dice of the lien of said attorneys in said fund; provided defendant, relator here, had notice of such lien. We think that this view is fully supported by the following decisions of this court: Weeks v. Wayne Circuit Judges, 73 Mich. 256, 41 N. W. 269; Carpenter v. Myers, 90 Mich. 209, 51 N. W. 206; Heavenrich v. Alpena Circuit Judge, 111 Mich. 163, 69 N. W. 226; Simon v. Pack, 115 Mich. 669, 74 N. W. 185; 1 Jones on Liens, 2d ed., secs. 43, 62, 223, 224. Of course we recognize the rule that in this state there would be no lien before judgment, except by special agreement. 2. Did the defendant in that suit, relator here, have notice or knowledge of said lien? It will be borne in mind that Benjamin & Quay, in their letter to Mr. Campbell, of date June 11, 1909, said: "We wish to notify you that we have a lien upon any money which Mr. Foley may obtain, either by judgment or settlement, for our services rendered, and in case your company settles direct with Mr. Foley without our knowledge or consent, we shall have to hold you responsible for the amount of our fees." 190 In our opinion this was sufficient notice to put the defendant in that suit upon inquiry: Weeks v. Wayne Circuit Judges, 73 Mich. 256, 41 N. W. 269; Jackson etc. R. Co. v. Davison, 65 Mich. 437, 37 N. W. 537. In Young v. Dearborn, 27 N. H. 324, it is held that, if a party obtains a discharge of an action under such circumstances as ought to have put him on inquiry as to the claim of the attorney, the discharge will be void as to the attorney as it would be after actual notice of his lien. If the party defendant acts in the face of circumstances which are sufficient to put him on inquiry, he acts contrary to good faith, and at his peril. Defendant knew that plaintiff's attorneys could have no lien before judgment, except by express agreement. We think that notice of lien on amount of settlement was equivalent to saying there was an agreement. It was not necessary that plaintiff's attorneys should apprise the relator of all and the exact terms of their special contract in order to put it upon inquiry. What would have been the effect had plaintiff's attorneys served a copy of their agreement of February 17, 1908, upon the defendant, relator? A careful examination of such agreement will show that there is nothing in its terms to prohibit Foley from settling his case with the defendant. It says: "It is hereby agreed that said second parties, as their fees, shall receive one-half of whatever judgment or settlement they shall obtain from the said railroad company, and in case first party does not recover judgment, or obtain a settlement, then second parties shall receive no pay for such services as they may render in said cause; and second parties shall have a lien on any judgment or money that may be obtained from said railroad company. First party to pay all witness fees, second party all other clerk and county fees." We think that here is a clear recognition of the right of Foley to settle said cause, but not to the prejudice of the lien of one-half thereof. In their letter to Mr. Campbell of June 11, 1909, Benjamin & Quay say: 191 "We wish to notify you that we have a lien upon any money which Mr. Foley may obtain, either by judgment or settlement, for our services rendered, and in case your company settles direct with Mr. Foley without our knowledge or consent, we shall have to hold you responsible for the amount of our fees." Manifestly, there is nothing here to prohibit a direct settlement with Mr. Foley, but there is notice that defendant will be held responsible for the amount of the attorneys' fees. 3. We agree with respondent's counsel that, in order for them to be able to proceed in the original suit for the purpose of recovering their fees under their agreement, it was necessary for them to have the stipulation of settlement and discontinuance set aside, or stricken from the files: Potter v. Hunt, 68 Mich. 242, 36 N. W. 58; Kittridge v. Toledo etc. Ry. Co., 53 Mich. 354, 19 N. W. 32. This does not interfere with defendant's right to prove its agreement at the trial. Foley's cause of action was one that would survive upon his death, and he had a right to assign an interest in it. We have already discussed the terms of that agreement. They were consistent with his right to settle the case, but not to the prejudice of his attorneys' agreement for fees. 4. We have no doubt that the proper and better practice is for the plaintiff's attorneys to proceed in the cause, upon the forming of a proper issue, to recover the amount of their fees. This is an adequate remedy, and seems to be supported by the decisions in this state, already cited upon the first point, and by the great weight of authority in other states. While it has been severely criticised as illogical and clumsy, yet it has been upheld. In Miedreich v. Rank, 40 Ind. App. 393, 82 N. E. 117, the court, in speaking of the practice, said: "This procedure has been designated as clumsy, and it has been said that it was a device of the courts, not of the legislature, and sprang from the necessity of providing some remedy against fraudulent settlements. The necessity 192 is no less at this time in Indiana than it was in England years ago, when the procedure was first followed." In our opinion the proper practice will require the plaintiff's attorney in said suit to present to the court in proper form, by petition or otherwise, their alleged agreement and their claim thereunder. The defendant in that suit will, under circuit court rule 9, be permitted to give notice of its alleged settlement agreement, in the nature of a plea puis darrein continuance. (a) Upon the trial it will devolve upon the plaintiff's attorneys to show that their agreement with Foley was duly made, and was in good faith. (b) It will devolve upon the said defendant to prove the making of the alleged settlement agreement with Foley, and that the settlement was made in accordance with its terms. (c) Should both agreements be established by evidence, plaintiff's attorneys will be entitled to recover, in the name of said plaintiff, the amount of their fees as shown by their said agreement with Foley, upon the basis of said settle ment. (d) Should the said plaintiff's attorney establish their agreement with said Foley as valid and binding, and should the defendant fail to show the making of said settlement agreement, and a settlement with Foley thereunder, then and in such case the plaintiff's attorneys will be permitted to prosecute the said original action, and prove the plaintiff's case, as though there had been no attempted settlement, and recover their contract share of any damages awarded. (e) Should the plaintiff's attorneys fail to prove and establish as bona fide their alleged agreement with said Foley, then they will not be entitled to recover any sum whatever. It follows logically from what we have already said, that the finding of the respondent, marked above "1," wherein he found that the agreement of said plaintiff's attorneys with said Foley was legal and binding, should 193 be vacated and set aside. The finding above marked "3," wherein the respondent found that said defendant's alleged settlement agreement with said Foley was collusive, and made with the intent to defraud said plaintiff's attorneys, should also be vacated and set aside. Both of said findings were made upon affidavits, and were unauthorized. The statements contained in the affidavit of Maxwell W. Benjamin are largely hearsay, and such findings were not warranted by any evidence: Voigt Brewing Co. v. Wayne Circuit Judge, 103 Mich. 190, 61 N. W. 343. That part of said order, marked above "6," will be so modified as to permit an issue to be framed as above indicated. The remainder of said findings and order will stand. We have examined with care the authorities cited by counsel, but we refrain from quoting them here, for the reason that we find authority for the course here indicated in our own decisions. The writ will issue in the modified form above indicated, but without costs. Moore, McAlvay, Brooke and Blair, JJ., concurred. The Validity of Contracts Between Attorney and Client is the subject of a note to Shirk v. Neible, 83 Am. St. Rep. 159. The Right of an Attorney to Continue a Suit, for the purpose of enforcing his lien for compensation, after his client has settled with the adverse party, is considered in the note to Cameron v. Boeger, 93 Am. St. Rep. 175. HUGHES v. CITY OF DETROIT. MUNICIPALITY-Liability for Streets in Hands of Contractor. Under a statute requiring a city to keep its streets reasonably safe and fit for public travel, a city cannot relieve itself of the liability by turning over a street to a paving contractor. (p. 507.) MUNICIPALITY-Notice of Defects When Street is Being Paved-Where, in an action against a city by a pedestrian for injuries received from walking on planks placed by a contractor at a crossing while he is paving the street, there is evidence tending to show that the planks had been in the condition they were at the time of the accident for several days prior, and the paving has been under the supervision of the department of public works, and the city has authority to have an inspector in charge of the street, the question of notice of the condition of the planks to the city is properly submitted to the jury. (p. 507.) MUNICIPALITY-Planks for Use While Street is Being Paved. In an action against a city by a pedestrian for injuries received from walking on planks placed at a crossing by a contractor while he is paving the street, the fact that plaintiff had crossed over there in the morning of the day of the accident may be considered as bearing upon the question of the use of the crossing in its then condition by the public. (p. 507.) MUNICIPALITY-Planks for Use While Street is Being Paved. Where a pedestrian is injured while walking over planks placed at a crossing by a contractor while he is paving the street, the contributory negligence of the pedestrian and the condition of the planks are ordinarily questions for the jury. (p. 507.) TRIAL Misconduct in Cross-examination and Argument.-In an action against a city for injuries received by a pedestrian walking on planks at a crossing which a contractor supplied for the use of the public while he was paving the street, it is reversible error to permit, over objection, plaintiff's counsel on cross-examination to 'question a witness in regard to the contractor's bond, and on argument to remark, "Why does the city take this bond from the contractor if it is not to cover just such cases as this?" (p. 507.) TRIAL Misconduct of Counsel in Argument. It is cause for reversal for plaintiff's counsel in a personal injury case to state in his argument to the jury: "Would you take all the money in the city of Detroit and have your sister go through with what this young woman has gone through with? . . . . You have anybody crippled in the family, or where their usefulness is gone, and see how they stand the care, and wear away whatever affection there may be. . . . . As my associate said, you would not take that injury for all the money that could be piled up in front of us." (p. 508.) Edmund Atkinson and P. J. M. Hally, for the appellant. George P. Codd and A. B. Hall, for the appellee. 284 MCALVAY, J. Plaintiff recovered a judgment against defendant in an action for damages for personal injuries. Defendant upon writ of error has appealed to this court for reversal on account of errors committed upon the trial. 285 At the time of the injury, and for some time previous, Townsend avenue, in said city, which runs north and south, was being paved with cedar blocks on concrete foundation from Mack avenue north to Gratiot avenue by W. W. Hatch Sons' Co., under contract with the department of public works of Detroit. Plaintiff lived on the west side of Townsend avenue, between Mack avenue and Sylvester avenue, about one hundred feet south of Sylvester avenue. Plaintiff was injured July 1, 1907. In constructing this pavement the excavating is first done, the roadbed prepared to receive the concrete foundation, and the blocks are then put in. At the time of the injury the concrete foundation was finished from Gratiot avenue south nearly to Sylvester avenue. Grading across and south of Sylvester avenue past plaintiff's home had been completed ten days. The concrete foundation at and south of Sylvester avenue had not been put in. Curb had been set the entire length of the street. Cedar paving blocks had been piled all along the street between the curb and the sidewalk. Work on this pavement at Sylvester avenue and south had been suspended for about ten days, and was not resumed at the time of the accident. At the southeast corner of Townsend and Sylvester avenues a pile of earth about one foot high had been thrown out of the excavation on the crosswalk over Townsend avenue. The excavation was at least twenty inches deep. Two planks had been placed side by side at this point, the lower ends resting on the bottom of the excavation, and the upper ends upon the top of the curb. Plaintiff had frequently gone over the street while the work was progressing. Across the roadway of Sylvester avenue on the east side there was a barrier, and red lights were hung. Toward evening on the day of the accident plaintiff left her home on Townsend avenue, on her way to her sister's home on Sylvester avenue to the east. She proceeded north on the west side of Townsend until she came to Sylvester, and, turning east, crossed Townsend by going into the excavation and up these planks, then east 286 along the south side of Sylvester to her sister's. She returned in a short time by the same route, carrying a basket in her hand. At the intersection of these streets, before starting to cross Townsend, she stopped to talk with Mr. Grundy, who was sitting on the steps of his store at that corner. She then proceeded on her way home, and, reach |