates that these two cases find support in the great weight of authority in that country. The English court in several cases lays great stress on the fact that the injury must arise out of the employment.

In the case of Frith v. Louisianan, 5 B. W. C. C. 410, which was cited with approval in the Nash Case, the deceased met his death while in the ambit of his employment, and therefore met one of the conditions of the statute, but his mind was wholly incapacitated, due to intoxication. Cozens-Hardy, M. R., who sat in the Wicks Case, in deciding the case asks the question :

“Assume that he is in the course of his employment, the question then is: Was this an injury by accident arising out of the employment, or an accident arising solely by reason of the intoxication of this man?”

After considering it he answers:

“The injury was not due to an accident arising out of his employment, but due solely to hopeless drunkenness.”

Hawkins v. Coal Co., 4 B. W. C. C. 178, was a case where deceased met his death while in the employ of the coal company. He had worked in the morning helping to push empty trucks up an incline and tumble them off the rails and had then begun the work of shaping props. While engaged at the latter work he was taken ill and had to stop. After resting he went home. He died the same day of angina pectoris. His heart had for a long time been in a bad condition. The evidence left the question of whether the death was due to a previous diseased condition or causes arising out of the employment conjectural, and it was held that the dependents could not recover. To the same effect is Barnabas v. Colliery Co., 4 B. W. C. C. 119.

Rodger v. School Board, 5 B. W. C. C. 547, was a case where the school janitor was sent to carry a message about a mile and a half away. The day was hot, and on the return he was seen to stop, and, facing the wall of a house, leaned his hands against it, then fell backwards, striking his head violently on a stone pavement, receiving injuries from which he later died. It must be apparent from this statement that he was seized with a temporary faintness. He was at the time in the course of his employment, but it was held that the injury did not arise out of his employment, and therefore there was no liability. The Lord President takes occasion to refer to the Wicks Case as belonging to that class of cases where the place of labor is “unusually dangerous.” Further authority under the English workmen’s compensation acts, which are similar to ours, for the proposition that the injury must arise out of the employment, and not. from some other cause, even though in the course of employment, will be found in Sheldon v. Needham, 7 B. W. C. C. 471; Murphy & Sandwith v. Cooney, 7 B. W. C. C. 962; Thackway v. Connelly & Sons, 3 B. W. C. C. 37.

In the instant case the deceased was performing the ordinary services of his trade, that of a plumber and steam fitter. He was standing on a scaffold a few feet from the floor. There is no claim that the scaffold was improperly constructed or in any way unsuitable for the service. Due to no conditions arising out of his employment, but solely to his predisposition to epilepsy, of which his employer had no notice, he fell from the scaffold, receiving an injury from which death resulted. The fall was caused and caused only by the epileptic fit. The fit was the direct and only cause of his injury. We do not think it would be seriously contended that had he fallen in an epileptic fit while standing on the floor and received the injury he did that the injury arose out of the employment, and that the defendant was liable* Collins v. Gas Co., 171 App. Div. 381 (156 N. Y. Supp. 957). The height from which he fell, here only a short distance, could not change the liability for the injury. The most that can be said is that the height from which deceased fell may have aggravated the extent of the injury. A person falling a greater distance may be more seriously injured than one falling a lesser distance; but it does not change the question of responsibility, of liability. The distance of the fall might contribute to the extent of the injury, but it was not a contributory cause to the fall. When the deceased, was seized with the epileptic fit he would have fallen, no matter where he was, and the employer cannot be held responsible because that unfortunate seizure occurred when the workman was on a scaffold, a few feet from the floor.

Our own cases clearly recognize the rule that in order to render the employer responsible there must be-a concurrence of the two elements, viz.: (1) That the accident occurred in the course of the employment; and (2) that it arose out of it. If it did not arise out of the employment, but arose out of something else, the employer is not liable. McCoy v. Screw Co., 180 Mich. 454 (147 N. W. 572, L. R. A. 1916A, 323); Klawinski v. Railway Co., 185 Mich. 643 (152 N. W. 213, L. R. A. 1916A, 342). We must adhere to this construction of the statute, if any force or effect be given to the expression arising “out of” the employment. The legislature has so written the law and adopted the language of the English statute with the construction there placed upon it.

This unfortunate man fell to his death when in an epileptic fit, which did not arise out of his employment and for which his employer was not responsible. We are therefore constrained to reverse the case.

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


text:
    SCHNEIDER v. CITY OF ANN ARBOR.
    1. Contracts — Performance—Estimate of Amount.
    One contracting to furnish all the labor or material which . may be required for a given purpose is not relieved of the obligation of his contract because the amount exceeds or falls short of the estimate.
    2. Municipal Corporations — Sewer Contract — Change of Plans —Amount of Excavating — Warranty.
    The exhibition to a contractor, before making a bid for sewer excavation work, of original blueprints prepared by a city engineer, does not constitute a warranty that the exact amount of excavation there delineated would be done in the actual carrying on of the work, where the contractor is to be paid for whatever excavation is done in each particular class at price named in such class, and the contract itself contemplates that there may be changes in the plans and work done.
    3. Same — Determination by City Engineer — Conclusiveness—' Fraud.
    The provisions of a sewer excavation contract providing that all estimates, measurements, and determinations of quantity shall be made by the city engineer, and that his estimates and measurements shall be final and conclusive between the parties, are binding in the absence of fraud or bad faith.
    4. Same — Extras—Fraud—Burden of Proof — Evidence.
    In an action by a contractor against a city to recover for extra work done and material furnished on a sewer excavation contract, held, that the burden of proof was upon plaintiff to show fraud or bad faith on the part of the engineer in making his estimates and computations.
    5. Same — Board of Public Works — Powers.
    The board of public works of the city of Ann Arbor' is not the governing body of the city, but is a board of limited powers.
    6. Same — Public Officials — Powers—Notice.
    Persons dealing with public officials must take notice of their powers.

      7. Same — Sewer Contract — Written Order — Extras.
    Where a contract for sewer excavation work with a city provided that a written order by the board of public works for extra work must be obtained, there could be no recovery for extra work and material except by compliance with such provisions.
    8. Customs and Usages — Express Contract — Evidence—Admissibility.
    Evidence of usage and custom is inadmissible to operate against an express contract.
    9. Municipal Corporations — Sewer Contract — Extras—Written Order — Waiver.
    There is no waiver of the provisions of a contract for sewer excavation work requiring a written order by the board of public works for the doing of extra work before a claim for such work shall be allowed, where, when the contractor was directed to do the work involved, he asked for a written order from the board on the ground that it was an extra, and the city engineer insisted that it was within the specifications.
    10. Same — Sewer Contract — Breach—Extras.
    There is no breach of a sewer excavation contract by a city so as to authorize a recovery by a contractor for an extra amount of excavation and refilling by gravel necessitated by seepage of water into trenches dug by him, where the city simply delayed 20 or 30 minutes in laying the pipe in the trenches and it was not contemplated by the contract that the pipe should be laid within the distance the contractor was required to keep in advance of pipe-laying and it was impossible to lay the pipe within such distance without seepage.
    Case-made from Washtenaw; Kinne, J.
    Submitted January 11, 1917.
    (Docket No. 101.)
    Decided March 30, 1917.
    Assumpsit by Emanuel L. Schneider against the city of Ann Arbor for a balance due under a sewer contract. Judgment for defendant :on a directed verdict. Plaintiff brings case-made.
    Affirmed.

      Arthur Brown (E. B. Sunderland, of counsel), for appellant.

      Frank B. Devine, for appellee.
   Fellows, J.

In the summer of 1918 the defendant city contemplated the construction of two sewers in districts Nos. 56 and 60. On August 20th plaintiff submitted a proposal in which he offered to do all the excavation and back-filling at the following prices per lineal foot: Class 1, for trenches less than-6 feet deep, 35 cents; class 2, for trenches between 6 to 8 feet deep, 50 cents; class 3, for trenches between 8 and 10 feet deep, 80 cents; class 4, for trenches between 10 and 12 feet deep, 95 cents. On August 28th, he entered into a contract with the city to do this work at the figures named. There are many provisions and details in the contract. Those deemed important to an understanding of the case will be given as we proceed. After the work was completed he was given a warrant for the sum of $4,039.70, the amount certified by the engineer. Later he filed his claim against the city for an additional sum claimed by him to be due, and upon refusal to pay brought this suit. The trial judge directed a verdict for the defendant, __and the case comes to this court for review on case-made.

The plaintiff insists upon a recovery upon two characters of claims which are covered by three special counts in his declaration and which we shall discuss in their order. Under the first count he claims the right to recover $688.45 beyond what he has already received for the excavation and back-filling performed by him pursuant to the terms of the contract. To sustain a recovery on this count plaintiff produced the blueprints prepared by the city engineer showing the proposed plans and profiles of district 56, which he claims he examined before making his bid; also another set of blueprints prepared by the engineer, showing the elevations and levels of the sewer as actually constructed by plaintiff. The city engineer; who was called by plaintiff to identify these blueprints, on cross-examination, testified that the set of blueprints which plaintiff examined before he made his bid was prepared to give the board of public works and common council an idea of what the sewer would cost; that the elevation of the street, represented by a heavy line, was' taken in the center, although the sewer is quite certain to be placed several feet one side or the other; that the sewers are actually constructed from pins set on one side or the other of the trench, and the constructor measures down from these pins to get the levels for the bottom of the trench. These pins are usually set on the high side of the trench. Testimony was also given by plaintiff that before he made his bid the city engineer informed him that the heavy line on the profile represented the surface of the ground at the center of the trench, and he so used it in making his general estimates. It also appeared that the city in all cases of sewer construction prepared “cut sheets” showing the actual depth measured down from the pins or stakes, which were placed along the side of the trench every 25 feet, and plaintiff was always furnished copies of these cut sheets. Plaintiff says he always understood he settled with the city in substantial accordance with the profiles, although he knew that the city engineer used the cut sheets in checking up the amount due under the contract. He also testifies that the grade pins were often placed below the level of the ground at the line of the trench, but that they were placed where he wanted them and were changed at his request. He gives evidence tending to show that, taking the original blueprints, which he saw before he made his bid, there was in class 1, 308 lineal feet of excavation; class 2, 3,193.07 lineal feet; class 3, 3,496.60 lineal feet, and in class 4, 256 lineal feet. The changes in the levels actually made in the sewers altered the amounts of excavation in the respective classes as follows: Class 1, 83 lineal feet more; class 2, 843.93 lineal feet more; class 3, 989.9 lineal feet less; and class 4, 28 lineal feet less. Plaintiff then proved that the average depth of excavation in the classes as shown by the original blueprints differs from the average depth as shown on the later ones, and showed the. amount of such difference, and on the basis of these averages, taking the original set of blueprints as exactly correct, he would have been required to have excavated under the terms of his contract 148,652.98 cubic feet, and at the price per lineal foot agreed upon in the various classes he would have received 3.19 cents per cubic foot; that, taking 3.19 cents per cubic foot as the basis of his compensation, and taking the number .of cubic feet actually excavated under the changed levels, there would be due him $4,601.07 for excavating and back-filling, from which should be deducted the amount paid, and the balance would be due him on this count.

It is difficult to follow plaintiff through this maze of computations, impossible to follow his conclusions arrived therefrom, that this contract, which expressly provides for payment for excavations per lineal foot, can, by any system of mathematical calculations, be transferred into or construed to be a contract to pay for excavations at 3.19 cents per cubic foot or any other sum per cubic foot, or that cubic foot excavation can be used to measure his compensation or his damages in this action. It is urged in the brief that plaintiff made very low prices in one of the classes expecting to make up the deficiency in other classes, and that he could afford to do the work in one class without a profit when he could make up in another class. The system of computations used' by plaintiff as a basis for his bid is unimportant. The fact that is important is that he contracted to do the excavating in this sewer district at certain figures per lineal foot, and he contracted to do all of it, whether it be much or little. One contracting to furnish all the labor or material which may be required for a given purpose is not relieved of the obligation of his contract because the amount exceeds or falls short of the estimates. Wolff v. Wells Fargo & Co., 115 Fed. 32 (52 C. C. A. 626); Callmeyer v. City of New York, 83 N. Y. 116.

The exhibition to the plaintiff before he bid of the original blueprints prepared by the city engineer did not constitute a warranty that the exact amount of excavation there delineated would be done in the actual carrying on of the work. Whatever excavating plaintiff did in each particular class was to be paid for at the price named in that class; it was not a lump sum bid. The contract itself contemplated that there would be changes in the plans and work done. It was agreed therein:

“Should any change or alteration be made in the plans of said work or material be required whereby a diminution of the work to be done, or material to be furnished shall be occasioned, it is agreed by the parties hereto that a pro rata reduction from the moneys which shall or may be due or become due under this contract shall be made in accordance with the schedule of prices for such extra work and material in the proposal for the construction of such sewer work.”

It was also provided in the contract:

“The sewer shall be located on the line shown on the plan of the work. This line whenever practicable, will be on the center line of the street. The board reserves the right to remove the line of sewer to the right or left whenever it shall deem a change of line desirable.”

And the following was also agreed to:

“The board of public works shall have the right to make alterations in the line, grade, plan, form, or quality of the work herein contemplated, either before or after the commencement of the work. If such change diminish the quantity of the work to be done, it shall not constitute a claim for damages, or for anticipated profits on the work dispensed with. If the change increases the amount of work to be done, such increase shall be paid for according to the work actually done at the price or prices stipulated for such work in the contract.”

Clearly this contract permitted the city to vary its plans, and upon such changes being made the plaintiff was to be compensated for the work actually done at the price agreed upon per lineal foot.

We do not understand that the plaintiff claims that the figures of the engineer as to the amount of excavation are inaccurate if the cut sheets are accurate and are a true basis for said figures. What we understand to be the claim is that the grade stakes were not sufficiently accurately set as to insure a correct result, either on the cut sheets or in the computations. The city engineer testified that these pins are usually set on the high side of the trench. Plaintiff says they were often placed below the level of the ground at the line of the trench, but they were placed where he wanted them and were changed at his request. Turning again to the contract, we find:

“The trench shall be dug by measurement from the witness stakes on the surface.
“The contractor will be furnished with the approximate depth of cutting before the digging is begun. The grade and line of the invert of the pipe will also be given at every twenty-five feet at the bottom of the trench on stakes to be furnished and set by the engineer.”

This was what plaintiff contracted for, so far as measurements were concerned. But a complete answer to the claim of plaintiff that the engineer’s figures should not be taken is found in the following provision of the contract:

“It is further agreed that all estimates, measurements, and determinations of quantities shall be made by the said city engineer and that his estimates and measurements shall be final and conclusive between the parties.”

There is no evidence or claim of fraud or bad faith on the part of the city engineer in making his estimates and computation. The parties to this contract agreed upon him to finally determine as between them the quantities for which payment should be made by one, and received by the other. He was made by their agreement the final arbitrator, and his action cannot be reviewed by the courts, in the absence of fraud or bad faith. Such provisions are designed to prevent the possibility of disputes arising between the parties, and to avoid expensive and frequently ruinous litigation, and are uniformly upheld. Lamson v. City of Marshall, 183 Mich. 250 (95 N. W. 78); Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207); Kihlberg v. United States, 97 U. S. 398; Rens v. City of Grand Rapids, 73 Mich. 237 (41 N. W. 263). The burden is on the plaintiff to impeach the determination of the engineer if he claims fraud or bad faith. There is no evidence of either. The determination of the engineer is therefore final.

Under the second and third counts plaintiff seeks to recover for what is treated therein as extra work, each count referring to a separate sewer district, but the claim as to both districts is the same. The extra work is claimed to consist of excavating to a greater depth than required by the contract and filling in with gravel. This was required by the seepage of water into the trench. We shall have occasion to detail it at greater length hereafter. Plaintiff gave testimony tending to show that he was required to do this by the engineer, that when directed to do the work he requested a written order from the board and was refused by the engineer, on the grounds that such work was required by the specifications. The contract contained the following provisions:

“Whenever ordered by the board in writing, the contractor shall excavate to such depth below grade as may be directed by the board, and the trench then brought to grade with such materials as the board may deem proper.
“The extra work to be paid for upon the engineer’s estimate, but should the contractor excavate below the grade without written orders, he will be required to fill the excess of excavation with such proper materials as the board may direct, and to be done at his, the contractor’s, own expense. * * *
“The contractor shall also do such extra work in connection with his contract as the board may specially direct in writing, and in a first-class manner, but no claim for extra work shall be allowed unless the same was done in pursuance of a written order as aforesaid to do the work as such, and the claim presented at the first estimate after the work was done. * * *
• “Should any dispute arise respecting the true meaning of the drawings, specifications, plans, and profiles on any point, the decision of the city engineer of the city of Ann Arbor shall be final and conclusive upon the parties thereto.”

The board of public works of the city of Ann Arbor is not the governing body of the city; it is a board of limited powers. Under the charter (section 136 of Act No. '331, Local Acts of 1889) it is provided:

“Said board of public works shall, after the said public improvements have been first duly ordered by the common council, have supervision and charge of * :!: * the construction, repair, and extension of all the main and lateral sewers and drains * * * and shall, in addition thereto, exercise such other powers and perform such other duties in the superintendence, construction and care of public works and improvements as the common council may from time to time by ordinance direct.”

Section 137 of the same act contains the following provision:

“And no contracts shall be let by the said board until duly authorized by the common council; and no expenditures for any purpose exceeding twenty-five dollars shall be made by the said board, except by consent of the common council.”

It is fundamental that those dealing with public officials must take notice of their powers. McBrian v. City of Grand Rapids, 56 Mich. 95, 108 (22 N. W. 206); Campau v. City of Detroit, 106 Mich. 414, 418 (64 N. W. 336).

The provisions of this contract requiring the board’s order to be in writing were salutary ones and are frequently ingrafted in the governing law of municipalities. It was said in Condon v. City of Jersey City, 43 N. J. Law, 452:

“The contract in the case in hand expressly provided that all alterations or additions should be specified in writing and approved by the committee on public buildings. Neither the alterations or additions, which constitute part of the extra work, nor the work alleged to have been done in consequence of mistake on the part of the architect were specified in writing. The above-mentioned provision in the contract, as well as that of the charter, was designed for the protection of the city, and they are safeguards which public policy requires should be strictly observed.”

In the case of City of Huntington v. Force, 152 Ind. 368 (53 N. E. 443), it is said:

“It is further objected by appellant that the first and third paragraphs of the complaint are bad, because they do not show that the extra work and materials were performed and furnished upon orders in writing signed by the contractor and engineer, and approved by the common council, as required by the terms of the contracts, and the specifications attached thereto. _ This objection is well founded. We find nothing in the contracts which conferred on the city engineer authority to alter the plans and specifications without the approval of the common council.”

The case of McManus v. City of Philadelphia, 201 Pa. 619 (51 Atl. 320), had under consideration a provision of the charter of the city of Philadelphia requiring that municipal contracts be in writing. It was said:

“The very reason, too, of the law is, that municipal corporations should not be made answerable for money, on sentiment, but only for contract liability under the law. A strict adherence to this rule is the only protection which such corporations can invoke.”

In the case of Cashman v. City of Boston, 190 Mass. 215 (76 N. E. 671), the court had under consideration a similar question, and it was said:

“The mayor was the only officer authorized to waive the noncompliance with the provisions of the fourth article, and he could do that only by an approval in writing. There are obvious reasons why claims for extra labor or material should be promptly and clearly presented by the contractor, and that the waiver of such a provision should not be left to any other than the chief executive officer of the city. Such provisions are intended to protect the public treasury, are easily complied with by the contractor, are reasonable in their nature, and are to be enforced.”

The language of this court, speaking through Mr. Justice Montgomery, in the case of Campau v. City of Detroit, supra, is quite in point. It was there said:

“In this case the plaintiff had but one contract with the city, and that was the one awarded to him after competitive bidding. If the demand of the superintendent was not justified by the contract, he had the right to refuse to proceed, but had not the right to demand compensation other than that provided by the contract. He was bound to know that neither the superintendent nor the board had authority to bind the city by any new contract with him, or by any substantial deviation from the contract, which he had executed. If he proceeded, he must be held bound by the terms of the contract, and limited to the compensation provided thereby. Any other rule would open !the door in every case to an evasion of the statute; for, when a substantial departure is made, if it may be lawfully made by the board and bind the city, the compensation provided by the contract is no longer controlling, and a deviation which a jury may say is substantial would entitle the contractor, in every case, to recover on the quantum, meruit .”

For further cases bearing on the question under consideration, see Chittenden v. City of Lansing, 120 Mich. 589 (79 N. W. 797); McBrian v. City of Grand Rapids, supra; Ely v. City of Grand Rapids, 84 Mich. 336 (47 N. W. 447); McCurdy v. County of Shiawassee, 154 Mich. 550 (118 N. W. 625).

We conclude, therefore, that the parties were bound by the terms of this contract, and that plaintiff could not recover for extra work and material, except pursuant to its terms and in the manner therein provided. Nor do we think there is any evidence in the case to submit to the jury the question of whether the provisions as to the written order were waived. It is true he gave evidence tending to show that the board of public works delegated the power to change the contracts to the city engineer, and that it was the custom to permit the engineer to make such changes. It was said in Burnham v. City of Milwaukee, 100 Wis. 55, 73 (75 N. W. 1014-1020):

“As before suggested, the referee seemed to appreciate the necessity of making some finding that would seem to nullify the positive requirements of the contract. He does not find that there is any waiver of this condition except as he finds the custom, and he attempts to overturn a positive contract by admitting evidence of the custom and making a finding of its existence. The rule is well-nigh universal that usage and custom are never allowed to operate against express contracts.”

But, further, when, the plaintiff was directed to do the work involved here, he asked for a written order of the board, on the ground that it was an. extra. The city engineer insisted that it was within the specifications. A waiver is:

“The act of waiving or not insisting_ on some right, claim, or privilege; a foregoing or giving up of some advantage which but for such waiver the party would have enjoyed.” 40 Cyc. p. 252.

Surely the city did not waive its rights by insisting upon them.

Finally it is urged by the plaintiff that he is entitled to recover here for the claimed extra work and material as a measure of damages for the, breach of the contract by the defendant. We' have already stated that it is the plaintiff’s claim that the extra amount of excavation and the refilling by gravel was occasioned by seepage of water into the trenches dug by him. He gave testimony tending to show that immediately after the machine used in excavation had completed its work the trench was in- suitable condition to lay tile before the water got in by 'seepage; that it would be practicable to lay the tile within 6 or 8 feet of the; machine, and if the laying of tile had been so done the water would not have gotten in; that the water came in within 20 or 30 minutes; that when the tile layers were back 30 to 50 feet from the machine, as they often were, the water got in and “made a regular mud of it,” necessitating the putting in of the false bottom. We must again turn to the contract. The provisions pertinent to this inquiry are as follows:

“The contractor shall keep the trenches free from water during the progress of the work, as no pipe or masonry shall be laid in water. * * *
“All the pipes must be kept thoroughly clean and dry, and no water will be allowed to flow through them during the construction of the sewers. * * *
“All excavations shall be by open cut from the surface, and all trenches shall be excavated to grade and thrown out upon the bank or surface of the street for a distance of not less than 80 feet in advance of the pipe laying, and no part of this excavating nor any of the back-filling shall be done by the pipe layer. * * *
“In no case, without special permission by the board, shall the excavation of trenches be more than 350 feet in advance of the completed sewer. * * *
“Said wages [of inspectors] will be paid by the city for all inspection that is required at the rate of 150 feet of completed sewer for each and every ten hours’ work done thereon. * * *
“No compensation for trenching done in excess of the board’s order will be allowed. * * *
“No charge shall be made by the contractor for hindrances or delays from any cause during the progress of the work embraced in the contract.”

It will be noted that this contract nowhere contemplated that the pipe laying should “immediately” follow the machine. The trenching was to be done “not less than 30 feet in advance of the pipe laying.” Taking all these provisions of the contract, can it be said that it was contemplated that the pipe layer should not be more than six or eight feet behind the machine at all times? The answer is found in the contract. Nor would the delay of 20 or 30 minutes in laying the pipe be such a delay as would render the city liable for a breach of the terms of the contract or justify a judgment against it. It is unfortunate that in a portion of this work (less than one-quarter) the plaintiff encountered moist conditions in the soil, but the defendant had not guaranteed the conditions that might be found in the earth. The parties to this contract had dealt at arm’s length. They had put their engagements in writing. By that writing they are bound. There has been no appropriation of plaintiff's property under a void contract justifying recovery upon grounds equitable in their nature; no conduct on the part of the city which estops it from insisting upon its legal rights under the contract. In fact, the declaration is not upon the common counts, nor is a recovery sought on the quantum meruit; the declaration counts on the contract and the contract alone.

No recovery thereunder being justified on the facts proven, the judgment is affirmed, with costs.

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


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    FUDAY v. GILL.
    Brokers — Commissions—Compensation— Contingent Fee — Procuring Purchaser.
    A contract for the sale of land hy a broker on commission, providing that the owner will be content with a certain sum for the farm and that all received over shall go to the broker, and that if a good sale is made a note owed by the broker will be canceled, must be construed as not providing for the deferring of payment of commissions nor for a fee contingent upon full payment by the purchaser, who agrees to pay a certain sum down by deeding property and pay the balance in annual instalments, so as to deprive the broker of his right- to a commission upon the furnishing of a satisfactory purchaser at a price exceeding the minimum sum stated, although the purchaser forfeits the contract after making the cash payment and the first annual payment.

      Error to Charlevoix; Mayne, J.
    Submitted January 9, 1917.
    (Docket No. 61.)
    Decided March 30, 1917.
    Assumpsit in justice’s court by Bert Fuday against Alex Gill for broker’s commissions. From a judgment for plaintiff for an insufficient amount, plaintiff appealed to the circuit court. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Affirmed.

      Harris & Ruegsegger, for appellant.

      M. E. Silverstein, for appellee.

       On broker’s right to commission where purchaser procured by him is financially unable to perform his contract, see note in 20 L. R. A. (N. S.) 1168.
      As to performance by a real estate broker of his contract to find a purchaser or effect an exchange of his principal’s property, see note in 44 L. R. A. 593.

   Fellows, J.

There is no dispute of material facts in this case. In 1910 defendant had a farm of 160 acres of land located in Charlevoix county which he desired to dispose of. He was then in Missouri, and negotiated with plaintiff to sell the farm for him. His price on the farm was $2,000. The negotiations were conducted by means of correspondence. On July 22, 1910, defendant wrote plaintiff from Forest City, Mo., telling him what personal property would go with the farm, and saying, so far as material here:

“Now about the extra price you say you will add is all right, all I ask is the $2,000; what you put in the contract over and above my price will go to you of course, I will do as I agreed, if you make a good deal I will give you back your note so I would not strike him too high or we might lose the sale.”

Defendant at this time held plaintiff’s note for $45. In the fall plaintiff procured a purchaser for the farm in the person of one Chamberlin at $2,200, $750 to be paid down in the form of a house and lot and the balance to be paid in annual payments of $100, with interest at 7 per cent. This was reported to defendant, who wrote plaintiff to “go ahead and make the deal,” and instructed plaintiff to have the contract drawn and forwarded to him to execute; plaintiff did so. There were some minor changes suggested and made, and on October 24th, defendant wrote plaintiff:

“Friend Bert: We received your letter today and also contracts and find them all O. K. as far as I can see. Have signed them and will mail them back to you in the morning. I think the contract is gilt edge.”

The'contract was executed by defendant and wife and Chamberlin and wife, and upon its execution Chamberlin and wife deeded the house and lot to defendant and wife and took possession of the farm. The first year Chamberlin made his payment with interest, but the. second year he defaulted, and defendant declared the contract forfeited and repossessed himself of the premises. He did this without notice to plaintiff. Soon after the deal was closed defendant turned over to plaintiff his note of $45, and a year later paid him $14, which both parties seem to have regarded as interest, the plaintiff treating it as interest on the account due him for his .commission, claiming that defendant agreed to pay the $200, but put him off from time to time; defendant claims that he treated it as interest on plaintiff’s share of the contract. It was conceded in the court below that the case was one for the court, both parties moving for a directed verdict. The court directed a verdict for the plaintiff, and defendant brings the case here.

Briefly stated, it is the contention of the defendant here that we should construe this contract to the following effect: That it provides for a delivery of plaintiff’s note of $45 on a sale for $2,000, but that beyond that it provides for a contingent fee dependent upon full payment of the $2,000 by Chamberlin before plaintiff’s right of action accrued; that plaintiff might have an interest in the contract, but not a present cause of action against defendant; that it was not an actual sale to Chamberlin, but only a contract of sale which terminated with Chamberlin’s default. This is elaborated somewhat in defendant’s brief, but we have stated the gist of it.

Defendant cites and relies upon the following cases: Fountain Valley Land, etc., Co. v. Pearsons, 201 Fed. 324 (119 C. C. A. 562); Glade v. Ford, 131 Mo. App. 164 (111 S. W. 135), and Marx v. Otto, 117 Mich. 510 (76 N. W. 7). The first of these cases gives color to defendant’s claim. In the second of these cases the broker had entered into an express agreement to defer payment of his commission until the purchasers had paid the notes given for the purchase price. The last of these cases (Marx v. Otto) is cited and relied upon by both parties. An examination of the record and briefs in that case discloses that the defendant there made the same claim as is made by the defendant in the instant case, that the trial court sustained the contention of the defendant and directed a verdict for the defendant for the amount of his set-off. The plaintiff in that case, while apparently conceding that there was some evidence tending to show that the sale was to be for cash, and, if not for cash, that he was to wait until payment before demanding his commission, insisted that there was evidence tending to show a waiver of a cash sale, and urged that upon all the evidence and circumstances the case was. one for a jury. This court declined to hold as a matter of law that the contention of the defendant was correct, and held that under the facts disclosed in the record the question was one for the jury.

In the instant case the sale was not for cash, plaintiff procured for defendant a satisfactory purchaser of his farm upon terms and under a contract, approved and executed by him, and which he pronounced “gilt edge.” A broker becomes entitled to his commission whenever he procures, for his principal a party with whom he is satisfied and who actually contracts for the purchase of the property at a price acceptable to the owner (Hubbard v. Letter, 145 Mich. 387 [108 N. W. 735]; McDonald v. Ortman, 88 Mich. 645 [50 N. W. 644]; Whitaker v. Engle, 111 Mich. 205 [69 N. W. 493]; Keys v. Johnson, 68 Pa. 42); and he is not deprived of the right to his commission by the fact that the purchaser fails to carry out his contract (19 Cyc. p. 270); nor is he bound to wait until all deferred payments were paid and all agreements on the part of the purchaser complied with (Morgan v. Keller, 194 Mo. 663, 680 [92 S. W. 75]), and it is necessary to show an express agreement to defer payment of his commission to defeat his right of recovery after performance (Hodgkins v. Mead, 8 N. Y. Supp. 854, affirmed without opinion, 130 N. Y. 676 [29 N. E. 1035]).

We think that in the instant case there is nothing in this contract that has any tendency to defer, or that should be construed to defer, the payment of plaintiffs commission until the purchase price had been paid in full, or for a period of 14 years, which is the time fixed in the Chamberlin contract for its performance. The fact that the amount of plaintiff’s compensation was measured by the excess above defendant’s price does not deprive it of its character of commission. It is no more of a contingent fee than is the ordinary contract with real estate brokers. Such contracts are always contingent in a sense, dependent upon performance by the broker. Plaintiff had performed his contract; he had earned his commission; it was due at the time suit was brought. The court was right in directing a verdict for him.

The judgment is affirmed.

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


text:
    ARTHUR v. McCALLUM.
    1. Partnership — Compensation for Services of Partner — Contracts — Presumptions.
    In the absence of agreement, one partner cannot collect pay for services performed for the partnership, as each, partner is presumed to devote his time, skill, and endeavor to the partnership, business and this without compensation other than his share of the profits.

    2. Same — Determining Issue.
    In determining whether an agreement for payment for services rendered a partnership by a partner exists, the court may take into consideration all the surrounding facts and circumstances of the case, the course of dealing between the partners, the reasonableness or unreasonableness of the claim made and the probabilities arising out of the conduct of the business.
    3. Same — Accounting—Compensation for Services of Partner— Contracts — Evidence.
    In an action by one partner for a partnership accounting and to recover for services rendered the partnership, where it appeared that an agreement for compensation was made; that subsequently the firm moved into premises owned by one of the partners, and later into another building; that plaintiff devoted all of his time to the business, and that the firm was very prosperous, evidence held, sufficient to show that the contract was modified by an arrangement whereby plaintiff was to receive no salary in consideration of the furnishing of rent, light, and heat free to the partnership only while in defendant’s building, and that the original agreement was restored upon leaving defendant’s building.
    4. Same — Accounting—Money Advanced by Partner.
    A partner who draws money from his personal account and deposits it to the credit of the firm is entitled to credit therefor in a partnership accounting.

      Appeal from Oakland; George W. Smith, J.
    Submitted January 16, 1917.
    (Docket No. 148.)
    Decided March 30, 1917.
    Bill by Andrew L. Arthur against William McCallum for an accounting and other relief. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Hymers, Fredmburgh & Heitseh, for appellant.

      Pelton & McGee, for appellee.

      On right of partner to compensation for services rendered to the partnership, see comprehensive note in 17 L. R. A. (N. S.) 385.

   Fellows, J.

This is á bill filed to dissolve a co-partnership formed April 24, 1913, and for an accounting. Pending the hearing many of the matters were adjusted by stipulation, leaving few questions only for determination by the court. The plaintiff prevailed in the lower court, and the defendant appeals from the allowance of two items.

The partnership was formed to take over from the Detroit Trust Company as receiver in bankruptcy of the Flanders Manufacturing Company,' the sprayer pump business of that institution, some of the property being at Pontiac, and some at Chelsea, the price being $1,300. It was formed at the suggestion of plaintiff, who apparently was familiar .with the property. It would appear that the money with which to make the purchase was obtained by a loan from the bank, which was later repaid from the business. Plaintiff at that time did not have employment, nor was he engaged in any business during the continuance of the partnership, other than that in which the parties were jointly engaged. The defendant during all that period had other business. It was contemplated the plaintiff would have the management of the business, and that defendant would not be required to devote his time to it. The agreement was not reduced to writing.

The question of compensation to the plaintiff for his services presents the principal question in the case. Both parties concur that it was agreed at the time the partnership was formed that plaintiff should draw $80 per month for his services. Plaintiff insists that there was no limit on this arrangement, while defendant testifies:

“Q. Well, do you remember what the conversation was?
“A'That he was to have $80 a month until other arrangements were made.
“Q. He was to have $80 a month until other arrangements were made?
“A. Yes, sir.
“Q. And by other arrangements you meant what?
“A. I meant until I could take it over or after I would look after it more thoroughly myself and take care of it.”

A short time after the making of the partnership agreement the defendant completed a building on Howard street, and the stock was moved into it. Thereafter, the exact date being in dispute, a conversation took place between the parties with reference to plaintiff’s compensation. The plaintiff’s version of this conversation is that they had just paid a note at the Commercial Bank leaving them few funds on hand, that defendant stated that he had put up the building and would furnish the light and heat, and that he would offset that against plaintiff’s wages “until we got on our feet,” and that plaintiff accepted the suggestion. Defendant’s version of this conversation is that he stated to plaintiff that the goods were now where he could look after the business as well as plaintiff, that there was more expense to him than to plaintiff, and that there would be no salary from then on, and that plaintiff said it was all right.

They remained in defendant’s building less than a year, and during this time defendant made no claim against the partnership for rent of the store, light, or heat, and plaintiff made no claim for salary. They then moved the stock into another building, where the firm paid rent and for light and heat. Plaintiff claims that thereafter he had charge of the business, and that, while defendant assisted some, the management and work of the business devolved upon him. It is his claim that the arrangements under which they worked while occupying defendant’s building operated as a temporary suspension of the agreement to pay him compensation, and that, when the defendant no longer furnished the building, the light, and heat, the temporary arrangement of offsetting the same against his services ceased, and the original terms of the partnership agreement became operative, and he became entitled to the salary as agreed thereby; in other words, that the modification of the agreement ceased when the defendant ceased to furnish the things which such modification called for. The defendant insists that the arrangements made and which were operative during the time his building was occupied put an end to any claim for compensation to plaintiff, and that before he would again be entitled to compensation there must be an express agreement to pay the same. He also claims that from the time they moved to their new location he devoted a large amount of time to the business sufficient in fact to offset that of plaintiff’s.

We do not think the record sustains defendant’s contention that he devoted time and attention to the business equal to that devoted by plaintiff, or that he devoted any considerable time to the business of the partnership after they moved out of his building. He was largely interested in other affairs, and his services to the partnership were intermittent. Under the agreement of partnership it was not contemplated that he was to give any considerable time to the business and we do not think he did.

In the absence of agreement, one partner cannot collect pay for services performed for the copartnership; each partner is presumed to devote his time, skill, and endeavor to the partnership business, and this without compensation, other than his. share of the profits. But it does not follow that the court is precluded from taking into consideration all the surrounding facts and circumstances of the case, the course of dealing between the partners, the reasonableness or unreasonableness of the claim made, the probabilities arising out of the conduct of the business, in determining whether such agreement exists. Morris v. Griffin, 83 Iowa, 327 (49 N. W. 846); Emerson v. Durand, 64 Wis. 111 (24 N. W. 129, 54 Am. Rep. 593).

It is admitted that originally there was an agreement for compensation. The reason for its modification was the furnishing of the store building, light, and heat by defendant. It is admitted that after they, moved to their last location these were not furnished. It is admitted that the business was a prosperous one; that in addition to paying off the loan for the purchase price each party received $1,000 in cash as his share of the profits, and they had several thousand dollars of firm assets on hand. This, we are satisfied was due to plaintiff’s, foresight in the purchase and the application of his time and energy to the business rather than to any efforts on the part of defendant. If the suspension of plaintiff’s compensation was only to continue, as testified by plaintiff, until they got on their feet, it is apparent that that time had arrived when they were able to draw out $2,000 profit on a $1,300 investment. If the reason for the suspension of that compensation was that defendant was furnishing rent, heat, and light, that reason ceased when they moved out of defendant’s building. If the reason of the suspension was that the goods were in defendant’s building where he could look after the business as well as plaintiff, and there was more expense to him than to plaintiff, that reason would no longer be operative after the condition ceased to exist.

Upon the testimony and the circumstances, as detailed in this record, we are persuaded that the plaintiff’s contention is sustained. We think the plaintiff agreed to forego his compensation of $80 per month, as agreed in the original understanding, while, and only while, defendant was furnishing the building, light, and heat, and that, when the conditions under which the modification of the agreement ceased to exist, the modification itself ceased to exist, and the original agreement was again restored in force.

One other item is involved in this appeal. This is an item of $Í00 cash advanced by plaintiff to the firm September 22, 1913. The proof conclusively shows that this sum was drawn from plaintiff’s personal account and deposited to the credit of the firm on the date named. He is entitled to a credit for it, and it is immaterial under what circumstances it was furnished. The firm has had the use and benefit of it and should account.

It follows that the decree of the court below is right, and should be, and is, affirmed. Plaintiff will recover of the defendant the costs of this court.

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