text:
    FREDERICK v. HILLEBRAND.
    1. Damages — Contracts—Breach oe Contract.
    In actions eos contractu the party complaining can recover such damages only as are shown to be the natural and proximate consequence of the breach complained of, and not such as arise from circumstances so far out of the ordinary course of nature or human affairs that they could not fairly be presumed to have been anticipated by the parties at the time of the making of the contract,
    2. Evidence — Admissibility— Contracts — Supplemental Agreements — Exchange oe Property.
    In an action for breach of a contract for the exchange of land, a supplemental agreement providing that in accordance with the contract, to which it referred, a warranty deed and a certified abstract to plaintiff’s premises were tendered, was properly admitted in evidence.
    3. Exchange oe Property — Evidence—Parol Evidence — Admissibility.
    It was proper for plaintiff to testify to the actual value of his farm, as he had the right to show that his contract was a valuable one.

      4. Same — Title to Real Property — Abstracts—Instructions.
    In such action the jury should have been instructed on the question whether the title tendered by plaintiff to defendant was or was not a marketable one.
    5. Real Property — Defective Title — Power of Attorney — Abstracts.
    The title to land is defective where the abstract shows a conveyance by husband and wife by another, but’ no power of attorney, and it is immaterial that the abstract shows acknowledgment by the husband and wife, since such a form is often used by an attorney in fact.
    6. Same — Defective Title — Vendor and Purchaser — Rights of Vendee.
    If there is an apparent incumbrance on record a vendee is entitled to a reasonable time for investigation.
    7. Abstracts — Affidavits—Construction.
    The construction of an abstract of title and accompanying affidavits is for the court.
    Error to Kent; Barton, J., presiding.
    Submitted October 23, 1917.
    (Docket No. 45.)
    Decided December 27, 1917.
    Assumpsit by Walter Frederick against William P. Hillebrand for breach, of a contract to exchange real property. Judgment for plaintiff. Defendant brings error.
    Reversed.

      John M. Dunham, for appellant.

      Thomas A. Lawler and John M. Berry, for appellee.

      On admissibility of parol evidence to vary, add to, or alter a written contract, see note in 17 L. R. A. 270.

   Stone, J.

This is an action of assumpsit to recover damages for the alleged breach of a contract to exchange or trade certain real estate of the respective parties. The plaintiff, on January 22, 1916, was the owner of a 200-acre farm in the township of Essex, Clinton county. The defendant was engaged in the real estate business in the city of Grand Rapids, and was the owner of certain real estate in that city, and his sisters and brother also owned some real estate there, which the defendant was endeavoring to sell or trade for them, with his own property. All of the property involved was mortgaged. After an examination of all of the properties by the parties to this suit, on said January 22d at the farm, an agreement in writing was made and signed by the plaintiff and his wife of the first part, and the defendant of the second part, in and by which the plaintiff and wife agreed to sell their said farm to the defendant for the sum of $16,000, subject to an incumbrance of $7,000, and to accept in payment thereof the several parcels of real estate in Grand Rapids, subject to certain mortgages therein described. The parties of the first part also agreed to pay the said party of the second part $100 in cash.

The defendant agreed to buy said farm for said sum, subject to said mortgage, and give in payment thereof said Grand Rapids property subject to said mortgages. Each of said parties agreed to furnish an abstract and tax history of their respective properties, and also agreed to meet at the Standard Real Estate Company’s office, at Lansing, to close the deal on or before 20 days. Said first party was to have the rent of the Grand Rapids property from said January 22d; possession of the farm was to be given on or before March 15,1916, and possession of the Grand Rapids property was to be given upon signing final papers. Each of the parties agreed to, and did, deposit with the said real estate company a promissory note of $200 as earnest money. The above contract was made on Saturday. On the following Monday the defendant wrote the plaintiff, evidently with a view of calling the trade “off,” and saying:

“I have got into trouble and my party does not care to make, the trade since I explained to him about the building, and does not care to niake the trade.”

On Sunday, the 28d, defendant went to Lansing to see the real estate company that had been negotiating the trade, for the purpose of ending the deal. On January 25th, plaintiff wrote to the defendant, indicating that he intended to stand by the contract and that to turn the deal down would be $1,000 damage to him. On February 8th following, the plaintiff, with his attorney, went to Grand Rapids, and there, accompanied by another local attorney, visited the defendant, and served upon him a written demand that he perform his contract. After referring to the contract it stated:

“In accordance with said contract, and as therein provided, we herewith tender to you a warranty deed made and executed by Walter Frederick and Margaret A. Frederick of Maple Rapids, parties of the first part, to William P. Hillebrand, party of the second part, covering the premises or farm which was to be conveyed to you under the terms of the foregoing contract. * * * You are further presented with an abstract covering the aforesaid described farm, which said abstract is certified to as of the 24th day of January, 1916, in accordance with the aforesaid contract.”

It appeared that at this time the defendant stated that he was unable to close the deal at that time, and the plaintiff, or one of his attorneys, told defendant that if he would admit that a valid and sufficient tender had been made by plaintiff, and would waive further tender, he would extend the time; whereupon the following supplemental agreement was prepared and signed by the parties:

“Grand Rapids, Michigan, February 8, 1916.
“I hereby admit that Walter Frederick has this day made full and complete tender of performance for and in behalf of himself of all covenants and agreements to be performed by him under the terms of a certain contract heretofore entered into by and between W. P. Hillebrand and Walter- Frederick and Margaret Frederick, his wife, on January 22, 1916. For and in consideration of Mr. W. P. Hillebrand agreeing to close the transaction as provided in said contract at Lansing, Michigan, on the 17th day of February, 1916, said Walter Frederick agrees to extend the time of closing said contract to February 17, 1916, without waiving any of his rights in pursuance to said default. Said W. P. Hillebrand hereby waives any further tender by said Walter Frederick. And a failure to complete said transaction on February 17, 1916, shall constitute an immediate default of said contract, without further action on the part of said Walter Frederick.
“Dated at Grand Rapids, Michigan, this 8th day of February, A D. 1916.
[Signed] “W. P. Hillebrand.
“Accepted by
[Signed] “WALTER FREDERICK.”

It was undisputed that the abstract and tax history had never been in defendant’s hands until that time.

Defendant sent the plaintiff’s agent, the Standard Real Estate Company, the abstracts covering the Grand Rapids properties, and some question was raised regarding them. The defendant had the abstract and tax history of the farm examined, and claimed that he found that a marketable title had not been tendered to him, and that in the subsequent demands of the plaintiff that he perform the contract, it was never shown that the title to the farm had been perfected. The criticisms of the abstract, which was received in evidence at the trial, were (entry No. 7):

“Numan Terry and Eliza Terry, his wife, by Nu-man Terry, Jr., to Charles W. Carter, dated Nov. 16, 1872, recorded Nov. 23, 1872, L. 54, page 17. Warranty deed, $1,000. S. W. % of N. W. % of sec. 16-8-3, acknowledged by Newman Terry and Eliza Terry, his wife.”
“Objection: No power of attorney on abstract.”

Also (No. 10):

“Jerome T. Shaw and Nellie M. Shaw, his wife, to Walter Fredericks, dated Feby. 24, 1915, recorded April 12, 1915, Liber 137, page 408. Warranty deed, $1.00, conveys description abstracted, except 2 mortgages, $7,250, to Isaac Hewitt.”

There was, however, but one mortgage on abstract, of $7,000 to Hewitt, except No. 15:

“Niles C. Tabor to Oscar F. Bristol, dated June 23, 1863, recorded Oct. 23, 1863, Liber L, page 2031. Mortgage $1,200. S. W. % sec. 16-8-3.”

The above were the principal objections to the title made by defendant.

Quite an extended correspondence between the parties followed, the contents of which we do not deem it necessary to state in detail. On April 10, 1916, this suit was begun by summons, and on April 26th declaration was filed. In his declaration, among other items of damage which he had suffered, were the following :

“That this plaintiff, as a result of the said William P Hillebrand’s failure to carry out the covenants and agreements as in such contract contained, has been unable to do with said farm as he otherwise would do; that he has been prevented from cutting wood and timber upon said place; that he expected and intended to erect a barn upon said place, and during the winter months to cut the timber therefor, but that plaintiff, through such neglect and failure of said defendant to carry out his contract.as aforesaid, has been prevented from so doing, and has lost large sums of money, which he might otherwise have obtained from the sale of wood and other articles from said farm; that he has been damaged in a large amount by such failure and refusal of. said William P. Hillebrand aforesaid, which has prevented him from erecting a barn upon said farm as he had so planned and intended.”

The original plea was the general issue only, but at the trial defendant was permitted to amend his plea by adding a notice of special matter. By the notice filed defendant, among other things, alleged that the said agreement ofi February 8th—

“was procured by and through fraudulent methods and practices of said plaintiff, his agents and attorneys. That Walter Frederick had not at said time made a complete tender of performance, nor has he ever up to the present time made such tender,, and that 'said defendant signed said agreement, relying upon representations made by the plaintiff, his agents, and attorneys, which were untrue, and which were known by said plaintiff to be untrue.”

Upon the trial of the case the plaintiff was permitted over the objection of the defendant, to show upon the subject of damages that before making this contract with defendant he had planned to cut and take off and sell a quantity of wood, and also to save a quantity of saw logs from which to make lumber with which to build a barn the coming season in which to store his hay; that the contract with defendant resulted in the plaintiff discharging his men employed to cut the wood and timber, and later was unable to hire others to cut; that if he had not made this contract, he would have finished cutting his wood and timber, which he lost, would have sawed the lumber and would have built a barn; that if he had built the barn he would have had a place to store his hay, which for lack of the barn was lost,‘by reason of the wet weather. This loss he claimed was the result of the breach of the contract of January 22, 1916, by the defendant. Plaintiff was also permitted to testify as to the value of the farm.

. The court charged the jury in part as follows:

“I charge you, gentlemen, as a proposition of law, that a marketable title is one of such character as to assure to the vendee the peaceful enjoyment of the property. Now, gentlemen, it is a question of fact for you to find in this case whether or not the title as represented by the abstract and tax history in this case, was a marketable title. If at the time of entering into this transaction, or more particularly with reference to the time when there was a tender signed, in other words, a waiver of further tender so to speak, if at that time they offered a good and sufficient deed conveying a marketable, merchantable title, then the plaintiff has proven his case. If, on the other hand, the defense has shown that its title is not a merchantable title and that there was a misrepresentation, or, in other words, a legal fraud perpetrated upon this defendant, then the plaintiff has failed; in other words, he must fail if that is shown to your satisfaction.
“Now, if there was a legal fraud perpetrated upon this defendant, there was no consideration for the signing of the waiver and the waiver, so to speak, is void, absolutely void, if you find that there was not presented to this defendant on that occasion an abstract showing a merchantable or marketable title, as I have defined it.
“Now, gentlemen, that would be the first thing for you to consider, Was a merchantable title tendered? If you find there was a merchantable title tendered, then, and not until then, will you consider the elements of damage.
“I charge you as a proposition of law that the man who breaches a contract is liable for the damages he occasions thereby. Now, those damages must be consequential. They must be consequential of the breach. The breach, in other words, must be the proximate cause and within the contemplation of the parties.
“Now, gentlemen, if you get to that point, if the plaintiff has proven his case by that preponderance of evidence which I have defined, and it has not been overcome by the evidence of the defendant, then you will consider the elements of damage; and I charge' you as elements of damage that I submit for your consideration there has been admitted in evidence here three items, three items only — the wood, testimony in relation to the wood. If you find that the plaintiff has proven his case by that preponderance of evidence in relation to that element of damage, then you will find in his favor upon that element not to exceed the sum of $40. Now as to the hay, another element of damage, if the plaintiff has proven his case by that preponderance in that relation, you will consider the subject of hay, and if you find in his favor, you will find not to exceed $96 for that element of damage. Third, ■as an element of damage, there is evidence in the case in relation to the value of the properties. It is the claim of the plaintiff that the value of the property here which he was receiving was in excess, taking into consideration all the incumbrances, the equities, so to speak, the value was in excess of the value of what he was giving in exchange the sum of $800. If you find that he has proven that element of damage by a preponderance of the evidence, as I have defined, you will find in his favor therefor not to exceed the sum of $800.. Now, gentlemen, the whole sum total that you may be able to find, if you find all that they have proven or all that they claim, is the sum of $936.”

The trial resulted in a verdict and judgment for the plaintiff in the sum of $548 damages. There was a motion for a new trial which was denied, and exceptions duly taken by defendant. The defendant has brought error, and by his assignments of error he has raised the following questions:

(1) As to the measure of damages.

(2) Error in admitting in evidence the supplemental contract of February 8th.

(3) Error in permitting plaintiff to testify as to the actual value of the farm.

(4) That the court erred in submitting to the jury as'a question of fact whether a marketable title had been tendered by the plaintiff.

We are of the opinion that the court erred in receiving evidence of damages by -reason of the loss of wood and hay, and in submitting that question to the jury. The correct doctrine is as claimed by defendant’s counsel:

“The damage which a, party ought to receive in respect to such breach of contract may be said to be such as may fairly and reasonably be considered either as arising naturally — that is, according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a, breach of it.”

It can hardly be claimed that when these parties made the contract declared upon, either of them contemplated that a breach of it might cause the sap-rotting and loss of certain wood, or the loss of certain hay, under the circumstances as shown by the evidence.

As early as Clark v. Moore, 3 Mich. 55, this court held that in actions ex contractu, the party complaining can recover such damages only as are shown to be the natural and proximate consequence of the breach complained of, and not such as arise from circumstances so far out of the ordinary course of nature, or human affairs, that they could not fairly be presumed to have been anticipated by the parties at the time of making the contract. That case has been followed by many others, among which are the following: Cuddy v. Major, 12 Mich. 368, and note; Hopkins v. Sanford, 38 Mich. 611; Wetmore v. Pattison, 45 Mich. 439 (8 N. W. 67); McKinnon v. McEwan, 48 Mich. 106 (11 N. W. 828, 42 Am. Rep. 458); Watson v. Mead, 98 Mich. 330, 337 (57 N. W. 181); Carnegie, Phipps & Co. v. Holt, 99 Mich. 606 (58 N. W. 623); Hitchcock v. Knights of Maccabees, 100 Mich. 40 (58 N. W. 640, 43 Am. St. Rep. 423, and note); Dean v. Radford, 141 Mich. 36 (104 N. W. 329).

We do not think that the court erred in admitting in evidence the supplemental contract of February 8th. Whether or not it was obtained by false representations was properly submitted to the jury, and they were instructed that if it was so obtained it was void.

In our opinion it was not error to permit plaintiff to testify to the actual value of the farm. He had a right to show that the contract was a valuable one.

“The measure of damages for the breach of a contract by the vendee to buy land is the difference between the contract price, and, the fair cash value of the land at the time of the breach.” 3 Elliott on Contracts, § 2160.

Whether the title tendered to the defendant was or not a marketable title was in our opinion a legal question upon which the jury should have been instructed. If the agreement of February 8th to waive further tender of title was understood by defendant when signed by him, and was not obtained fraudulently, it was binding on defendant, and the jury should have been so instructed. This presented a question of fact. •

There was no agreement in this case that the plaintiff would present a perfect title of record. There was evidence that the provision, “except 2 mortgages of $7,250 to Isaac Hewitt” in the deed of Shaw and wife to the plaintiff, of February 24, 1915, was a mistake, and that it was corrected by a deed of February 16, 1916, of which defendant had notice before suit.

It also appeared by the abstract that Niles C. Tabor never had title to any part of the farm, and that the mortgage (No. 15) to Bristol was a “wild instrument,” having no connection with .the title. Also that it was discharged by Bristol’s sole heirs on March 13, 1916, as appeared by an affidavit of that date, made pursuant to Act No. 123, Pub. Acts 1915 (3 Comp. Laws 1915, § 11736 et seq.), which affidavit is made prima facie evidence of the facts stated, by said statute.

There is in the record no evidence of authority of Numan Terry, Jr., to execute the deed of Numan Terry and Eliza Terry to Charles W. Carter of date November 23, 1872 (No. 7), and the jury should have been so instructed. The entry appearing on the abstract that the deed was acknowledged by Numan Terry and Eliza Terry, his wife, would not remove the objection. Such form is often used by an attorney in fact. There was no evidence in the case of any power of attorney or other authority of Numan Terry, Jr., nor of adverse possession sufficient to constitute title. This affected title to 40 acres of the farm and was a material matter. What the deed or the record may show is not before us, and we must be governed by this record.

In Allen v. Atkinson, 21 Mich. 351, it was held that where one contracts to sell and convey land, and the contract is silent as to the title, it is to be assumed that the title is good; and it devolves on the vendee, if he questions it, to show the defect. But he has an undoubted right to a good title; that the title shall be a marketable one, not open to reasonable objection. But when there is an apparent incumbrance of record the vendee has a right to demand a reasonable time for investigation. See, also, Curran v. Rogers, 35 Mich. 221; Dikeman v. Arnold, 71 Mich. 656 (40 N. W. 42); Todd v. McLaughlin, 125 Mich. 268 (84 N. W. 146); Weaver v. Richards, 144 Mich. 395 (108 N. W. 382, 6 L. R. A. [N. S.] 855). It was for the court, and not the jury, to construe the abstract of title, and the accompanying affidavits. It is impossible to say what part of the damages awarded by the jury was made up of damages to the wood and hay.

- For the errors pointed out above, the judgment of the circuit court is reversed, with costs to the appellant, and a new trial is granted.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SNYDER v. KING.
    1. Carriers — Injuries to Horses in Transit — Claims—Time for Filing — Interstate Commerce.
    The report of the claim of a shipper of an. interstate car of horses for injuries to the animals during transit made by defendant’s agent at the point of destination was a substantial compliance with the requirement of the uniform livestock contract under which the horses were shipped that in the event of the accrual of damages a verified claim therefor be made in writing within five days from the time the stock is removed from the car.
    2. Negligence — Definition—Question of Law.
    Negligence is not a question of law except in cases where the facts are such that all reasonable men would be likely to draw the same inference therefrom.
    3. Carriers — Injuries to Horses in Transit — Interstate Comímerce — Directed Verdict.
    In an action against a carrier for damages for injuries to .an interstate shipment of horses due to their escape from a stock pen during the time they were in the pen after they were unloaded for the purpose of being watered and fed as required by the Federal statute (U. S. Comp. Stat. 1916, § 8652), heló, that it was not error to deny defendant’s motion for a directed verdict, sought on the grounds that there was no negligence in handling the horses at the intermediate point and that plaintiff’s loss resulted from the nature of the animals themselves.
    4. Same — Carriage of Livestock — Negligence.
    A duty rests upon the carrier to prevent the escape of animals unloaded for some reason incident to the transportation.
    5. Same — Carriage of Livestock — Contracts—Statutes.
    Such unloading, feeding and watering of the horses was incident to the transportation, and, notwithstanding a prejudicial provision in the uniform livestock contract under which the horses are shipped, the recovery of damages for injuries sustained by the horses after being unloaded at such intermediate point cannot be defeated on the ground that they were suffered when the horses were not being actually transported, a contract not being capable of overriding a Federal statute.

    Error to Oceana; Sullivan, J.
    Submitted October 24, 1917.
    (Docket No. 144.)
    Decided December 27, 1917.
    Assumpsit by William E. Snyder against Paul H. King and Dudley E. Waters, receivers of the Pere Marquette Railroad Company, for damages” to horses in transit. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Parker, Shields & Brown (Norris, McPherson, Harrington & Waer, of counsel), for appellants.

      Hall & Greene and Hall, Gillard & Temple, for appellee.

      As to statutory duties of carriers of livestock with reference to care of stock during transportation, see note in 44 L. R. A. 449.
      On validity of stipulation in carrier’s contract requiring notice of loss within specified time, as applied to loss due to carriers’ negligence, see note in 17 L. R. A. (N. S.) 628.
      On duty of carrier of livestock as to pens or yards at stations, see note in 44 L. R. A. 289.

   Stone, J.

This is an action for damages for a carload shipment of horses belonging to the plaintiff, moving from Chicago, 111., to Hart, Mich., under a uniform livestock contract issued February 10, 1915. Some of the horses were sick when the shipment arrived at Hart, and three died later, the plaintiff claiming that the sickness and death were due to exposure at Waverly (near Holland), Mich., where the horses broke out of a stock pen; and the plaintiff also claimed an unreasonable delay on the part of' the defendants in transporting the horses from Chicago to Hart. The car of horses arrived at Waverly, Mich., at about 11 o’clock a. m. of February 11th, and as there was nio train which would take the car to Hart, or an intermediate point within the 36 hours’ limit fixed by the Federal law and the contract, the horses, 23 in number, were unloaded for water and feed, as required by that law.

The only question of negligence which the trial court submitted to the jury was the claimed negligence of the defendants in the handling of the stock at Waver ly; the court ruling that no negligence was shown in the actual transportation of the horses. When the horses were unloaded at Waverly, as aforesaid, they were placed in an open stock pen built 4 feet 9 inches high out of 1 by 6 hemlock boards, and cedar posts set 4 feet apart. The pen was built in 1912 or 1913, and was about 74 feet long and 48 feet wide, divided into two parts with an open gate between. The boards were all nailed on the inside of the posts, except at each corner one set of boards had to be nailed and was nailed on the outside. There was testimony that 15 or 20 other cars of horses had been before unloaded into this same pen; that it was constructed similar to other horse pens used by railroad companies in unloading horses for feeding; that no horses had ever broken out of the pen before; and that the pen was in good condition, and was not rotten or decayed anywhere.

About an hour after the horses were first turned into the pen a large sorrel kicked some of the other horses, crowded them against the.fence, and broke it down in the northwest corner of the pen. The sorrel horse in question was vicious to the other horses at the time it was in the stock pen, though he showed no signs of viciousness either before he was shipped, or after he was delivered to the consignee at Hart. The stock pen was immediately repaired, after the first break, and made as. good as it was before. The horses were left untied in the pen, so that they might exercise. No one watched the horses while they were-in the pen, but the yardmaster testified:

“There wasn’t any time for 30 minutes during the day perhaps but what I saw them. I had seen them not to exceed 5 minutes before they broke out the second time. I did not see them break out the second time.”

The horses broke out again about 4 o’clock in the-afternoon. They broke out at a different place, but at a place where the boards were nailed on the outside of the posts, in a corner. All but one of the horses escaped from the pen before the men arrived to stop them. The only horse which did not escape was the large sorrel which had been the cause of the trouble in the morning. Six of the horses were caught immediately, and 2 more about an hour afterwards. The remaining 14 horses ran 5 or 6 miles, and were out all night. Twelve of them were caught about 8 o’clock, and 2 about 10 o’clock the following morning. The 8 horses that were caught immediately were put back into the car, but were taken out of the car again the next morning to exercise. They and the other horses captured later were not put into the car finally until about 4 o’clock p. m. on February 12th. As to the condition of the weather at Waverly the yardmaster testified:

“The weather was. warm; the sun was shining. I mean that it was a warm day for March or February; probably it was considerable above freezing. I would-n’t state just- what the temperature was, but it was not freezing.”

The plaintiff testified as to the condition at Hart as follows:

“The weather at that time was a cold northwest wind, the next thing to freezing, and about half rain. The air was chuck full of moisture, cold and disagreeable.”

There was testimony that when the horses were first unloaded at Waverly, one of them, a bay mare, had a bad, very odorous, and green discharge from her nose, indicating that she had an old case of distemper or shipping fever; that this mare did not eat' when taken out of the car at Waverly, and did not eat the following day. As soon as the horses were recaptured the defendants called in a local veterinary surgeon to examine them. He examined them and found all of them eating except the bay mare. He testified that she was discharging from the nose, and had a high temperature, and that her condition indicated that she had the distemper or shipping fever, and had had it from 4 to 7 days, and that the rest of the horses were all in good condition when recaptured. Some of the horses were sick when they arrived at Hart on the afternoon of February 13th, others became sick later, and 3 of them died. Plaintiff claimed that the horses suffered from sickness, due to the exposure at Waverly, and that none of them had distemper when shipped. Plaintiff called as a witness a veterinary surgeon who testified that the horses had pneumonia when he treated them after their arrival at Hart, and that it might have been caused by the exposure.

The uniform livestock contract which the plaintiff signed, and under which the shipment in this case moved, contained the following provisions:

“No claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier or sued for in any court by the said shipper unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the traffic manager of the said carrier at his office in Detroit within five days from the time said, stock is removed from said car or cars. * * *
“Livestock will be taken at the reduced rates fixed in the tariff only when a uniform livestock contract is executed by the station agent and the consignor, and when the release on the back of said contract is executed by man or men who are to accompany said livestock. If consignor refuses to execute a uniform livestock contract, the livestock will be charged ten (10) per cent, higher than the reduced rates specified herein, provided that in no case shall such increase be less than one (1) per cent, per hundred pounds. * tfc #
“The railroad company does not assume any risks from the acts of the animals themselves, or to each other, such as biting or kicking; such risks must always be borne by the owner. * * *
“The said shipper is at his own sole risk and expense to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same. * * *
“The said carrier or any connecting carrier shall not be liable for or on account of any injury sustained by said livestock occasioned by any or either of the following causes, to wit: Overloading, crowding one upon another, kicking, or goring,” etc.

Plaintiff had shipped a number of cars of horses from Chicago to Hart, prior to the shipment in question, and had shipped them all under similar contracts, containing the clauses above set forth. The uniform livestock contract under which the shipment moved is part of defendants’ published tariffs on file with the interstate commerce commission and the Michigan railroad commission, and. in effect at the time. Such tariffs provide a rate of 36.8 cents per hundred pounds for livestock carried under and subject to the conditions of the uniform livestock contract, which was. the 'rate paid by the shipper in this case. Under such tariff the shipper had the option of shipping his stock either subject to the terms and conditions of the uniform livestock contract, or under the liability imposed upon common carriers by the common law, and the Federal and State statutes applicable thereto. In case the shipper chose to have his stock transported under a common-law liability bill of lading, the rate specified in the tariff was 10 per cent.' higher than the rate paid in this case.

Plaintiff did not file his claim within 5 days as required by the contract; he not having filed it until March 8, 1915. The defendants gave notice of this defense under their plea of the general issue. The trial court held that the provision might be waived, and submitted the question of waiver to the jury. The facts upon this question were that immediately after purchasing and seeing about the shipment of the horses, plaintiff left Chicago and went back to Hart. When the horses did not arrive at the usual time, plaintiff went to learn the cause of the delay. One of the men on the freight train told him the horses had gotten out of the yards at Waverly. Plaintiff then went to defendants’ local agent at Hart, and he telegraphed to Waverly and found that the horses were running at large. The weather at Hart was a cold northwesterly wind, the next thing to freezing, and about half rain. The plaintiff testified that he feared such weather would give the horses pneumonia, so he told said local agent about the condition the horses were in; that they would take cold; and that when they arrived at Hart he would refuse to take them, and the defendants could keep them; that the agent told plaintiff that they could not do that; that plaintiff must take care of them and do the best he could with them; that somebody had to take care of them. After the horses arrived, and before the plaintiff unloaded them, he again had a talk with defendants’ agent, which he detailed as follows: ■

“He told me to take them, and to take care of them, and do the best I could with them. The horses were unloaded. I did as he told me;, took them to the barn; took the best care I could of them. He [the agent] followed us into the barn, and I showed him the horses, and explained to him the condition they were in. He gave me instructions at that time to take care of them the best I could, and whatever the damage was the company would pay it. The condition of the horses was that some of them were seemingly all right— were all right. I had three horses that never ate a mouthful after they came to the barn, and finally died. There were five others which it took me from one to three months to get in shape to do anything with them, and I came very near losing them. I took all of the care anybody possibly could of the horses.”

The defendants’ local agent saw the horses two or three times a week after they were unloaded. Defendants’ local agent, called by the plaintiff for cross-examination under the statute, after testifying substantially the same as the .plaintiff relating to said conversations, also testified as follows:

“Q. Didn’t Mr. Snyder tell you that there would be a claim filed, and didn’t you tell him to file his claim when he knew what his loss was?
“A. Yes, I did. * * * Mr. Snyder filed his claim with me some time later, and it was sent by me to the offices of the Pere Marquette at Detroit.
“Q. Before that you had wired the Pere Marquette in Mr. Snyder’s behalf of the loss that had been sustained?
“A. Not that I remember of.
“Q. Didn’t you make a report?
“A. Not by wire. I wrote them a report by letter.
“Q. Either by wire or letter?
“A. By letter I did.
“Q. You made a report of this loss?
“A. Yes, sir.
“Q. When was that made?
“A. That was made shortly after the arrival, as to the condition on arrival.
“Q. Within a day or two?
“A. Yes, I think so.
“Q. Have you got that letter?
“A. I have not.

(After inquiry for the letter, and defendants’ inability to produce it, counsel proceeded:)

“Q. And in that letter didn’t you tell the officers of the company that you had persuaded Mr. Snyder to unload the car and file his claim?
“A. I don’t remember as to how it was worded, but I gave them the condition of the car on arrival, and either stated or made it in such a way that a claim would be made.
“Q. So that you made it plain to them that you had made an arrangement for taking care of the loss between yourself and Mr. Snyder?
“A. I couldn’t say as to that. I don’t remember how the letter was worded, but I presume—
“Q. Will you speak a little louder?
“A. I don’t remember as to how the wording of the letter was.
“Q. But that was the substance of it?
“A. That would be the substance of the report made. * * *
“Q. Didn’t you tell Mr. Snyder to go ahead and take care of these horses, and when he knew what his loss would be to file his claim, and that it would be paid?
“A. I don’t know whether I told him in those words, but I told him to take care of the shipment, and when he had the matter where he knew what the loss was to file his claim. As far as saying that it would be paid, I may have said it, but then he would know how it was intended. I couldn’t pay the claim myself. I knew it would have to be investigated.
“Q. You told him that the company would take care, of it?
“A. Would entertain the claim, certainly.”

On examination by defendants’ counsel this witness testified:

“Q. Do you remember, Mr. Story, when Mr. Snyder filed his claim with you, that was shown you by counsel for the other side, whether or not it is on the date—
“A. I think it is on the date.
“Q. March 8, 1915?
“A. Yes, sir.
“Q. Now, in this letter that counsel has spoken about, that you say you wrote to the officers of the railroad company, did you state in that letter any more than that the- shipment had arrived, the condition that it had arrived in, and that a claim would be filed?
“A. I think not; I don’t remember positively, but I believe that would be all the information I would give them, as to condition on arrival, and that a claim would be filed. * * *
“Q. Did you send that letter in your line of duty as an agent of the railroad company?
“A. I did.
“Q. You notified them of the damaged shipment, the same as you would notify them of any damaged shipment?
“A. I did; yes, sir.”

At the close of plaintiff’s case defendants made a motion for a directed verdict upon three grounds, all of which were again raised by appropriate requests to charge, which were denied. The case was submitted to the jury, and the trial resulted in a verdict and judgment for the plaintiff for $428.30 damages. Defendants have brought the case here for review, and error is assigned upon the refusal of the court to direct a verdict, and to charge the jury as requested. Defendants rely upon and urge the following propositions in this court:

(1) That the court should have directed a verdict for the defendants on the ground that plaintiff did not file a verified claim within 5 days after the arrival of the shipment.

(2) That the court should have directed a verdict for defendants on the ground that plaintiff did not show any negligence in the handling of the stock at Waverly.

(3) That a like verdict should have been directed on the ground that plaintiff’s loss was due to the nature of the animals themselves.

(4) And a like verdict should have been directed on the ground that plaintiff’s damage was incurred while the property was not being actually transported.

It is strenuously urged by defendants’ counsel that the plaintiff cannot recover because he did not file a verified claim within 5 days; that the shipment was an interstate shipment and governed by the Federal law, and the decisions pertaining thereto; and that the validity, force, and effect of the provisions of the uniform livestock contract involved in the case are, under the decisions of the Supreme Court of the United States, Federal questions, not within the field of State law regulations, and the following cases are cited: Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148, 44 L. R. A. [N. S.] 257); Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59 (33 Sup. Ct. 192, Am. & Eng. Ann. Cas. 1914C, 176); Missouri, etc., R. Co. v. Harriman, 227 U. S. 657 (33 Sup. Ct. 397); Cincinnati, etc., R. Co. v. Rankin, 241 U. S. 319, 327 (36 Sup. Ct. 555, L. R. A. 1917A, 265). And that the United States Supreme Court has expressly held that the five-day provision is valid and cannot be waived, citing Chesapeake, etc., R. Co. v. McLaughlin, 242 U. S. 142 (37 Sup. Ct. 40); Northern Pacific R. Co. v. Wall, 241 U. S. 87 (36 Sup. Ct. 493); Georgia, etc., R. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541). Counsel cite additional cases in their reply brief, but as we fully agree with the above contention, we do not cite them.

In our opinion the only serious question here involved is whether there was a substantial compliance with the 5-day requirement. In the Blish Milling Company Case it was held that the parties could not waive conditions “fixed by the agreement made under the published tariffs and regulations.” The court, however, reached the conclusion that a telegram sent by the plaintiff to the defendant to the effect that the shipper “would make claim against the railroad for entire contents of car at invoice price,” taken in connection with other telegrams identifying the shipment, was a substantial compliance with the bill of lading provision in question, and therefore affirmed the Georgia court. In that case, Justice Hughes, after referring to the telegrams, and stating that the object of the stipulation was to secure reasonable notice, said:

“We think that it sufficiently apprised the carrier of the character of the claim, * * * and' it is plain that no prejudice resulted. Granting that the stipulation is applicable and valid, it does not require documents in a particular form. It is addressed to a practical exigency, and it is to be construed in a practical way. The stipulation required that the claim should be. made in writing, but a telegram which in itself or taken with other telegrams contained an adequate statement must be deemed to satisfy this requirement” ■ — citing cases.

The object of the stipulation was reasonable notice. If the telegram was a substantial compliance with the stipulation in the Blish Milling Company Case, may not the report from the agent of the defendants at Hart to the office at Detroit, made after his own personal examination of the horses after they had been unloaded and under the circumstances stated, be deemed a substantial compliance with the contract in the instant case? We think so. An investigation by a claim agent followed, and there was no claim of surprise, or that defendants had been misled. In the McLaughlin Case the stipulation was the same as in the instant case, and the court said:

“Upon its face the agreement seems to be unobjectionable, and nothing in the record tends to establish circumstances rendering it invalid or excuse failure to comply therewith.”

We think this reaffirms the doctrine of the Blish Milling Company Case, which is therein cited. Plaintiff’s counsel in this court do not claim that the 5-day clause can be waived, but that there was a substantial compliance with it, “when the contract and the facts are given practical construction in the light of the practical exigency which existed in the case.” With this contention we agree.

It is defendants’ claim that plaintiff showed no negligence on the part of defendants. Without discussing the question as to which party had the burden of proof, we think that the question could not be properly disposed of as one of law. We recognize the rule to be that the court cannot properly pass upon the question of negligence, except in cases where the facts are such that all reasonable men would be likely to draw from them the same inference. It appears that, without separating the horses, which might have been done by closing the gate and thus making two pens, the 23 young, active horses were placed together in one pen from which some of them had before escaped. Nobody was in charge to watch them, and nobody saw how the horses finally got out, and no one knew what knocked the boards off. It has been held that care is required in preventing the escape of animals, which are unloaded for some reason incident to the transportation. 6 Cyc. p. 437, and eases cited. The question of negligence in handling the horses at Waverly was one of fact, and defendants cannot justly-complain of the charge of the court upon that question.

Should the court have directed a verdict for defendants on the ground that plaintiff’s loss was due to the nature of the animals themselves? It seems to ®us that a good answer to this question is found in the uncontradicted testimony of the yardmaster: “I ,did not see them break out the second time.” How can the court say, as matter of law, that the horses got out of the pen because of their viciousness? This affirmative defense was not claimed in-the pleadings. The court did not err in refusing to direct a verdict on this ground.

Should the court have directed a verdict for defendants on the ground that the damage to plaintiff’s stock was incurred while the property was not being actually transported? We have already stated that a duty rests upon the carrier to prevent the escape of animals while unloaded for some reason incident to the transportation. This interstate shipment was controlled by the Federal statute. See sections 8651 to 8658, U. S. Comp. Stat. 1916. Section 8652 provides that:

“Animals so unloaded shall be properly .fed and watered during such rest, either by the owner or person having the custody thereof, or in case of his default in so doing, then by the railroad * * * company * * * transporting the same, at the reasonable expense of the owner,” etc.

In the instant case charges for feed and water were made by defendants, and paid by plaintiff. Under the Federal statutes the unloading, feeding, and watering are part of the transportation incumbent upon the carrier. It is evident that a clause in a contract cannot override a Federal statute. The contention of the defendants in this regard was decided adversely to them in Chicago, etc., R. Co. v. Scott (Tex. Civ. App,), 156 S. W. 294.

Upon this record we are of the opinion that the result reached upon the trial was justified and not erroneous, and that there was not a miscarriage of justice. The judgment below is therefore affirmed.

Nuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    BROWN v. GRAY.
    1. Leases — Contracts—Validity.
    A contract for a lease made on Sunday is invalid.
    2. Witnesses — Conversations—Admissibility—Statutes.
    In an action by a tenant against tbe executor of the landlord for damages for personal injuries due to failure to repair a -walk on the premises, the testimony of the tenant, and her husband, as her agent, as to a conversation with an agent of the landlord, in the presence of the latter, relating to a promise to repair, is inadmissible under 3 Comp. Laws 1915, § 12553, relating to the admissibility of • testimony of persons as to transactions with deceased persons.

    3. Landlord and Tenant — Leases — Subsequent Agreement to Repair — Consideration.
    A promise to repair leased premises made subsequent to the making of the lease is without consideration and unenforceable.
    Error to Wayne; Perkins, J., presiding.
    Submitted October 4, 1917.
    (Docket No. 12.)
    Decided December 27, 1917.
    Case by Laura F. Brown against Alfred A. Gray for personal injuries. On the death of defendant, Frederick B. Gray, his executor, was made defendant. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Albert E. Sherman, for appellant.

      A. G. Pitts (Rowland M. Connor, of counsel), for appellee.

      Authorities discussing the question as to competency of a party to deny a transaction with a person since deceased, see notes in 21 L. R. A. (N. S.) 755; 42 L. R. A. (N. S.) 298.

   Stone, J.

This action was brought by a tenant against Alfred A. Gray, her landlord, to recover damages for the alleged negligence of the defendant in failing to repair a certain walk on the premises, at the side of the rented dwelling house, by reason of which negligence the plaintiff fell and was injured while passing over said walk. After issue was joined, the defendant died, leaving a last will and testament. The death was suggested of record, and the case proceeded against the executor. The declaration alleged that:

“Beginning at or near the front of said dwelling house, and extending around the side and rear of the said building, was a certain wooden walk, and that at the time of the letting and the leasing of the said premises as aforesaid, to wit, May, 1914,. the said walk was designated by the said defendant as a means of ingress and egress to the several rooms of the said building. Further, plaintiff avers, and charges the fact to be, that at the time of the leasing of the said premises aforesaid the said walk was out of repair, and that the said plaintiff and her husband, to whom the premises were leased, called the attention of the said defendant to the defective condition of the said walk, and did then and there state to the said defendant that, if the said premises were leased, the walk would have to be repaired and fit for use. Whereupon the said defendant stated to the said plaintiff and her husband that, if they would lease the said premises,, the said walk would be immediately repaired and put in a safe and proper condition for the ordinary use of the plaintiff and others.”

Then follow the allegations of duty of defendant to repair the said walk,, and the neglect to do so, with resulting damages.

Upon the trial it appeared that the.first .-interview relating to the renting was had by the plaintiff and her husband, not with the landlord, Alfred A. Gray, but with a Mr. Dailey, who had the key of the premises, and, as claimed by plaintiff, represented himself to be the janitor of Mr. Gray, of a building next door. It was undisputed that this interview occurred on Sunday. On that occasion the plaintiff’s husband paid Mr. Dailey the sum of $10 to apply on the rent, which was to be $30 a month, and they were to move in on the Wednesday following. The plaintiff was permitted to testify, under objection, to what Mr. Dailey said on this Sunday, as follows:

“Q. State what Mr. Dailey said..
“A. Well, it was through the conversation of us all there; we spoke about the repairs of the sidewalk, because it was in such bad condition. He said he would see that everything was fixed up, and that they would build a new sidewalk — it needed it — and they would put in cement.
“Q. Now-that was at the first renting of the premises?
“A. Yes, sir.”

She then testified on cross-examination to another talk with Mr. Dailey about repairs, as follows:

“Q. When did you have this talk with Mr. Dailey about the repairs? When you moved in?
“A. Yes, sir.
“Q. How long after?
“A. Well, it was the day we paid the balance of the rent, the $20. We moved in on Monday. We got two rooms so we could move, but our rent did not begin until the following Wednesday, when we paid the balance of $20; that is, the Wednesday after the Sunday, when we were first there.
“Q. Then you took possession, full possession, and your rent commenced on the following Wednesday, which was May 20th?
“A. We had the talk with Mr. Dailey about the repairs on Wednesday, when we paid the balance of the rent. The conversation was in our kitchen, 903 Third street: Mr. Dailey had come over, and it was in the forenoon some time. Mr. Alfred A. Gray was present.
“Q. And it was at that time when Mr. Gray — Mr. Dailey made these representations? .
“A. Yes, sir; he was ordered to.
“Q. And was that the only time Mr. Dailey said anything about repairs?
“A. No; several times, and on several occasions, after that. Pretty nearly all the time we lived there.
“Q. When was the next time Mr. Dailey made any representations or promises relative to repairs?
“A. Well, it was about two weeks before I got hurt.”

The plaintiff continued to live in the house about four months, and was. injured on September 5, 1914. Charles Brown, the husband of the plaintiff, testified substantially the same as the plaintiff relating to what took place on Sunday, and further as follows:

“Q. Mr. Brown, when was the first time you had any discussion with Mr. Dailey about repairs, if ever you had any?
“A. Oh, yes; I did, the day that I paid the balance of the rent on Wednesday. I called his attention there, and then I told him. I think it was on a Sunday.
“Q. Now, tell the court and jury what happened, and what conversation you had, and who was present on the following Wednesday.
“A. Well, on that day, on Wednesday, when I paid the balance of the rent, that was $20, we had a conversation about the sidewalk, and about repairs, and Mr. Gray was there at the time. Mr. Dailey brought Mr. Gray in and introduced me to him; that was the first time I had seen Mr. Gray, and I called Mr. Gray’s attention about the sidewalk, and shape it was in.”

Here, upon the motion of defendant’s counsel, this last testimony as to what occurred in the presence of the deceased was excluded, on the ground that witness was plaintiff’s agent in the making of the contract, and the matters were equally within the knowledge of deceased, to which ruling plaintiff’s counsel excepted. At the close of the plaintiff’s case the trial court directed a verdict and judgment to be entered for the defendant, mainly upon the ground of the contributory negligence of the plaintiff by reason of her acquaintance with the conditions, upon the authority of Town v. Armstrong, 75 Mich. 580 (42 N. W. 983), and like cases, and distinguishing the case from Nutter v. Colyer, 180 Mich. 107 (146 N. W. 643). The plaintiff has brought the case here for review, and error is assigned because the trial court directed a verdict for the defendant, and refused to submit the case to the jury.

We are of the opinion that under the testimony, and upon the whole case as made by the plaintiff, the court did not err in the course taken. From the testimony above quoted it is apparent that the plaintiff’s case was a weak one at best. The Sunday conversation with Dailey could not be relied upon as constituting a valid contract with the defendant testator, even if Dailey had authority to bind him, which did not appear. The testimony of both the plaintiff and her husband, as her agent, of what was said in the presence of the deceased, was, we think, properly excluded under the statute. Section 12856, 5 How. Stat. (2d. Ed.); Act No. 314, Pub. Acts 1915, chap. 17, § 65 (judicature act), (3 Comp. Laws 1915, § 12553). If it were conceded that by other testimony it appeared that the contract for the lease was made on the said Wednesday, it appearing that there was no competent evidence of an agreement on that day to repair the walk, any subsequent agreement to repair would be without consideration, and unenforceable, under the authority of Rhoades v. Seidel, 139 Mich. 608 (102 N. W. 1025). So, in any view of the case which we are able to take, under the evidence, the plaintiff failed to make a case for the jury, and the trial court did not err in directing a verdict and judgment for the defendant.

The judgment of the circuit court is therefore affirmed.

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


text:
    SCHOOL DISTRICT NO. 5, FRACTIONAL, OF BYRON AND WYOMING TOWNSHIPS v. LONG.
    1. Schools and School Districts — Teacher’s Salary — Order on Treasurer — Duty of Treasurer.
    Where an- order on. a school treasurer for the amount of the regular monthly wages of a teacher was regular on its face, it was the treasurer’s duty to pay it, although there was no deduction because of absence of the teacher for a portion of the month.
    2. Same — Teacher’s Salary — Deduction of Wages — Consent— Question for Jury.
    In an action by a school district against the treasurer to recover a portion of the primary school funds used to pay unqualified substitute primary teachers during the absence of the regular teacher, where it appeared that defendant refused to cash an order for the full amount of the teacher’s wages but gave a check for a certain sum after making deduction of wages paid the substitutes and it was accepted, whether such retention and use by him was with the teacher’s consent was, under conflicting evidence, a question of fact upon the determination of which defendant’s liability depended, as he would not be liable if she consented, and would be if she did not consent thereto.
    Error to Kent; Barton, J., presiding.
    Submitted October 22, 1917.
    (Docket No. 76.)
    Decided December 27, 1917.
    Assumpsit in justice’s court by School District No. 5, fractional, of Byron and Wyoming townships against Peter D. Long for money had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Hatch, McAllister & Raymond, for appellant.

      Lombard, Hext & Washburn, for appellee.
   Stone, J.

Action by a school district, under the authority of the taxpayers, to recover a portion of the primary school funds alleged to have been unlawfully used by the defendant as treasurer of the district, and not turned over or accounted for to his successor, but unlawfully used by defendant as such treasurer in paying his daughter and another young woman (neither of whom was a qualified teacher) for assisting the principal in said school during the absence of the regular primary teacher. On November 6, 1913, Miss Ruthven, the primary teacher, owing to the death of her brother, found it necessary to be absent from the school for a number of days, and she missed six days of school. Before leaving Miss Ruthven told the director that she had to go away, but she testified that she made no arrangements for any one to take her place. The director testified that she asked him to call up the principal of the school and have him get some one to take her place, and the principal testified that at the suggestion of the director it was so arranged that the daughter of the defendant, as assistant, taught five days and the other young woman taught one day during such absence.

On November 20,1913, Miss Ruthven received from the director an order on the defendant as treasurer of the district, duly countersigned by the moderator, for $35, payable out of the primary school fund, on account of teacher’s wages, being her regular monthly wages, and this order covered the period of her absence, without deduction for such absence. She went to defendant’s home that evening to collect the order, and she testified, in substance, that she handed the order directly to the defendant when she went into the house; that he took the order, read it over, and said to her that there were six days that she did not teach, and was not to get pay for, and told her that there were two girls who took her place when she was gone; that Miss Ruthven told him that she did not think they were qualified teachers, and that they were not entitled to draw full pay; that she did not think he should hold out money to pay the girls, stating that she could pay her own debts. She testified that she was at defendant’s house about an hour, and tried while there to get the money on her order, that she repeated the statement that she did not need anybody to pay her debts, and that she could pay the girls as well as he could.

There was evidently some friction between the defendant and the director, for Miss Ruthven testified that the defendant said “he did not want to make it any hotter for Mr. Brudi, the director, than he had to.” Finally the defendant kept the order, gave her his check for $24.50, which she claims she accepted reluctantly; that it was all she could get, and she went away. It is undisputed that defendant afterwards paid to his daughter, $8.75, and to the other assistant $1.75, aggregating the sum withheld on the order of $10.50.

There was a sharp conflict in the testimony as to what occurred at defendant’s house when the order was presented for payment. The defendant and his wife testified, in substance, that Miss Ruthven expressly authorized the defendant to retain the $10.50 out of the order and to pay the girls for her, that she requested him to disburse the money in that way, and that he did so. She fully stating that she was satisfied. In fact the testimony on behalf of defendant was to the effect that he acted as the agent of Miss Ruthven in paying the girls. It appeared upon the trial that while Miss Ruthven was a minor, she had the right to collect her wages as a teacher, and had been fully emancipated by her father in so far as this matter was concerned. It further appeared that the district board in the month of May, 1914, gave Miss •Ruthven another order for $10.50, which was paid, that being to restore the amount retained by the defendant from her former order, and paid to the girls by him.

At the conclusion of the testimony the plaintiff moved that a verdict be directed in favor of the plaintiff for the amount of $10.50 and interest, for the reason that under the undisputed evidence the primary school fund had been diverted to purposes contrary to the provisions of sections 4676 and 4678, 2 Comp. Laws (2 Comp. Laws 1915; §§ 5678, 5680). The court denied the motion and directed a verdict in. favor of the defendant, and a verdict and judgment for defendant were entered accordingly.

The plaintiff has brought the case here for review. Among other assignments of error are the following:

“2. The court erred in denying the motion of plaintiff that a verdict be directed in favor of plaintiff for the amount of its claim, for the reason that under the undisputed evidence in the case, the primary school funds have been diverted to purposes contrary to the statute.”
“3. The court erred in directing a verdict in favor of defendant and against the plaintiff in said cause.”
“6. The court erred in charging the jury as follows: T hold that the issuance of order No. 103, being Exhibit No. 2 in this case, was a liquidation of the amount then and there due and owing to Miss Ruthven, and thereby a designation or appropriation of $35 of the primary school fund then in the hands of the treasurer. On the face of it, the order was regular, and, as contended by the plaintiff, it was the duty of the treasurer to pay it, which he did. That he paid it there is no dispute by the.issuance of a check, whether it was his personal check or as treasurer, it is immaterial, she accepted that check, and received the money on it. Whether or not she received that amount under protest or otherwise is immaterial in this case, because she left the order with the treasurer.. Whether she left it there by reason of a threat or voluntarily, whether she was under duress, so to speak, and by reason of being in that position left it, or whether she did it voluntarily, is immaterial.’ ”

It is our opinion that the court did not err in refusing to direct a verdict for the plaintiff, but that it did err in directing a verdict for the defendant. We think that there was a question of fact which should have been submitted to the jury under proper instructions. We agree with the trial court in the statement that:

“On the face of it, the order was regular, and as contended by the plaintiff, it was. the duty of the treasurer to pay it.”

Whether he did pay it or not was a question of fact. Manifestly, if Miss Ruthven consented to the retention of the $10.50 by the defendant,, and if she authorized him to pay out that money for her to the girls, the defendant is not liable, for, the money belonging to Miss Ruthven, she could do what she liked with it. On the other hand, if Miss Ruthven did not consent to such disposition of the money, the defendant had no right to retain it and disburse it as he did, and is liable for the amount.

The judgment of the court below is reversed, with costs to plaintiff, and a new trial granted.

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


author: Ostrander, J.

text:
    HILL v. LAPPLEY.
    1. Highways and Streets — Rights of Pedestrians — Vehicles.
    Usually, a country highway is not, as a railroad crossing is, a place of danger to be approached and traversed only after looking and listening for coming vehicles.
    2. Same — Rights of Pedestrians — Collisions — Question for Jury.
    Usually, when persons having an equal right to use a highway come into collision and one is injured and brings an action, the question of his due care and of defendant’s negligence are questions for the jury.
    3. Same — Automobiles—Pedestrians—Contributory Negligence.
    An aged woman who possesses all of her faculties, except that she has impaired eyesight, is guilty of contributory negligence in being struck by an automobile, where, after looking in both directions before alighting from the rear of an automobile truck, and seeing no vehicles coming, she alights backwards and starts to cross the street without seeing any vehicle and steps directly in front of an automobile headed in the same direction as the truck, and is struck thereby.

    Error to Kent; Barton, J., presiding.
    Submitted October 19, 1917.
    (Docket No. 110.)
    Decided December 27, 1917.
    Case by Catherine Hill against Fred Lappley for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Shivel & Whitney (Smedley & Linsey, of counsel), for appellant.

      Thompson & Temple, for appellee.

      Testimony for the plaintiff tends to prove that she was 77 years old in July, 1917. She lives in the country north of the city of Grand Rapids, and September 30, 1916, she went to the city with a neighbor in a Ford auto truck, driven by one George De Groot. There was a board box, cut out at the rear end, and a step to use in getting into and out of the truck. There was a seat on each side, passengers facing each other. There was no top except over the driver’s seat, nothing to obstruct the view of a passenger to the sides or rear of the truck. Returning home in the afternoon of that day, the truck was driven east, stopping on the right side of the highway, in front of the neighbor’s residence, and plaintiff there alighted with her two packages, or bundles. She alighted with deliberation, slowly, before doing so looking both to the east and to the west, and occupying from one-half minute to a minute in getting down. The road runs east and west. The graveled portion there is about 24 feet wide. The road is level, and west of the point indicated straight for a mile or more. Defendant drove an automobile from the west to the indicated point, and as plaintiff was crossing the highway, and it seems immediately she left the point where she alighted (she says she had taken three or four steps), she was struck, knocked down, and injured. The defendant’s car was stopped within a few feet. Plaintiff was under the car, the rear wheels or a wheel resting on her leg, or on her clothing. The testimony for the plaintiff further tends to prove that no horn was sounded by defendant, and that neither plaintiff nor her neighbor, with whom she was riding and who had not descended from the truck when the injury was received, heard or saw the defendant’s car until the instant of the collision. The truck’s engine was running, the driver in his seat waiting for the two women to alight. He did not hear or see the approaching car. Plaintiff testified that, although her sight was defective — depreciated — she could see an approaching automobile four rods away. No tésti-' mony was offered by defendant. After hearing argument of the motion to direct a verdict upon plaintiff’s case, the court said:
    “With all due respect to your argument, the court is ready to decide this matter, and I do not think it is any injustice to you to decide it now. Here- is a case brought for personal injury to the plaintiff because, as she alleges in her declaration, the defendant is guilty of negligence. Counsel has put much emphasis upon the fact that the woman’s eyesight was depreciated because of her old age, and that for many years she had been observing the fact that her eyesight was depreciating, and that she could not see at the distance that she could when younger. The evidence discloses that she was in the possession of her full mental faculties; that up to this time she had pursued her vocation of housekeeping, and that she was the only one in charge of the housekeeping; that she 'had passed to and fro about the village where she resided at all times when she felt so disposed; her physical condition was somewhat depreciated, complaining of the weakness of one of her knees; that her hearing perhaps was somewhat depreciated, but, as she expressed it, very good, but she herself has put special emphasis upon the fact that she appreciated that her eyesight was diminishing, and that she had appreciated that fact for many years to the extent that she could not read without the aid of a magnifying glass, so-called, or reading glass. The testimony discloses that she, before alighting from the truck, looked in an easterly direction; that the truck was standing to the right of the center of the wrought portion of the highway, properly where it should stop; that there was a broad highway; in other words, the wrought portion of the highway from grass to grass was a distance of 24 feet. She herself testified that this was a main thoroughfare; in other words, that many motor vehicles passed and repassed there daily in and out, and that this was on Saturday afternoon about 4:30 p. m.; that Saturday and Sunday are the busiest days of the week. On cross-examination she admitted that an automobile might be expected hourly and every minute, and at times more frequently. This was a fair day; the sun was shining, and it was daylight when she arrived at the place where she alighted; that she looked in both directions before leaving the truck, and on account of her feebleness she took deliberate time in gathering up her bundles and alighting; the estimate of a fellow passenger, Mrs. Moore, was that she consumed from a half a minute to a minute from the time that the truck stopped and she started to alight until such time as she was struck by the automobile.
    “The burden of the proof is upon the plaintiff to prove the negligence of the defendant. The burden is also upon the plaintiff to prove that she also was not guilty of contributory negligence. That must be the plain, unvarnished conclusion o'f any court, any fair-minded court, that wants to follow the rule of law of Michigan. I fully appreciate that I could shirk my responsibility in this case in many ways. First, I could allow this motion to be renewed at the close of defendant’s proof, and under the judicature act, I could allow it to go to the jury as a question of fact, and after the verdict was rendered I could set it aside. Perhaps, there are those that might argue that the-testimony in this case is close, and I fully appreciate that a statement of facts, like this, where an aged person, 76 years of age at the time of the accident, makes a claim of damages as against a young man who is driving a car, before a jury, is apt to bring about a verdict for the plaintiff. The situation here necessarily excites the sympathy of any person; it certainly does of this court; but I cannot shirk my responsibility because of that fact. ■ It is my plain duty, as I see it, to direct a verdict of no cause of action and I shall do it.”
    Plaintiff contends that the question of her contributory negligence was for the jury. No other point is presented for decision.

      On duty of pedestrians in street to watch for automobiles, see notes in 1 L. R. A. (N. S.) 215; 3 L. R. A. (N. S.) 345; 20 L. R. A. (N. S.) 232; 38 L. R. A. (N. S.) 488; 42 L. R. A. (N. S.) 1179; 51 L. R. A. (N. S.) 992.

   Ostrander, J.

(after stating the facts). Usually a country highway is not, as a railroad crossing is, a place of danger, to be approached and traversed only after looking and listening for coming vehicles. Usually, when persons having an equal right to use it come into collision' and one is injured and brings suit, the question of his due care and of the defendant’s failure to take due care are questions for a jury.

The right of plaintiff to walk over, to cross the highway is clear, as is the right of defendant to drive his motorcar over it. Is it so clear that plaintiff failed to take due care for her own safety that in the problem presented defendant’s conduct is immaterial? I think it is clear, and that the ruling of the trial court was right. To the court the attorney for plaintiff said when the motion to direct a verdict was under consideration :

“I do not claim she looked after she started to alight. I claim she looked when she got up, and couldn’t see anything in her path. Now, she was bothered and her attention was distracted by another thing, her bundles that she had to take care of. That was the business at hand, safely getting out of that car, picking up her skirts and her bundles with one hand, and feeling along the side of that car with the right hand to safely get her down, getting down backwards, occupying only, as one witness says, estimates, the time from half a minute to a minute.”

It is obvious, I think, from all the testimony, that plaintiff most unfortunately stepped into the highway directly in front of the defendant’s car. The most ordinary care on her part should have prevented her from so doing. She cannot impose upon him consequences for which she was in part responsible.

The judgment is affirmed, with costs to appellee.

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


text:
    BALZER v. SAGINAW BEEF CO.
    1. Master and Servant — Workmen’s Compensation Act — “Out of and in the Course of Employment” — Evidence—Burden of Proof.
    The burden of furnishing evidence from which the inference can be drawn that the injury to an employee arose “out of and in the course of his employment” within the workmen's compensation act, rests upon the claimant.
    2. Same — Findings of Industrial Accident Board — Conclusiveness — -Fraud.
    If facts proven in proceedings for compensation under the act are capable, as a matter of law, of sustaining inferences of fact drawn from them by the industrial accident board, its findings-are conclusive upon the Supreme Court, in 'the absence of fraud.
    3. Same — Disease as Result of Injury — Evidence—Sufficiency.
    Where it appeared that claimant at the time of his examination for life insurance about 15 months before the accident was free from diabetes, that a few days after the accident the disease was detected, upon an examination of his urine, and there was medical testimony that it was possible for one to have the disease and not know it unless an examination of his urine was had, the evidence was sufficient to sustain a finding of the industrial accident board that the disease resulted from the injury.

    Certiorari to Industrial Accident Board.
    Submitted October 15, 1917.
    (Docket No. 125.)
    Decided December 27, 1917.
    John Balzer presented his claim for compensation against the Saginaw Beef Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.
    Affirmed.

      Frank J. Riggs, for appellants.

      Clarence M. Browne, for appellee.

      On construction, and effect of workmen’s compensation acts, generally, see note in L. R. A. 1916A, 23, L. R. A. 1917D, 80.

   Ostrander, J.

There was an accidental injury arising out of and in the course of claimant’s employment. So much is not in dispute. But claimant is suffering from diabetes, a disease, and has been awarded compensation upon the theory that the disease resulted from the injury. It is contended there is no evidence to sustain this conclusion, and none from which the required inference can be drawn.

In McCoy v. Michigan Screw Co., 180 Mich. 454, 458 (147 N. W. 572, 573, L. R. A. 1916A, 323), it was said:

“The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant. Bryant v. Fissell, 84 N. J. Law, 72 (86 Atl. 458), 3 Negligence & Compensation Cases Annotated, p. 585. Ruegg on Employers’ Liability and Workmen’s Compensation, p. 343, says:
“ ‘If an inference favorable to the applicant can only be arrived at by a guess, the applicant fails. The same thing happens where two or more inferences equally consistent with the facts arise from them.’
“Boyd on Workmen’s Compensation, § 559, says:
“ ‘The workman carries the burden of proving that his injury was caused by the accident, and where he fails to do so, and where the evidence as to the cause of the injury is equally consistent with an accident and with no accident, compensation may not be awarded him.’ ”

In Papinaw v. Railway Co., 189 Mich. 441, 445, 446 (155 N. W. 545, 547), it was said:

“In considering this case we start with the well-settled proposition that, if the facts proven are capable as a matter of law of sustaining the inferences of fact drawn from them by the industrial accident board, its findings are conclusive, in the absence of fraud, and the appellate court is not at liberty to interfere with them. Section 12, pt. 3, of the industrial accident law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5465), has been too often and recently so construed by this court to require citation of'cases. This is but an application, under the statute of the comprehensive and fundamental principle universal in courts of law that whether. there is any competent evidence is for the court to determine, but whether the evidence is sufficient is a question for the jury; the function of the accident board being in that respect those of a jury in actions at law.”

The case is not free from doubt. There is, however, some evidence from which, I think, inferences may be drawn favorable to claimant. It is said by the appellants:

“A reference to such testimony [the testimony returned with the writ] shows that the most that can be claimed from it is that it tends to show that, if the applicant were strong, healthy, and well at the time of the accident, and did not at that time have diabetes or any indication of it, and then developed the disease three or four weeks afterwards, such accident ‘would be the probable cause.’ ”

The board based its conclusion, as it was obliged to do, largely upon the opinion evidence of medical men, evidence which is not very positive, and which perhaps could, not be more positive than it is. And while the testimony shows many possible causes of diabetes, among them such an injury and shock as claimant suffered, counsel for appellants is, I think, in error in saying that it also shows that in claimant’s case it might have been due to any one of the numerous possible causes.

It is possible for one to have the disease and not know it, so the physicians say, and sometimes an apparently strong, healthy man is found to be afflicted with the disease. But the evidence strongly supports the conclusion that claimant was a strong, healthy man at the time he was injured. It does not directly negative the fact, which could be learned, perhaps, only by an examination of his urine, that immediately before the injury no test which could be applied would have disclosed a diabetic condition.

Claimant had been examined as a life insurance risk in November, 1913, and pronounced a healthy man. His urine was examined. All of the evidence tends to prove that thereafter, until February 9, 1915, when he received the injury in question here, he was a well man. A few days after he was injured an examination of the urine indicated the presence of the disease. The condition might have been caused by the injury. No other event, or experience, made manifest in the testimony accounts for his diseased condition. If he was a well, healthy man when injured, it is probable, the physicians say, that the diabetic condition is a result of the injury. The conclusion that it was caused by the injury is not then mere conjecture. The finding of the board rests upon something more substantial.

The award will not be disturbed.

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


author: Ostrander, j.

text:
    LEACH v. DAVY.
    1. Mandamus — Corporations—Rights op Directors.
    Mandamus is the proper remedy for compelling a corporation to allow a director to inspect the books and papers of the corporation.
    2. Corporations.
    As a general rule, the director of a corporation has the right, by reason of his relation to the corporation, to at any time inspect the books and papers of the corporation.
    3. Certiorari — Scope op Review.
    In certiorari proceedings questions of law are involved, and the judgment of the Supreme Court generally affirms or disaffirms the judgment reviewed.
    4. Corporations — Rights op Directors — Changed Conditions— Mandamus.
    A writ of mandamus will not issue to require a corporation to allow a director to inspect corporate books and papers where the director’s term of office has expired pending the appeal and he has not been re-elected,. if he claims the right of inspection only in such capacity and not as a' stockholder.

    5. Same.
    Where a director was refused access to corporate books and papers for purpose of inspection, and sought to compel the corporation to grant him the right by mandamus, and certiorari was brought by the corporation to review an order for a writ of mandamus in plaintiff’s favor, but the office of the director had expired pending the appeal, and relief was sought by plaintiff in his official capacity as director and not as stockholder, the Supreme Court will remand the case with leave to apply to the circuit court for an order permitting amendment of the answer to the order to show cause why the writ of mandamus should not issue and for further proceedings.

      Certiorari to Osceola; Lamb, J., presiding.
    Submitted October 2, 1917.
    (Calendar No. 27,893.)
    Decided December 27, 1917.
    Mandamus by Elmer Leach to compel Vernal R. Davy and another to produce certain corporate files for inspection. From an order granting the writ, defendants bring certiorari. On motion to remand for further hearing on account of changed conditions:
    Granted.

      Howard F. Withey, for plaintiff.

      G. A. Wolf, for defendants.
    Relator set up in his petition for the writ of mandamus that he is a shareholder, director, and vice president of the American Logging Tool Company, a Michigan corporation, having its principal place of business at Evart, Mich., and that on March 6, 1917, he applied at the office of the company to respondents, the two officers of said corporation in Evart, having charge of the records and files of the corporation, for an inspection, which was denied, of certain correspondence between the said company and its officers and one William Latta, an agent and salesman of the company, traveling for the company upon its business. It is alleged, among other things:
    “That during said Latta’s absence or since his return, and as a direct or indirect result of his aforesaid trip, various orders have been received from old or new customers of said company by said company for the product of the aforesaid company. Petitioner shows, upon information and belief, that all the aforesaid communications between said Latta and the aforesaid corporation and all reports of the former’s activities in the connection last aforesaid and all orders received as a result thereof are on file in the offices of said corporation at Evart, Mich., in the custody and under the control of the aforesaid William Latta and the aforesaid Vernal R. Davy or in whole or in part, in the personal custody of the aforesaid Vernal R. Davy and the aforesaid William Latta.”
    It is further alleged that relator has had inquiries for and tentative offers to purchase his stock in said corporation, and that complete knowledge and information concerning the activities of the company are necessary to enable him to fix a price for said stock, and also to enable him to perform.-his duties as an officer of the corporation. An order to show cause having been made and served, respondents answered the petition of relator, setting up, among other things, that the business of said corporation is in charge of an executive committee, that a complete and comprehensive monthly statement of the affairs of the company is furnished to all directors, and that relator has all information necessary for the purposes stated in his petition. It is admitted that said Latta made a business trip for the company to sell its product (but not to develop new territory), and that various communications have been made by him and received by the company. It is admitted that relator made demand for the delivery to him of all correspondence of said Latta and the company, including all records, memoranda, and writings in the office of the company relating to the business of the company, and denied that relator is precluded from acquiring a just and adequate knowledge of' the financial and business status of the company, from ascertaining the value of his (relator’s) stock, or to enable him to act intelligently as a director. It is alleged that respondents offered to comply with the demands of relator except the demand for an inspection of the Latta correspondence. As a reason for refusing inspection of said correspondence, it is set out that relator has a personal interest hostile to the interests of the said company, which will be, or may be, served by an inspection of said correspondence, and that relator’s purpose is to serve a rival concern of which he is president and to injure the American Logging.Tool Company by obtaining information of the activities of said Latta. The assertion of relator’s hostile purpose is sought to be sustained by recitals of other conduct of relator and of the said alleged rival concern and of statements made by relator and by an alleged history of the business relations of the Oshkosh Manufacturing Company, of which relator is president, and the American Logging Tool Company.
    An amended answer was later filed, containing further recitals, principally history of the business relations of the two companies mentioned. Upon the petition and answer a hearing was had, and the writ of mandamus was ordered, the learned circuit judge stating, among other things, in deciding the matter, that:
    “The question raised on the pleadings at the hearing and the sole question argued and submitted to the court is, in substance, whether of not the privilege of the vice president, who is also a director, to have access at all convenient times and-seasons to the files, records, correspondence, etc., of said company is an absolute or a qualified one.
    “The relator contends that such privilege is an absolute one. On the other hand, the respondents contend that it is but a qualified privilege, depending upon the motive and the circumstances surrounding the case.
    “I have examined the authorities submitted by both parties, and am satisfied that, from the very nature of the situation of the relator, being both a director and vice president, the privilege claimed by him is an absolute one. If the respondents do not desire the files, records, etc., examined by Director Leach, their remedy lies in an appeal to the stockholders at the annual election of directors. If the relator uses his privilége for purposes hostile to the interests of the company, the company has its remedy at law.”
    A writ of certiorari having been sued out of this court and return made thereto, respondents moved here for leave to amend the answer to the order to show cause and remand for further hearing. The new matter sought to be brought upon the record is, in substance, that since the hearing in the court below relator has entered actively into competition with the American Logging Tool Company in violation of contract relations, to the injury of the American Logging Tool Company, and, further, that since said hearing the term of relator as director and vice president of the said American Logging Tool Company expired, and he was not .re-elected, and is not a director of said company. This motion was regularly noticed for hearing, and it is not disputed that relator is not now a director of the American Logging Tool Company.

      On the question of right of a stockholder of a corporation to inspect books of a corporation, see notes in 45 L. R. A. 446; 20 L. R. A. (N. S.) 185; 30 L. R. A. (N. S.) 291; 42 L. R. A. (N. S.) 332.

   Ostrander, j.

(after Stating the facts). In the mandamus proceeding relator relies upon a common-law right, and, assuming the right exists and was violated, mandamus is the proper, if not the only, adequate remedy. The right to the remedy was in the court below, and is here, based upon the theory that a director of a private business corporation has an unqualified right to the inspection of the books and papers and correspondence of the corporation. And it is insisted for relator that the point should be decided upon the record made in the court below; at least, that relator’s right to the writ when it was granted, and therefore to costs, ought to be determined. It is also contended that the answer to the order to show cause contains no direct, unequivocal allegation that relator’s motive for securing the information he sought was to use it to the detriment and injury of the American Logging Tool Company, but that all averments in that behalf are conclusions, opinions, or inferences, or are based upon information and belief.

It is the general, perhaps the universal, rule, statutes and by-laws aside, that a director of a corporation has the right, by reason of his relation to the corporation, to at any time inspect the books and papers of the corporation. Whether this right may be affected by the motives of the director, may be denied him because his purposes are hostile to the corporation, is a question which has not been answered by the courts always in the same way. The absolute right of a director of a corporation to inspect its records, regardless of his motives, was affirmed in People, ex rel. Muir, v. Throop, 12 Wend. (N. Y.) 183. On the other hand, Heminway v. Heminway, 58 Conn. 443 (19 Atl. 766), seems to go upon a contrary doctrine. See, also, People, ex rel. Leach, v. Central Fish Co., 117 App. Div. 77 (101 N. Y. Supp. 1108); compare People, ex rel. Althause, v. Consolidated Mines Co., 122 App. Div. 617 (107 N. Y. Supp. 191); Machen v. Electrical Manfg. Co., 237 Pa. 212 (85 Atl. 100, 42 L. R. A. [N. S.] 1079, Am. & Eng. Ann. Cas. 1914B, 420); 7 R. C. L. § 434.

The situation is peculiar. The court below directed respondents to submit documents to inspection by relator. The writ of certiorari superseded action. It is now asserted, and not denied — in the brief of relator it is admitted — that the fact upon which relator based his right, and on which judgment went for relator, does not now exist. In certiorari proceedings questions of law are involved, and the judgment of this court affirms or disaffirms the judgment reviewed. To affirm here means that the writ will issue, to dis-affirm requires us to find the court below in error. And yet, whether the court was or was not in error, the writ, upon the facts now appearing, ought not to issue. Relator is not contending that as stockholder merely he has made a case requiring the issuing of the writ.

It is at least unusual to grant a motion to remand a récord for the purpose of incorporating therein matter which has come into existence since the hearing and to order a rehearing in the court below upon the aihended pleadings. But, if in a special proceeding like this one it is made to appear that the foundation for an asserted and denied personal right no longer exists, why should recognition of the right be compelled by the writ of mandamus? To permit the issuance of the writ of mandamus by affirming the judgment when it is apparent that, if immediately applied for by the relator, it would be denied, is to do a foolish thing.

In the circumstances we grant the motion to remand with leave to apply to the circuit court for an order permitting amendment of the answer to the order to show cause for examination of the issue presented by the pleadings as amended, and for such further order and direction as to that court may seem proper.

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