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BUTTERFIELD v. SELIGMAN.

charged and instructed said jury that the contract expressing no time for the making and delivery of the deed, the same must be done within a reasonable time: That if the time had elapsed, an agreement to extend the time must be based upon a sufficient consideration: That the said contract being in writing, any extension of the time for the performance of the same, by parol, would be void by the statute of frauds: That no consideration was claimed, or proven. To which said several charges made by said court, the defendant then and there excepted.

The jury, rendered a verdict for the plaintiff.

A. C. Baldwin, for plaintiff in error.

The rule is well settled, that if a party wish to recover upon a written instrument, except a note, he must count upon it specially.-4 Conn. 265,

By the terms of the writing in this case Butterfield was to pay nothing, except in case a good title could not be made of the property.

The declaration contained no reference to the writing, and it was necessary to count specially upon the contract to entitle him to recover.-8 Johns. 438; 1 Tyler, 182.

M. E. Crofoot, for defendant in error.

The plaintiff in error contends that Seligman can not recover said money under said declaration, but that he must declare specially on said receipt or agreement.

1. The object of pleading is to apprize the opposite party of the ground of his claim, so that there can be no misapprehension as to what matters are to be litigated on the trial; and there certainly could have been no misapprehension in this case after plaintiff in error received a copy of the bill of particulars.-3 Mich. 460.

2. Actions of assumpsit on money counts are to be encouraged in all cases where the defendant is obliged, by equity and justice to refund or pay money which he has

BUTTERFIELD v. SELIGMAN.

received, belonging to the plaintiff.-3 Mich. 561; 8 Id. 433; 6 Wend. 284.

3. Money paid under a written agreement which the defendant is unable or unwilling to perform, on his part, may be recovered under the common counts in assumpsit for money had and received, etc.- Chitty's Pl. and cases cited, 353; Chitty on Cont. 622; 1 Caines, 47; 2 Esp. 639; 1 Starkie, 65; 7 Term, 181; 1 Id. 133.

In this case the contract had been broken, and ceased to be binding by reason of the laches of said plaintiff in error, and there was then due from Butterfield to Seligman the sum of $625, and the interest from the time the contract was broken.

CAMPBELL J.

Plaintiff below sued upon the common counts, and on the trial was allowed to recover upon proof of a special written agreement, reciting the receipt of $600 as payment for certain lands, which defendant agreed to convey if he could make good title, and if he could not make good title, then he was to return to plaintiff $625.

If

This was an attempt to recover for the breach of an express contract, and there is no principle which can allow its introduction in evidence for the purpose of recovering what it agrees to pay, and yet permit it to be treated as thrown out of the case after it has served its purpose. there was any cause of action, it was upon the writing which the parties had seen fit to make the evidence of their contract, and the case does not come within any of the exceptions to the rule requiring such agreements to be declared on specially. The contract was not one where nothing remained to be done except paying the price for some work, or service, or commodity furnished under it. The condition was one sided, and claimed to have been broken, and the sum recoverable was nothing more nor less than stipulated damages.

DETROIT AND MILWAUKEE R. R. Co. v. VAN STEINBURG.

The action was improperly brought, and the judgment must be reversed and a new trial granted. The other questions become immaterial as the issue stands.

COOLEY CH. J. and GRAVES J. concurred.

CHRISTIANCY J. did not sit.

Detroit and Milwaukee Railroad Company v. Jacob Van Steinburg.

Evidence: Speed of railroad engine: Expert. Testimony concerning the speed of a passing train of cars may be given by any one possessing a knowledge of time and distance. It is not a question of science, but of observation. Speed of engines: Expert. A person not connected with the management of a train of cars, but who had been for a long time in positions enabling him to observe the effect of checking a train, is a competent witness to answer how fast a train should have been moving at a certain point to be stopped at the usual place.

Railroad company: Side tracks: Custom as to ringing bell. Where a railroad company, at a point of junction, used a portion of the road of another company, merely for the purpose of a side track, in an action against the former company to recover damages for an injury while their cars were on said side track: Held, that evidence was inadmissible to show that such latter company were in the habit of ringing their engine bell on approaching the station. Evidence as to remarks of by-standers:

Error, when cured by charge of court. While a witness may testify to any fact occurring at the time which calls his attention to that which is transpiring, he can not testify, for any purpose, to what the by-standers may have said afterwards upon a disputed point, as the effect would be to put to the jury hearsay evidence; and when, after the admission of such testimony, under objection, the court charged the jury that they ought not to consider it as proof of a substantive fact; but only proper as evidence that the attention of the witness was called to the subject matter: Held, that this instruction did not cure the error.

Evidence:

Written statement: Relevancy. The plaintiff was asked if he had not made a written statement of the circumstances attending the alleged injury, and he denied having done so. The counsel for the defendant then asked him what he knew about a statement which he, the counsel, then held in his hand. The question was ruled improper. Held, that this ruling was correct, as there was nothing in the case to show that the statement had any relevancy. Cross-examination. A witness for the plaintiff testified, on cross-examination, that he had made a written statement about the accident. He was then asked, by counsel for defendant, "Would you recognize a copy of the statement, if it was read over to you?" The Circuit Judge overruled the question, Held, correct.

DETROIT AND MILWAUKEE R. R. Co. v. VAN

STEINBURG.

Cross-examination, limit of. A party always has the right to call out, on crossexamination, any facts within the knowledge of the witness which have a tendency to affect or qualify the evidence he had given in chief, whether it points to the same circumstances about which he has testified or not. Rebutting evidence: Discretion of Circuit Judge. After defendants had concluded their testimony, the plaintiff was allowed to call a witness to prove that the train could not be seen from the platform more than fifty or sixty rods. The evidence was objected to, as not properly rebutting, but the Circuit Judge admitted it. Held, that, whether properly rebutting or not, the Circuit Judge had a right to admit it, and his decision to do so could not be reviewed. It was not essential that he should state, at the time, that he admitted it under his discretionary power.

When testimony irrelevant concerning disease, subsequent to an injury. A witness was allowed to testify for the plaintiff that the latter had dysentery after the injury, and what the effect of that was upon him. As this disease was not traced to the injury, the evidence was held irrelevant and incompetent. Rebutting evidence: Skill of engineer. The defendant having introduced evidence tending to show that the engineer of the train was of average skill, plaintiff was allowed to prove that, on some occasions, he had run his train beyond the station. Held, that this evidence was competent to rebut that given by the the plaintiff; but for no other purpose.

Witness: Discretion of court. After the evidence on both sides was closed, the defendant offered a witness to be sworn, but under no claim of right. This the court refused. Held, that, whether the evidence of the witness should have been admitted or not at that stage of the case, was a question of discretion, on which the decision of the court was final.

When negligence a question of law or fact.

1. As a general rule, a question whether a party has been guilty of negligence or not, is one of fact, not of law.

2. Where, however, the plaintiff brings action for a negligent injury, and the action of the two parties must have concurred to produce it, it devolves upon him to show that he was not himself guilty of negligence; and if he gives no evidence to establish that fact, the court may properly instruct the jury that they should return a verdict for defendant.

3. When, however, the question of negligence depends upon a disputed state of facts, or when the facts, though not disputed, are such that different minds might honestly draw different conclusions from them, the court can not give such positive instructions, but must leave the jury to draw their own conclusions upon the facts, and upon the question of negligence depending upon them.

4. To warrant the court in any case in instructing the jury that the plaintiff was guilty of negligence, the case must be a very clear one against him, and which would warrant no other inference.

Heard April 28th, 29th, 30th. Decided May 13th.

Error to Oakland Circuit.

This was an action brought by defendant in error to recover damages from the Detroit and Milwaukee Railroad Company, for injuries received by being run over by their cars at Holly.

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DETROIT AND MILWAUKEE R. R. Co. v. VAN STEINBURG.

A verdict was rendered by the jury for plaintiff below, for $12,000.

The case was removed to this court by writ of error and bill of exceptions.

Numerous exceptions were taken on the trial to the admission of testimony, as well as the charges to the jury, the material portions of which are stated in the opinion.

Geo. Jerome, and G. V. N. Lothrop, for plaintiff in error.

1. Testimony concerning the rate of speed of a railroad engine with reference to the relation of speed to the distances within which trains can be stopped must proceed from experts. This is a matter of special knowledge. Νο one can give an opinion worth anything unless by practical experience or observation. Mere presence on a train will not give the instruction. There must be an opportunity to know all the elements that enter into it-speed, force applied, weight of train, grade, etc. Some experience of this kind is necessary to enable the witness to speak at all, and the value of the opinion will depend on the extent of training that the expert has had.-1 Greenl. Er. 440; 12 Mich. 27; 14 Id. 489; 17 Ill. 582; 2 N. Y. 515; 8 Bosw. 345; 24 How. R. 172; 6 Abb. Dig. 226, § 15.

2. The plaintiff was allowed to put before the jury evidence of what the crowd, or some member of the crowd assembled near the depot, near the time of the accident, said, as to the ringing of the engine bell when the train came in.

This was inadmissible.

It was hearsay testimony. - 1

Greenl. Ev. § 124; 15 Johns. 495.

3. Upon the point of the degree of care necessary to be used in a case like this, plaintiffs in error cited.—5 Barb 337; 13 d. 9; 25 Id. 609; 27 Id. 221; 32 Id. 147; 33 Id. 429; 11 Id. 112; 37 Id. 516; 4 Allen, 268; 8 Id. 227; 1 Id. 187; 7 Id. 207; S. C. 3 I. 18; 8 Il. 137; 5 Id. 7; 28 Ill. 299, 523; 18 N. Y. 422; 29 Id. 315; 20 Id. 76; 22 Id. 209;

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