contract, nothing was said about the number of hours to constitute a day's work. Plaintiff, the assistant superintendent, and the foreman all knew that it was the absolute custom and invariable rule that the employes should work as many hours as the convenience or business of the company demanded for the pay agreed on as one day's pay. Plaintiff's account was made up every half month upon this basis, settled, and receipt given. Several times he gave written orders upon defendant for his half-monthly pay, specifying the number of days, and the amount, each time figuring at $1.35 per day. Each receipt contained the following: "I acknowledge to have received from the Street Railway Company of Grand Rapids the amount opposite my name,

in full of all demands for work done during the regular and irregular working hours in the service of said company up to and including the date of this pay-roll." Plaintiff had not read this, nor had it been read to him until the last receipt given, when he left defendant's employ, when the receipt was read to him, before he signed it, and he said he understood it, and the meaning of the words used therein. Plaintiff, during his service, made no claim for any extra pay. While it is not expressly found as a fact, yet it is evident, that plaintiff knew that the authority of the assistant superintendent and foreman to employ men was limited to so much per day, regardless of the number of hours' work. There are two fatal objections to the plaintiff's right to recover: (1) He contracted with knowledge of and reference to the invariable custom and rule of the defendant, and the limitation of authority given to its officers. His contract therefore was to work without reference to the number of hours to constitute a day's work. (2) The final settlement when the receipt was read to him covered all claims for extra time, and not for the time covered by the last pay-roll as found by the circuit judge. He settled twice a month, and these settlements were binding upon him. If he had any claim for overtime he should have insisted upon it when these settlements were made. He kept silent as to his rights, if he had any, when he should have spoken. The law now estops him from speaking. Law is founded in common sense and common honesty. Measured by these principles, plaintiff's claim is absolutely destitute of merit or legal | standing. The judgment is in direct conflict with the rule so often recognized in this court. Reid v. Ladue, 66 Mich. 22, 32 N. W. Rep. 916; Gingrass v. Iron Cliffs Co., 48 Mich. 413, 12 N. W. Rep. 633; Cicotte v. Wayne Co., 59 Mich. 510, 26 N. W. Rep. 686; Perry v. Cheboygan, 55 Mich. 250, 21 N. W. Rep. 333; Manly v. Saunders, 27 Mich. 347; Faxton v. Faxon, 28 Mich. 161; Truesdail v. Ward, 24 Mich. 135.

It is very doubtful if the statute covers employment such as the plaintiff was rendering, but upon this we express no opiniou. Judgment reversed, with costs of both courts, and no new trial ordered.

CHAMPLIN, C. J., and MORSE and CAHILL, JJ., concurred. LONG, J., did not sit.

(82 Mich. 654) BERGSTROM V. STAPLES et al. (Supreme Court of Michigan. Oct. 31, 1890.) MASTER AND SERVANT-NEGLIGENCE OF FELLOWSERVANT.

1. Where it is the daily duty of a saw-mill hand to go down under the band-saw wheel at noon while the machinery is not in motion, and clean out the sawdust, the mill owners are not liable for his death caused by the engineer starting the machinery while he was under the wheel, in the performance of this daily duty, as the engineer is his fellow-servant.

2. Where the trial court directs a verdict, it should state in the instructions its reason for so doing, that the supreme court may know upon what points it was directed.

Appeal from circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

C. O. Smedley, (Arthur Jones, of counsel,) for appellant. Smith, Nims, Hoyt & Erwin, for appellees.

GRANT, J. Plaintiff's decedent, her husband, was an employe of defendants in their saw-mill. During the noon hour it was his duty to go down into the box of the lower band-saw wheel and clean out the sawdust. This box, which inclosed the wheel, was constructed with a slanting bottom, so that the sawdust would slide down to the sawdust carrier. It was necessary to stand on the wheel while cleaning off the sawdust. The only access to this box was by climbing down on the wheel, and the only mode of egress was by climbing up the same way. The wheel was eight feet in diameter. The work could only be done while the machinery was motionless, when of course there was no danger. The deceased entered this box during the noon hour, November 8, 1888, to clean out the sawdust. The engineer started up the engine and machinery while he was there at work, and he was killed. Before starting the engine, the engineer blew the whistle, which was the customary warning to those about the machinery to get out of the way, or by pulling a rope provided for the purpose to blow the whistle again as a signal to the engineer not to start the engine. No one gave the signal to the engineer not to start up. Very shortly after starting up, he received a signal to stop, but it was too late to save the life of Bergstrom. Bergstrom had worked in the mill for about a year, and was familiar with the signals, the ma. chinery, and the workings of the mill. During his entire service he had daily performed this work. Two of his co-employes stood near and saw him go into the box, and were in position to have signaled the engineer not to start up. One of them saw him take off the cover to the box and go down. He testified that he knew that Bergstrom was in the box when the whistle blew, and that he heard him "holler" after the machinery started, and that he then blew the whistle to stop. The other testified that he was 20 feet from Bergstrom when he went into the box; that he was ready to go down stairs when he heard the engineer blow the whistle, and stood with one foot on the first step; that he started for the rope to blow the whistle, but that some other person reached there first and blew it, but the machinery

had started. These were the only witnesses who saw Bergstrom go into the box. In their estimates of the time between the blowing of the whstle and the starting of the machinery one says about 15 seconds, and the other half a minute to a minute. Plaintiff insists that it was the duty of the defendant to give deceased sufficient warning before starting the machinery, and the negligence alleged is the violation of this duty. The defendants introduced no evidence, and the court directed a verdict for them. If there was negligence it was that of the engineer, and he was a fellow-servant of the deceased, for whose negligent act the defendants are not liable. Plaintiff's counsel seek to avoid this rule by the fact that the place was unsafe, and therefore they say the absolute duty to give sufficient warning followed. But they admit that the place was not unsafe when the machinery was motionless. Many places in these mills are rendered dangerous by the moving machinery, and vigilance is required on the part of employes to avoid the danger. No claim is made that defendants' mill and machinery were not constructed in the usual and proper manner, nor that it did not employ competent men to run it. The engineer was engaged in the same common employment with the deceased. The engineer in his duty to the deceased was no more the alter ego of the defendants than was the deceased their alter ego in his duty towards the engineer. Both were competent workmen, the mill properly constructed, the means of signaling sufficient, and the dangers apparent. În providing these things, the defendants had done their whole duty. Each of these men assumed the risk of negligence on the part of the other. Such negligence cannot be imputed to the defendants. Any other rule would be unreasonable, unjust, and therefore unfounded in law.

The circuit judge instructed the jury to render a verdict of no cause of action, without giving the reasons for such instruction. This is not the proper practice. The appellate court is entitled to know on what points the verdict is directed, and the court should state them in its instructions to the jury. The record in this case does not disclose upon what point the court directed the verdict, but, as the correct result was reached, we will not disturb it. Judgment affirmed, with costs.

MORSE, J., did not sit. The other jusother justices concurred.

(82 Mich. 661)

GETTY V. Peters. (Supreme Court of Michigan. Oct. 31, 1890.) SALE OF LANDS -- FORFEITURE FOR NON-PAYMENT -EJECTMENT.

1. A contract for the sale of lands provided that the purchaser should pay a sum down, take Immediate possession, and pay the balance on or before three years, with interest, when he was to receive a clear title. In case of default, he was to forfeit both the lands and the sums paid. The vendor had no title to part of the lands sold. Held, that so long as he was unable to make a conveyance in accordance with the contract, there 2ould be no forfeiture for non-payment of interest due him by the vendee.

3. A notice of forfeiture given before the vendor had acquired title was a nullity, and could not operate as a notice upon his subsequently acquiring title.

out prior notice of forfeiture. 3. Ejectment could not be maintained with

Error to circuit court, Kalkaska county. W. D. Totten, (Fitch R. Williams, of counsel,) for appellant. J. L. Boyd, (Sweet & Perkins, of counsel,) for appellee.

MORSE, J. This is an action of ejectment. It was tried before the circuit judge of the Kalkaska circuit court without a jury. He finds that June 4, 1885, Addie B. Getty, wife of the plaintiff, entered into a contract with George W. Peters, husband of the defendant, to sell him lots 7 and 8 in the village of Kalkaska for $200, payable $25 down, and the balance on or before three years from date, with interest at 10 per cent., payable annually; Peters to pay all taxes assessed on said premises from said date, and to keep the buildings insured for the benefit of Mrs. Getty. When the contract was fully paid and performed, Mrs. Getty was to convey the premises to Peters free and clear of all liens and incumbrances, save those suffered by Peters to accrue after the making of the contract. Peters paid the $25, and went into possession. At the time, Mrs. Getty had a clear title to lot 8, but not to lot 7. The legal title was then in one David E. McVean, subject to a mortgage to David Ward. A foreclosure of this mortgage was commenced in chancery April 14, 1885, resulting in a sale and conveyance of the same to William C. Ward, June 14, 1886. Ward quitclaimed to the plaintiff April 25, 1888. A warranty deed of both lots was given by Mrs. Getty to plaintiff June 23, 1886. There was a house on lot 7 at the date of the contract, into which the defendant and her husband moved, and in which the defendant has ever since lived. She has improved the house to the value of $50. The value of the lots without the improvements is $250. July 7, 1885, Peters paid Mrs. Getty $20 on the contract, and also the taxes for 1885 on January 26, 1886. In March, 1886, he died intestate, leaving his widow and one son, Albert O. Peters, him surviving. Albert O. Peters never lived on or occupied said premises. It was further agreed in this contract that if Peters failed to perform his contract, or any part thereof, Mrs. Getty should have the right to declare the same void, retain whatever had been paid upon it, and all improvements made thereon, treat Peters as her tenant, holding over, and take immediate possession of the premises, and remove him therefrom. After the death of Mr. Peters, and in the fall of 1886, plaintiff went to defendant and wanted to know if she was going to carry out the contract, and asked her to furnish $50 with which to buy the title of Ward to lot 7. She refused to furnish the $50. At this time there was nothing due upon the contract. In 1886 the premises were sold for the taxes of 1884,-taxes becoming a lien on the land before the contract was made. The defendant bid in the lots for these taxes, paying therefor $5.60. November 12, 1887. she received her tax-deed, and put it on

99

record December 14, 1887. She paid the taxes for 1886 on lot 7, and for 1887 on both lots, and the village taxes for 1888. Plaintiff was supervisor in 1886, 1887, and 1888. He assessed both lots to defendant in 1886; in 1887, lot 7 to her, and lot 8 to himself; and both lots to himself in 1888; and paid the taxes for that year. Some time in 1887, and after plaintiff had heard of the procuring of the tax-title by defendant, he served a notice upon her "to the purport and effect that she had forfeited all rights under said contract by non-performance of the conditions thereof, and demanding possession of said premises from her. That, allowing the sum defendant paid at the tax-sale upon which she received her tax-deed as a payment upon the contract, there was due June 4, 1887, as interest upon the same, $7.60. Before commencing this suit, which was begun October, 1888, no other notice but the one already mentioned was served upon the defendant or her son. After the death of Peters, no payment of the principal or interest on the contract was ever made to Mr. or Mrs. Getty, and the buildings on the premises were never insured for their benefit. That the defendant was unable to effect such insurance, owing to the fact that the building was not such a risk as the insurance companies, doing business in Kalkaska, would take. That the plaintiff knew when he received his title of the full extent of defendant's rights under the contract. That he gave no notice of his acquiring the title from Ward. That no demand was ever made upon the defendant for any amount due on the contract, and neither she nor her son ever had or sought any interviews with plaintiff in regard to the contract, and never offered to pay any sum of money on said contract, or for getting a deed of said property on any terms since January 11, 1887. On that date plaintiff and her son attempted to make some arrangement about fulfilling the contract, and receiving a good title to the land. This was done at the request of his mother. He and plaintiff went to a law-office and a warranty deed was drawn up by Willis B. Perkins with Getty and his wife as parties of the first part, and Albert O. Peters as party of second part. The consideration was put at $150. The deed purported to convey lot 8, and the dwellinghouse on lot 7. Said Peters claimed in his testimony that when he read said deed, and found it did not cover both lots 7 and 8, he, on inquiry, learned then for the first time that said Getty did not have his title completed to said lot 7, and that Mr. Ward had title to said lot, and refused to pay said $50 until Mr. Getty should complete his title, and be able to convey both lots; that his understanding was that he should then and there pay his $50, get a deed of both lots, and give his mortgage back thereon for the balance of the purchase price. Said Getty claimed in his testimony that said Peters had before that been fully informed by Mr. Getty about the title to said lot 7 being still in Mr. Ward, and that the $50 was to be paid then so said title could be procured from said

Ward. That said Getty further claimed in his said testimony that two

ways had been talked about of getting said title,-one was for Peters to take a deed of lot 8 and the house on lot 7, and then procure title to himself of said lot 7 from Ward, and then give Getty a mortgage back on both lots for the balance; and the other way was for him to pay or advance $50, and Getty would get the title from Ward, and then complete title in Peters, and take the mortgage back as aforesaid. That said deed so drawn by Mr. Perkins was not executed and acknowledged by said Getty, and, pending said negotiations, said Peters left said office, and nothing more was ever done in regard to consummating any such arrangement. The circuit judge also found "that the defendant has been ready at all times to perform said contract on her part, as the widow of said George W. Peters." Judgment was rendered on these findings for the defendant. Error is assigned upon some of these findings, that they are not supported by the evidence. All the testimony is returned in the record, and we find, in this regard, that there was evidence tending to sustain all the findings of the court. The weight of it, and to whom credence should be given in the case of conflicting testimony, was a matter to be settled by the circuit judge. We have no power in such case to disturb his findings. The defendant pleaded not guilty to the declaration in ejectment, and also served a notice thereunder as follows: "Compensation for buildings erected by her, and that her expense and other improvements made on the said lands described in the plaintiff's declaration, which said improvements were made by said defendant since her possession and occupancy of said premises, and said defendant will also show that she has been in the quiet, peaceable, and notorious possession of said premises since the 4th day of June, 1885, by virtue of a tax-deed and land contract, in good faith, and will request the jury to find whether the said premises have been actually and peaceably occupied by the said defendant, and the time of such occupation, and to determine the increased value of the premises by reason thereof." It is claimed by plaintiff's counsel that the defendant relied on the tax-title; that the same was shown to be void; and that after setting up an adverse claim of the tax-deed she was estopped from claiming under the land contract. This claim is not tenable from the findings of the court or the evidence in the case; nor did she rely on the tax-title upon the trial. It appears that she bid in the property at the tax-sale to protect her possession and title under the land contract.

The other main contention is that the defendant had never offered to perform the contract or make any payments thereon after her husband's death, and that her rights under the contract had been duly terminated by notice; but the circuit judge finds that she was always ready to perform the contract, but that no demand was ever made upon her to do so. true the plaintiff served a notice upon her some time in 1887, declaring that she had forfeited her contract, but at that time neither he nor his wife had any title to

It is

lot 7, upon which defendant was living. After that negotiations were made look ing towards a settlement of the controversy and a fulfillment of the contract on

both sides; but plaintiff could give no deed of lot 7. and did not propose to do so, and the bargain fell through Plaintiff acquired the title to lot 7 in April, 1888. In October he commenced suit, without notifying the defendant that he had the title, and could fulfill on his part, and without any demand upon her for payment of the amount due upon the contract. It is plain that when she found that he had the title, and before notice of forfeiture, she could have tendered him the amount due; and, upon a refusal by him to deed, could have forced him in equity to a specific performance. The bringing of this suit was not a sufficient notice of forfeiture; nor was the old notice of any avail to him, as at the time he gave it he was not in a condition to perform, as he had before notified her, and there was but a small sum due as interest. His subsequent negotiations showed that he did not rely upon this notice. Having no title to lot 7 at the time he gave it, he could not forfeit the contract for non-payment, and oust the defendant of possession when he, himself, was not in a condition to perform on his own part. Converse v. Blumrich, 14 Mich. 109. The contract of purchase by its terms gave the defendant the immediate right of possession, and to keep the same unless the contract was not fulfilled on her part. If she failed, then the vendor had the “right to declare the same vold, and retain what ever may have been paid on such contract, and all improvements that may have been made on the premises, and may treat the party of the second part as her tenant, holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom."

Before the defendant could be ousted from her legal possession under this contract in an action of ejectment, or in summary proceedings, it was necessary for plaintiff to notify the defendant under the circumstances of this case that he had full title to the premises, and could perform on his part, and demand payment upon her part. The judgment is affirmed, but without prejudice to any further proceedings to recover the land after forfeiture as above indicated. The other justices concurred.

fore could not be considered in summary proceedings.

Error to circuit court, Gratiot county. H. & E. L. Walbridge, for appellant. Geo. P. Stone, for appellee.

CAHILL, J. The complainant commenced summary proceedings before a circuit court commissioner to recover possession of the N. W. % of the N. E. % of section 18 in the township of Sumner, Gratiot county, Mich., where he had judgment. The defendant appealed the case to the circuit court, where a trial was had before the judge without a jury. No special finding was asked, and none was made. A judg ment was rendered in favor of the defendant. A bill of exceptions was thereupon settled, and the case brought to this court by writ of error.

The complainant claims title through an execution sale made on a judgment recovered by him against Jeremiah A. Sprague for $179.04 damages, and $22.94 costs. The execution levy was made on the 8th day of September, 1887; the premises were sold on the 5th day of November following, and bid in by complainant, to whom the sheriff gave his certificate of sale, presumably bearing the same date. On the 11th of February, 1889, the premises not being redeemed, the sheriff made and delivered his deed tɔ the complainant as such purchaser, according to the statute. The defendant claims title by mesne conveyance from Edwin A. Sprague, a son of Jeremiah Sprague, who it is claimed by defendant, was the real owner of the land in question, and in the actual possession of the same, at the time of complainant's levy, and defendant claims a right to the land by paramount title to that of complainant, under the following circumstances: It is claimed that on the 21st of March, 1887, Jeremiah A. Sprague, being the owner of the land, sold and undertook to convey the same to his son Edwin A. Sprague, but that by mistake he conveyed to him the N. E. % of the N. E. which he did not own, instead of the N. W of the N. E. . That at the time of such conveyance Jeremiah and his son Edwin were living on the land, but that some time after Jeremiah, who had been a widower, remarried, and went to live with his wife on another piece of land, leaving his son Edwin and his family in possession of the land in question. The mistake in the deed of March 21st was not discovered until after complainant's levy of September 8th. On September 19th, Jeremiah executed a quitclaim deed to Edwin, which contained this clause: "This deed is executed to perfect the title of Edwin A. Sprague to the land described herein, which lands were supposed and intended between the parties to have been conveyed by deed dated March 21, 1887, and recorded in liber 67, page 468." On February 18, 1888, Edwin A. Sprague conveyed the premises in question to Sarah Paddock. On March 3, 1888, Sarah Paddock conveyed to M. V. Smith, and on the 23d day of January, 1888, M. V. Smith conveyed the premises by warranty deed to the defendant.

It will be noticed that the deed from M.

V. Smith to defendant was prior to the conveyance from Sprague to Paddock, and from Paddock to M. V. Smith. This is accounted for by the fact that on September 13, 1887, Edwin A. Sprague had conveyed the premises in question to one Samuel T. Morgan. After the execution of this deed, Edwin A. Sprague refused to give possession under it, or to recognize it, claiming that it had been procured by fraud. Morgan, however, on the 14th day of September, 1887, conveyed an undivided half interest in the land to M. V. Smith, and the latter appears to have purchased in the Paddock title as a means of protecting himself against the warranty contained in his deed to the defendant. Defendant paid Smith for the W. % of the N. E. 4 $2,200, and defendant claims that it was agreed that he should take the premises subject to a $1,200 mortgage on them, and the taxes of 1887-88, and that Smith should procure a release of complainant's levy on the north 40. Under this arrange ment the deed was not delivered on the 23d of January, but was deposited in a bank, until Smith should procure such a release, when it was to be delivered. Afterwards, and on the 28th day of January, 1888, Smith and defendant entered into a different arrangement, whereby Smith agreed to indemnify defendant against the levy by executing to the defendant a mortgage on certain lands in Midland county, conditioned that Smith should procure a release and discharge of the levy within one year from that date. Defendant claims that, at the time the deed was deposited in the bank, it contained no mention of the levy, but after the execution of the mortgage by Smith to defendant, and before the deed was delivered, Smith wrote in the deed, as a limitation upon the covenants against incumbrances therein, the words: "Except a certain levy filed September 8, 1887." But defendant says that it was not intended or agreed between himself and Smith that he should take said premises subject to the levy, or that he was obligated to pay it off. On the trial in the circuit court, the evidence of the defendant in regard to the circumstances under which the deed from Smith to him was executed and delivered, and the clause concerning the levy inserted, was objected to by complainant upon the ground that the defendant was estopped by the terms of his deed to deny that the levy was binding upon him. But the evidence was received, and the complainant excepted. At the conclusion of the testimony, the defendant's counsel requested the court to dismiss the case, for the reason that the evidence disclosed that the defendant did not hold the premises in question under the complainant, but held them adversely to the complainant, and by title adverse, hostile, and paramount, and that such title could not be litigated in this action. The circuit judge held in accordance with this view. The judgment of the circuit judge was right. Whatever may be the fact, each party claimed to have the paramount title title derived from Jeremiah Sprague. Such claims are hostile and adverse, and cannot be tried under How. St. § 8295, providing for summary proceed

1. Where, in a summary proceeding by the landlord to recover possession of the leased premises, defendant, after having taken an appeal from the judgment against him, surrenders the possession, such surrender does not affect the appeal, for it does not operate as a satisfaction of the judgment, nor as an admission that at the commencement of the suit defendant was holding the land unlawfully.

2. An affidavit for appeal from a commission er's judgment in a summary proceeding to re cover land which follows the common form of affidavits on appeal from justice courts, is sufficient under How. St. Mich. § 8307.

3. Where the commissioner accepts the ap

peal-bond, and files and returns it with the appeal papers to the circuit court, it will be presumed in favor of the jurisdiction of that court and the sufficiency of the bond that the commissioner approved it, and that the penalty fixed therein is double the annual rent of the premises, as required by law, though neither of these facts are indorsed on the bond.

4. Under a lease of land on shares, in which is stricken out the usual printed clause giving the lessor a right of re-entry in case the covenants are broken, and which stipulates that the land shall be farmed in a husband-like manner, and that, if the tenant fail to do so, the lessor shall have the right to cause it to be done, and deduct the expense from the lessee's share of the products, the landlord cannot re-enter upon the tenant's failure to comply with his covenants.

Appeal from circuit court, Jackson county: ERASTUS PECK, Judge.

A. E Hewitt, (Austin Blair, of counsel,) for appellant. Dwight D. Root, for appellee.

MORSE, J. This is a summary proceeding instituted before a circuit court commissioner of Jackson county to recover possession of lands held by defendant under a contract for working the same. The commissioner after trial of the issue before him gave judgment of restitution in favor of the plaintiff, and for costs amounting to $34.10. This judgment was rendered March 26, 1889. On the 29th of same month, defendant presented affidavit and bond for appeal, and paid the costs and entry and return fee required on such appeal. In the circuit court plaintiff made a motion to dismiss appeal, which was denied. After wards, when the cause came on to be tried, and after a jury was impaneled and sworn, but before proceeding to trial, the plaintiff objected to the appellant's proceeding with the trial, on the ground that the appeal was not legally taken, and the court therefore had acquired no jurisdiction to