It may be assumed that defendant's agent did not intend by his conduct in delivering the plaster to cause harm. Whether he was negligent depends upon whether he omitted to do something which a reasonable man, guided by consideration which ordinarily regulate the conduct of human affairs, would do, or did something which a prudent and reasonable man would not do.

"Now, a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that, if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant's place should have foreseen as likely to happen, there is no wrong and no liability." Webb's Pollock on Torts, p. 45.

The case, as to the negligence of defendant's agent, is not within special rules, as, for example, it would be if a statute duty had been violated. A jury might find that any man in the business of delivering building material ought to know that it is probably dangerous to pile five tons and more of material, as heavy as plaster, in one pile, in an unfinished dwelling, and that he should have been instructed by his employer not to do so. Defendant's agent was advised, by one having some authority, to whom he had been referred for direction, that such a course was dangerous—told not to put any more in the bay window, but to distribute it. A jury might find that, whether the con

duct of defendant's agent was otherwise negligent, it was negligent in view of the instruction he received from the architect; that he should then have apprehended, if not before, that from what he was doing, and did, evil consequences would probably result. Whether defendant's agent was negligent was a question for the jury. If he understood, or ought to have understood, that by piling the bags as he did he was, probably, creating a nuisance, inviting the evil results which followed, his conduct was negligent.

2. When delivery of goods is undertaken by the seller, and in delivering them he is advised that disposition of the goods in a certain way, at the place of delivery, is dangerous to the structure in which they are placed, and, impliedly, that another disposition is safe, and the delivery is thereafter completed, must the buyer, at his peril, inspect the manner of delivery and disposition of the goods at once, or in any particular time? If the buyer knows of the improper disposition, his duty to prevent harm is clear. And it would seem it would be the duty of any one having knowledge of the unsafe condition created, and the consequences to be apprehended, and who was likely to be affected thereby, to prevent the injury. Preventive action, in view of the precedent negligent conduct of another, is a duty when the negligent conduct is known, or evil effects from known conduct are to be apprehended. As stated in the brief for appellee, from 29 Cyc. p. 502, the principle invoked is:

"Where, after the negligent act, a duty devolves on another person in reference to such act or condition which such person fails to perform, such failure is the proximate cause of the injury resulting from the act."

In its last analysis, the argument of appellee is this: That Johnke owed to plaintiff the duty to ascertain, within a reasonable time, whether his plaster had been bestowed in delivery in such manner as to affect the

integrity, or the safety, of the structure in which it was placed and the safety of persons lawfully there; that, this duty arising, defendant's original negligent conduct was, in law, excused. The cases cited by appellee do not go so far. In Fowles v. Briggs, 116 Mich. 425 (74 N. W. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537), the shipper of lumber which was negligently piled on a car was held not to be liable in damages to the servant of the carrier injured by the movement of the car and lumber after it became the duty of the carrier to provide for the inspection of the car. Lellis v. Railroad Co., 124 Mich. 37 (82 N. W. 828, 70 L. R. A. 598), is a case like, and is decided upon the authority of, Fowles v. Briggs. In Missouri, etc., R. Co. v. Merrill, 65 Kan. 436 (70 Pac. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287), a railway company which had delivered a defective car to a connecting carrier, after which it was inspected by the receiving carrier, was held not liable in damages to an employee of the latter. In Griffin v. Light & Power Co., 128 Mich. 653 (87 N. W. 888, 55 L. R. A. 318, 92 Am. St. Rep. 496), defendant had installed an imperfectly insulated electric lamp on the premises of a customer, who knew of the defect and continued to use the lamp. A third person in using it was injured. It was held that defendant was not liable. In all of these cases, some one other than defendant had assumed a duty which, performed, would have averted the injury, or had done some act which, if properly done, would have averted it. Responsibility for proper conditions had been assumed.

The mutual duties of contractors engaged in performing distinct contracts in the erecting of a building, in receiving and disposing of material, may be somewhat peculiar. It would seem that no one of them might at any time actively disregard the safety of the others and their servants and the duty to so supervise the delivery of material as to bring about no harm

to others might be clear. Whether in any case such a duty exists, and, if it may, the time within which it should be performed, depends upon the facts of the case. In any event, each contractor would still be governed by a reasonable estimate of probabilities. It does not appear that Contractor Johnke knew anything about the condition which was created, or had reason to apprehend that it would be created. Appellee has not made out a case within the governing principle it relies upon. Whether plaintiff was himself negligent is a question not determined by the trial court.

The judgment is reversed, and a new trial granted. BROOKE, C. J., and MCALVAY, KUHN, BIRD, MOORE, and STEERE, JJ., concurred.

LANNIN v. LYNN.

- ADEQUATE REMEDY AT LAW-DEMURRER—

EQUITY ACCOUNTING
PARTNERSHIP-FRAUD-CONSPIRACY.

Averments of complainant's bill that he and one of the
defendants, as partners, were engaged in the contracting
business in the conduct of which they agreed to construct
a building for the other defendant at a certain percent-
age of the cost and that the owner and defendant partner
conspired together to defraud complainant by secretly
changing the agreement so as to provide for a weekly
compensation instead of a percentage of the entire cost;
that the defendant partner also received large sums of
money for which he did not account to complainant, were
insufficient to sustain the jurisdiction of a court of equity
and on demurrer the trial court should have held that

complainant had an adequate remedy at law. MOORE, J., dissenting.

Appeal from Wayne; Murphy, J. Submitted October 15, 1914. (Docket No. 104.) Decided March 17, 1915.

Bill by William B. Lannin against William G. Lynn and Sarah F. Cochrane for conspiracy to defraud and for an accounting. From an order overruling a demurrer to the bill of complaint, defendants appeal. Reversed.

Cornelius & Ring, for complainant.

A. J. Groesbeck, for defendant Cochrane.

A. W. Semplines, for defendant Lynn.

MOORE, J. (dissenting). This is an appeal from the circuit court in chancery from an order overruling demurrers.

The substance of the bill of complaint is that complainant and defendant were building contractors in the city of Detroit, and that they entered into a contract with defendant Cochrane to perform the usual duties of general contractors in the building of a residence for her, which was to cost in the neighborhood of $25,000, for which services Lannin and Lynn were to receive 15 per cent. of what the residence cost, and that the services were rendered, and the percentage earned. It is averred with more detail than we shall state here that the two defendants became very intimate friends, and that this culminated in a conspiracy to defraud complainant.

We quote from the bill of complaint:

"That some time early in the spring of 1911, while said work was in progress, the said William G. Lynn and Sarah F. Cochrane, unknown to your orator at that time, conceived a plan to defraud your orator out of his just compensation arising from said contract;