text:
    LOVERING v. DUPLEX POWER CAR CO.
    1. Corporations — “Blue Sky” Law — Sales of Stock — ‘Agent”— Broker — -Statutes.
    A person engaged by a corporation to sell its corporate -stock on commission, after its capitalization is duly approved and it is duly licensed to sell its stock under tbe provisions of tbe “Blue Sky” law, Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11945 et seq.), is an “agent” under section 12 (§ 11956) of said act.
    2. Same — Statutes—Violation of Statute — Defenses.
    Under said section it is tbe duty of tbe corporation to register its agent engaged in selling its stock and pay tbe fee therein provided, and it cannot urge its violation of this provision of tbe law to defeat recovery by the agent in an action for bis commissions on tbe sale of said- stock.
    3. Trial — Issues—Evidence—Sufficiency.
    In an action for commissions by an agent of a corporation for tbe sale of its stock, where plaintiff’s claim was supported by tbe record, and tbe pivotal questions were questions of fact, tbe judgment for plaintiff, based upon tbe verdict of tbe jury, will be affirmed.
    Error to Eaton; Smith, J.
    Submitted January 7, 1919.
    (Docket No. 11.)
    Decided April 3, 1919.
    Assumpsit by James L. Lovering against the Duplex Power Car Company for commissions on the sale of certain stock. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      B. L. Sowers and Colgrove & Potter, for appellant.

      L. H. McCall and Frank A. Dean, for appellee.
   Moore, J.

November 3, 1916, plaintiff commenced this suit to recover for commissions to which he . claimed he was entitled on sales of the stock of defendant company made by him for it. There is no question but what he made sales of stock. He was paid commissions to the amount of $470, and defendant claims he was paid in full. The plaintiff claims he was entitled to recover $1,870 more.

At the close of the plaintiffs case the following 'occurred:

“Mr. Potter: May it please the court: The defendant in the above entitled cause moves to direct a verdict for the defendant at this time for the following reasons:
“First. The plaintiff in this case is a broker, engaged in the business of a broker, and he admits that he never filed with the county clerk of any county in which he was doing business any certificate in writing signed by him or verified in any way, setting forth the fact that he was engaged in that business. I am reading from section 5271, 2 Compiled Laws of 1897; also 5274. (Reading.) It is conceded in this case by the testimony of the party that he did not file any certificate with the county clerk in pursuance of that statute, and if that statute is applicable to this case, he was doing business in violation of the penal provisions of the law.
“Second. For the reason that we have in this State in force Act No. 46 of the Public Acts 1915, which statute has been declared constitutional by the Supreme Court of the United States, and generally known as the ‘Blue Sky’ law. The parts of the statute I desire to call your honor’s attention particularly to are the following provisions: Section 2, section 3, section 10 and section 23. (Reading.)” Citing Buckley v. Humason, 16 L. R. A. 423 (50 Minn. 195, 52 N. W. 385); Niagara Falls Brewing Co. v. Wall, 98 Mich. 158; Cashin v. Pliter, 168 Mich. 391.

This motion was overruled.

The defendant then put in its testimony and the case was submitted to the jury which returned a verdict in favor of the plaintiff in the sum of $1,272. From a judgment on this verdict the case is brought here by writ of error.

The defendant proffered 57 requests, to charge. These were refused except as covered by the general charge of the court. This charge covers, the claims of the parties and the issues involved so fully that we quote from it freely as follows:

“This is an action of assumpsit brought by the plaintiff, Mr. Lovering, against the defendant, the Duplex Power Car Company, to recover for commissions claimed to be due him from defendant company. The plaintiff claims that he was employed by the defendant to solicit subscriptions for stock of the defendant company, and for all such subscriptions which he solicited and secured he was to receive a commission of ten per cent.
“About the amount of the commission, that is to say, ten per cent, for all stock sold, there seems., to be no dispute between the parties, and the only dispute is as to the amount of stock Mr. Lovering sold for which he should recover, his claim being that he sold, according to the agreement, a certain amount of the stock, and the defendant claiming he sold a much less amount and the question for you to determine is, How much stock did Lovering sell upon which he is entitled to his commission at the rate of ten per cent.?
“Now, gentlemen, I want you to read the certificate of authority and a paper which possibly may be called a contract, although I will not call it a contract, between the parties. Mr. Lovering went to work under this certificate of authority, dated the 22d day of August, 1916:
“ ‘To whom it may concern: This is to certify that Mr. J. L. Levering is taking orders for stock for the Duplex Power Car Company and that the purchaser can send his check covering the number of shares desired to the First National Bank, Charlotte, Michigan, or direct to the Company, and certificates will be forwarded by return mail.
“ ‘The Dotusx Power Car Co.,
“ ‘F. P. Towne, Pres.’
“Later this was entered into, this which possibly may be called a contract, although I am not calling it a contract:
“ ‘September 20, 1916.
“ ‘To whom It May Concern: This is to certify that the bearer Mr. J. L. Lovering whose signature is herewith’ — and he has written in his signature — ‘is duly authorized to receive and solicit application for a limited number of shares of stock of the Duplex Power Car Co. at the original par value of ten dollars ($10.00) per share, all checks to¡ be made payable to the said company.
“‘Very truly yours,
“ ‘The Duplex Power Cab Co.,
“ ‘Per P. P. Town, Pres.’
“Now by these papers that I have read to you, gentlemen, the dealings of these parties are governed, and in view of the situation of the company, as I suggested to you in the commencement of this charge, the parties ought by them to be governed.
“It is a general principle of the law that when the agent has fully completed his undertaking — the agdnt of any institution or company or person has fully completed his undertaking according to its terms, he is entitled to his compensation. And if you find in this case that Mr. Lovering did all he was bo'und to do under his authority to act, his right to his compensation is complete and he cannot be deprived of it, because the principal then fails to avail himself of the benefit of the acts, or refuses to do what he had agreed to do upon performance by the agent.
“I instruct you that Mr. Lovering was entitled to his commission when he procured a purchaser ready and willing and able to take and pay for the stock by check with the application or to be remitted at once, and his right to his commission does not depend upon the contingency of the principal’s acceptance of the subscription, but rather upon Mr. Lovering’s performance of his part of the contract, and the principal cannot deprive the agent of his commission by refusing to accept the subscription or refusing to issue and deliver thé stock which Mr. Lovering’s, efforts have resulted in securing.
“Now, gentlemen, this that I am giving you now is somewhat modified by a later instruction as to his authority, and as to a revocation, which you will easily apply, I am sure, when you get to your jury room.
“Upon the same principle, an agent has earned the commission when he has procured a purchaser who is ready, willing and able to take the stock upon the terms designated, to have check attached to his application or sent by the applicant at once, and the principal cannot defeat the agent’s claim for commission by refusing to sell or deliver the stock or by refusing to sell except upon other and different terms nor by ignoring the agent, nor by putting himself in a position where he cannot carry out his part of the agreement.
“I instruct you that Mr. Lovering is entitled to recover in this case his commissions on all stock subscriptions taken by him from financially responsible persons with check for same attached to the application or to be sent in by the applicant at once, which subscriptions were forwarded by him or delivered by him to the defendant company within the scope of an admitted authority of the company until his authority was revoked by defendant company.
“In determining when the authority of. Mr. Lovering 'to sell stock was revoked by defendant company, you have the right to take into consideration the dates when certificates of stock were issued by defendant company to persons whose subscriptions therefor were obtained by Mr. Lovering.
“And I instruct you that it is a principle of law that a revocation of the agent’s authority, and (in this case) the authority of Mr. Lovering, to solicit subscriptions for stock, cannot be revoked by the principal so as to affect acts already done, or commissions already earned.
“In other words, I instruct you that the plaintiff, Mr. Lovering, is entitled to recover his commission on all subscriptions for stock taken by him within the scope of his authority before receiving notice of revocation of his authority by the defendant company.
_ “I instruct you further that a revocation by a principal of an agent’s authority should be unequivocal, and leave no doubt as to the principal’s intentions. Any ambiguity or uncertainty in such a case should be construed most strongly against the principal, in whose power it lay to prevent such a result.
“I instruct you further that it was. in the power of defendant company to have revoked the authority of Mr. Lovering to act for it at any time the said company so wished, but it was incumbent on said defendant to have done so plainly, and in language that could not be charged with equivocation or uncertainty.
“I instruct you further, that Mr. Lovering is entitled to recover his commissions on all subscriptions of stock taken by him before his authority to act was revoked, and which said subscriptions had checks attached to the applications or in which the applicants had forwarded their checks direct to the company, as they had a right to do, or were forwarded or delivered to or received by defendant company, provided that said subscribers were ready, willing and able to pay for said stock.
“I instruct you further, that a signed subscription • or application for shares of stock made by responsible persons, accompanied by check payable to the corporation, drawn against sufficient funds in the hands of a banker, which check should be paid by banker on presentation, is a good payment for such stock..
_ “I instruct you further, that plaintiff has performed his part of the contract under the above arrangement when he obtains the subscriptions or applications for stock, and forwards or delivers the same to the defendant company with check for amount due attached to the application, or upon receipt of a check direct from persons who purchased the stock by the company.
“Now, gentlemen, the defendant claims that the arrangement made with the plaintiff was for the sale of ten thousand dollars par value of the stock of the defendant company, or substantially that amount, and that when he made an arrangement with the plaintiff and gave him a writing showing that he had authority to sell stock of the defendant company that said writing stated that the plaintiff was entitled to sell ‘a limited number of shares of stock’ is- not fixed. It is evident that the defendant did not give the plaintiff general authority to sell an unlimited amount of stock or to sell all of the stock which the defendant had on hand. But that the arrangement was for the sale of an amount of stock less than the whole amount which the defendant had on hand.
“You have a right to consider, gentlemen, the circumstances surrounding the parties and the verbal testimony in the case in order to determine what was meant by the parties in the use of the term ‘a limited number of shares of stock’ in the writing referred to. When you shall have determined what the parties meant and understood and intended by the use of the term, ‘a limited number of shares of stock,’ of the defendant company, then the plaintiff is not entitled to recover for commissions upon the sale of stock in excess of the amount which the parties understood and intended to designate by the use of the term, ‘a limited number of shares of stock’ for the reason that the plaintiff had no contract or agreement covering an amount of stock in excess, of that amount and the defendant was under no obligations to sell and had not agreed to sell an amount of stock in excess of that amount.
“If you shall find from the evidence that the time in which the plaintiff had authority to sell the stock of the defendant company expired before the plaintiff or the customers of the plaintiff tendered the money on the alleged sales sued for, then the plaintiff is not entitled to recover.
“Now, gentlemen, the written authorization given by defendant to plaintiff to sell stock provided — and I have- read it to you — that plaintiff should take subscriptions to be paid for by checks therefor or payable to the defendant company, and send the checks with the subscription or application for stock or to be sent by the applicant at once to the company, but I instruct you that the fact that in some particular instances defendant did issue the stock and send the stock to a bank with draft attached for collection, would not amount to a general authorization by defendant that plaintiff had authority to accept subscriptions generally and insist that defendant was bound to issue the stock and send the stock to a bank or any bank which plaintiff might designate with draft attached, but defendant had a right to require plaintiff to have the check or draft accompany the subscription or that it be sent to him as soon as the applicant could mail it to him, and if plaintiff failed to forward the check or draft at the time of the filing of the subscription and the applicant failed to send any check to the defendant company then plaintiff would not be entitled to a commission where the check failed to accompany the subscription.
“Now, gentlemen, no time was fixed in writing in the agreement between the plaintiff and defendant during which said contract was to continue. Under the circumstances the time during which the plaintiff might sell stock for defendant rested in the option of the defendant, Duplex Power Car Company.
“When no time is agreed upon during which a broker is employed he is entitled to a reasonable time in which to gain results, but the principal or employer has a right to limit or revoke the authority of the broker in good faith at any time after his employment, where no time of employment is fixed, and if the authority of the plaintiff in this case was revoked, or if a time limit was fixed to his contract by the principal, the Duplex Power Car Company, in good faith, after the contract was originally made, the plaintiff cannot recover commissions on sales made thereafter.
“On Monday, October 9, 1916, the défendant company wrote a letter in which it said:
“ ‘We trust you will be able to dispose of all we have to dispose of this week, as we wish, to have the matter closed up, and we judge from the way you are disposing of it now, you will have no trouble in doing this. We thought last week would be the limit we could hold it open, but we are extending it on to this week, if you had not disposed of it before that time.’
“The defendant claims that this letter was written extending the time given to plaintiff verbally, and if you shall find that prior to this time a limit had been placed upon the contract, this letter would operate as an advance of the time to and including the week of October 9, 1916, and the plaintiff would be entitled to recover commissions on any sales actually made, consummated and carried out during this time.
“The mere fact that the defendant accepted business tendered by the plaintiff after the week of October 9, 1916, and accepted payment and paid plaintiff his commission thereon would not in and of itself operate to extend the time of the contract beyond that date.
“The defendant claims it employed plaintiff to sell stock. In order to entitle the plaintiff to recover, he must have made sales within the limits of his contract as to time, terms and amount.
“The plaintiff cannot recover a commission merely because he obtained offers in writing or because he obtained orders for the stock. ' The plaintiff is not entitled to a commission when he brings a mere paper offer; but in order to entitle the plaintiff to recover, it is necessary for him to show an actual sale of the stock, or that he produced a purchaser who tendered the money within the time limited by the contract for the sale of the stock.
“The plaintiff is not entitled to recover from the defendant commission for unsuccessful efforts to sell stock.
“Now there is a radical difference between a contract to sell or purchase and an actual sale or purchase. ’ As applied to this case the plaintiff is not entitled to recover unless he produced a purchaser ready, able and willing to pay the money for the stock and who tendered the money within the time fixed by the contract. In other words, the plaintiff must have done everything necessary tó be done on his part, and on the part of the purchaser, so that the only thing upon the part of the defendant that remained to be done was to transfer the stock and to receive- the price in cash.
“In this case plaintiff can recover only for commissions in any case in which applications were delivered to the defendant before the plaintiff’s authority was revoked.
“The plaintiff cannot recover against the defendant for the sale of stock in any case in which he was not the procuring, cause of the sale.”

There was much more of the charge but we have quoted sufficiently to indicate the scope of it.

Counsel for appellant argue very strenuously that the motion which we have quoted made at the close of the testimony for the plaintiff should have been granted for the reasons then stated. Many pages of the brief are devoted to this proposition and many authorities are cited. In the instant case the defendant corporation was regularly organized, its capitalization was duly approved, it was duly licensed to sell its stock. The plaintiff was not a “dealer” within the provisions of section 10 of Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11954). He was an “agent” within the provisions of section 12 (§ 11956). Under this latter section the investment company, defendant here, was required to register him and pay the fee therein provided. If defendant failed to do this it cannot urge its violation of the law to defeat recovery by its employee and agent. There is no substantial dispute but what plaintiff was authorized to sell some stock and that upon the receipt of the order of the person desiring to buy the defendant corporation issued the stock to that person. If the plaintiff’s version of what happened is true, he did nothing for which he might not recover under the facts disclosed by this record in so far as he had earned his commission under the arrangement he made with defendant.

Fifty assignments of error relate to the omission or rejection of testimony. The case was tried by able counsel who manifested great zeal in the trial. Objection followed objection in quick succession, rulings were made and exceptions were duly taken. The trial judge was kept very busy, and he also kept his head. It would not be practicable to discuss these assignments of error in detail. They have each been examined with care and we shall content ourselves with saying of them that we discover no reversible error.

Thirty-four assignments of error relate to the refusal of the court to give the written requests as prepared. Nine assignments pf error relate to the charge as given. Each of these assignments has been examined; we do not think it necessary to discuss them in detail.

The important questions in the case were comparatively few, and they were not very complicated, and the pivotal questions were questions of fact. The jury allowed the plaintiff to recover only about two-thirds of what he claimed, indicating clearly that they paid special heed to the charge of the court. A reading of that portion of the charge which we have quoted will show that the jury were fully instructed in clear and unambiguous language upon every important phase of the case.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CITY OF ADRIAN v. CITIZENS LIGHT & POWER CO.
    Heating — Public Service Corporations — Rates — Franchise —• Municipal Corporations — Charter—Interpretation.
    Where the charter of a light and power company, granted for 30 years hy plaintiff city, provided for a maximum service rate for heating of 45 cents per thousand pounds, with coal costing $2.80 per ton, and further providing that the rate was subject to change in proportion to the price of coal, which represented 70 per cent, of the maximum rate, the company was justified, under the terms of its charter, in raising the rate to 75 cents per thousand pounds when coal was costing more than $6 per ton, and plaintiff’s hill to restrain defendant from charging a higher rate than 45 cents was properly dismissed.
    Appeal from Lenawee; Hart, J.
    Submitted January 23, 1919.
    (Docket No. 67.)
    Decided April 3, 1919.
    Bill by the city of Adrian against the Citizens Light & Power Company to restrain the raising of service rates, and for an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      John C. Howell, for. plaintiff.

      Baldwin & Alexander, for defendant.
   Moore, J.

This is a bill filed by the city of Adrian to restrain the Citizens Light & Power Company from establishing a higher rate than 45 cents per 1,000 pounds for steam used for heating purposes, and also for an accounting. The facts show that on July 1, 1917, the defendant company established a new rate of 75 cents per 1,000 pounds, and that this new rate has continued since, and is now in force. At this time coal was worth more than six dollars a ton. The franchise possessed by the defendant was granted August 5,1903, and extended for 30 years. The question is whether this franchise limits defendant to a 45-cent maximum charge on each 1,000 pounds, of steam irrespective of the price of coal, and this must be determined from the construction placed upon that part of section 6 of the franchise which reads as follows:

“It is hereby understood and agreed that the rates for heating herein established are relative to the cost of fuel at the present time, which is $2.80 per ton of run of mine of good bituminous coal containing 14,000 heat units per pound, and said Citizens Light and Power Co., its successors or assigns, shall establish new rates on July 1st of each year; such rates when so established to be relative to the contract price of fuel at the time of such change. It being understood that fuel at the present time represents 70% of the maximum rate for heating.
“The maximum rates to be charged under this franchise shall not exceed the following: For current, for power or light, 14 cents per M. Watts (K. and W.). For steam 45 cents per thousand pounds. For hot water, 18 cents per square foot of radiating surface per year. But the rates for heating shall vary according to the ratio, above specified.”

We quote from the brief of counsel for appellant:

“Plaintiff contends that this section fixes a maximum rate which may be charged for the three products of this plant — power, light and heat — during the life of the franchise, and that-the qualifying expressions as to price of fuel and ratio must be understood as providing a method of increasing or decreasing rates either up to or down from the maximum as the price of coal shall require.”

It is claimed that the highest rate which may be charged for steam is 45 cents per 1,000 pounds whatever may be the price of coal. We think when all the language we have quoted is read together that it will not bear the construction given to it by the appellant, but justifies the decree of the court below which dismissed the bill.

The decree is affirmed, with costs to the appellee.

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


text:
    MICHIGAN LUMBER YARD v. SLATER.
    Cancellation oj? Instruments — Deeds—Mortgages—Good Faith —Notice.
    On appeal from a decree canceling a deed and mortgage, given to the manager and one of the owners of a contractors’ supply company, by a contractor who owed the company for material for several jobs, and who held title to the premises merely for the purpose of ehabling him to build a house thereon for the owners, where the evidence shows that the facts were known to defendants and the transaction was not in good faith, the decree of the court below will be affirmed.

      Appeal from Wayne; Codd, J.
    Submitted January 28, 1919.
    (Docket No. 59.)
    Decided April 3, 1919.
    Bill by the Michigan Lumber Yard against Olney A. Slater, Henry C. Fuller and others to foreclose a mechanic’s lien. Defendant Slater filed a cross-bill to foreclose, a mortgage. Defendant Fuller and others filed a cross-bill to set aside certain deeds. From the decree rendered, defendant Slater appeals.
    Affirmed.

      W. W. Wicker, for appellant.

      Berger & Milburn, for appellees.
   Moore, J.

This bill of complaint is filed to foreclose a mechanic’s lien in the sum of $790.43 for lumber and materials furnished Walter J. Miller by the plaintiff. The defendants and appellees, Henry C. Fuller, Nellie Belle Fuller, his wife, and George W. Ross, filed separate cross-bills seeking to have two certain warranty deeds, one from the Fullers to Walter J. Miller, dated June 2,1915, and one from Walter J. Miller and wife to Wesley J. Peoples, dated September 15, 1915, set aside and cancelled, and for a reconveyance of the property in question to the appellee, George W. Ross, and for the cancellation and discharge of a certain mortgage upon the same property held by the cross-plaintiff and appellant, Olney A. Slater. The cross-plaintiff and appellant, Olney A. Slater, filed his cross-bill for the foreclosure of the mortgage. The defendants and appellees, Albert P. Collard, Gregg Hardware Company, and Omer A. De-Smet, filed their cross-bills to foreclose certain mechanics’ liens upon the same property, claimed by them in the sums of $125, $12.30 and $190 respectively. The default of defendant Wesley J. Peoples was entered for want of an answer after appearance, and that of defendant Walter J. Miller for want of an appearance after personal service of process. After a hearing taken in open court a decree was entered allowing the liens of the lien claimants in the sums mentioned above with interest and ordering a reconveyance from the defendants Walter J. Miller and Wesley J. Peoples, as prayed for in the cross-bills, and declaring the mortgage held by appellant Olney A. Slater to be invalid and a cloud upon the title of the appellees Fuller and Ross, and ordering a discharge of the mortgage. From this decree the defendant Olney A. Slater has appealed, and the only question in dispute before this court is the validity of his mortgage.

After the hearing the trial judge expressed himself as follows:

“I am satisfied that the mortgage given by Peoples to Slater is not valid. The deed from Miller to Peoples was simply an attempt by Miller to secure the Supply Company for all his indebtedness to it with property which he only owned for a specific purpose, obviously known to Peoples, that of building a house upon it for the defendants Fuller. No doubt some material for this building was furnished by the Supply Company, but it also appears that they were furnish^ ing him, and he was owing for, other material for other buildings, all included in the amount claimed on this mortgage. No attempt to separate them or to enlighten this court as to any specific amount due to the company, of which Slater is owner, has, or under the_testimony could be made. This uncertainty coupled with the palpable intent to get this security for other than the purpose of securing themselves for the material they may have put therein, is such a fraud, constructive at least, as against the defendant Fuller, as to render the mortgage void. The mortgage should, therefore, be cancelled, and defendants Miller and Peoples ordered to convey the property to defendant Ross who by this decree is to pay all lienors and enter into contract with the Fullers per his agreement.”

Elaborate briefs are filed in which many legal principles are discussed and many authorities cited. In our view of the case the facts relating to the giving of the deed by Mr. Miller to Mr. Peoples and the giving of the mortgage by Mr. Peoples to Mr. Slater are convincing that both of these papers were given with full knowledge of the facts and show the mortgage was not a good faith mortgage, and for value.

Mr. Peoples’ testimony discloses that he was the manager of the Contractors Supply Company, which company was owned by the Slater Construction Company, of which company Olney Slater was the manager. Mr. Olney Slater’s testimony shows that he and his two brothers were the owners of the Contractors Supply Company, and they were also owners of the Slater Construction Company. While the deed from Mr. Miller was made to Mr. Peoples it does not appear that he paid anything for it and that he knew Mr. Miller had absconded and was in financial straits. While the mortgage recites that it was given for $2,500, the only money invested in it by Mr. Slater was by the giving of a check for $1,500 to Mr. Peoples, who had the amount thereof placed to his credit, and he at once paid the Contractors Supply Company $1,250, and a few days later returned $250 to Mr. Slater. Mr. Peoples’ testimony as to the application of the $1,250 is not consistent with itself. He was called as an adverse witness and his testimony was hazy and very unsatisfactory, though it does establish the fact that he told Mr. Slater all he knew about the transaction before the mortgage was given. The testimony discloses that Mr. Miller had bought material for several jobs which he had under way , and for which he was indebted.

In Mr. Slater’s testimony the following appears:

“Q. Mr. Peoples was not doing anything else but managing your Contractors Supply Company?
“A. He seemed to be doing some work for Miller.
“Q. When did you find that out, before or after?
“A. Before or after what?
“Q. Before discontinuing the Contractors Supply Company, business or after?
“A. Before.
“Q. You found out that he was doing work for Miller?
“A. Yes.
“Q. How did you come to find it out?
“A. I don’t know. I did not know the extent of his business with Miller at that time. Didn’t look to see how much credit they had. I presume I knew at the time how much credit was extended by the Contractors Supply Company to Miller. I don’t know how much. I looked to see how much credit it had extended'about 150 customers. I don’t remember Miller from the others I cannot tell whether I looked to see how much money the Contractors Supply Company, had loaned Miller. I know now it had loaned and extended credit to Miller, about $1,200 on all jobs; that is my understanding.”

The examination of Mr. Peoples and Mr. Slater is long. It would not be profitable to recite more of it. They were invited to bring in their books showing their transactions with Mr. Miller; they did not do so. Their testimony is convincing to us that the trial judge 'was right in his conclusions.

The decree is affirmed, with costs against appellant Slater.

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


text:
    GEORGE v. DOBSON.
    Adverse Possession — Injunction—Evidence—Sufficiency.
    On a bill to enjoin defendants from interfering with a strip of land lying on tbe boundary between a lot owned by plaintiff and a lot owned by defendants, where tbe evidence sustains tbe finding of tbe court below tbat plaintiff bas failed to establish title by adverse possession, tbe decree of tbe court below in favor of defendants will be affirmed.
    Appeal from Washtenaw; Kinne, J.
    Submitted January 14, 1919.
    (Docket No. 28.)
    Decided April 3, 1919.
    Bill by Ellen M. George against Russell T. Dobson and others to enjoin a trespass upon land. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Black & Black, for plaintiff.

      Arthur Brown, for defendants.
   Moore, J.

This bill of complaint is filed to enjoin defendants from interfering with a piece of land 2 and 8/100 feet wide at one end, 49 and 7/10 feet long and 3 and 65/100 feet wide at the other end, lying on the boundary line between lot 8 owned by the plaintiff, and lot 7 owned by the defendants. The plaintiff claims to own this land by reason of adverse possession. The learned trial judge found that the plaintiff had failed to sustain the averments of her bill of complaint and that defendants were the owners of the disputed strip and made a decree accordingly.

We quote from the brief of the appellant:

/The plaintiff contends for the three following propositions on this appeal:
“1. The defendant’s evidence is not sufficient to show that the old fence is an established boundary line between the adjoining properties.
“2. The character of the defendant’s possession with that of his predecessor’s, in title, is not sufficient to disseize the plaintiff of the disputed strip or of any part of her lot 8.
“3. The defendant has failed to show a sufficient tacking of possession of his grantors and predecessors in title to entitle him to any part of lot 8.”

An elaborate brief is filed with many cases cited to the proposition that the court erred in its ruling that the defendants were the owners of the disputed strip. The pivotal question is one of fact. A reading of the record satisfies us that the land in litigation is within the boundaries of lot seven. A fence has been maintained many years upon the rear two-thirds of the boundary line between these two lots. The fences on the front of these lots, which lots are used for residential purposes, as is usual in towns and villages, have been removed and those portions of the front of the lots not occupied by the residences have been given over to shrubbery, shade trees and lawns. The evidence is clear that if the fence was extended to the front of the lot it would reach the line of demarkation between the sidewalks in front of the lots occupied by the parties to the litigation, leaving the disputed strip on lot seven.

The plaintiff has failed to show such an open, adverse, notorious and continual possession as would give her title to the land in controversy.

The decree is affirmed, with costs to the defendants.

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


text:
    JONES v. NASH.
    Contracts — Construction—Limitation—Ambiguity— Words and Phrases.
    A contract of sale of a store building and fixtures, describing the fixtures as “all the store fixtures except hat rack, being the same as sold to Kinyon Bly by" Solomon Stern,” and further providing that the words quoted should be construed to mean just what is said, referring to two persons who witnessed the transaction between said Kinyon Bly and Solomon Stern, construed, and held, not ambiguous, but said language should be construed as a limitation of the fixtures sold in the contract to those bought by Kinyon Bly of Solomon Stern.
    See note in 17 L. R. A. 720.
    Error to Cass; Des Voignes, J.
    Submitted January 15, 1919.
    (Docket No. 47.)
    Decided April 3, 1919.
    Assumpsit by Carroll S. Jones, administrator with the will annexed of the estate of Kinyon Bly, deceased, against Joel J. Nash and another for a balance due on a contract. Judgment for plaintiff for less than amount claimed. He brings error.
    Reversed.

      Clarence M. Lyle, for appellant.

      Otis Huff, for appellees.
   Moore, J.

In October, 1917, this suit was brought to recover the balance due on a contract given by the defendants to Kinyon. Bly in his life time, February 8, 1907. It is conceded by both sides that at the time of the trial there was $7,163.75 due plaintiff on said contract, but defendants claimed a recoupment for $708.64, with interest thereon at 5 per cent, since February 8, 1907, for fixtures which they claim were not delivered. The court submitted the claimed recoupment to the jury and they allowed it in full, and rendered a verdict in favor of the plaintiff for $6,-086.11. The case is brought here by the plaintiff by writ of error.

In September, 1904, Mr. Bly bought Solomon Stern’s undivided one-half interest in the Centennial block in the village of Marcellus, and his undivided one-half interest in such personal property and store fixtures in said block as they owned together. The Centennial block premises is a large three-story brick store building. Bly and Stern had rented the building to S. Stern & Company, who have conducted- a business therein continuously for over 80 years. Solomon Stern was a member of Stern & Company. Kinyon Bly was not a member. It is the claim of the plaintiff that Bly and Stern had no personal property in this block except what was used in the public hall in the second story consisting largely of chairs and stoves, and such store fixtures on the first floor as landlords usually furnish tenants óf a similar store building.

It is the claim of the plaintiff that S. Stern & Company owned the stock of goods and all their equipment therein used by them in conducting their store business and had built into the store building a valuable hat rack for displaying hats, which hat rack was excepted in Stern’s sale to Bly, and again excepted in Ely’s re-sale to the defendants some three years later.

The essential portions of the contract between Mr. Bly and the defendants calling for construction read:

“Memorandum of agreement made and entered into this 5th day of February, A. D. 1907, by and between Kinyon Bly, a widower of Marcellus, Cass county, Michigan, hereinafter designated as the party of the first part, and Dr. Ernest Shillito and Joel J. Nash, both of Marcellus, Cass county, Michigan, parties of the second part, witnesseth:
“That the said party of the first part has this day sold and agreed to convey, or have conveyed to parties of the second part, or their heirs or assigns, the following described real estate and personal property, located in the village of Marcellus, Cass county, Michigan, and described as follows, to-wit: All the real estate and personal property belonging to the said Kinyon Bly and situate on southwest corner of Main and Center streets, on block one south and one west, and all the store fixtures except hat rack, being the same as sold to Kinyon Bly by Solomon Stern, for the following consideration,” etc., etc.
“It is mutually agreed and understood that the description to real estate sold under this contract shall be more definitely described in the warranty deed which constitutes a part of this contract and the term ‘all the store fixtures except the hat rack, being the same as sold to Kinyon Bly by Solomon Stern,’ shall be construed to mean just what is said, and reference is made to Thomas Vincent and Carroll S. Jones, who were both called to witness the transaction referred to between the said Kinyon Bly and Solomon Stern.”

We quote from the brief of appellee:

“The principal dispute in the ease arose over the store fixtures, it being the cláim of the defendants that at the time of the said purchase that Bly represented to them that he was the owner of all the store fixtures in the said store except the hat rack, and that the same was worth one thousand dollars, and that he was conveying them all of the said store fixtures except the hat rack. The defendants claim that the fixtures were never delivered to them and that they are entitled to an allowance for the market value of the same at the time of the purchase, together with interest at five per cent, against the claim of the plaintiff. * * *
“We further contend that the last words, ‘being the same as sold to Kinyon Bly by Solomon Stern’ are of but little import or significance and should be treated as surplusage and a mere recital. It matters not whether Stern owned the fixtures at one time or not. If Bly represented that he was selling all the store fixtures except the hat rack, the fact whether he bought them of Stern was immaterial. It would not enhance the value of the same because Stern might have owned them at one time. The contract might have read that they were the same store fixtures which Bly purchased of Henry Clay or Daniel Webster, and in such a case, would the defendants have to prove that the said fixtures were purchased of Clay or Webster before they could recover?”

We understand it to be the claim of the defendants that they bought all of the store fixtures and that Stern & Company claim to own a good share of them, and that therefore they have a claim for recoupment. The defendants caused an appraisal of 'all the fixtures in the building to be made and it was introduced in evidence over the objection that it must be shown that they were sold to Mr. Bly by Solomon Stern.

The trial court in his charge to the jury undertook to construe the contract; among other things said to them was the following:

“Now you will see from the concluding paragraph here, that the vendor and the vendee construed by this contract itself what would be considered as the fixtures passing under this contract would be ‘the fixtures sold by Solomon Stern to Kinyon Bly/ and is specially referred to by two witnesses who were called at the time.
“The construction that the court places upon that —and you are not bound by this that I am about to state — but the scrivener in writing that sought to imply that the understanding between the two parties was this: That Mr. Vincent and Mr. Jones had been present at the time of the conveyance of the interest of Mr. Stern and Mr. Bly and that at that time it was discussed and talked over as to what was the personal property, or rather, the fixtures passing under it, and therefore to construe this contract, the parties both entered into an arrangement whereby whatever these parties understood or stated were the actual articles passing at that time would be considered as the fixtures here. Now the court permitted the testimony, and would have permitted the testimony of both these witnesses if they were living, as to what was said at the time, relating to the fixtures when this sale was made by Stern and Bly. Unfortunately one of the witnesses, Mr. Vincent, is now deceased. The one witness remaining to that transaction between Mr. Stern and Mr. Bly, referred to in this contract, is Mr. C. S. Jones, the administrator in this case, and when interrogated upon that paragraph as to what he understood and to what was said rather, between the parties at the time of this conveyance of Stern to Bly, the witness Jones testifies that it was to include all the store fixtures except the hat rack, the same being all the ‘other’ fixtures sold by Mr. Stern to Mr. Bly. Now that comes right back, under that testimony, to the very language supported in the first part of the paragraph, to-wit: ‘The fixtures sold by Mr. Stern to Mr. Bly.’
' “It is the claim of the defendant likewise, that some several years ago — for you to remember, and the testimony, likewise — that Mr. Jones in referring to this in an affidavit, stated that he remembers being called to witness the transaction between Stern and Bly, relative to this transfer; that it was also witnessed by Mr. Vincent and the transfer from Stern to Bly was understood by and between them to include ‘All the store fixtures except the hat rack.’ The witness at this time adds to it the words, ‘The same being, all the store fixtures sold by Mr. Stern to Mr. Bly.’ I simply refer to the affidavits because counsel for the defendant placed some stress upon the fact that in the first instance, Mr. Jones does not refer to the latter part there, ‘the same being fixtures sold by Mr. Stern to Mr. Bly.’ However, Mr. Jones at this time testifies very clearly that that statement was made, and it is for you to determine, in the light of his statements now and the affidavit and the other witnesses as to that fact.”

In another part of the charge he stated:

“But, gentlemen, they can claim no more than this contract under a fair interpretation will allow them to claim. If they entered into a contract, whereby they agreed that they should receive for fixtures the things that were sold by Stern to Bly, then all your duty here is to determine what were the things sold by Stern to Bly, and if the defendants received all of the things sold by Stem to Bly, then they are not entitled to any recoupment or any deduction on this bill. If, upon the other hand, gentlemen, you find that they were under' the terms of this contract, under the-evidence here, entitled to things that Mr. Stern did sell to Mr. Bly and has not received them, then they are entitled to recover the fair market value of those several items and have them deducted from the total sum as claimed by the plaintiff in this case.”

It is claimed by the plaintiff that the court erred in not directing a verdict for the plaintiff for the full amount unpaid on the contract; that it was error to admit the testimony of the value of all the store fixtures and that the court erred in that portion of the charge which we have quoted.

The contract is not ambiguous. “All the store fixtures except the hat rack being the same as sold to Kinyon Bly by Solomon Stern.” Again: “and the term ‘all the store fixtures except the hat rack being the same as sold to Kinyon Bly by Solomon Stern* shall be construed to mean just what is said, and reference is made to Thomas Vincent and Carroll S. Jones who were both called to witness the transaction referred to between the said Kinyon Bly and Solomon Stern.” This language should be construed as a limitation of the fixtures sold in the contract between Mr. Bly and the defendants to those bought by Mr. Bly of Solomon Stern. It is sought to justify the admission of the appraisal as to values and the amount allowed by way of recoupment by the following testimony. One of the witnesses who made the inventory and appraisal testified:

"I had a conversation with Mr. Bly some time af ter this inventory was made.
“Q. Where did you have that conversation?
“A. In Mr. Nash’s store. Mr. Bly was sitting in the front end of the store, passing along he called me in. He had heard that I assisted- Mr. Nash in this inventory and made some inquiries about it.
“Q. State what was said. * * *
“A. During the conversation we had, Mr. Bly asked me what we placed the value of those fixtures and that furniture at. Why, my recollection is that I told him —I knew at the time, of course, but after a lapse of ten years, not being interested — why, my memory is now that I told him just what we did. Why, he smiled a little at me and, why, he says, ‘Why, Schall, I paid around a thousand dollars for those fixtures.”

Another witness testified:

“Mr. Bly was in Nash’s drug store a good many times. He called there to collect payments on this contract.
“Q. You may state whether you have ever heard any conversation between Mr. Nash and Mr. Bly or not?
“A. I have heard the question talked a great deal.
“Q. Did you ever hear Mr. Bly make any reference to these fixtures?
“A. Yes, sir.
“Q. Mentioned in the contract?
“A. Yes, sir.
“Q. Tell the jury what was said. * * *
“A. After the contract; yes, sir. The conversations have been held in the store in regard to the contract. I have heard him say any number of times that the fixtures in the store belonged to him; and also in his remarks he always valued them at $1,000.”

There was also a statement made in an ex parte affidavit of Mr. Jones. It will be observed that none of this testimony goes to the questions of what fixtures were bought by Mr. Bly of Mr. Stern nor to the value of the fixtures so bought. It should not be forgotten that at the time the contract was made involved in this controversy Stern & Company were in possession of the store and had been for a long time and the evidence is clear that Mr. Bly regarded the limitation in the contract as important. There is no competent testimony in the case as to what fixtures were sold by Solomon Stern to Mr. Bly except the testimony of Mr. Stern himself, and that is to the effect, we quote:

“Q. What store fixtures were sold by you to Mr. Bly?
“A. Well, now, there is some counters, tables, some gas fixtures. I think some of the electric lighting, part of it, all the undivided property, chairs in the Centennial hall, a carpet, and some clothing tables which were owned by Stern and Bly. S. Stern & Company owned the safe, cash carrier, looking glasses, triple mirror, 3 show cases, part of clothing tables, 14 clothing racks, clothing cabinet, ribbon and thread case, computing scales, platform scales, roll top desk, rack for holding rugs, stoves below belong to Stern & Co., two folding tables, small cabinet, 2 long settees, 8 chairs, cheese case and cracker case, 6 paper holders, 1 barrel truck, 1 large steel safe, the electric lamps and improvements on wiring, display boxes, typewriter, coffee mill, upright rack for holding ladies’ hose, 100 coat and suit hangers, 6 twine holders, half a dozen measures, 20 display stands. * * *
“The property that belongs to S. Stem & Company never belonged to Stern and Bly. None of the property that I have testified to as belonging to S. Stem & Company was sold by me to Mr. Bly.”

As the jury allowed by way of recoupment the value of all of the fixtures it is clear the verdict in favor of the plaintiffs is much too small.

Judgment is reversed and a new trial is ordered, with costs to appellant.

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


text:
    HARRIS v. BERNSTEIN.
    1. Appeal and Error — Directed Verdict.
    In the case of a directed verdict, the evidence on behalf of the appellant is to be treated in the light most favorable to appellant.
    2. Negligence — Automobiles—Personal Injuries — Law of the Road.
    In an action for personal injuries caused by a collision between two automobiles at a public street crossing, the questions of defendant’s negligence and plaintiff’s contributory negligence should have been submitted to the jury, where there was testimony that plaintiff's machine was where it had a right to be, while defendant’s machine was on the left of the center of the street, instead of the right, contrary to the law of the road (Act No. 318, Pub. Acts 1909).
    See notes in 41 L. R. A. (N. S.) 323, 337, 346.
    Error to Wayne; Murphy, J.
    Submitted February 6, 1919.
    (Docket No. 94.)
    Decided April 3, 1919.
    Case by Nellie H. Harris against Albert E. Bernstein for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      McIntyre & Robmson, for appellant.

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellee.
   Moore, J.

On the afternoon of March 24, 1914, plaintiff went on an automobile ride with two other ladies. They were driving south on Antoine street, which runs in a northerly and southerly direction and approached Columbia street which intersects Antoine street at right angles. The accident out of which this action arose occurred at the intersection of these two streets. Only two witnesses gave testimony as to the facts of the accident. The defendant was sworn. He was called under the statute by the plaintiff to show his ownership of the machine, but did not give his version of what occurred. The court directed a verdict for the defendant on the ground that the evidence showed that plaintiff’s driver was guilty of contributory negligence, and that it failed to show the defendant was guilty of any negligence. The case is brought here by writ of error and the question is, Should it have.been submitted to the jury?

It has long been the law in case of a directed verdict that the evidence on behalf of the appellant is to be treated in the light most favorable to appellant. Foley v. Railway Co., 179 Mich. 587; Spreng v. Railway, 197 Mich. 343.

The diagram on opposite page was offered in evidence.

It was stipulated in relation thereto as follows:

“The diagram hereto attached may be inserted in the record of the cause for the purpose of illustration to indicate to the court the approximate distances and locations and it is the intention of the parties hereto that the objects indicated on such diagram and the distances given thereon shall be conclusive as to such objects and distances only so far as corroborated by the testimony.”

We quote from the testimony of the plaintiff:

“I have ridden in automobiles ever since they have been, and know that we were driving at a moderate rate of speed and, as compared to the rate of speed which we were driving, the car which collided with us was going at a faster rate of speed. I saw the car before it collided with us. I know that the lady who was driving our car blew her horn for I heard it. * * * After the impact of the collision it had the effect to turn our car * * * it knocked the hind end of our car around and we came to a stop in front of * * * the store on the southeast corner. * * * I only saw Ms automobile at a glance. I saw it was coming toward us. Mrs. Hunt screamed just before we were struck. Our automobile was on the south side of the intersection of Antoine and Columbia streets at that time. Her automobile was in front of the automobile that was coming toward us, when she screamed but it struck her back wheel. I thought it was going to strike us quite square or broadside but our machine moved forward a sufficient distance so that it struck the back wheel and that shoved our automobile around. * * *
“Q. How far across the street did it knock you?
“A. We were nearly across the street when it struck. * * * I was not watching Mrs. Walters. I was watching the other automobile. She moved — turned out more, but I did not see her because I was watching the other machine. We had reached the corner of Antoine and Columbia when I saw it coming (pointing) about where the mark is. I looked up Columbia street and saw the car coming down Columbia street. I would say that at that time we were at the intersection of Antoine and Columbia street, a little to the north side just about opposite the north curb of Columbia street when I first saw it. The other automobile was coming down Columbia. I am sure it was his machine that struck us and that it was going faster than we were, quite a bit faster. We were not going fast. I saw the other car coming across the street up Columbia street a little way. I could not say how many feet, possibly 50 feet. I could not say how many feet back, but it was before they had reached Antoine street. It was before they had reached Antoine street that I saw it. We were then at the north curbstone of the intersection, the north curb of Columbia. I could not tell how many miles per hour we were traveling. I thought the other automobile was going to run directly into the side of our car, just before we struck. * * *
“Q. You say you don’t pretend to know about the number of feet or inches in making estimates?
“A. No, sir.
“Q. You do not know that had the doctor here been on the opposite side of the street, continuing in a straight line, would there have been room enough between that straight line, if he had continued, between then and the time you struck, to have gone by without your hitting him?
“A. Yes, sir.”

This testimony shows the substantial accuracy of the diagram.

The statutory enactments of this State in force at the time of this accident bearing on this point read:

“Whenever any persons shall meet each other on any bridge or road, traveling with carriages, wagons, carts, sleds, sleighs or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right of the middle of the traveled part of such bridge or road, so that the respective carriages, or other vehicles aforesaid, may pass each other without interference.” Section 4291, 2 Comp. Laws 1897.

This statute is entitled “The Law of the Road.” Section 6, subdivision 4, of Act No. 318 of the Public Acts of 1909, provides:

“Whenever a person operating a motor vehicle shall meet on a highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, and there being no occasion to stop as above provided, the person operating such motor vehicle shall seasonably turn the same to the right of the center of the traveled portion of the highway; while the person approaching shall likewise turn from the center of the traveled portion of the highway so as to pass the motor vehicle on the opposite side of the center of the highway to which the motor vehicle has been turned. And any person so operating any motor vehicle shall, at the intersection of a public highway, keep to the right of the intersection of the centers of such highways when turning to the right and 'pass to the right of such intersection when turning to the left.”

In the instant case there is testimony that the automobile in which plaintiff was riding was going south on Antoine street and when it reached the north curb of Columbia street the automobile of defendant was proceeding west on Columbia street and when the driver of the automobile on Antoine street was at the north curb of Columbia street, she sounded the automobile horn and at that time the automobile of defendant was east of the east curb of Antoine street and continued west thereon, on the south side of the center of the street and instead of passing to the right of the center of the two streets, continued west on Columbia south of the center of the two streets and collided with the car of the plaintiff when that car was where it had a right to be, and the defendant’s car did not have a right to be.

We think the inferences fairly to be drawn from this situation and this testimony made a question for the jury both as to the contributory negligence of the plaintiff and the negligence of the defendant. See Amanta v. Railroad Co., 177 Mich. 280; Congdon v. Railway Co., 179 Mich. 175; Bouma v. Dubois, 169 Mich. 422; Brown v. Mitts, 167 Mich. 469; Weber v. Beeson, 197 Mich. 607.

Judgment is reversed and a new trial is ordered, with costs in favor of the plaintiff.

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


author: Steere, J.

text:
    PEOPLE v. SZYNKAREK.
    Intoxicating Liquors — Search and Seizure — Illegal Possession —Statutes.
    This court having decided in People v. Marxhausen, ante, 559, that the “Damon Act,” Act No. 161, Pub. Acts 1917, was repealed by the “Wiley Act,” Act No. 338, Pub. Acts 1917, a conviction under the former act of having illegal possession of intoxicating liquors, cannot be sustained.
    Exceptions before judgment from Oakland; Rockwell, J.
    Submitted January 17, 1919.
    (Docket No. 122.)
    Decided April 3, 1919.
    Walter Szynkarek was convicted of violating Act No. 161, Pub. Acts 1917.
    Reversed, and respondent discharged.

      Charles S. Matthews, for appellant.

      Glenn C. Gillespie, Prosecuting Attorney, and Lee H. Pryor, Assistant Attorney General, for the people.
   Steere, J.

Respondent brings this case here on exceptions before sentence, to review his conviction under an information charging that he—

“On the 7th day of August, 1918, at the township of Lyon in the county of Oakland aforesaid, did at a certain farm dwelling house, owned by him, situated on Grand. River avenue, so-called, at the intersection of the dividing line between the townships of Novi and Lyon in said county, then and there occupied by one Frank Richards, who was then and there in the employ of the said Walter Szynkarek as a farm tenant, did bring and carry, and did then and there possess a great quantity of malt, brewed, spirituous and intoxicating liquors, over eight ounces, to wit: three boxes of bottled wine, a quantity of bitters and brandy and one jug of wine, said liquor not being then and there for use for medical, mechanical, chemical, scientific or sacramental purposes, but for the purpose of being used as a beverage, contrary to the provisions of Act No. 161 of the Public Acts of the State of Michigan, of 1917,” etc.

For several years previous to May 1, 1918, respondent was engaged in the authorized business of running a saloon where intoxicating liquors were sold, in the city of Detroit. In March, 1918, he purchased a farm in Lyon township, Oakland county, intending, as he states, “to go out on a farm” when the State went dry as it would on the first of May following, when prohibition went into effect pursuant to section 11 of article 16 of our present constitution. On May 1, 1918, when he went out of the saloon business, he moved a quantity of liquor left over from his stock, consisting mostly of beer and wine, to his farm and stored it in a room in the cellar of the dwelling house, locking the door with a padlock to which he alone had a key. He claimed to have done this for the purpose of safely storing the liquor there until it was determined whether he later might lawfully dispose of it, as would be the case if the movement to make sale of beer and wine legal in the State of Michigan prevailed. Up to the time of his conviction he continued to reside in Detroit, with a tenant by the name of Richards upon his farm living in the dwelling house, he visiting the place from time to time. Prior to his arrest he had removed most of these wet goods from his cellar and concealed them in a neighbor’s barn, owing, as he testified, to the fact that some men working upon his place had at one time broken into the cellar and got some of the liquor.

On or about August 7, 1918, officers of Oakland county went to respondent’s farm in his absence with a search warrant and broke into the locked room in the cellar where they found and seized some of the goods yet there, following which respondent was prosecuted and convicted for having the liquor in his possession, the court instructing the jury,—

“the law is very clear that respondent had no right to possess this liquor, and have it in his possession either in his place of business in Detroit or at his farm residence in the township of Lyon.”

It is undisputed that this liquor was a part of respondent’s saloon stock which he had bought, taken possession of and owned at a time when it was lawful for him to do so. It is not charged or claimed that he sold or attempted to sell any of it after May 1, 1918. The charge against him is having liquor in his possession in violation of Act No. 161, Pub. Acts 1917, the so-called Damon act, which this court recently held was repealed by the later so-called Wiley act in People v. Marxhausen, ante, 559, which is controlling in this case.

The judgment is therefore reversed and defendant discharged from his recognizance.

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


text:
    FESSLER v. DETROIT TAXICAB & TRANSFER CO.
    Carriers — Claim Check — Contracts—Limiting Liability.
    A condition printed on the back of a claim check, limiting the liability of a taxicab and transfer company to $100 unless otherwise specifically agreed in writing, which was not read by plaintiff or her sister or its contents made known to either of them at the time it was delivered, when defendant was engaged by the sister to deliver plaintiff’s trunk from the station to the house, did not limit defendant’s liability to $100, in an action for the value of the trunk and contents stolen by defendant’s-driver.
    See notes in 19 L. R. A. (N. S.) 1006; 34 L. R. A. (N. S.) 818; L. R. A. 1916A, 1273.
    Error to Wayne; Des Voignes, J., presiding.
    Submitted February 5, 1919.
    (Docket No. 80.)
    Decided April 3, 1919.
    Assumpsit by Isabell Fessler against the Detroit. Taxicab & Transfer Company for the value of a trunk and contents. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      A. J. Groesbeck, for appellant.

      Charles P. O’Neil, for appellee.
   Moore, J.

This suit is brought to recover the value of a trunk and its contents. The trunk was at the railroad depot, having arrived there from California, The sister of appellee engaged the agent of the defendant to deliver it at the house. There was given, by the defendant to the sister a check reading as follows :

“Claim Check. Detroit Taxicab and Transfer Co,
“Telephone M-5353. Address 674 Lakeview Ave,
“Baggage checked from residence to destination by presenting railroad ticket Branch Office, 13 Lafayette Blvd. See that the exact amount as paid is punched out from this ticket.
“Bead Carefully Conditions on the Back.
“The amount paid was $1.00. Number 65641.
(On back) “This company will not be responsible for loss or injury to baggage covered by this check to an amount exceeding $100.00 or for merchandise, money or jewelry carried by it unless specifically agreed in writing.”

Neither the plaintiff nor her sister read the check at the time it was delivered, nor was its contents made known to either of them.

The trunk was given by the defendant to its driver, McLeod, to deliver at plaintiff’s home. McLeod stole the trunk and it was never received by plaintiff.

The plaintiff claimed the trunk and contents, including a watch and some jewelry, were worth $665.57, and sued to recover that amount.

The defendant at the close of the testimony offered by the plaintiff asked that a verdict be directed against it for $100, claiming that was the limit of its liability. This motion was denied. The verdict was for the plaintiff for $665.57. The defendant then moved to enter judgment nptwithstanding the verdict for $100. This was refused and judgment was entered for the full amount.

We quote from the brief of appellant:

“1. The main question involved in this case is the validity of the limitation of defendant’s liability under the facts in the case.
“2. The other questions involved relate to the admission of evidence, the rejection of evidence, the remarks of the court, and the charge of the court on the question of the damages of the plaintiff.”

It is the claim of the defendant that it might limit its liability, and that it did so by the giving of the claim check, and that the limitation was fair and reasonable, and that when the plaintiff through her sister accepted the check she assented to the limitation and is bound by it, citing Smith v. American Express Co., 108 Mich. 572, and the cases cited therein. Counsel quote in their brief nearly the whole of that opinion but omit quoting the first part of it which justifies headnotes reading as follows:

“The receipt or bill of lading issued by a common carrier to a consignor, and received by him without objection, and without any insistence upon the common law liability of the carrier, is a contract between the parties and fixes their liability and rights.
“Such contract is not to be construed as in any way limiting the carrier’s liability for loss or damage due to the neglect or default of its employees.”

The court saying:

“This rule is established by the overwhelming weight of authority.”

There is a serious question as to whether the claim check is a bill of lading within the definition in McMillan v. Railroad Co., 16 Mich. at page 113, where it is said:

“It remains to be seen whether the conditions embodied in the bills of lading are to be treated as a part of the contract for transportation, and to be regarded as assented to by the consignors, notwithstanding they may not read them.
“A bill of lading proper is the written acknowledgment of the master of a vessel that he has received specified goods from the shipper to be conveyed on the terms therein expressed to their destination, and there delivered to the parties therein designated: Abbott on Shipping, p. 322. It constitutes the contract between the parties in respect to the transportation; and is the measure of their rights and liabilities, unless where fraud or mistake can be shown: Redfield on Railways, 307-309, and notes; Angelí on Carriers, § 223. It has acquired from usage a negotiable character, and the carrier may be estopped, as against the indorsee for value,, from showing mistakes in giving it. Redfield on Railways, 307.”

It will be noticed that the claim check does not describe any goods, does not mention the name of the consignor nor the consignee nor the place of destination, and it would hardly be claimed that it is negotiable.

Much reliance is placed by counsel for the appellant upon the case of D’Utassy v. Barrett, 171 App. Div. 772 (157 N. Y. Supp. 916), and 219 N. Y. 420 (114 N. E. 786). In that case there was a bill of lading which stated: “In consideration of the rate charged for carrying said property which is regulated by the value thereof * * * the shipper agrees that the company shall not be liable in any event for more than fifty dollars,” etc., etc. Clearly a very different case than the one before us.

A case more like the one we are considering is Adams Express Co. v. Berry & Whitmore Co., 35 App. D. C. 208 (31 L. R. A. [N. S.] 309). In that case it is. said:

“It is evident that the only way in which a carrier may be relieved from its common-law obligation to pay the full value of goods lost through negligence is by means of a special contract with the shipper, as above noted. It is also clear, according to the ordinary rules of construction, that such relief is only to the extent named in that contract. New York Cent. R. Co. v. Lockwood, 17 Wall. (U. S.) 357. Is it possible for the carrier to extend this doctrine of contractual limitation of liability to cover cases where the goods are converted or embezzled by it? We think not. So great would be the opportunity for fraud that public policy will not suffer a practice so manifestly calculated to_invite it. That the shipper, in a particular instance, might be willing to make such concession, does not alter the rule; it is not within the power of the individual to barter away the right to protection inherent in the general public. In discussing this question, the court in the case of The New England, 110 Fed. 415, said: Tt should be added, further, that it is doubtful if any limitation which seeks to protect a company, not from the negligence, but from the theft or conversion, of its servants is consonant with public policy.’ Story, in his work on Bailments [8th Ed.], § 32, says: Tn respect to cases of loss by fraud, there is a salutary principle, belonging both to our law and the civil law. It is, that the bailee can never protect himself against responsibility for losses occasioned by his own fraud; nay, not even by a contract with the bailor that he shall not be responsible for such losses, for the law will not tolerate such indecency and immorality that a man shall contract to be safely, dishonest.’ See, also, Alabama, etc., R. Co. v. Little, 71 Ala. 615; Louisville, etc., R. Co. v. Sherrod, 84 Ala. 178 (4 South. 29); Zouch v. Railway Co., 36 W. Va. 524 (17 L. R. A. 116, 15 S. E. 185); American Express Co. v. Sands, 55 Pa. 140; Ronan v. Railway Co., Ir. L. R. 14 C. L. 157; Schouler on Bailments & Carriers, § 20.
“Would it be possible for a carrier, after receiving for transportation goods worth $1,000, to embezzle them, and then plead as a limitation of its liability the fact that the shipper had not stated their value to be more than $50? In other words, Can a carrier engaged in business of a public nature be permitted to justify a conversion of goods intrusted to it, on the ground that its liability is fixed by contract? Such would be the absurd result were appellant’s contention carried to its logical conclusion.”

See, also, 4 Ruling Case Law, p. 793, and the many cases cited in the note.

The facts disclosed by this record do not limit the liability of the defendant to one hundred dollars. Having reached this conclusion, it- is unnecessary to discuss the other questions presented by counsel, though they have not been overlooked.

Judgment is affirmed, with costs to the plaintiff. .

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


author: Brooke, J.

text:
    PEOPLE v. WILSON.
    Intoxicating Liquors — Search and Seizure — Illegal Possession —Statutes.
    Under authority of People v. Marxhausen, ante, 559, the conviction of defendant, under the “Damon Act,” of having illegal possession of intoxicating liquors, should be reversed, said act having been repealed by the “Wiley Act.”
    Exceptions before judgment from Chippewa; Barton, J., presiding.
    Submitted January 17, 1919.
    (Docket No. 127.)
    Decided April 3, 1919.
    John Wilson was convicted of a violation of the liquor law.
    Reversed, and defendant discharged.

      McDonald & Kaltz, for appellant.

      Alex. J. Groesbeck, Attorney General, and Thomas J. Green, Prosecuting Attorney, for the people.
   Brooke, J.

Defendant was convicted under a complaint and warrant wherein it is charged that said defendant,—

“did then and there unlawfully possess within this State, to-wit, the State of Michigan, certain spirituous and intoxicating liquors, to-wit, one gallon of whiskey, said intoxicating liquors not being then and there so possessed for medicinal, chemical, mechanical, scientific or sacramental purposes.”

The evidence introduced makes it clear that the defendant was in possession of the liquor in question in his private house and that he had acquired such possession by purchase at a time prior to the first of May, 1918, when both purchase and possession were legal. At the conclusion of the trial a motion was made on behalf of the defendant for a directed verdict upon the ground that the information contains no allegation or fact constituting a crime under the laws of the State of Michigan and upon the further ground that Act No. 161 of the Pub. Acts of 1917, under which defendant was prosecuted, was repealed by Act No. 338, Pub. Acts 1917. That under the latter act possession by defendant of intoxicating liquors legally acquired prior to May 1, 1918, does not constitute a violation of any existing law. The motion was denied and defendant was convicted.

The question here involved is ruled by our decision in People v. Marxhausen, ante, 559, to which reference is made for a discussion of the applicable law.

The judgment is reversed and the defendant is discharged.

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


text:
    STOCIN v. C. R. WILSON BODY CO.
    Master and Servant — Workmen’s Compensation Law — Loss of Arm — Words and Phrases — Common Meaning — Statutes.
    In proceedings under the workmen’s compensation law, where plaintiff’s arm, as the result of an accident in defendant’s employ, was amputated above the forearm, resulting in atrophy of the muscles of the upper arm, he was properly awarded compensation of $10 per week for 200 weeks for the loss of an arm, as provided in section 10, part 2 of said act (2 Comp. Laws 1915, § 5440). he having lost an arm. according to the common and approved usage of the language (1 Comp. Laws 1915, § 64, subd. 1), as testified to by the attending physician.
    See notes in L. R. A. 1916 k, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted January 21, 1919.
    (Docket No. 81.)
    Decided April 3, 1919.
    Peter Stocin presented his claim for compensation against the C. R. Wilson Body Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Royal Indemnity Company, insurer, bring certiorari.
    Affirmed.

      John B. Coughlin, for appellants.
   Moore, J.

The respondent C. R. Wilson Body Company was engaged in the manufacture of automobile bodies on October 8, 1917, and was operating under the workmen’s compensation act of the State of Michigan. The Royal Indemnity Company was on that date the insurer of the C. R. Wilson Body Company. It is agreed that on that date the plaintiff was an employee of the C. R. Wilson Body Company, that he received an injury arising out of and in the course of his employment and that his wages were $21.60 a week. The said injury resulting in a crushed arm at the junction of the upper and middle third, necessitating amputation at a point shown on the annexed diagram.

Amputation right fore-arm in the upper third.

A claim was made and the arbitration committee awarded plaintiff compensation for 200 weeks. An appeal was taken to the industrial board who on July 26, 1918, made an award of 200 weeks’ compensation. The case was brought before this court on a writ of certiorari to review the proceedings.

The respondent claims the industrial accident board erred as follows:'

1. In making an award of 200 weeks’ compensation.

2. In finding that applicant has lost the right arm by amputation.

3. In not finding that applicant is entitled to 150 weeks’ compensation.

We are not furnished with a brief on the part of the appellee.

In the testimony of one of the doctors appears the following:

“Chairman Zierleyn: It is a fact, doctor, the forearm is part of the arm proper?
“A. Yes, sir.
“Chairman Zierleyn: The forearm in this case has been amputated?
“A. Yes, sir.
“Chairman Zierleyn: Because of the amputation you have an atrophy of the muscles of the upper arm?
“A. That is right.
“Chairman Zierleyn: And to the ordinary layman it would appear that the man had lost the arm? ¡
“A. That is right.
“Chairman Zierleyn: The fact of the amputation having taken place where it has taken place in this case has destroyed the use of the arm, has it not?
“A. It has not destroyed it entirely, but it has taken away a great deal of its function.”

Redirect examination:

“By Mr. Coughlin: Q. Doctor, is not the fact it has taken away a great deal of the function due to the fact the forearm and wrist are gone and cannot be called into use as it would be if they were present?
“A. Not entirely. In amputation of limbs, legs and arms, the nerve control at the joint of amputation— it causes the nerves below to become atrophied. Loss of the part is mostly mechanical.
“By Mr. Ward (arbitrator for respondent): Q. Doctor, you say to the layman it would appear this man has lost his arm? Is that correct, looking at him?
“A. I would say part of his arm.
“Q. Assuming that you had not seen this man at all and you were described as to where it was amputated what would you say as a doctor?
“A. I would say he lost his arm just as I did say.”

The industrial accident board based its award upon the finding—

“that as a matter of fact the applicant has lost an arm within the meaning of the workmen’s compensation law and is entitled to be paid $10 per week for a period of 200 weeks as for the loss of an arm.”

In section 10 of part 2 of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5440), it is provided that the compensation for an injury shall be:

“For the loss of an arm fifty per centum of average weekly wages for two hundred weeks.”

It is provided in 1 How. Stat. (2d Ed.) § 2, subd. 1 (1 Comp. Laws 1915, § 64, subd. 1):

“All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

It is said in a Corpus Juris Treatise entitled Workmen’s Compensation Acts, in a note on page 41, as follows-:

“ ‘The statute not having been designed to promote, but to decrease the opportunity for unnecessary litigation, its purpose will be best subserved if plain words are given their ordinary signification.’ Nichol’s Case, 217 Mass. 3, 5 (104 N. E. 566, Ann. Cas. 1915C, 862).
“ ‘In giving construction to such statutes words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject-matter relative to which they are employed.’ Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, 101 (142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877).”

We think, applying the principles of law stated to the testimony of the doctor which we have quoted, it must be said that there is testimony to justify the award, and it is affirmed, with costs to the claimant.

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