paying to men in the livery barn. There was no error in this. The plaintiff, according to his testimony, was not employed as an ordinary stable boy, but to take charge of the carriages and the repository room. The defendants denied all liability, and any contract of employment whatever. The only remaining error claimed relates to the charge of the court. It is claimed that the court practically instructed the jury to determine the value of the plaintiff's services independently of the evidence. The charge taken as a whole will not bear any such construction. The case was very fuily and fairly submitted upon the theory of the defendants as well as the plaintiff's, and the jury instructed that if there was no agreement under which plaintiff went to work he could not recover. If, on the other hand, they were satisfied by a preponderance of evidence that an agreement for the work was made, as claimed by the plaintiff, he was entitled to recover the value of such services, and his recovery would be for such an amount, under all the circumstances, as the jury thought him entitled to. The jury could have understood this charge in no other light that than in fixing the value of such services they must be guided by the evidence given on the trial. There was no error in the charge. For the error pointed out, however, the judgment must be reversed, and a new trial ordered. GRANT, J., did not sit. The other justices concurred. (82 Mich. 471) PEOPLE V. DETROIT WHITE LEAD WORKS et al. (Supreme Court of Michigan. Oct. 10, 1890.) NUISANCE LIABILITY OF OFFICERS OF CORPORATION-CITY ORDINANCES. 1 Neither the fact that a business is carried on in a careful and prudent manner, and that nothing is done by those managing it that is not a reasonable and necessary incident of the business, nor the fact that, when the business was commenced, the lands in the vicinity were open common, will authorize the continuance of a business in the midst of a populous community, which constantly produced odors, smoke, and soot, of such a noxious character, and to such an extent, that they produce headache, nausea, vomiting, and other pains and aches injurious to health, and taint the food of the inhabitants. 2. The officers of a corporation, as well as the corporation itself, are properly convicted for the maintenance of a nuisance consisting of the corporation's business. | nauseating odors, smells, vapors, and smoke, to the great damage and common nuisance of all people living in the neighborhood thereof, and of all people pass. ing and repassing on the streets and alleys adjacent thereto, contrary to an ordinance of the city in such case made and provided, being section 5, c. 55, Rev. Ord. 1884. The ordinance in question is set forth in the return of the judge to the writ. The defendant the Detroit White Lead Works is a corporation organized under the laws of the state. Defendant Hinchman is president, defendant Dean is vice-president, and defendant Rogers is treasurer and manager. The defendants Hinchman, Dean, and Rogers were fined $1 each, and the defendant the Detroit White Lead Works $10 and costs. No other penalty was imposed. The following is the return of the court to the writ. We give it nearly in full, on account of the importance of the case: "The testimony tended to show the following: Eighteen to twenty years prior to the filing of the complaint, a paint manufactory was started by private parties on both sides of Jones street, directly opposite and about fifty feet from the place described in the complaint. The business was that of mixing white lead, oils, and colors for use as paint. The manufacture of white lead, or carbonate of lead, as by corrosion, was never carried on here. Lead, oils, and colors were merely mixed. This business was continued at this point about ten years, when it was moved across the street to the place named in the complaint. Here it was pursued by private parties until December, 1880, when the defendant the Detroit White Lead Works, a manufacturing corporation organized under laws of this state, succeeded to the business and property. The Detroit White Lead Works continued the same business uninterruptedly from the time last mentioned, to and including the time of trial. The method of mixing lead, oils, and colors remained the same, though carried on with improved machinery, somewhat larger, better, and more cleanly buildings, and increased trade. No corrosive process was used, the dry heavy carbonate of lead (600 lbs. to the barrel) being mixed at once with oil, and thereafter remaining in a moist or semi-fluid condition. Whiting was also used (weight 250 lbs. to the barrel) in the manufacture of putty. Also various well-known earths and clays were used in making paints. In 1882, the manufacture of varnish and also liquid driers for use in the manufacture of paints was added, and was continued without inter 3. A city ordinance making it a misdemeanor to maintain a nuisance is not invalid or unconstitutional, because the general statutes of the state provide for the conviction and punish-ruption to and including the time of trial. ment of the same offense. Certiorari to recorder's court of Detroit. Edwin F. Conely, for appellant. Chas. Chas. W. Casgrain and Henry M. Cheever, (John W. McGrath, of counsel,) for the People. GRANT, J. This case is brought to this court by writ of certiorari from the recorder's court of the city of Detroit. The defendants were convicted for unlawfully and willfully creating and maintaining a nuisance, consisting of the creation and emission of unwholesome, offensive, and In the manufacture of varnish and driers, various resinous gums, asphaltum, boiled linseed oil, and napththa were used. The gums were melted, and the oil boiled over a fire-place, and directly under a chimney carrying away the fumes or vapors into the air. When cooling, the large kettles were put under a ventilating shaft, thus carrying away any fumes or vapors. Machinery was used only in the mixing rooms, and was propelled by means of a boiler and engine which was also used in supplying heat to the buildings. The coal used question, had visited the place 31 times before he could detect an unpleasant odor, and that in warm weather; and that there was nothing unwholesome or inju rious to health about the business. was, in the main, hard, though soft coal | committee to investigate the business in was also used. The furnace was supplied with a smoke consumer. The buildings are brick, cover about four lots, are three stories high, and, in addition to the above, are used for storage, office, printing, labeling, loading, and the ordinary incidents of a large manufactory and business. When the business was originally started, but few persons lived near, the property all round being vacant for the most part. Subsequently, population thickened, and at the time of the complaint the manufactory was surrounded with considerable resident population, though but a short distance from Michigan avenue,—a street devoted wholly to business. The resident population were largely tenants, most of whom rented from month to month or for short periods. Nearly all of the surrounding buildings had been built since the manufactory originally started. During the time covered by the complaint, the business, in all respects, had been carried on in a careful manner, and nothing had been done by those managing it that was not a reasonable and necessary incident to the business. No complaint had been made against the business, or any one running it in any court before. The defendant Hinchman was president of the corporation. The evidence did not otherwise connect him with the business or its operation. Rogers and Dean were actively engaged in managing and operating it. Shotwell was secretary, and kept and had charge of the books." The city attorney, in behalf of the city of Detroit, introduced testimony tending to show that odors of a disagreeable and unpleasant character had been experienced by residents in the vicinity of the works. These odors were described by witnesses as "the smell of paint," "paint smell, ""heavy,"" the smell of varnish," "resinous smell," and "piny." Residents in the vicinity of the works testified that, during the time mentioned in the complaint, they had been constantly annoyed by odors, smoke, and soot which came from the works and entered their houses, producing, as they testified, headache, nausea, vomiting, and other pains and aches Injurious to health; that in warm weather, to keep out the soot and smoke, they were compelled, to their great discomfort, to close their doors and windows; that smoke settled on their furniture, and on their clothes which had been washed and hung out to dry, and which they were obliged to wash again; and in some instances tainted their food. Many of the witnesses claim that the odors wero nauseating, others say disagreeable, while some did not mind it. On behalf of the deOn behalf of the defendants, testimony was introduced tending to show that nothing of an unhealthful or injurious character emanated from the manufactory, and that the only "paint smell" there could be was simply the smell caused by boiling linseed oil, about once a week, in the manufacture of varnish; that no smells emanated from the other parts of the factory at all, and could not; that the men, women, and girls in the factory were in excellent health, and had never been ill from being there; that one witness, Mr. H. A. Champion, member of the The ordinance under which the complaint was made and the trial was had read as follows: "Sec. 5. No owner or occupant of any grocery, cellar, tallowchandler shop, soap, candle, starch or glue factory, tannery, butcher-shop, slaughterhouse, stable, barn, privy, sewer, or other building or place, shall allow any nuisance to remain on his or her premises; nor shall any person, persons, or corporation, operating, owning, occupying, or using any public or private street, alley, way, or any premises whatever, within the limits of the city of Detroit, create or maintain any nuisance thereon." The common council of the city of Detroit has never prescribed any territorial limits within which the business in question, or other like business, should be conducted or carried on. The court filed a written opinion and finding, of which the material part is as follows: "The defendant corporation was established in 1880, and succeeded to the business previously carried on by parties not incorporated under the same name as that of said corporation, and was started some fifteen or sixteen years ago. In 1882 the corporation added to their business the making of varnish and driers. There is nothing to show that the business of the lead works was not properly and skillfully conducted, or that the alleged nuisance might have been avoided by any greater care. The part of the city wherein the corporation is carried on is principally occupied by dwelling-houses, and many residents in the vicinity of the lead works, during the time mentioned in the complaint, have been constantly annoyed by odors, smoke, and soot which came from the lead works and entered their houses, and produced headache, nausea, vomiting, and other pains and aches injurious to health. In warm weather, to keep out the smoke and soot, they were compelled, to their great discomfort, to close their doors and windows. The smoke and soot settled on their furniture, and on their clothing which had been washed and hung out to dry, and which they were obliged to wash again, and in some instances tainted their food. The counsel for defendants claimed on the hearing that the ordinance under which this complaint was made, so far as these defendants are concerned, is not authorized by the charter, and also claimed, or rather suggested, that the common council cannot constitutionally be authorized to punish, under an ordinance, that which, under the general law of the state, can be punished as a crime. The defendants' counsel also claimed that the case, as proven, is not within the ordinance. I am unable to agree with the defendants' counsel with regard to these propositions. I find the complaint as made out against all the defendants, except the defendant Shotwell, whom I find not guilty, and the others guilty." The charter of the city of Detroit gives to the common council pow or er to provide for the preservation of the general health of the city; to make regulations to secure the same; to prohibit, prevent, abate, and remove all nuisances in said city; to punish the authors or maintainers thereof; to compel the owner or occupant of any unwholesome nauseous house or place to cleanse or abate the same, whenever necessary for the health, comfort, or convenience of the inhabitants of said city; to prohibit and prevent any person from keeping or having on the premises owned or occupied by him any article, substance, or thing that is unwholesome or nauseous. Similar powers are conferred upon municipal corporations of the state by general statute. How. St. §§ 1678, 2572, 2573, 2576, 2634. cult to determine the boundary line in many such cases. The carrying on of many legitimate businesses is often productive of more or less annoyance, discomfort and inconvenience, and may injure surrounding property for certain purposes, and still constitute no invasion of the rights of the people living in the vicinity. Such a case was Gilbert v. Showerman, 23 Mich. 448. A case similar in its facts was before this court in Robinson v. Baugh, supra, which was distinguished by the court from Gilbert v. Showerman. In the former case the business was legitimate and necessary. The suit was brought in equity to enjoin the business at the place where carried on. The facts were that smoke and soot from defendant's works were often borne by the wind in large amount to the premises of the complainants, and sometimes entered their dwell The facts found and returned by the recorder's court clearly establish a nuisance, according to all the authorities. These facts so found are conclusive in this court,ings by the chimneys, and through cracks and we can only apply the law to the facts. Counsel for defendants cannot, therefore, seriously contend that we can enter into a discussion and determination of that question, especially as the evidence is not before us. Defendants are not aided by the fact found by the court that, during the time covered by the complaint, the business, in all respects, had been carried on in & careful and prudent manner, and nothing had been done by those managing it that was not a reasonable and necessary incident of the business; nor by the further fact that, when the defendant company commenced its business, the lands in the vicinity of its works were open common. It is undoubtedly true that the defendants, or their predecessors, established their works at a point remote from habitation, possibly in recognition of the fact that such a business was at least not pleasant, if not injurious, to the health and enjoyment of those living near it. The city of Detroit has extended to the defendants' works, and the owners of ad. joining lands have erected dwellings thereon. This they, of course, had the legal right to do. The defendants cannot be protected in the enjoyment of their property, and the carrying on of their business, if it becomes a nuisance to people living upon the adjoining properties, and to those doing legitimate business with them. Whenever such a business becomes a nuisance, it must give way to the rights of the public, and the owners thereof must either devise some means to avoid the nuisance or must remove or cease the business. It may not be continued to the injury of the health of those living in its vicinity. This rule is founded both upon reason and authority. Nor is it of any consequence that the business is a useful one, or necessary, or that it contributes to the wealth and prosperity of the community. Wood, Nuis. § 19; Queen v. Train, 2 Best & S. 640; Works v. Railroad Co., 5 McLean, 425; Respublica v. Caldwell, 1 Dall. 150; Ross v. Butler, 19 N. J. Eq. 296; Robinson v. Baugh, 31 Mich. 290. It is true that, in places of population and business, not everything that causes discomfort, inconvenience, and annoyance, or which perhaps may lessen the value of surrounding property, will be condemned and abated as a nuisance. It is often diffiv.46N.w.no.15-47 by the doors and windows, in such measure as to be extremely offensive and harmful, and the noise so great as to be disagreeable, and positively hurtful, the jar annoying and disturbing the sick, and in some cases causing substantial damage to dwellings. The court laid down the rule as follows: "However lawful the business may be in itself, and however suitable in the abstract the location may be, they cannot avail to authorize the conductor of the business to continue it in a way which directly, palpably, and substantially damages the property of others, unless the operator is able to plant himself on some peculiar ground of grant, covenant, license, privilege, or prescriptive right." No case has been cited, and we think none can be found, sustaining the continuance of a business in the midst of a populous community, which constantly produced odors, smoke, and soot of such a noxious character, and to such an extent, that they produce headache, nausea, vomiting, and other pains and aches injurious to health, and taint the food of the inhabitants. All the defendants were properly convicted. The officers of the company are jointly responsible for the business. It is not necessary to conviction that they should have been actually engaged in work upon the premises. The work is carried on by employes. The directors and officers are the persons primarily responsible, and therefore the proper ones to be prosecuted. A fine can be collected against the defendant company, and therefore it is subject to prosecution. The ordinance under which defendants were convicted is not invalid nor unconstitutional, because the general statutes of the state provide for the conviction and punishment of the like offenses. This was settled in this state in the case of People v. Hanrahan, 42 N. W. Rep. 1124. See, also, Cooley, Const. Lim. (4th Ed.) 242; State v. Ludwig, 21 Minn. 202; Shafer v. Mumma, 17 Md. 331; St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Cafferata, 24 Mo. 94; Blatchley v. Moser, 15 Wend. 215; Levy v. State, 6 Ind. 281. We infer the defendants have a valuable plant in which they have invested considerable amounts of money. Courts should abate a legitimate business of such magnitude as a nuisance only upon clear and convincing proof. We are not satisfied that the method chosen in this case to test the question was the fairest towards the defendants. While no other conclusion than affirmation of the judgment is possible under this record, we deem it proper to say that we shall not consider the reKult now reached as binding upon us in another proceeding where the evidence and the facts may be fully presented. We consider the course pursued in Robinson v. Baugh, supra, the proper one, as it certainly is much fairer to those occupied in a legitimate business. Judgment affirmed. The other justices concurred. (81 Iowa, 128) KUHLMAN v. WOOD. (Supreme Court of Iowa. Oct. 18, 1890.) Sale-Rescission of Contract—MORTGAGE-PAY MENT. the next day. The hotel was visited by defendant on the first day named, and by himself and wife on the next day, the property inspected, and a memorandum of a part thereof taken. On the 23d day of August, defendant paid to the persons entitled thereto, to apply on the payments required by his agreement, the sum of $150, as rent for the hotel. Late in the afternoon of that day, he went to the hotel with his wife, servants, and some provisions, for the purpose of taking possession. At that time he claims he discovered that much of the table furniture, and many of the napkins, towels, blankets, quilts, and other articles which he had purchased, were missing, and that in some cases articles of inferior value had been substituted for those he had purchased. He estimated the property he found at that time was worth $200 less than that he had purchased, and refused to accept it unless the plaintiff would deduct that amount from the purchase price. But plaintiff refused to make the deduction de 1. Plaintiff agreed to sell to defendant the furniture and household goods used in his hotel.manded, and defendant refused to carry He gave defendant an itemized statement of the goods sold, but when he delivered them many of the articles named in the statement could not be found. Held, that defendant was entitled to re scind the sale. 2. Where one who has contracted to purchase property, and pay off a mortgage on it as part consideration for the sale, rescinds the contract for good cause, his subsequent purchase of the mortgage does not extinguish it. Appeal from district court, Woodbury County: GEORGE W. WAKEFIELD, Judge. Action in equity. The plaintiff seeks to have enjoined the foreclosure of a chattel mortgage on certain hotel property. The defendant seeks to recover of plaintiff the sum of $150, on account of money paid by virtue of an agreement which was rescinded, as he alleges, in consequence of the fraudulent conduct of plaintiff. After a trial upon the merits, the district court dismissed the petition of plaintiff, and rendered judgment in favor of defendant for $150, with interest, and costs. The plaintiff appeals. Lutz & Sears, for appellant. Weaver, for appellee. John N. ROBINSON, J. During the year 1888, the plaintiff was engaged in the business of keeping the hotel known as the "MadIson House," in Sioux City. On the 13th day of April of that year he executed and delivered to one Rankin a chattel mortgage on the stock and furniture in said hotel, to secure the payment of a note for $350, which was payable six months after that date. On the 23d day of August, 1888, the parties to this action entered into a verbal agreement for the sale by plaintiff to defendant of all the household goods used in carrying on the business of keeping said hotel, and the surrendering to the latter the possession of the hotel. The agreement required defendant to pay to plaintiff $587.50 in cash: to give his note for $300 due in 60 days; and to assume the payment of the Rankin mortgage debt, on which there was then due $312.50. The negotiations for the property were commenced on the 21st day of August, and substantially concluded on out the agreement, and left the hotel and all the property therein in the possession of plaintiff. Defendant afterwards purchased the Rankin mortgage, and was about to foreclose it when this action was commenced to restrain him. Plaintiff contends that he was able and willing to carry out on his part the agreement of sale; that all the property he had contracted to sell was in the hotel, and tendered to defendant when he went to it to take possession; and that, as it was a part of the agreement that defendant should pay the mortgage debt to Rankin, it should be regarded and treated as canceled by his purchase of it. The real question which we are required to determine is whether there was such a difference between the property contemplated by the agreement and that tendered in fulfillment of it as authorized its rescission by defendant. The evidence is conflicting, but we think a fair preponderance establishes the following facts: Before the 23d day of August, the beds and bedding were inspected as they were found in the various rooms, and some of the towels, napkins, knives, forks, spoons, and other table-ware were examined. The different articles were not counted, however, but the statement of plaintiff as to the number of each was taken and noted in a memorandum book by defendant. On the evening of August 23d, much of the property inventoried by defendant could not be found. Instead of 21 pairs of blankets, as inventoried, but 6 pairs and 1 single one could be found. Twenty or thirty quilts were missing, and those found were of poorer quality and less value than those inventoried. Knives, forks, spoons, napkins, towels, and other articles were missing, and plaintiff would give no account of them. The evidence satisfies us that the property tendered to defendant was not in some substantial respects that which he had agreed to purchase, and that the variance was so great that he was under no obligation to accept any of that tendered, but was authorized, after plaintiff's refusal to deliver the property agreed upon, to rescind the agreement, and is entitled to recover the money he had paid by virtue of it. When the agreement was rescinded his obligation to assume and pay the mortgage debt was at an end, and he had a right to purchase and enforce it against plaintiff in the same manner and to the same extent as though the agreement had never been made. Our conclusion is that the action of the district court was in all respects correct. It is therefore affirmed. (81 Iowa, 51) PITTS V. LEWIS et al. (Supreme Court of Iowa. Oct. 11, 1890., EVIDENCE-TRIAL-TAX-TITLE. 1. A stipulation that the testimony taken in another action may be used in the case does not make such testimony evidence in the case unless it is offered therein. 2. When certified copies of certain deeds have been introduced in evidence, it is not an abuse of judicial discretion to allow affidavits stating that the party introducing the copies did not have the original deeds to be filed after the case has been taken under advisement. 3. A tax-sale for taxes levied before the organization of the county making the sale is void. Following Hilliard v. Griffin, 33 N. W. Rep. 156. Appeal from district court, Sioux county; C. H. LEWIS, Judge. Action by equitable proceeding to quiet the title to certain laud in the plaintiff, as against the defendants, M. E. Lewis, C. A. Dodge, Austin Corbin, and Henry Kamp. The plaintiff claims ownership and title under a tax-deed from the treasurer of Sioux county to F. M. Hubbell, executed March 12, 1864, upon a sale made November 6, 1860, Hubbell having conveyed said land to Franklin Keeney, who thereafter conveyed the same to the plaintiff. Defendants deny that plaintiff is the owner of said land, and allege that the same was sold on August 3, 1868, by the treasurer of said county, for delinquent taxes, to one William H. Gurley, and that on February 16, 1872, a treasurer's deed was executed to one Aleck Johnson, to whom Gurley had assigned his certificate; that on July 5, 1872, said Johnson conveyed to Austin Corbin, who conveyed to M. E. Lewis and C. A. Dodge, who thereafter conveyed said land to the defendant Kamp, who still owns and is in possession of the same. Defendants allege that more than five years have elapsed since the execution of said tax-deed, and prior to the commencement of this suit, and that, by reason thereof, plaintiff was, when he commenced this suit, barred of his right to recover said land. Plaintifi, in reply, denies that there was a sale to Gurley; that a taxdeed was executed, and recorded; that the treasurer of said county had any authority to sell said premises on the 3d day of August, 1868; and alleges that the adjournment of the sale was for more than two months; that there was no assessment or levy of taxes on said land for either of the years 1860 to 1866, inclusive; that there was no board of supervisors or assessor for said county, authorized to act; that no delinquent taxes were brought forward on the tax-list of 1866, or prior years; and that more than five years have elapsed since the execution and recording of the tax-deed under which plaintiff claims,-by reason whereof defendants are barred from asserting any claim adverse to plaintiff. The case being fully submitted, decree was entered in favor of plaintiff, granting the relief prayed for. Defendants appeal. Struble & Stiger, for appellants. Pitts & Kessey, for appellee. GIVEN, J. 1. Question is made whether we have before us all the evidence offered on the trial below. In certifying the case, certain documentary evidence used on the trial was set forth in the transcript by copy, the original documents not being on file in the clerk's office. In obedience to a rule of this court upon the clerk, he recently sent up certain documents in original form, which, we think, are sufficiently identified as the same documents used in evidence on the trial. On the trial, it was stipulated "that the evidence taken in the case of E. S. Ellsworth v. E. W. Ross et al. may be used in this action as far as the same relates to the tax-deed in controversy." No part of that testimony is included in the record in this case. The stipulation does not of itself make that evidence, or any part of it, evidence in this case. It provides that it may be used, but it does not appear that either party availed himself of that privilege. Surely it is not the province of this court to now select from the record in that case evidence, however pertinent to this, not shown to have been offered and used on the trial. We think the record before us contains, in proper form, all evidence offered on the trial of this case. 2. On the trial, the defendant introduced certified copies of certain deeds for the purpose of showing the title in the defendant Kamp. After the case was submitted, and while held under advisement, the defendants, on notice to plaintiff, were permitted, over plaintiff's objection, to file the affidavits of defendants Kamp, Lewis, and Dodge, to the effect that they did not have the original deeds, of which copies had been offered, in their possession or control. It was shown by counter-affidavit that Lewis and Dodge were present, and testified on the trial, and that Kemp was but a few miles distant at the time. It is conceded that it was within the discretion of the court whether to receive these affidavits; but it is contended that to receive them under the circumstances was an abuse of that discretion. We do not discover that any prejudice resulted from the action of the court, nor that there was any abuse of discretion. 3. Each party claims under tax-deed, and disputes the right of the other to question the validity of the deed under which he claims. If the deed under which plaintiff claims is valid, then he had title to the land at the time of the tax-sale under which defendants claim, as such deed not only conveys the interests of the owner of the patent title, but also of the state and county. Such title, however, may be divested by a subsequent tax sale and deed. If the tax-deed under which defendants claim title is valid, then they may ques |