author: Moore, J.

text:
    TROUB v. THORP.
    1. Cancellation of Instruments — Deeds —Fraud —Undue Influence — Inoompetenoy of Grantor — Evidence—Sufficiency.
    On a bill by heirs to cancel a deed executed by their ancestor, on the grounds of fraud, undue influence, and mental incompetency, evidence examined, and held, to warrant a decree for complainants.
    2. Appeal and Error — Chancery Appeals — Review—Questions of Fact.
    Chancery appeals are heard in this court de novo upon the record made below and it is necessary for the complainant to satisfy the court from the record that he has made his case before he can have a decree, though the fact that the circuit judge heard and saw the witnesses, and had an opportunity to thus judge of their credibility, is of importance in determining a question of fact.
    3. Cancellation of Instruments — Deeds—Acquiescence of Complainants — Estoppel.
    On a bill by children to cancel a deed executed by their father as a result of mental incompetency, fraud, and undue influence, complainants are not estopped by their failure to object at the time, where it appears that one of them was a minor, and complainants claim they did not desire a quarrel which ' would make the miserable condition of their father more miserable and they relied upon the expectation that the grantee, their brother, would do what was right about the estate of their father.
    4. Same — Decree—Relief to Defendant.
    On a bill to cancel a deed and for an accounting, a decree for complainants can be made that will give to defendant ample compensation for all that he did and expended on account of the grantor and his estate.
    Appeal from Eaton; Smith, J.
    Submitted January 9, 1908.
    (Docket No. 24.)
    Decided May 1, 1908.
    Bill by Minnie Troub, Mina Perkins, and Joel H. Bera, administrator of the estate of George B. Thorp, deceased, against Loren G. Thorp and Percy Thorp to set aside a conveyance of real estate, and for an accounting. From a decree for complainants, defendants appeal.
    Affirmed.

      Horace 8. Maynard, for complainants.

      Frank A. Dean, for defendants.
   Moore, J.

This case was brought to set aside certain conveyances of real and personal property made by one George B. Thorp, since deceased, and to obtain an accounting from the defendant Loren G. Thorp for his use of and receipts from the property. It is the claim that at the time he made the transfers, George B. Thorp was not mentally competent to make them, and that they were procured through fraud, duress, and undue influence. George B. Thorp died on the 12th day of November, 1904.

The defendant Loren Thorp admitted that Mr. Thorp was given to the excessive use of intoxicating liquors, but denied that he was incompetent to make the transfers. He further claims that the arrangement he made with his father was a fair one, that he carried it out, that his brother and sisters knew about it and should not now be heard to complain.

Percy Thorp was a minor when the suit was brought. Minnie Thorp is the wife of Loren Thorp. Mrs. Troub, Mrs. Perkins, Loren Thorp, and Percy Thorp are sons and daughters of George B. Thorp. The case was heard in open court. The circuit judge found that the transfers were made when George B. Thorp was incompetent, and made a decree setting the transfers aside, and directing an accounting, the proofs to be taken in open court. The case is brought here by appeal.

There is practically no dispute on the part of the witnesses in relation to the fact of the excessive use of intoxicating liquors by George B. Thorp, but there is a sharp conflict in the testimony as to. whether it rendered him incompetent to make the transfers which were made. The record discloses that about twelve years before his death, his wife, in a contested case, obtained a divorce from him for the reason that he had become a confirmed drunkard. He afterwards drank less and she married him the second time. Early in 1901 Mrs. Thorp filed a petition in the probate court alleging that because of his excessive use of liquor her husband had become incompetent to manage his property, and prayed that a guardian might be appointed. Mr. Thorp and all his children were legally notified of this application. For some reason the judge of probate did not want to hear the application, and the circuit judge acted as judge of probate. He decided Mr. Thorp was incompetent and appointed his wife as his guardian. It is claimed she had trouble in procuring a bond. In any event she did not qualify as guardian, and nothing further was done with-the proceeding. Later ' she filed a second bill for a divorce, upon the ground that her husband was given to the excessive use of liquor, and obtained a decree December 3,1901. The testimony indicates very clearly that George B. Thorp died as the result of his dissipation. The hearing in the case was had before the circuit judge who acted as probate judge when the hearing was had in that court.

The case was tried at great length. The printed record contains nearly 200 printed pages. ' It would profit no one to set out in detail the testimony.. We think, however, that complainants have made their case by a preponderance of the testimony.

The solicitor for the complainants makes the following claim. We quote from the brief:

“ I insist that under the settled law of this State the question of fact as to the mental condition of George B. Thorp at the time he signed the papers sought to be set aside is conclusively determined by the finding and decree of the circuit judge and is not open for argument in this hearing.”

This is not the law in chancery cases. Those cases when heard in this court are heard de novo, and it is necessary for the complainant to satisfy us from the record that he has made his case before he can have a decree in his favor. We have however repeatedly held that it was an advantage to see and hear the witnesses, and the fact that the circuit judge heard and saw the witnesses, and had an opportunity to thus judge of their credibility, was of importance in determining a question of fact. We are satisfied that in this case he reached a right conclusion. See Brennan v. Zehner, 97 Mich. 98; Kaeding v. Joachimsthal, 98 Mich. 78; Anderson v. Northern Nat. Bank, 98 Mich. 543; Child v. Emerson, 99 Mich. 38; Miller v. Miller, 100 Mich. 563; Benedict v. Roome, 106 Mich. 378; Richardson v. Medbury, 107 Mich. 176; Edwards v. Waghorn, 107 Mich. 679; Hughes v. Jones, 108 Mich. 378; Qroesbeck v. Bennett, 109 Mich. 65; Michigan Land & Iron Co. v. Cleveland Sawmill & Lumber Co., 109 Mich. 164; Sowles v. Raymer, 110 Mich. 189; Pringle v. Wagnoer, 110 Mich. 612; Kirkland v. Kirkland, 111 Mich. 166; Loveridge v. Schurtz, 111 Mich. 618; Hammond v. Rathbone, 113 Mich. 499; Markillie v. Markillie, 115 Mich. 658; Union Nat. Bank v. Rich, 116 Mich. 414; Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430.

With reference to the question of estoppel. It is the claim of complainants that they did not desire a quarrel which would make the miserable condition of their father more miserable, and that they relied upon the expectation that Loren would do what was right about the estate of the father. It also appears that one of the sons was a minor. We do not think it can be said that estoppel is made out. In the accounting a decree can be made that will give to Loren ample compensation for all he did and all he expended on account of his father and of his estate.

The decree is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    HUTCHINSON v. CLEVELAND-CLIFFS IRON CO.
    1. Negligence — Contributory Negligence — Trespasser.
    The servant of a contractor tp do certain work about a mill cannot recover of the mill owner for injuries received from faliing'through an unguarded hatchway in the mill without showing that the performance of the contract required plaintiff or his employer to go in the vicinity of the hatchway.
    2. Appeal and Error — Determination — Proceedings After Remand — New Trial — Issues. ,
    Where a judgment for plaintiff is reversed on error for failure . of plaintiff’s case to show defendant^ liability, and the evidence on the retrial is in legal efiect the same, a verdict is properly directed for defendant.
    Error to Delta; Stone, J.
    Submitted January 10,1908.
    (Docket No. 40.)
    Decided May 1, 1908.
    Case by John Hutchinson against the Cleveland-Cliffs Iron Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      J. Harry Clancy, for appellant. 1

      William P. Belden, for appellee.
   Moore, J.

This case was before this court at a previous term and is reported in 141 Mich. 346. The pleadings have not been changed. A new trial was had upon which the court directed a verdict in favor of defendant. The case is now up on writ of error’by plaintiff. A reference to the opinion handed down when the case was here before will show the questions involved. After the testimony of the plaintiff was closed upon the second trial, a motion was made for a directed verdict on behalf of defendant. The trial judge was of the opinion that the case made upon the second trial was substantially the same as the case passed upon by this court when it reversed the case, and directed a verdict in favor of the defendant.

The case is not presented in a very satisfactory way in this court. The brief does not contain a statement of the errors upon which counsel rely, the questions involved, nor the manner in which they are raised, but there is a general discussion of the following — we quote from the brief:

“ Now the whole and only question is: Had the plaintiff and his foreman a right to a reasonable use to this 60 feet to pass and repass in the performance of their work ?”

It is argued that while making a reasonable use of this floor space the plaintiff fell into an unguarded hatchway and was hurt.

The plaintiff was not in the employ of defendant, but was in the employ of the Johns-Manville Company, which company had a contract to do certain work for the defendant company.

The Johns-Manville Company was represented by Mr. Prime, foreman, a workman by the name of Snort, and. the plaintiff. The plaintiff claims that while he was looking for Mr. Prime, and in the line of his duty, the accident happened. We think there is an entire failure to show that in the performance of the Johns-Manville Company contract it was necessary for Mr. Prime or the plaintiff to go in the vicinity of the.unguarded hatchway. The case does not differ in any substantial particular from the case presented before.

Judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ.} concurred.


author: Ostrander, J.

text:
    ALDRICH v. CRAWFORD CHAIR CO.
    Corporations — Stockholders’ Bill — Sufficiency.
    A bill against a corporation, its controlling stockholder, and others, filed by two stockholders, averred that the corporation was formed pursuant to a contract between the complainants and the controlling stockholder under which he was to contribute the entire capital of the company and issue certain shares to complainants to be deposited in escrow until the earnings thereof should pay for it, the contracting parties to constitute the board of directors and officers of the company, to draw certain salaries, and to have certain powers in the management of the affairs of the company; that subsequently a further issue of stock was agreed upon; that later certain stock was issued to the other defendants and at an adjourned annual meeting the other defendants appeared and voted and were elected directors and officers and complainants were deprived of their offices and share in the management of the company, were discharged from their employment, and were unable to collect their salaries. The prayer was that complainants might have their stock delivered up relieved of the contract obligations; that the election be set aside and the old board of directors reinstated; that the stock issued to the other defendants be canceled; that the controlling stockholder render an account; and that complainants have judgment for their damages. There was no averment that a dividend had been or should have been declared; that any contract of hiring was ever made with complainants by the company; that corporate funds or affairs were mismanaged; that the new board of directors had changed the policy of the company; nor that the controlling stockholder did not vote his shares for the new directors or that they were not stockholders. Held, that the averments of the bill were too uncertain to warrant equitable intervention; that complainants’ remedy for salary, wrongful discharge, and breach of the personal agreement was at law; that the corporation and the controlling stockholder could deal with complainants’ stock in escrow only at their peril.
    Appeal from Eaton; Smith, J.
    Submitted January 10, 1908.
    (Docket No. 36.)
    Decided May 1, 1908.

      Bill by Charles A. Aldrich and Benjamin R. Smith against the Crawford Chair Company, Edward Crawford, Nettie Crawford, Charles H. Crawford, and Cornelius Marius to set aside the issue of certain stock in defendant corporation, and for an accounting. . From an order overruling demurrers to the bill, defendants appeal.
    Reversed. •

      T. Rogers Lyons (Huggett & McPeek, of counsel), for complainants.

      Carroll, Kirwin & Hollway (Cassius Alexander, of counsel), for defendants.
    The substance of the allegations of the bill of complaint may be stated as follows: The defendant corporation was organized April 8, 1905, pursuant to the following agreement:
    “Agreement made this April 8th, A. D. 1905, by and between Edward Crawford, of Grand Rapids, Michigan, Benjamin R. Smith and Charles A. Aldrich, of Grand Ledge, Michigan.
    “And whereas, the parties to this agreement have today formed what is known as the C. Chair Company, a corporation organized under the laws of the State of Michigan, with a capital stock of sixty thousand dollars, which capital stock is to be divided as follows: Edward Crawford, forty thousand dollars of said stock, Benjamin R. Smith retains ten thousand dollars, and Charles A. Aid-rich ten thousand dollars, all of which said stock is to be issued upon the books of the said corporation, and is to be deposited in escrow in the vaults of the Michigan Trust Company at Grand Rapids, Mich., for a term of five years, unless all three agree otherwise during said term, and it is mutually agreed between the parties to this agreement that no one or any of them is to sell, transfer or assign any of their stock (except as hereinafter mentioned) for said period of five years, and it is understood that Edward Crawford furnishes the entire capital stock of sixty thousand dollars for said company, and that said Smith and Aldrich are to pay for their stock out of the earnings and dividends of the company, such earnings and dividends are to be applied from year to year on their stock to reduce the amount owing thereon, and it is further understood that at or before the end of the term of five years, if the earnings of the company should be sufficient so that the stock of said Smith and Aldrich is paid in full they have the right to purchase from Crawford, and Crawford agrees to sell to them, nine thousand more to each one of his share of the said stock.
    “ It is mutually understood between the parties to this agreement that each one is to draw a salary of two thousand dollars per year for the term of five years, which salary is to be paid at the end of each month during the said term or in the same manner as it is paid to the men employed in the shops of the said company.
    “It is mutually understood that Benjamin R. Smith is to be president, Charles A. Aldrich vice president, and Edward Crawford secretary and treasurer of the said company, and all three of these are to constitute the board of directors until the annual meeting of said company, which is to be called the first Tuesday in January, 1906. It is mutually understood that suitable by-laws are to be drawn covering the duties of the board of directors and officers of said corporation.
    “It is also mutually understood that the general management of the shops, hiring and discharging of the men is to be left to Smith and Aldrich, Crawford to look after the general office work of the corporation.' It is also mutually understood that in case of a death of any one of the parties before the end of the term of five years the stock in the name of such member and the remaining members of the corporation have the right to purchase within sixty days from the date of said appraisement said stock at its appraisal value.
    “Witness our hands and seals the day and year first above written.
    .“Edward Crawford. [L. S.]
    “Benjamin R. Smith. X. S.*
    “Charles A. Aldrich, X. S.=
    The articles of association were filed April 14th. The stock was apportioned, deposited in escrow, directors elected, and by-laws adopted. At the annual meeting, held on the first Tuesday, in January, 1906, the same directors were elected. During the first year complainant Smith was president, Aldrich was vice-president, and defendant Edward Crawford was secretary and treasurer. In 1906, defendant Edward Crawford was president and treasurer and Aldrich secretary. It is provided in the bylaws that the same person may act as secretary and treasurer. Complainants were experienced men in the business, were the procuring cause of a bonus of $10,000 being paid to the company by the citizens of Grand Ledge, where the business of the company is carried on; have, until the happening of the events complained about, been the active superintendents and managers of the factory and the mechanical part of the business. In July, 1906, an issue of $40,000 of increased capital stock was voted, and it was out of this increased stock that two shares were issued to complainants, they having been told by some one that this was necessary to enable them to vote at stockholders’ meetings. A large and profitable business has been secured, the corporation is solvent, prosperous, and has good credit.
    For convenience, other material allegations of the bill are divided by subjects.
    What the company has done: By direction of Edward Crawford and under his control, it—
    “Cunningly and deceitfully with the intent to harass, annoy, cheat, defraud and injure these complainants, did, or caused to be done, many wrong, illegal and inequitable things contrary to the said agreement, to the by-laws of said company, and to the laws of the State of Michigan, all to the great injury and damage of these complainants. The narration of the said wrongful acts and the consequent damage will apnear in the next succeeding paragraph.”
    The next succeeding paragraph of the bill shows no action of the company as such, nor is any set out in the bill except as follows:
    “Complainants further show that they are informed and believe that a meeting was called of the directors illegally elected as aforesaid in the city of Grand. Rapids on the 27th of February, 1907. That there was elected, or a pretense was made of electing, Edward Crawford president and treasurer, Nettie Crawford vice president, C. H. Crawford secretary, and that thereupon the said parties pretending to be officers of the said corporation then and there assumed control of the business of the said corporation, have since held the said offices, and controlled the affairs from that day to this; further, that the said meeting if held was illegal, wrongful, that the election, their present positions, their taking possession of the tangible property, their assuming control, their discharging one of these complainants, Charles A. Aldrich, their change of the policy of the corporation, their change of the laborers, their restriction of the authority of Benjamin R. Smith, one of these complainants, and all other acts done by them are wrong, unwarranted, fraudulent, illegal, and greatly injure and defraud these complainants.”
    It has employed C. H. Crawford, who does not earn the money, at a salary of $2,000 a year and refused to pay complainants the contract salary.
    What Edward Crawford has done: He has conceived the idea of getting rid of complainants, forcing them out of the concern before they have earned their shares of stock deposited in escrow pursuant to the original agreement. To this end, he has conducted himself toward them in such a manner in the presence of operatives employed in the factory and others that their authority is disregarded, their discipline destroyed; has overruled their orders; authorized incompetent persons to manage and control the shop, to purchase goods, and instructed them to pay no attention to complainants. He caused three shares of stock to be issued, from or out' of what other stock complainants profess to have no knowledge or information, one share each to Nettie, wife of Edward, to C. H. Crawford, and to Cornelius Marius, all without the knowledge or consent of complainants, the fact being first learned by them February 26, 1907, at the adjourned annual meeting, at which these three stockholders appeared and, over the protest of complainants, voted, with the result that complainants were deposed as directors. How many shares were voted by Edward Crawford is not "stated. He caused to be issued, using the stationery of the company, out at what time does not appear, and gave to certain employés of the company, a letter, of which the following is a copy.
    “ Crawford Chair Company, Manufacturers of “ Dining Room and Suite Chairs,
    “ Grand Ledge, Mich.
    “To Edward Tallman, 20 shares.
    “Floyd Morris, 20f shares.
    “Charles Rowley, 20 shares.
    “Lincoln A. Lemmon, 20.
    “W. W. Vanderbilt, 20.
    “William Wilson, 20.
    “C. M. Maris, 70.
    “B. R. Smith, 100.
    “C. H. Crawford, 70.
    “C. A. Aldrich, 100.
    “Edward Crawford, 501.
    “Nettie Crawford, 39.
    “All this stock is to be in ‘escrow’ until it is paid for in full from the earnings of the Crawford Chair Company. Any stock in ‘escrow’ cannot be paid for in any other way only from the earnings of the Crawford Chair Company. Any stockholders leaving the employ of the Crawford Chair Co. before the stock is fully paid for will forfeit the earnings of his stock in ‘escrow.’ ”
    He changed the annual report made to the secretary of State March 8, 1906, after it had been signed and verified by the secretary, Aldrich. As originally prepared, it showed as stockholders, Edward Crawford, 400 shares, Benjamin R. Smith, 100 shares, Charles A. Aldrich, 100 shares. As changed, it showed that Edward Crawford owned 598 shares and each of the others one share.. Whether the report was again, after these changes, verified, is not stated. He has handled the funds of the company, and has not made statements or accounted therefor, although he has been requested to do so. The effect of all this upon the company is said to be the loss of $10,000 of dividends which otherwise would have been distributed.
    Claiming to have been at all times ready and willing to perform the original contract on their part, and to have done so so far as they have been permitted, the particular grievances of complainants and the relief they ask for is: In March, 1906, defendant Edward Crawford asked the complainants to draw less than $2,000 per annum salary because the defendant company was hard up, and they agreed to accept $3 a day for three months. They are unable to get their back salary. Complainant Aldrich has been discharged as an employe of the company, when or under what circumstances the bill does not set out. They have been damaged by suffering, worry, and financial loss, $25,000. They ask:
    (1) That they may have each his 100 shares of stock of the company relieved of the contract stipulations.
    (2) That the election of directors of February 27, 1907, be set aside and the old board of directors reinstated.
    (3) £ ‘That the stock of th e said corporation issued illegally and without authority of the board of directors to Edward Crawford 400 shares, to Nettie Crawford 1 share, C. H. Crawford 1 share and Cornelius Marius 1 share, be ordered returned to the treasury of the said corporation and the certificates therefor returned to the stock books and canceled.”
    (4) That defendant Edward Crawford account for all moneys handled by him.
    (5) That complainants have judgment for their damages and costs.
    To this bill, the defendants Crawford Chair Company and Edward Crawford joined in demurring, and the defendants Charles H. Crawford, Nettie Crawford, and Cornelius - Marius have joined in a separate demurrer. The grounds of demurrer which, on this appeal, we consider {Kerr v. Rupp, 144 Mich. 269), are that it appears from the bill (1) that complainants have an adequate remedy at law; (2) that the bill does not state a case cognizable in a court of equity.
   Ostrander, J.

{after stating the facts). The bill is lacking in certainty of averment. It was filed March 29, 1907, a]?out 30 days after the adjourned stockholders’ meeting. Whether the defendant company engaged in the manufacture of goods prior to the completion of its factory in November, 1906, does not appear. The objectionable personal conduct of Edward Crawford began, it is averred, “from October, 1906.” Assuming that it did nothing from April, 1905, to November, 1906, except to build and equip its factory, the bill was filed about five months after manufacturing operations were begun. A by-law of the company provides:

“Dividends of net profits on hand shall be declared as often and at such times as all the directors may decide.”

We are not informed whether a dividend was, or should have been, declared. And while another by-law creates an executive committee with power to authorize and make contracts “ and to carry on and conduct all ordinary business for the company, fix the compensation of officeis and employ és,” it is by inference only, and that not a necessary one, that it can be determined whether the salaries of complainants were ever .fixed by the company, or any continuing contract of hiring was ever made by them and the corporation. No misappropriation of corporate funds is charged, no denial of access to the books of the company, no mismanagement which does not consist in the use of authority with respect to the internal economy which complainants claim belonged to them'. If, as may be presumed, Edward Crawford voted his 400 shares of stock at the last annual meeting in favor of directors other than the two complainants, it is immaterial that three other shares were voted by other persons. If those elected directors are, as from the averments of the bill they must be assumed to be, shareholders, they are eligible to the position. We assume that the increase of capital was authorized for the purpose of selling stock. If the new board of directors has changed the policy of the corporation, the change is not set out in the bill. The charges are too vague, uncertain, and indefinite to warrant the interference of a court with the affairs of the defendant corporation, unless for the purpose of amending some wrong to complainants for which defendant Edward Crawford is responsible. The theory of the pleader seems to be that there has been a breach of the personal agreement pursuant to which the corporation was organized, for which defendant Edward Crawford is responsible, and in his interest. If the corporation is indebted to complainants for unpaid salary, the remedy is an action at law by each complainant against the company. If complainant Aid-rich has been wrongfully discharged as an employe by the machinations of Crawford, his remedy is at law for his damages. The court is not asked to compel the corporation or to compel Crawford to specifically perform the agreement. We do not mean to intimate that such performance could be or would be enforced by the cour+ As to the stock of the company issued to complainants (we infer, in the absence of specific allegations, that it was issued to them and stands in their names, respectively), and deposited in escrow, it is evident that Edward Crawford and the corporation must deal with it at their peril. According to the agreement, it is to be paid for by dividends to be applied from year to year. Whether a court of equity may compel such application is not now a practical question. The bill, aided by all reasonable intendments, does not state a case for equitable interference.

The decree of the court below is reversed, and a decree will be entered in this court sustaining the demurrers and remanding the record. Appellants, will recover costs of both courts.

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


text:
    SUTLIFF v. VREELAND.
    Appeal and Error — Decisions Reviewable — Matters not Determinative op Controversy.
    A decree dismissing a bill to construe a will, filed pending an action of ejectment between the same parties, will not be reviewed where, by reason of a stipulation withdrawing the questions of fact from the chancery case, it appears that the court cannot make a decree that will settle the controversy.
    Appeal from Wayne; Donovan, J.
    Submitted January 14, 1908.
    (Docket No. 50.)
    Decided May 1, 1908.
    Bill by Alfred Sutliff against Elias Vreeland and others to construe the will of Michael Vreeland, deceased. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Ari E. Woodruff and William E. & Frank W. Atkinson-, for complainant.

      James H. Pound (Stellwagen & Mackay, of counsel), for defendants.
   Moore, J.

The defendants claim to be the owners of certain real estate by virtue of certain provisions of a will made by Michael Vreeland. The complainant claims title to the same land by virtue of the provisions of the same will. The defendants commenced a suit in ejectment against complainant to decide the question. While the ejectment suit was yet pending the bill of complaint in this case was filed. No proofs were taken, but a stipulation was filed submitting only one question to the court. In the stipulation is the following:

“That no question of fact shall be submitted to this court, for the reason that ejectment suits are now pending between the parties to this cause, in which the questions of fact can be submitted to a jury, if defendants in this cause have a right to have the facts in the matter "passed upon.”

It became apparent upon the argument of the case that this court could make no decree that would settle the controversy between the parties. The counsel were invited to submit briefs upon the following questions:

First. Is not the question presented in this case merely a hypothetical one ?

Second. In order to give the court of chancery jurisdiction, should it not have authority to finally determine the controversy ?

Third. As it has not that authority in this case, should it undertake to determine anything ? ”

Counsel have presented briefs. It is clear that any decree we may make will not end the controversy. The issue as presented in the ejectment suit calls for a construction of the will. This court ought not to be required to decide cases by piecemeal. We decline to hear this case as presented.

The decree of the court below dismissing the bill of complaint is affirmed, but without prejudice to any future proceeding, and without costs to either party.

Grant, C. J., and Blair, Carpenter, and McAlvav, JJ., concurred.


text:
    ALLEN v. CRANE.
    Homesteads — Liabilities Enforceable — Judgment por Tort.
    Complainant obtained a judgment for $1,500 against defendant husband for fraudulent representations in the sale of goods for $2,500 and execution thereon was returned unsatisfied. On a bill to subject defendants’ homestead to'the payment of the judgment, upon the claim that defendant invested therein the money fraudulently obtained from claimant and moved into the house that he might claim it-as a homestead as a part of his scheme to defraud complainant, it appeared that defendant bought the place upon contract for $2,550 two years before the transaction with complainant, paid $557 thereon, principally with money borrowed from his wife, and moved into the house soon after buying it, and that at the time of filing the bill there was still due $1,500 upon the contract. Held, that the bill was properly dismissed.
    Appeal from Kalamazoo; Adams, J.
    Submitted January 15, 1908.
    (Docket No. 55.)
    Decided May 1, 1908.
    Bill by O. LeGrand Allen against Elliott H. Crane and others to subject certain real estate claimed as a homestead to the payment of a judgment. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William E. Wa>re, for complainant.

      Harry C. Howard, for defendants Crane.
   Moore, J.

This bill of complaint was filed to subject a house and lot occupied and claimed as their homestead by defendants Crane and wife, to the payment of a judgment obtained by the complainant against defendant Elliott H. Crane.

August 16,1901, defendant Elliott H. Crane contracted with one Richard Hope for the purchase of the house and premises in question, for which he was to pay $2,550 in stated payments. Mrs. Crane - as well as her husband signed the contract, though her name did not appear in the body thereof. Sometime before negotiating for the property Mr. Crane borrowed $500 of his wife, and, out' of this money, paid at the date of the 'Contract $400. On February 16, 1902, he paid $50 and September 16, 1902, $127.50, making a total of $577.50 paid by him on the contract previous to April 25, 1903, and before he had any dealings with the complainant.

Defendants Crane and wife moved into the house soon after the date of the contract and have, ever since lived there, claiming it as their homestead. In April, 1903, complainant paid Mr. Crane $2,500 as the purchase price of certain personal property, inventions and secret processes which defendant Elliott H. Crane claimed to have discovered. In the following August complainant, claiming there had been fraud and deceit practiced upon him by the defendant Elliott H. Crane, commenced suit against him by declaration in tort to recover his damages. The defendant pleaded the general issue, the case was tried and resulted in a judgment in complainant’s favor of $1,500 and costs.

Execution upon the judgment was issued, delivered to the sheriff and by him returned nulla bona, and thereupon an alias execution was issued July 19, 1904, and on the same day levied upon the premises in question, and October 22, 1904, complainant filed this bill to subject the premises to the satisfaction of the judgment and the repayment to him of the money fraudulently obtained from him by the defendant Crane.

The bill alleges that defendant Elliott H. Crane invested the money fraudulently obtained from the complainant in the premises and moved into the house with his family that he might claim it as a homestead, in furtherance of his scheme to defraud the complainant and prevent him from having it used or applied to satisfy the judgment. It recites the contract and offers to pay the balance due thereon when determined.

The defendants Crane answered. They admit the judgment, deny the fraud, claim the premises as exempt from execution, deny having any property liable to execution, admit the contract and assert there is due upon it $1,500. Defendant Adam Haas did not appear and his default was entered. At the time of the last payment there was due $1,502.40 and that sum, with interest, still remains unpaid upon the contract. The cause was heard in open court. The bill was dismissed. The case is brought here by appeal.

It is the claim of complainant that:

“ ‘A bill may be filed for the double purpose of aiding an execution and of reaching property not subject thereto, based on a return of execution unsatisfied, and the issue and levy of an alias writ.’ Wilson v. Addison, 127 Mich. 680, and cases cited.

“ By electing to take a judgment at law against defendant Crane, complainant is not estopped from maintaining a suit in equity where the proceedings at law prove inadequate to give him the relief to which he would have been entitled had he brought his suit in equity in-the first instance. Matthews v. Forslund, 112 Mich. 591. * * H*

“ The judgment merely determined the amount fraudulently obtained from complainant and shows that the title to that money did not pass to defendant Crane, but remained in complainant Allen. Defendant Crane, therefore, became a trustee ex maleficio for the complainant as to that money. - * * *

Where the fiduciary uses the trust fund together with his own funds in payment for land, a trust results pro tanto, and- the cestui que trust is not bound to take the land, but may hold the trustee personally liable for the fund misappropriated and have a lien upon the land for its repayment. 15 Am. & Eng. Enc. Law (2d Ed.), foot page 1182; Pierce v. Holzer, 65 Mich. 263.” '

It is probable that the above, statements are correct statements of the law but they do not meet the quostions raised by the record. In the case of Pierce v. Holzer, supra, the administratrix of an estate used funds which belonged to the estate to purchase a house and lot which she claimed as a homestead. The homestead came into being as a result of a misappropriation of funds. In the case before us the homestead was in existence two years before complainant had any dealings with defendant Elliott H. Crane. The wife never had any dealings with him and there is no claim that she ever practiced any fraud upon him or had any knowledge of a fraud. When complainant learned he had. been defrauded he did not attempt to rescind the contract and place defendant in statu quo, but retained whát he had obtained and sued for damages. The jury gave him a verdict for $1,500, while he had paid to Mr. Crane $2,500, thereby deciding that Mr. Crane obtained $1,000 from complainant which he was entitled to keep. The proof on the part of Mr. Crane is that he received a royalty of $25 a month.

“ I am an embalmer and a taxidermist, I am a naturalist, I am an archaeologist, a collector of curios, a dealer in curios now and then, here and there, an exporter, and I am an explorer of mounds, and I do a little lecturing once in a while. This royalty that is paid to me is on account of a chemical discovery of my own.

Q. As to the collection at your house that you have spoken of, will you explain briefly what sort of a collection that is ?

“A. I have collected in minerals and geological specimens of every kind, and things of mineralogy all that you can think of, and I have got some birds. I have got embalmed specimens and birds that I have skinned and stuffed and others that were recently mounted in both ways. I have got more stuffed than anything else. I got some of these in this country and some from foreign countries.”

He also testified that he had. a small revenue from these sources. It is not disputed that the $500 he borrowed from his wife was money that came to her from her relatives. It was afterwards repaid to her from the money obtained of complainant. Mr. Crane testified that he never kept the money he received from complainant separate from his other funds, but .that he used it as he needed it. It has already appeared that there is upwards of $1,-500 due upon the land contract. Had the $1,000 obtained by defendant Crane from complainant, which the jury said he was entitled to, all been paid upon the contract, it would have left only the interest and taxes to be provided from other sources.

As long ago as McKee v. Wilcox, 11 Mich. 358, it was-said:

“ The Constitution in giving a homestead as a right does not confine it to any particular estate or interest whatever in the land. Art. 16, § 2, and the statute secures it to a person owning and occupying a house on land not his own. 2 Comp. Laws 1857, § 4500.”

And it was held that 'a homestead may be claimed in land of which a party is in possession under contract to purchase. See, also, Lozo v. Sutherland, 38 Mich. 168; Allen v. Cadwell, 55 Mich. 8; Stanton v. Hitchcock, 64 Mich. 316.

In Riggs v. Sterling, 60 Mich. 643, the following language is used:

“The homestead exemption, as established by the Constitution and laws of this State, is not alone for the husband, ánd his protection, but for the benefit of the wife and children as well. Const, art. 16, §§ 2, 3, 4; 2 How. Stat. chap. 267; People v. Plumsted, 2 Mich. 471; Beecher v. Baldy, 7 Mich. 488; Dye v. Mann, 10 Mich. 297; King v. Moore, 10 Mich. 538; Snyder v. People, 26 Mich. 110; Comstock v. Comstock, 27 Mich. 97; Showers v. Robinson, 43 Mich. 502; Sherrid v. Southwick, 43 Mich. 515; Penniman v. Perce, 9 Mich. 509; Dyson v. Sheley, 11 Mich. 527.

“ The homestead exemption, as it now exists, is not only a privilege conferred (Chamberlain v. Lyell, 3 Mich. 458), but, under the Constitution, it is an absolute right. ‘It was intended to secure against creditors a home, and, to a certain extent, the means of support, to every family in the State.’ Dye v. Mann, 10 Mich. 297; McKee v. Wilcox, 11 Mich. 358. * * *

“ When such homestead, in amount within the constitutional limit, is once established by such election, selection, and occupancy, the Constitution is a positive prohibition against levy and sale by the owner’s creditors, unless it exceeds$1,500 in value. Beecher v. Baldy, supra; Drake v. Kinsell, 38 Mich. 232. * * *

“No waiver of the homestead right by the husband can affect a wife’s interest therein. Beecher v. Baldy, 7 Mich. 506; Williams v. Starr, 5 Wis. 534; Ring v. Burt, 17 Mich. 465; First Nat. Bank of Constantine v. Jacobs, 50 Mich. 340; neither can the abandonment or waiver of the homestead right or homestead by one entitled to enjoy the same affect the interest of any other equally entitled thereto. Showers v. Robinson, 43 Mich. 513; Griffin v. Johnson, 37 Mich. 87, 92; Allen v. Shields, 72 N. C. 504.”

See, also, Maatta v. Kippola, 102 Mich. 116; Sammon v. Wood, 107 Mich. 506; Gadsby v. Monroe, 115 Mich. 282; Rogers v. Day, 115 Mich. 664.

In Mertz v. Berry, 101 Mich. 32 (24 L. R. A. 789), it is held that article 16, § 2, of the Constitution, must be construed as exempting the homestead from execution and sale upon all judgments whether founded in tort or in contract. ■

. The decree is affirmed, with costs.

Grant, C. J., and Blair, Carpenter, and McAl-VAV, JJ., concurred.


author: Grant, 0. J.

text:
    ROSS v. LOESCHER.
    1. Damages — Stipulated Damages — Penalty—Distinction.
    Courts will disregard the express stipulation of parties as to the damages for breach of a contract, only in those cases where it is obvious from the contract before them, and the whole subject-matter, that the principle of compensatioji has been disregarded.
    2. Same — Nature of Contract — Difficulty of Determining Damages.
    In cases where it is difficult to accurately determine the damages which one party may suffer by the failure of the other to perform his contract, the parties themselves may agree upon such sum as in their judgment will be ample compensation for the breach.
    3. Same — Building Contract — Exoessiveness.
    A provision in a building contract to forfeit §20 per day for failure to complete repairs on a dwelling house within the contract period is not per se excessive so as to amount to a penalty.
    4. Same — Language Used — Forfeit—Effect.
    The use of the word “ forfeit ” does not necessarily imply a penalty.
    5. Contracts — Construction—Fulfillment—Question for Jury.
    Where a building contract providing a forfeiture for failure to complete the work within the contract period contains the provision that “ if work is pushed, a few days of grace will be allowed,” it is not for the court to say that a delay of 13 days was the few days contracted for, since the question depends upon the character of work to be done, the time necessary to do it, and the circumstances surrounding the transaction.
    6. Same — Forfeiture—Waiver.
    The provision for a few days of grace was not a waiver of the provision for damages, since by its terms it was a waiver only if work was pushed, upon which there was a conflict of evidence.
    Error to Muskegon; Davis, J., presiding.
    Submitted January 21, 1908.
    (Docket No. 102.)
    Decided May 1, 1908.
    Assumpsit by George R. Ross against Otto Loescher for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Cross, Lovelace & Boss, for appellant.

      Turner & Turner, for appellee.
    The defendant was overhauling the interior of his residence, and in June, 1905, he made a contract with plaintiff for certain building material to be used in finishing the interior. The contract rested in parol. Plaintiff produced a statement of the material proposed to be furnished. It was not signed by either party, and ■ no price was mentioned. Subsequently $825 was the price agreed upon, and it was evidently the intention that the material should be furnished some time during or before September. Some extras were furnished, and subsequently plaintiff furnished to defendant material for building a porch and some outside work. The material furnished for the porch amounted to $270.69. Three hundred dollars was paid by defendant August 30th. On September 27th a written contract was made, defendant refusing to make any further payments until he had a contract in writing. In this contract plaintiff agreed to furnish all the material for the interior by the 10th of October, 1905, “ or forfeit the sum of $20 a day for every day’s delay thereafter. If work is pushed a few days of grace will be allowed.” Defendant then paid plaintiff $300.
    Plaintiff did not furnish all the material until 13 days after the 10th of October. Plaintiff brought this suit to recover the balance due on the first contract. The court directed a verdict for the amount of his bill, over which there was no controversy.
   Grant, 0. J.

(after stating the,facts). The court held that the $20 per day was a penalty, and could not have been considered by the parties in the nature of compensation. This presents the most important question in the case. It is ably and fully discussed by Christiancy, J., in Jaquith v. Hudson, 5 Mich. 123. It was there said that “there is some conflict and more confusion in the cases.” But the principle is there established that courts will “disregard the express stipulation of parties, only in those cases where it is obvious from the contract before them, and the whole subject-matter, that the principle of compensation has been disregarded.” See, also, Ward v. Hudson River Building Co., 125 N. Y. 230; Hennessy v. Metzger, 152 Ill. 505; Wilcus v. Kling, 87 Ill. 107; Western Gas Construction Co. v. Dowagiac Gas & Fuel Co., 146 Mich. 119.

In cases where it is difficult to accurately determine the damages which one party may suffer by the failure of the other to perform his contract, the parties themselves may agree upon such sum as in their judgment will be ample compensation for the breach.

The defendant desired the possession of his house at a specified time. The plaintiff understood and contracted with reference to this. He had not complied with his first contract as to time. Cold weather was approaching. The damages which a householder would naturally suffer under such circumstances cannot be estimated by the amount of the contract or the rental value of the house. The purpose for which- the building is to be used, the necessity for having the work done within the prescribed time and the indirect as well as direct damages to a householder desiring to move into his house before cold weather, are elements which the parties to such a contract take into consideration. It would be difficult under such circumstances to accurately determine the damage which the householder might receive in being compelled to store his goods and to live at a hotel or boarding-house. We cannot therefore hold that the amount is per se excessive and a penalty. The use of the word “forfeit” does not necessarily imply a penalty (Western Gas Construction Co. v. Dowagiac Gas & Fuel Co., supra), and the circumstances were not such as to justify the court in holding, as a matter of law, that it was a penalty. For cases holding that the stipulated amount was a penalty rather than a fixed compensation, see Trustees of First Orthodox Congregational Church v. Walrath, 27 Mich. 234; Myer v. Hart, 40 Mich. 517, 523; Daily v. Litchfield, 10 Mich. 29; Davis v. Freeman, 10 Mich. 188; Cochran v. Railway Co., 113 Mo. 359; Condon v. Kemper, 47 Kan. 126 (13 L. R. A. 671).

Where the provision is held to be a penalty the defendant is entitled to recover his actual damages.

A more doubtful question arises out of the stipulation in the contract that “ If work is pushed, a few days of grace will be allowed.” We think it was not for the court to say that 13 days was the few days of grace contracted for. The question depends upon the character of the work to be done, the time necessarily required in doing it, and all the circumstances surrounding the transaction. The question should have been submitted to the jury.

The court also held that this provision for a few days of grace was a waiver of the provision for damages. No reason was given for the holding, and we are unable to suggest any. It was a waiver of damages only if, the work was pushed, and upon this point there is a conflict of evidence.

Two other questions are raised, but the ruling of the court thereon was correct, and they are not of sufficient importance to discuss.

Judgment reversed, and new trial ordered.

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


text:
    HIGGINS v. PENINSULAR PORTLAND CEMENT CO.
    1. Appeal and Error — Review—Refusal to Direct Verdict-Propriety.
    The rule that in determining whether a verdict should have been directed for defendant the testimony will be given a construction and effect most favorable to plaintiff should not be applied to supply facts which the plaintiff either cannot or will not disclose.
    2. Master and Servant — Injuries to Servant — Evidence—Sufficiency.
    In an action against the owner of a cement mill for injuries to a servant caused by his being caught in the gearing of certain machinery while filling an oil .cup, evidence examined, and held, sufficient to go to the jury on the questions of the sufficiency of the instructions and warning given to plaintiff, the obvious or non-obvious character of the peril, and the care or want of care exercised by plaintiff.
    Error to Jackson; Parkinson, J.
    Submitted January 2Í, 1908.
    (Docket No. 106.)
    Decided May 1, 1908.
    Case by Patrick Higgins against the Peninsular Portland Cement Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Brennan, Donnelly & Van De Mark, for appellant.

      Richard Price, for appellee.
   Ostrander, J.

The defendant in asking a reversal of the judgment makes a single assignment of error, which is that the court should have directed a verdict in its favor. The duty of the defendant alleged in the declaration is to provide a safe place for its employés, to properly safeguard all gearings and dangerous machinery, to keep its room properly lighted, to instruct its employés in the work they were required to perform, and warn them of attendant dangers. As breaches of duty, it is averred that defendant negligently failed to place any guard around the gearing in which the plaintiff was injured, or to properly safeguard it, failed to properly light the room in which plaintiff was employed, failed to instruct and to warn the plaintiff with respect to dangers attendant upon the particular employment. No breach of statutory duty is alleged. It is said in the brief of counsel for plaintiff that he did not assume the risk because the statute made it the duty of defendant to guard this gearing and that his client could not assume a risk due to an omission to perform a statutory duty, and reference is made to the case of Swick v. Cement Co., 147 Mich. 454. In the brief for appellant, the subject is dismissed with this statement :

“ If defendant were guilty of negligence of any failure to guard the machinery, it would be by reason of some statute; but plaintiff does not rely upon any statute in his declaration, but merely charges defendant with negligence in not safeguarding this machinery. ”

At the trial, defendant offered testimony tending to prove that the factory had been inspected by the State factory inspector at different times, who had examined this particular machinery. He was asked to state whether any guard had been ordered put on the cogs of this particular machine. To this, counsel for the plaintiff objected, saying:

“We are not claiming anything because of any order from an inspector, and they have no right to show that he has or has not ordered it, because the inspector cannot shield them in any way so long as we claim nothing for it. ”

The court excluded the testimony, and instructed the jury as follows:

“ In this case no such question can arise for yoúr consideration as to whether this machinery in question at the place where the plaintiff claims to have been injured might have been safer or safeguarded, because the testimony is undisputed that similar machinery and in a similar condition is in common use in cement factories, and' you should not find the defendant company guilty of negligence because it had and used this particular machinery in the way it did. I instruct you that you must assume that this machinery was suitable and proper, and that defendant had a right to have it in its factory in the way it was there and to use it.”

We must assume that the jury found the negligence of defendant to be something other than the failure to guard the gears. Whether there was any breach of duty to light the place, or to instruct or warn the plaintiff, and whether plaintiff’s conduct was reasonably careful conduct, in view of all the circumstances, are questions which remain and may be considered together. The plaintiff was injured a little after noon on April 1, 1905, in an attempt to remove or to replace the cover upon an oil cup which he had filled or was about to fill with oil, his thumb and the first finger of his hand being caught in a gearing which was in close proximity to the oil cup. He was more than »3 years old and altogether had been employed by the defendant from two and one-half to three years at different work about its factory. At the time of his injury, he was fireman and it was a part of his duty to oil certain portions of the machinery and to oil the machinery at the particular place where he was engaged when the injury was received. Plaintiff’s testimony leaves the question of the time he had been employed as fireman altogether uncertain and also the number of times he had oiled the machinery. As an example, the following is quoted from his testimony:

Q. You did the oiling for 10 or 1» days ?

“A. Yes, sir, that is what I think it is. I wouldn’t swear to it. I knew it was my duty to do the oiling, and I was doing my duty. I was oiling the bearings there; that is, oiling the boxes, the oil boxes.

“ Q. You were filling the boxes with oil for a period of twelve days ?

“A. Yes, sir.”

Further along he testified:

Q. It was your duty to oil those cups at least twice a day?

“A. No, sir. Didn’t get no orders to that effect.

Q. It was your duty to fill them once a day, wasn’t it?

‘A. Fill them once a week. * * • *

Q. Do you mean to tell this jury you received orders to only fill those cups once a week ?

“A. I think that was the orders I got. * * *

“ Q. Do you mean to say you worked there 10 or 12 days and never filled those cups with oil ? * * *

‘A. To my memory I don’t think I ever filled them before. I might have and I might not.

Q. Well, don’t you remember?

liA. No, sir. * * *

Q. You mean to tell us this day is the first day you put any oil in those cups, you had never been upon that ladder before ?

“A. I didn’t Swear I didn’t. I might have oiled it before.

Q. You might have oiled it twice before ?

“A. .1 don’t think I ever did.

“ Q. Didn’t you know it was your duty — for those cups to be oiled twice a day ?

“A. No, sir; I never oiled them twice a day.”

There is testimony tending to prove that he was shown how and where to oil about three days before he was injured. The room in which he worked, called the coal or dryer room, was 30 by 60 feet in size. In the room besides the drag or elevator at which he had formerly worked were two cylinder dryers 40 feet long and four feet in diameter. They are. elevated above the floor of the room. The upper and higher end of each dryer rests upon a cement pier .about six feet five inches high. These cylinders revolve over a fire and are driven by a gearing constructed on the head of the pier. There is a large cogwheel fastened around the upper end of the cylinder which meshes with a small cogwheel underneath the cylinder about twelve and a half or thirteen inches in diameter. The dryer, and of course the larger cogwheel, makes two and one-half revolutions a minute, the smaller wheel about fifteen revolutions a minute. ■ The two dryers are six or seven feet apart. On each side of the smaller cogwheel which has been referred to are oil boxes to lubricate the bearings. As the record is understood, they are rectangular in form, each having a cover which has to be removed when the oil is put into the box and replaced when it is filled. The covers are four inches long, two and one-half inches wide, and each weighs eight or ten ounces and has a flange of one-eighth of an inch. The tops of the oil boxes are substantially on a level with the point where the two gears mesh together, are some ten inches above the face of the pier, and at the nearest point are about an inch from the gear. There are other oil cups on the pier head to be filled, and there is other gearing and machinery also upon the pier heads. In oiling, a ladder is used, upon which the oiler mounts and, using an oil can, fills the boxes. For certain of the boxes, the ladder is placed against the north face of the pier and the oiler in mounting it faces directly south. To oil the box in question and to avoid reaching over other gearing, the ladder is placed on the side of the pier and mounted there, and it is the testimony of the plaintiff that he had so placed his ladder on the east side of the west pier; that he had oiled the cup on the north side of the cogwheel and was either removing or replacing the cover of the box on the south side of the cogwheel, using his right hand and holding his oil can in his left hand, when his thumb and forefinger became engaged in the cogs. The larger wheel, the face of which is narrower than the face of the smaller wheel by about an inch, had a slight lateral motion as it revolved, so that at times it came nearer the oil box than at other times. Drawings and photographs showing the arrangement of the machinery were made use of in the court below and have been furnished to this court. It is not convenient, is indeed practically impossible, to reproduce them. The face of the large cogwheel is five inches wide, and of the smaller and lower wheel six inches wide, and, if the plaintiff was oiling from the east side of the pier, they would be directly in front of him and some 40 or 45 inches from the edge of the pier. The action required in oiling the bearing is very simple. It is evident that under ordinary conditions to see another perform the operation or to actually perform it would be to know how to do it. The danger to be avoided was the cogs. But there is testimony supporting the theory of ■ the plaintiff that the position of the oil cups was made uncertain to the vision by the surrounding machinery, that the room was dark, the air filled with dust, which obscured objects, lessened the effect of the artificial lighting, and made a view of the machinery at the particular point difficult; that an artificial light should have been placed nearer to the place in question; that while plaintiff had, under these conditions, observed others oil the machinery, had been shown where the cups were, and how to perform the operation, and had, probably, filled the particular cup one or more times before he was hurt, he did not know, had not been told and could not distinctly see the proximity and relation of the oil box in question to the intermeshing cogs. We are not impressed with the story told by plaintiff. There is very satisfying testimony tending to prove him to have understood the situation and to have carelessly brought about his injury.

In applying the rule that in determining whether a verdict should have been directed for defendant, the testimony will be given a construction and effect most favorable to plaintiff, we have not treated it as a rule which in application supplies facts which the plaintiff either cannot or will not disclose. The record presents a remarkable case of the refusal or the inability of a plaintiff to answer material questions and of repeated instances of what appear to be more or less clever efforts to return evasive rather than responsive answers. We are nevertheless constrained to say that reasonable minds might differ concerning the sufficiency of the instruction and warning (if there was any oral warning) given to plaintiff, and concerning the obvious or non-obvious character of the peril, the entire situation being considered. And so, also, of the care or want of care exercised by the plaintiff. The case was one for a jury, and the judgment is affirmed.

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


text:
    O’NEILL v. THOMPSON.
    1. Sales — Passins Title — Bona Fide Purchasers.
    A genuine bill of sale reciting a consideration, accompanied by evidence of possession thereunder, is sufficient evidence of title to chattels, except as to creditors and subsequent good-faith purchasers for value, notwithstanding subsequent possession by the seller.
    2. Replevin — Right of Possession — Special Interest — Effect.
    After plaintiff had bought certain chattels they again came into possession of the seller and defendant bought them of him, making a payment on the price, in reliance upon his claim of ownership. Plaintiff did nothing to accredit the asserted title of the seller. After making demand for possession, refused on the ground of ownership,'plaintiff brought replevin, and on the trial defendant asked for judgment, on the theory that the demand for possession should have been accompanied by a tender of the amount he had paid for the property, declining to have his special interest determined. Held, that a judgment for plaintiff would not be disturbed.
    Error to St. Clair; Law, J.
    Submitted January 22, 1908.
    (Docket No. 115.)
    Decided May 1, 1908.
    Replevin by John G. O’Neill and Mary M. Atkinson against Eobert P. Thompson. There was judgment for plaintiffs; and defendant brings error.
    Affirmed.

      William T. Mitchell (Stevens Graham & Stevens, of counsel), for appellant.

      Frederick B. Brown, for appellee.
   Ostrander, J.

Plaintiffs seized an engine and centrifugal pump in the possession of defendant. Defendant gave a bond to prevent removal of the property and seeks to reverse a judgment rendered against him for its value. Both parties to the .suit claim through the same original owner of the property, plaintiffs as general owners, defendant as a purchaser who found the property in the possession of his vendor, bargained for it and had paid, when action was begun, $10 on an agreed purchase price of $150. No tender or payment was made to defendant before suit. At the trial, defendant insisted upon a general verdict, declining, if plaintiffs were found to he the owners, to have his special interest determined. There was testimony which warranted' the jury in finding, as they did, that plaintiffs were general owners of the property. They produced a bill of sale, made some years before defendant claimed to have purchased the property, and, although offering no evidence of having paid for the property, except as the bill of sale recited and imported a consideration, produced testimony tending to prove that for some three years they had possession of the property. How the original owner came again to have the property upon his premises does not clearly appear. He was deceased at the time of the trial. Defendant did not attempt to prove that his vendor acquired a title after the execution of the bill of sale. There is no evidence tending to prove that the transaction was the giving of security merely. This bill of sale, if genuine, with the evidence of plaintiffs’ possession of the property, would be sufficient evidence of plaintiffs’ title except as against creditors and subsequent good-faith purchasers of the property for value. McMaster v. Campbell, 41 Mich. 513; Kohl v. Lynn, 34 Mich. 360; Spicer v. Waters, 65 Barb. (N. Y.) 321. There is no testimony tending to show that when the property was sold to plaintiffs the vendor had any creditors. The testimony warranted a finding that defendant’s vendor at the time of the sale to defendant had the property upon his premises and, by offering it for sale to defendant, and by statement, claimed ownership; that he had been in apparent control of the property for a considerable time, and that when defendant agreed to purchase, and when he paid the $10 upon the purchase price, he had no notice of the claim or right of plaintiffs. It is contended that if the jury found these facts, defendant’s possession was a lawful one and continued to be lawful until by demand and by payment, or tender of the money he had paid, it was made, as against plaintiffs, unlawful. The court was requested to instruct the jury to that effect. The instruction given was:

“I had intended to give the jury instruction in reference to the interest of property right which Mr. Thompson might have in the goods replevined, even if you find in favor of the plaintiffs, but the defendant’s attorneys have requested me to instruct you as follows:

‘ ‘' The primary question in this case is, Who, plaintiff or defendant, is entitled to the possession ? and if defendant, who still holds the property, is entitled to your verdict of not guilty, or that he did not hold the property unlawfully, that ends the case, unless he elects to have the value of his interest and possessory right assessed, and in this case the defendant does not so elect, but asks for you simply to determine his rights to possession with nominal damages of six cents, if against him, and, if for him, not guilty, or that he did hold the property lawfully.’

“I give you that instruction as requested by defendant’s attorneys and on that theory of the case if the defendant does not ask to have his interest determined in the property, I hardly think it would be proper for the court to submit that theory to you. I am right, gentlemen, am I not ?” (Counsel for defendant) “ nodded his head.”

The point is the one most urged upon this court at the hearing. As a practical one, it involves costs only, since it is clear that the special interest of defendant, if any, might have been determined by the verdict. Moore v. Vrooman, 32 Mich. 526; Farmers’ Loan & Trust Co. v. St. Clair, 34 Mich. 518. See, also, Gidday v. Witherspoon, 35 Mich. 368; Quackenbush v. Henry, 38 Mich. 369; Alderman v. Manchester, 49 Mich. 48; Williams v. Bresnahan, 66 Mich. 634; Duke v. Beatty, 147 Mich. 665. That plaintiffs made proper demands for a return of the property is not disputed. The undisputed testimony is that defendant, in reply to a question asked by one of the plaintiffs, said he would not surrender the property unless it was taken legally. There is no testimony tending to prove that he was asserting less than ownership; he challenged .plaintiffs’ .ownership. He gave a bond to the sheriff to prevent delivery of the property'to plaintiffs. An examination of the record discloses no testimony tending to prove that Bartow’s possession of the property,. when he sold it to defendant, was with the knowledge or consent of plaintiffs, or that defendant’s agent in making the purchase made any inquiry as to the ownership of the property except of Bartow. He asked Bartow, he says, if he was owner of the pump and if any one else had any claim of any kind or character at all. He relied, not upon Bartow’s original ownership of the property, of which it does not appear that he or his agent, who made the purchase, had any knowledge, but upon his apparent ownership indicated by possession. There is nothing to show that plaintiffs lent themselves to accredit the asserted title of Bartow, and therefore there is nothing to estop plaintiffs from recovering from the defendant as they might have recovered from his grantor.

We find no reversible error committed at the trial, and are of opinion that the court properly denied a new trial.

The judgment is affirmed.

Grant, C. J., and Montgomery, Hooker, and Carpenter, JJ., concurred.


author: Hooker, J.

text:
    CHRISTIE v. CRAWFORD.
    1. Sales — Conte act — Guaranty—Construction.
    Where dealers engaged in buying imported horses for breeding purposes by the carload sold a stallion under a guaranty that he should be.a sure foal getter, and agreed in case he should not prove to be such to return the purchase price or replace him with another horse of the same breeding and price, they were entitled, upon return of the horse sold, to a reasonable time within which to produce another under the guaranty, and two weeks was, as a matter of law, such a reasonable time.
    2. Same — Guaranty—Breach—Damages.
    Where a horse sold under a contract of guaranty has been returned to the seller for breach of the guaranty, and there has been a failure to replace him with another of the same breeding and price as agreed, the measure of the buyer’s damages is the value of a horse of the same breeding and price as the one sold, not exceeding the purchase price, with interest from the time the horse should have been replaced.
    Error to Macomb; Erskine, J.
    Submitted January 22, 1908.
    (Docket No. 116.)
    Decided May 1, 1908.
    Assumpsit by Charles Christie and others, copartners as the Capac Horse Breeding Association, against John Crawford and Milton D. Comstock, copartners as Crawford & Comstock, for breach of warranty on the sale of a horse. There was judgment for plaintiffs, and defendants bring error.
    Reversed.

      Frederick B. Brown {Lincoln Avery, of counsel), for appellants.

      Cady & Crandall (Stephen II. Clink, oí counsel), for appellees.
   Hooker, J.

The defendants are copartners, and dealers in imported horses for breeding purposes, residing and doing business in this State. The plaintiffs, with two or three others since deceased, also copartners, purchased a stallion named Willard from the defendants, giving therefor their three promissory notes, aggregating $2,000, and taking the following written contract of guaranty:

“Now, therefore, we hereby guarantee the above-named horse to be a sure foal getter, also a reproducer of good stock with proper care and handling. In case he should not prove so we agree to take back said stallion by the first of September, 1902, and return to the said Capac Horse Breeding Association their notes or money or replace him with another horse of the same breeding and price upon delivery of the above-named horse at Com-stock and Crawford’s barn at Byron, Michigan, in as good and sound condition as he is at present.

“ This is the only contract given by us and is not to be changed or varied by any promises or representations by our agents.”

Plaintiffs used the horse during the season of 1901, without complaint, but on February 27, 1902, wrote the following letter to the defendants:

“ Capac, Michigan, February 27, 1902.

“ Mr. Comstock and Crawford :

“ Dear Sirs: The Capac Horse Association will meet at James Burk Hotel on March 7th, as the horse Willard does not prove to be a foal getter and will have to be returned to Comstock and Crawford’s farm, Byron, Michigan, at their expense.

“ Yours truly,

“Jesse Frantz, Secretary.”

No further communication passed between the parties until August 26th. Meantime the plaintiffs continued to use the horse in their business. On August 26, 1902, they sent the horse to the defendants, and they being absent, he was put in their barn without their knowledge. The next day one of the defendants was seen by plaintiffs’ agent and informed that the horse had been returned by direction of the plaintiffs. The testimony offered by plaintiffs was to the effect that they informed defendants that they had returned the horse, under the provisions of the guaranty, and that they demanded the return of the notes, or their equivalent in money, or another horse, to comply with the terms of the contract. The defendants declined to return the notes or pay the amount thereof, but expressed a willingness to give plaintiffs another horse, to be selected from several horses then in their barn, and, if these were not satisfactory, that plaintiffs could choose from a car load. which they expected in within a couple of weeks. Plaintiffs’ agent declined to accept any of the horses in the barn upon the ground that they were of different breed and color. The agent then went away. Within two weeks plaintiffs were notified that defendants had a horse for them, to which they replied as follows:

“Capac, Michigan, September 19th, 1902.

Comstock and Crawford,

“Byron, Michigan.

Dear Sirs: I received your letter and in reply, the horse association held a meeting and decided not to take another horse as you had none to fill his place when they were there at your place. Now, it is getting too late as a number of the association wants to breed this fall; in fact some had bred already. They voted that not to pay the note as there were no value received at the last meeting.

“ J. Frantz.”

It also appears that on September 1st, the plaintiffs had a meeting. We insert a copy of the record thereof:

“Capac, Michigan, September 1st, 1902.

“ Capac Horse Breeding Association met at 8 o’clock -and called to order by Charles Christie, chairman.

“Moved by Archie McDougall, and supported by Norman Clause, that we refuse to pay the note due on the first of September, 1902, and now in the Capac Savings Bank for collection and if we are sued to immediately serve notice on Comstock and Crawford of the action, and notify them to come into court and defend said suit and as soon as the time elapses to file answer that we pay said note and look to Comstock and Crawford for damages. Motion was unanimously carried.

“ Moved and supported that we adjourn. Carried.

Signed, “J. Frantz,

“Secretary.”

There was other testimony tending to show that at the first meeting after the horse was returned the plaintiffs decided not to accept another horse, but there is not in the record of the- meeting of September 1st, and the witnesses differ upon the question. That was, therefore, a question for the jury. The plaintiffs were forced to pay their notes, the same having been sold. They brought this action upon the contract of guaranty to recover damages for the breach thereof, and obtained a judgment. Defendants have appealed.

Construction of the contract. The important questions in the case are, whether the court should have held that the defendants were entitled to a reasonable time to furnish another horse, and whether two weeks was a reasonable time, and whether there was error in the charge in relation to the measure of damages. The first involves a construction of the writing evidencing the guaranty. Counsel for plaintiffs claim that there was a breach thereof when defendants failed to have another satisfactory horse for the plaintiffs ready for delivery on August 26th. The court did not accede to this claim, and instructed the jury that the defendants were entitled to a reasonable time to produce such a horse as plaintiffs were entitled to under the contract, leaving the jury to determine whether two weeks was a reasonable time. Counsel for defendants insist that this should not have been left to the jury, and that from the undisputed facts the court should have said that two weeks was a reasonable time within which to comply with the demand.

The claim that defendants violated their contract of guaranty on August 26th is not tenable. They could not have been expected to have and keep on hand at all times a horse which should be acceptable to the plaintiffs, or one which would in all respects be exactly similar to Willard, with the added requirement of the guaranty. The court correctly held that they were entitled to a reasonable time within which to procure one, and, under the uncontradicted testimony, we feel warranted in deciding, as a matter of law, that two weeks was not an unreasonable time within which to do so. Counsel insist that this was a question for the jury. Had there been any conflict of evidence or dispute upon the circumstances, it would have been a question for the jury, or had there been any opportunity for reasonable minds to differ upon the question we should not reverse the case upon this ground. When we take into consideration the necessary method of conducting defendants’ business, viz., buying imported horses by the car load, and the expense, if not the impracticability, of keeping such a horse constantly on hand during a period of uncertainty, it would be unreasonable to conclude that the parties contemplated any such interpretation of the contract. See Druse v. Wheeler, 26 Mich. 189, 195, 199; Bowen v. Railway Co., 54 Mich. 501; Gridley v. Tobacco Co., 71 Mich. 528, 533; Couch v. Mining Journal Co., 130 Mich. 294, 299. For other cases, see 23 Am. Sc Eng. Enc. Law (2d Ed.), p. 971 n.; 6 Current Law, p. 1004.

Measure of damages. The learned circuit judge instructed the jury as follows on the question of damages:

“ Plaintiffs’ measure of damages, in case you find for them, would be the value of a horse of the same breeding and price as the one sold by defendants to plaintiffs, not to exceed the purchase price, together with interest at five per cent, from the time you find that said horse should have been replaced by said defendants.”

In view of a possible new trial, we state that this was proper upon the theory of plaintiffs’ counsel that this was an action for damages for breach of a contract of guaranty.

Other questions. It is unnecessary to discuss or express an opinion upon other questions, except to say that we sustain the rulings of the court on the introduction and exclusion of evidence.

For the reasons given, the judgment is reversed, and a new trial ordered.

Grant, C. J., and Ostrander and Carpenter, JJ., concurred. Montgomery, J., concurred in the result.


text:
    SPANGLER v. SAGINAW VALLEY TRACTION CO.
    1. Carriers — Street Railroads — Setting Down Passengers— Duty of Carrier. . >

    A street is not a passenger station, for the safety of which a street-railway company is responsible; ordinarily, a passenger, having safely alighted from a street car, becomes at once a traveler upon the highway, and his duty and the duty of others towards him have no relation to the reciprocal duties which a moment before existed between the carrier and himself.

    2. Same — Obstructed Street.
    It is the duty of a street-railroad carrier to exercise proper care to see that the place of alighting is safe and not to stop its car for alighting passengers at a place where it is known to be unsafe.
    3. Same — Personal Injuries — Negligence—Question for Jury.
    In an action by a passenger against a street-railroad company for personal injuries received by falling into a paving excavation between defendant’s tracks immediately after alighting, the situation having been created by defendant a few hours before the injury, evidence examined, and held, that whether the night was dark and the obstructions and the single red light placed in the vicinity were calculated to warn a prudent person of the situation, and whether plaintiff exercised proper care, were questions of fact properly submitted to the jury.
    4. Same — Evidence—Sufficiency.
    In an action by a passenger against a street-railroad company for personal injuries received by falling into a paving excavation between defendant’s tracks immediately after alighting, the situation having been created by defendant a few hours before the injury, evidence examined, and held, to warrant a finding that it was negligence on the part of the carrier to stop its car at the place it did stop it and invite plaintiff to alight there without in some suitable way informing her of the conditions.
    Error to Saginaw; Gage (Chauncey H.), J.
    Submitted January 24, 1908.
    (Docket No. 155.)
    Decided May 1, 1908.
    Case by Sarah Spangler against the Saginaw Valley Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Weadock & Duffy, for appellant.

      Eugene Wilber and Fred L. Eaton, for appellee.
    Defendant operates a street railway on Warren avenue in Saginaw. On the evening of August 17, 1906, plaintiff alighted from a south-bound car at the intersection of Warren avenue and Hoyt street, on the south side of Hoyt and west side of the car, intending to proceed to the east across Warren avenue to her home on the south side of Hoyt street. During that day, in preparing to repave the street between the rails and for a short distance outside the rails, agreeably with the demand of the city and its relations therewith, defendant’s contractor had removed the cedar blocks of the old pavement from the south line of the asphalt roadway on Hoyt street southward, for several hundred feet. The excavation or opening thus made .was at least seven and perhaps in places outside the rails a greater number of inches in depth. The car on which plaintiff rode having proceeded, she stepped into the excavation, of which she had no knowledge, fell down and broke her leg. She recovered a verdict and judgment against the company, the theory of the case set out in her declaration being that defendant owed a duty to her as passenger to stop its cars where she could alight in safety and safely cross the street, and, if it stopped them where the excavation existed, to light the place so that the danger could be seen and avoided or to warn her of the dangerous condition. It is averred that it stopped the car at a point where, when she alighted, she. was opposite and near the excavation, that no light was set at or near the place, no signal of danger given, and that she was not given any warning of the dangerous character of the street. It was the theory of the defendant (I quote from the brief):
    “ That so far as the plaintiff was concerned, it had discharged its full duty as a common carrier, and she had safely alighted from the car, and the car had proceeded upon its way; that it had let the contract for the pavement of the right of way, and the contractor had provided a proper light to warn persons using the street of the danger, and that plaintiff heedlessly, without using any care, caution or observation, walked into the excavation, and was injured; that the work was a necessary work and was done in the usual and ordinary manner.”
    Certain of defendant’s requests to charge were refused and it is upon such refusal and upon the instructions given to the jury that the assignments of error relied upon are based. The court instructed the jury:
    “It was the duty of the company to provide a safe place to alight. Now you are not to consider that the place was safe simply because a person alighted from the. car and reached the ground and stood there without injury. If there was in the vicinity of the point and so close to the point where she was required to alight by the streetcar company, so close as this excavation was, it is a question for you to consider, gentlemen of the jury, as a question of fact, whether that was a safe place to alight. Because we all understand that when a party alights from a car they do not maintain a position upon the pavement of a stationary character; they go somewhere. If this excavation 14 inches from the car, was so near to the point of alighting as to render it a dangerous place, in your judgment, to a person getting off of the car at that point, then the railway company did not perform their duty to this plaintiff and were guilty of negligence in requiring her to alight at such a point; and it is a question of fact for you to find from the nature of the excavation whether it was a safe place or not for alighting. If it was not a safe place, it is the duty of the company to warn the passenger of the fact of the existence of this unsafe condition of the track, between the tracks, and for this space in front of the. tracks. Now that warning might be by an actual statement on the part of the conductor that there was something near the point where he required her to alight, and the company required her to alight, where they stopped — there is no question about that. It was the duty of the company to provide some way by which a person might be warned of the danger. It might have been done by the conductor telling her of the fact. It might be done by providing a barrier or safeguard or a light sufficient, of a character that would indicate danger; that would warn a person that they must not step in that direction, that is towards the excavation, but go in some other direction.
    “Although the street-car company operated its track upon Warren street, it did not change the nature of the highway. The street is still a public highway. The streetcar company simply had a right to pass along the highway on stationary tracks, and by a contract given to them; it is still a public, highway. But in that part they occupy there it has certain other duties required of them by their franchise apparently, and among them is this matter of the paving between the tracks and on each side of the tracks. They had a right to do that paving, that is true; but because they were obliged to do the paving under the franchise, it did not relieve them of the obligation of providing a safe place to alight; and if, in the duty of making this pavement, rebuilding the pavement, or putting in a new pavement, it rendered the alighting of passengers within the length of the excavation unsafe, then it became the duty of the street-car company, or the defendant in this case, to warn the passengers of the danger.
    “It is a question of fact for you to consider whether the light placed on the northeast corner of Hoyt and Warren was of such strength, or was of such character, or was at such a point, that it would naturally warn a person in getting off a car on the west side of the track at the point where this lady was required to alight from the car. That is, if it was such a character and at such a point that it would indicate to the person alighting from the car that there was danger close by, and there was danger where they were then if they moved in a direction eastward, it might be a sufficient warning, but that is a question of fact for the jury to decide. Or whether there was a warning of danger at some other point, or some more remote point, than the place where she did alight. Of course, there is evidence in this case as to the character of this light, and the evidence is not alike; but the location of the light there did not seem to be any great difficulty. And then in determining that question, about the light, you will take into consideration the darkness of the night, whether dark or light, or daylight; and you must also take into consideration the obstructions in and about there to a person seeing a light of that character, in the way of trees, foliage, and shrubbery; and in taking into consideration whether the light was sufficient to warn a person getting off from the car, you may take into consideration the condition of the persons when they got off the car; and it is a matter of common knowledge that a person sitting in a lighted car, it may take a moment or two before in the darker point their eyesight would be sufficiently bright you might say to see such a light.
    “The plaintiff had aright to cross that track. She had a right to go home that way. A person has a right to cross a street anywhere they see fit, so far as the actual right of crossing there was concerned. She was under no obligation to go around on Hoyt street and cross that way; she was under no obligation even to go to the sidewalk. She had a right to cross unless of course she was warned and saw the warning; in other words these ‘short cuts,’ as we sometimes hear them called, are a perfectly proper transaction, ordinarily considered; but persons crossing any street are obliged to exercise a certain care. She was obliged to exercise that care that an ordinarily prudent person would exercise at that time of night in crossing that street, and that is all. If she did, why she did not by her action contribute to the injury. * * *
    “ When you consider what character of lights the defendant ought to have had at this point and also what care the plaintiff should have exercised at that point, the character of the night in question and also whether that particular point on the street was more shaded or darker than other portions of the street must be taken into consideration. It was the duty of the defendant, if they used a darker point where she got off than it was at • other points on the street, to make that light or warning sufficient that it would attract her attention at that point and that there was danger at that point.
    “And also if it was a very dark and shaded point there, then the care required of a person crossing the street was increased of course by darkness. In other words the darkness increased the care on her part and the duty on the part of the company.

      “ So far as the actual lighting of the street is concerned, that is putting electric lights or gas lamps or any other method of making the street light, the defendant company were under no obligation to do that. That is electric lights and other methods of lighting the streets, that is done by the city. Streets may be lighted or not, as the city authorizes them or not. But this particular light, the warning of danger was a duty on the part of the defendant company.”
    These excerpts from the charge sufficiently present the theory of the trial judge.

       As to termination of passenger’s relation, as such, upon reaching destination, see note to Glenn v. Lake Erie & W. R. Co. (Ind.), 2 L. R. A. (N. S.) 873.

   Ostrander, J.

{after stating the facts). As the contention of plaintiff in error is understood, it is that the duty' of the railway company, the passenger having alighted safely, was a duty to be measured without reference to the relation of carrier and passenger; that it owed to plaintiff, when she was injured, no other or different duty than if she had been a pedestrian who was attempting to cross the street at the same place.

The rule that the relation of carrier and passenger does not cease at the moment the passenger alights from the carrier’s vehicle, at the point of destination, but continues until the passenger has had,reasonable time to leave the carrier’s premises, is qualified in its application to passengers using surface street-railroad vehicles. A street is not a passenger station, for the safety of which a street-railway company is responsible. Ordinarily, a passenger, having safely alighted from a street car, becomes at once a traveler upon the highway, and his duty and the duty of others towards him have no relation to the reciprocal duties which a moment before existed between the carrier and himself. Creamer v. Railway Co., 156 Mass. 320 (16 L. R. A. 490); Bigelow v. Railway Co., 161 Mass. 393; Conway v. Railroad Co., 87 Me. 283, 90 Me. 199; Platt v. Railroad Co., 2 Hun (N. Y.), 124. But as a general rule it is the duty of the street-railroad carrier to at least exercise proper care to see that the place of alighting is safe — not to stop a car for alighting passengers at a place known to be unsafe. Nellis on Street Surface Railroads, p. 485; Richmond City R. Co. v. Scott, 86 Va. 902; MacDonald v. Transit Co., 108 Mo. App. 374; West Chicago St. R. Co. v. Cahill, 64 Ill. App. 539, 165 Ill. 496; Stewart v. Railway Co., 78 Minn. 85; Fort Wayne Traction Co. v. Morvilius, 31 Ind. App. 464; Citizens’ St. R. Co. v. Twiname, 111 Ind. 587; Henry v. Railway Co., 24 Wash. 246; Bass v. Railway, 70 N. H. 170; Mobile Light & R. Co. v. Walsh, 146 Ala. 295; Maverick v. Railroad Co., 36 N. Y. 378; Wolf v. Railroad Co., 67 App. Div. (N. Y.) 605; and it would be a narrow application of the rule to hold that the carrier’s duty was in all cases performed if a passenger reached and stood upon the surface of the street in safety. If a passenger alighted in the night, in a dark place, at a point where a step made in any direction would be into an excavation, made by the carrier, in a street, the surface of which had been theretofore smooth and comparatively level, the existence of the excavation being unknown to the passenger, it would be doing violence to terms to say that the car was stopped and the passenger invited to alight at a proper place, or that the passenger had safely alighted. In the case at bar, the plaintiff had been absent from the city for some days. She was ignorant of the situation at the place where she alighted. The situation was a dangerous one and had been created by defendant a few hours before the injury was received. Whether the night was dark and the obstructions and the single red light placed in the vicinity were calculated to warn a prudent person of the situation, and whether plaintiff exercised proper care, were questions of fact for the jury, and were submitted to them. If plaintiff had been informed, she could easily have avoided the danger. Without information, she was likely to pursue her way as she had been accustomed to do. Her way led across the tracks of defendant and into the opening in the street.

We are of opinion that the evidence warranted a finding that it was negligence on the part of the carrier to stop its car at the place it did stop it and invite plaintiff to alight there without in some suitable way informing her of the conditions. The charge of the court presented this theory and was, in the main, favorable to defendant.

The judgment is affirmed.

Grant, 0. J., and Montgomery, Hooker, and Carpenter, JJ., concurred.