fireman did not testify positively that he was watching the particular crossing, because his duties sometimes made such observation hand. All evidences of injury, except the a point 400 feet north he could not see the broken neck, were on the left side of her board at all. Defendant's engineer testified body. The skin was not broken, nor was that his position in the cab of the locomothe clothing torn; but the clothing was tive was some nine feet above the rails, or soiled and dirty. The child wore a string ground; that approaching a crossing he must of very small beads, glass beads, some of be pretty close to it to see over the crossing which the mother found on her person, and fence, within 100 feet to see the traveled some were afterwards found 3 feet, and part of the highway over the fence; that some 5 or 6 feet, from the east rail of de- from the cab one cannot see the highway fendant's track, and, as the record is under- on both sides of the highway for 16 feet stood, south of the wagon road and near the from a distance of 600 feet; that 8 feet on fence. Whether search was made for beads either side of the rail was the farthest he in other places is not shown. Footprints could see on account of the fences; that he of a child, going west, were found 6 feet could see that distance for three-quarters of south of the wagon road and about 16 feet a mile, and the range of vision would widen from the south highway fence, going to the but little as the crossing was approached unends of the ties. Whether they were made til he was right at the crossing; that the moby this child, or corresponded with others tion of the engine interferes somewhat with made by her, does not appear. The defend- observation of small, or any, objects. The ant's roadbed at the crossing was slightly above the natural level of the land, and the traveled way was graded to correspond with the level of the tracks. There were cattle impossible. guards on each side of the highway; and fences, parallel with the highway, and on each side of it, were built from the cattle guards, at a point about 5 feet from the rails, to the right of way lines and fences. These fences were 4% feet high, constructed of posts and boards, the boards placed 6 inches distant from each other. From the posts nearest to the cattle guards, running towards the track, wing fences were in place, the bottom boards of which were longer than and approached nearer to the rails (to within 3 feet) than the boards above them. The fences were in good condition. The railroad for a mile north of the crossing was straight, and, except the fences, there was nothing to obstruct the view. The grade of the railroad descended slightly to the south. The engineer and fireman in charge of the locomotive on the occasion in question gave testimony. Both testified that they did not see the child, or know until the next day that a child had been injured. They both testified, also, that the usual and a careful lookout was maintained from the locomotive at the crossing, that the train was on time, and nothing occurred to interfere with the maintenance of a proper lookout. None of the testimony tending to establish the foregoing facts is disputed by oral testimony. Other testimony given was that on the morning of the trial a witness placed a piece of board 8 feet from the tracks, went up the tracks 600 feet, and from that point "I could just see the edge of the board without looking through the fence." The size of the board and how it was placed were not shown. The wing fences next to the track were not then in the condition they were in when the child was injured. A witness testified that he placed a board 6 inches wide and 2 feet high in the center of the highway 20 feet from the track. Going north on the track 150 feet, he could, he said, see the board through the fence. From The engineer testified that he was always observing when the fireman was not, and when the train was running. Testimony was given concerning the atmospheric disturbance caused by a train in motion and the probable effects thereof upon a small child standing near the track; it being a contention of defendant that the known facts and circumstances support an inference that the child was not struck by the train, but was thrown down and rolled upon the earth. Upon this subject the testimony is that the draft caused by the train would have a tendency to throw down, if standing, and cause to roll on the ground, objects of small weight; and that mail bags thrown off a train had been seen to follow the train 200 feet. [2] It is obvious that the jury, if it followed the instructions of the court, found the enginemen to have been negligent in observing this crossing; and that a proper lookout would have, or should have, discovered the presence of the child on or near the track in time to protect her. It is equally obvious that it is by inference or by conjecture only that these conclusions can be arrived at. It is the peculiar province of juries to draw inferences of fact; but they must draw them from facts which are admitted or proven upon the trial, and they must be consistent with the admitted or proven facts from which they are drawn. And when inferences are permitted to outweigh the positive testimony of witnesses, not impeached generally, the proven or admitted facts and the necessary or reasonable inferences therefrom should be inconsistent with such testimony. No reason can be given in a case like this for finding that the testimony of the enginemen is untrue, unless it is that their testimony is opposed to and contradicted by other proven facts and circumstances and the necessary or reasonable inferences to be drawn therefrom. The proven fact that the child received the injuries described is not inconsistent with cue the child after the approach of the train was discovered; efforts which might have been sooner exerted. In Keyser v. Railroad Company a child 21⁄2 years of age was run over. The question of failure to give signals does not seem to have been a point of importance in this court, although the failure to fence the right of way was regarded as a fact of importance. In Battishill v. Humphreys the injured child was 3 years old. It was said that whether the signals were given was a question for the jury, and was properly submitted to them. We are impressed that we should not say, as matter of law the testimony of the enginemen. That she was struck by the train is not a necessary inference from the fact that the injuries described were suffered by her; and if it is a reasonable inference that she was struck by the train, or by some part of it, it does not follow that she could have been or should have been discovered upon the highway by one maintaining a proper lookout from the engine. There are 5,280 feet in a mile, and when moving at the rate of 40 miles an hour a train moves 3,520 feet in a minute, and 4,400 feet in a minute, if moving at the rate of 50 miles an hour. The men on the engine, in the performance of their duty, must exam--that is, indulge a conclusive presumption ine, as well as vision and movement will permit, both approaches to a highway crossing. Right of way fences are required by law; and the difficulty of seeing a small object, hidden by such a fence as has been described, until the train has approached so nearly to the crossing that the line of vision is over, and not through, the fence, is apparent. To warrant the inference, in face of their testimony, that these enginemen were not observing the crossing, it must be assumed that the child was standing or sitting in a position not obscured by fences and practically upon the rail. The proven facts do not make necessary or reasonably support such an assumption. We conclude that there is no testimony to support the finding that the child was hurt as a direct and natural consequence of the failure of the engineer and fireman on of fact-that, if proper signals had been SMITH et al. v. KISTLER. the engine of the train to keep and maintain (Supreme Court of Michigan. March 20, 1913.) a reasonably careful lookout. 1. JUSTICES OF THE PEACE ($ 138*)-DOCKET ENTRIES ADJOURNMENTS MOVING PARTY-STATUTES. As regards stating on whose motion an adjournment was had, Comp. Laws 1897, § 957, providing that a justice of the peace shall keep a docket in which he shall enter every adjournment, stating on whose motion, is directory merely; so that noncompliance therewith does not render void the justice's judgment. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 449-464; Dec. Dig. § 138.*] MENTS. [3, 4] Plaintiff introduced testimony tending to prove that the statute signals were not given. It is said by appellee that this testimony and the claim of negligence founded thereon should have been submitted to the jury. The appellate court is not usually concerned about errors claimed to have been made against a nonappealing party. Hughes v. Railway Co., 78 Mich. 399, 44 N. W. 396. The point is not discussed by appellant. It is of importance here as affecting the right 2. JUSTICES OF THE PEACE (§ 54*)—ADJOURNof plaintiff to a new trial, for which reason Under Comp. Laws 1897, § 791, authorizwe consider it. We are referred by appelleeing adjournments by a justice, not exceeding in to Battishill v. Humphreys, 64 Mich. 497, 31 all three months, unless, by consent of the parN. W. 894; Marcott v. Railroad Co., 47 Mich. ties, a longer time shall be stipulated in writ8, 10 N. W. 53; Keyser v. Railroad Co., 56 justice, the justice loses jurisdiction by ading, to be signed by them and filed with the Mich. 559, 23 N. W. 311, 56 Am. Rep. 405. journment to a time more than three months If the signals were not given, there was a after the return day of the summons, there bedistinct violation of law, and therefore evi- rendered on the day to which adjournment was ing no written stipulation, so that judgment dence of negligent conduct of defendant's had is void; it not appearing both parties then servants. Whether such conduct was unim- appeared. portant depends upon whether we can say that the failure to give signals could have had no effect upon the conduct of the child. In Marcott v. M., H. & O. R. R. Co. it appeared that a child 22 years old was killed by defendant's train, and testimony tended to prove that the statutory signals were not given, which, it is said, "we cannot, as matter of law, say had no effect on the result." There was evidence of efforts of bystanders to res- granted. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 190-198; Dec. Dig. § 54.*] Error to Circuit Court, Saginaw County; William G. Gage, Judge. Action by Levi C. Smith and another, partners as L. C. Smith & Co., against Henry Kistler. Judgment for defendant, and plaintiffs bring error. Reversed, and new trial For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Argued before STEERE, C. J., and tion, and to what time and place; MOORE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ. Gallup, Rogner & Gallup, of Saginaw, for appellants. Weadock & Weadock, of Saginaw, for appellee. 12. The time of issuing execution, and the name of the officer to whom delivered." does not appear on whose motion the adWas it fatal to the judgment because it journment was had? This court has held that it was fatal if the docket does not show to what place the adjournment is had; but KUHN, J. The plaintiffs are copartners in it is essential to examine the reasons for this the coal business, doing business under the holding when given. In the case of Mitts v. firm name of L. C. Smith & Co. They owned Harvey, 125 Mich. 354, 356, 84 N. W. 288, 289, a certain quantity of coal, some of which was the court said: "A justice of the peace may levied upon by the defendant, a constable, hold court at any place in his township. It under and by virtue of a certain execution is essential to his jurisdiction that a writ issued out of the justice's court for the city issued by him should show the place where of Saginaw. Replevin was brought by plain-it is returnable. It is just as important that tiffs, and on the trial the execution was his docket should show the place to which a offered in evidence by the defendant and ad- cause commenced before him is adjourned, so mitted, over objections that it was incompe- that the parties may not be misled by a failtent, irrelevant, and immaterial, for the rea- ure of recollection or a difference of recollecson that the judgment upon which the execution, or other reason, and thereby be deprivtion was issued is invalid and void. Defended of an opportunity to be heard in court." ant waived a return of the property, and the court directed a verdict for defendant for the sum of $104 and costs. Judgment being entered, the case is brought here by writ of error. The docket of the justice of the peace before whom the case was tried, which resulted in the execution in question being issued, shows that a summons was issued February 19, 1910, returnable March 1, 1910; and that on the return day the parties appeared in court by attorneys, and the case was adjourned, by various adjournments which are not questioned, until February 14, 1911, when, the parties being in court, oral pleadings were had. They proceeded to trial, and witnesses were produced and sworn for the plaintiff and also for the defendants. The case was then adjourned, by agreement of the parties, to February 17, 1911, and again to February 21, 1911, and on that day, by stipulation in writing, to May 19, 1911. The following entry appears on the docket with reference to the proceedings had on that day: "Cause called May 19th, 1911, at nine o'clock a. m., at my office in Saginaw, and adjourned to July 1, 1911, at nine o'clock a. m., at my office in Saginaw." On July 1st judgment was rendered in plaintiff's favor in the sum of $100, and costs were taxed at the sum of $4. Counsel for plaintiffs, in the case before us, contend that the judgment is void for two reasons: First. Because the docket does not show on whose motion adjournment of the case from May 19, 1911, to July 1, 1911, was had. Second. Because, more than three months from the return day having elapsed, the justice of the peace lost jurisdiction by the adjournment of May 19, 1911; there being no written consent. [1] Section 957, C. L., 1897, provides that: "Every justice of the peace shall keep a docket, in which he shall enter: 1. The title of all causes commenced before him; 5. Every adjournment, stating on whose mo that it does not appear on whose motion the It certainly cannot be said that the fact adjournment was had is as material as the provision requiring notice of the place of adjournment. The failure of this to appear could not deprive any person of an opporIn the instant case the parties had their day tunity to be heard, and no harm can result. in court, testimony was heard on both sides, and arguments made. This provision should be construed to be directory rather than mandatory. This court, in the case of Grand Rapids Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006, held that a failure to comply with the twelfth provision, requiring the time of issuing execution and the name of the officer to whom delivered to appear on the docket, did not vitiate an execution properly issued. In Merrick v. Mayhue, 40 Mich. 196, it was held not to be fatal to the validity of the judgment because error was made in entering the title of the cause upon the docket. Section 3140 of the Code of Civil Procedure of the state of New York provides that: "A justice of the peace must keep a docket book in which he must enter 5. Each adjournment, stating upon whose application and to what time and place it was made. * In the case of Humphrey v. Persons, 23 Barb. (N. Y. Supreme Court) 313, 318, the court said: "Again, the statute prescribing what entries justices of the peace shall make in their dockets is directory; and a literal compliance therewith is not necessary, when the entries show the justice had jurisdiction of the parties and the subject-matter of the action, and also show the kind and amount of the judgment given, and that it was rendered at a proper time." See, also, Carshore v. Huyck, 6 Barb. (N. Y.) 583; Baker v. Brintnall, 52 Barb. (N. Y.) 188; Ostrander v. Walter, 2 Hill (N. Y.) 329. [2] Section 791 of the Compiled Laws of Argued before MOORE, BROOKE, STONE, OSTRANDER, and BIRD, JJ. Walbridge & Kelley, of St. Johns, for ap pellant. A. L. Chandler and George E. Pardee, both of Owosso, for appellees. 1897 provides: "If either party to the suit shall make it appear to the satisfaction of the justice, by his own oath, or the oath of any other person, that he cannot safely proceed to trial for the want of some material testimony or witness, the justice shall postpone the trial for such reasonable time, and so often as he shall deem it proper, not exceeding in all three months, unless by consent of the parties to such suit, a longer time shall be stipulated therefor in writing, to be signed by the parties or their attorneys and filed with the justice: Provided, that a party claiming an adjournment after a former adjournment has been had shall fur-er separators which were then being sold upther make it appear to the satisfaction of the justice, that he has used reasonable diligence to procure such testimony or witness since the last preceding adjournment." BIRD, J. The plaintiff began suit in assumpsit to recover the purchase price of a cream separator which it claims to have sold and delivered to defendants on their written order. The defendants resisted the claim on the ground that the sale was a conditional one, depending upon the separator doing good work and working as well as oth on the market; that a test was made of the separator; that it failed to work as represented; and that plaintiff was advised of its failure to do the work and of defendants' refusal to purchase it. The defendants also gave notice under their plea that they had expended money and labor in their efforts to make the separator work satisfactorily and that they would claim the right upon the trial to recoup and offset the same. As the testimony was in conflict as to what the contract was, the trial court submitted the question to the jury to determine whether it was absolute or conditional. They found with the defendants and assessed their damages at $10. While the docket shows that the adjournment to May 19, 1911, was by stipulation, no written stipulation was entered into on that day adjourning the case to July 1, 1911. The justice had no authority to adjourn the case on his own motion; and more than three months having elapsed since the return day of the summons, from which time the three months began to run (see Hatch v. Christmas, 68 Mich. 84, 35 N. W. 833), the justice lost jurisdiction of the cause. The language of this statute is explicit and plain. While, under our decisions (Gilmore v. Lichtenberg, 129 Mich. 275, 88 N. W. 629), a voluntary appearance on July 1st would have given the justice jurisdiction to render the judgment, it not appearing that defendants did appear, the judgment entered on that day is void. The court erred in admitting the execution* in evidence. While the trial court was submitting the case upon defendants' theory to the jury, he made use of the following language: "If defendants are entitled to recover, they would be entitled to recover certain damages, if you find they were put to any damages. So in this case, if defendants are entitled to recover, and you find that Mr. * Judgment of the lower court is reversed, Brown and his man and team or automobile, and no new trial granted. whichever it was-I don't remember-went to Mr. Leonard's and spent certain time in trying to make the machine run, whatever that time was worth, whatever expense he SHARPLES SEPARATOR CO. v. BROWN incurred at that time in paying his man or et al. (Supreme Court of Michigan. March 20, 1913.) Set-Off and COUNTERCLAIM (§ 32*)-RECOUPMENT RIGHT IN ACTION FOR PRICE. In an action for the price of a separator sold to defendants which failed to work as represented, where the jury found that the sale was conditional, the allowance of a recoupment for damages to defendants for expenses in trying to make it run satisfactorily and as represented by the plaintiff was error, since the claim for recoupment did not grow out of the contract sued upon. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. § 53; Dec. Dig. § 32.*] Error to Circuit Court, Shiawassee County; Selden S. Miner, Judge. whatever his team was worth or automobile, whichever it was, he would be entitled to a verdict for that amount." Plaintiff insists that this instruction was error for the reason that, if the jury found with defendants that the contract was different from that sued upon, the law would permit of no recoupment. The rule is general in assumpsit that re coupment must grow out of the contract sued upon. Molby v. Johnson, 17 Mich. 382; Rens v. City of Grand Rapids, 73 Mich. 237, 41 N. W. 263; Helwig v. Lascowski, 82 Mich. 619, 46 N. W. 1033, 10 L. R. A. 378. Applying this rule to the case under consideration, it follows that, if defendants Action by the Sharples Separator Company were permitted to recoup, it would have to against Fred Brown and another. Judgment for defendants, and plaintiff brings error. Reversed, and new trial granted unless defendants remit their judgment, in which event the judgment to stand affirmed. be against the contract which plaintiff sued upon, and not against the contract which it set up in opposition to plaintiff's. A similar question arose in the case of Haldeman v. Berry, 74 Mich. 424, 42 N. W. 57. The For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes plaintiff and defendant disagreed as to what tract. The contract was closed on February These As the plaintiff failed to establish the contract which it sued upon, we are of the opinion that the exception to this part of the charge is well taken. Aside from this question, the case seems to have been well and fairly tried, and we find nothing among the other assignments which calls for a further consideration of them. For the error pointed out, the judgment will be reversed, and a new trial granted, unless the defendants, within 20 days, remit their judgment of $10; in which event the judgment will stand affirmed. The plaintiff will recover its costs in this court. BRINEN v. MUSKEGON SAVINGS BANK. STITUTING. A note given to a bank, payable "on demand," was a demand note, giving the bank a prior lien on the maker's stock in the bank, under Comp. Laws 1897, § 6098, though the note, which was on a printed form, in pledging collateral securities, provided that such securities might be sold before "maturity" of the note on their depreciation in value. [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 50, 56-60; Dec. Dig. § 42.*] Appeal from Circuit Court, Muskegon County, in Chancery; James E. Sullivan, Judge. Action by William Brinen against the Muskegon Savings Bank. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, STONE, and BIRD, JJ. Cross, Vanderwerp, Foote & Ross, of Muskegon, for appellant. William Carpenter, of Muskegon, for appellee. MOORE, J. In this case the question is: Who of the parties has the superior right in ten shares of the capital stock of defendant company? Complainant asserts that he is the owner; while defendant contends it has a lien upon the stock which is superior to and takes precedence over the right claimed by complainant. On Defendant is a banking corporation. December 31, 1910, Frank G. Jones, the then owner of ten shares of its capital stock, became indebted to defendant, which debt was evidenced by the following writing: "Muskegon, Michigan, Dec. 31, 1910. "On demand after date I promise to pay to the order of Muskegon Savings Bank, at its banking office in Muskegon, Mich., five thousand dollars, $5,000.00, for value received, with interest at the rate of six per cent. per annum after date, and I herewith deposit with said bank as collateral security for the payment of this note, or of any other indebtedness by me to said bank, one hundred shares of American Electric Fuse Company as evidenced by certificate number 17, and I hereby give to said bank or its assigns full authority and power to sell, transfer and convey the said collateral security, or any part thereof, on the maturity of this note, in the event of said securities depreciating in value, at public or private sale, at its discretion, without advertising the same, or giving me any notice, with the right of said bank or its assigns themselves to be the purchasers, and to apply the proceeds of such sale or sales, first, to the payment of the expense of such sale or sales, and the balance to the payment of this note including interest thereon; and in case the proceeds of the sale of the said collateral security shall not cover the said expenses of sale, and principal and interest of this note, I promise to pay the deficiency forthwith after such sale. "[Signed] Frank G. Jones. "No. 115. Due-Demand." Payment of this note at maturity, or on demand at any time thereafter, was guaranteed by the American Electric Fuse Company upon the back of the instrument. No demand for payment of this obligation was made until the afternoon of June 10, 1911. On the 8th of June, 1911, Mr. Jones, then the owner of the stock, indorsed it in blank and delivered it to the Union National Bank of Muskegon as collateral security for a loan of $1,250. This debt came due July 8, 1911, and on December 5, 1911, in pursuance of a proper notice, the stock was sold to complainant for the consideration of $1,250. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 140 N.W.-34 |