Just coming back with his wheelbarrow. | My nephew dumped the bucket in Brown's barrow. The wheeler was there, and the barrow stood waiting Brown's return. My nephew was standing on one side, the dumper on the other,-the bucket swinging back and forward. Brown got in between the handles of his barrow, when it broke down." The captain of the barge and others gave the same version of the accident. Defendants also gave testimony tending to show that they had plenty of good material to make scaffolding from; and one of the men working upon it, and who helped build it, testified that he selected this timber that broke from a pile of lumber in defendants' mill-yard, which is just adjoining the dock, and that it was a new piece.

There seems to be no controversy but that Mr. Reid set the men to build the scaffold, and that the plaintiff was not there at the time. Neither does there seem to be much controversy as to the position which Reid occupied. Defendant Bedford testified that "Reid was acting in the capacity of a kind of foreman, looking after unloading boats, and attending to the freight business generally." On the question of the defendants' providing plenty of suitable and good material of which to construct the scaffold, some considerable testimony was given, from which it appears, under the testimony of Mr. Reid, that the material for this structure was kept piled upon the dock beside the coal bin; that the defendants had about 15 dock horses, and two sets of dock horses to go on the boat, and 20 to 25 running boards, and lots of cross-pieces. And Mr. Reld testifies that he did not think the stick which broke could have been knotty or worm-eaten, "because there is lots to put in there," and that he stood there, and told the men who put this scaffold up, “if there was not enough there, there was lots in the mill-yard. ' Mr. Otto Redman, working on the platform, says that he helped put the scaffold up; that the stick was a piece of Norway; and that they picked it out for themselves to work on, and had a whole pile in the mill-yard to select from.

The contention of the defendants' counsel is (1) that the defendants provided plenty of suitable and good materials of which to construct the scaffold; (2) that they placed the oversight and charge of building it with a competent and fit servant; (3) that the same was put up under the direct personal supervision and direction of Reid, the defendants not being present, or superintending or directing in person the erection, or the selection of the materials of which it was composed. Counsel claims from these facts it follows, as a matter of law, that defendants had discharged the full measure of their duty towards the plaintiff; that is, that when the master has furnished all necessary and proper and safe material, and a competent and fit foreman to whom he întrusts the whole supervision of the work being carried on, he is no longer responsible, and for the negligence of the foreman he cannot be held responsible. This claim is based upon the proposition that Reid is the fel

low-servant of the plaintiff, and if this is true the learned counsel is correct in his conclusions; but if Mr. Reid was a superior servant, standing in the place of the master, then the master would be held lia

ble.

This is a question upon which the courts are not in harmony, and each case is so dependent upon its own peculiar facts that it is difficult to lay down any general rules by which all cases can be governed. Here the facts are that the defendants gave over to Reid the entire charge of selecting the materials, and putting up the scaffold, and unloading the coal; and he had authority, or at least exercised it upon that occasion, to employ the men to do the work. This of itself is strong evidence that he stood in the place of the defendants, representing them in the work, and not an ordinary employe. employe. The contract of employment with the plaintiff was that he should have a safe place to work, and the law imposed upon the defendants the duty to furnish such a place. If the scaffold had been erected under the supervision and direction of one of the defendants themselves, and the casualty had occurred, as claimed by the plaintiff, by reason of the defective, worm-eaten, and knotty timber, which the defendants knew, or by reasonable care could have discovered, was dangerous in that place, then the plaintiff would have had the right to recover for such injuries, unless himself negligent. I am not prepared to say that the master, under such circumstances, can shift his responsibility by the selection of a foreman; and I do not understand that this doctrine has ever been held by this court. Counsel cites Mining Co. v. Kitts, 42 Mich. 34, 3 N. W. Rep. 240, as upholding that doctrine and sustaining his position. The rule is expressly laid down in that case that "the duty of due care in the employment and retention of competent servants is one the master cannot relieve himself of by any delegation; and, if it becomes necessary to intrust its performance to a general manager, foreman, or superintendent, such officer, whatever he may be called, must stand in the place of his principal, and the latter must assume the risks of his negligence." While it is true that, under the circumstances of that case, it was held that the company could not be held liable, yet it is expressly stated that the court looked in vain for any evidence appearing in the record that Wager was negligent. Some general rules were laid down in that case, but they related to the case then in hand, and which were very different from the present. Counsel also cites Hoar v. Merritt, 62 Mich. 386, 29 N. W. Rep. 15, as sustaining the rule. But a critical examination of that case shows a very different state of facts than the present. There the defendant, Merritt, in building his house, furnished plenty of good materials, which were actually used in building the scaffold. He had an architect employed by the month; and competent carpenters, acting under him, built the scaffold for their own use in putting up the cornice to the building. After the cornice was completed the defendant employed Mr. Zryd to do the painting. The plaintiff was engaged by Zryd to assist in

It is not sufficient, to invalidate a foreclosure sale, to show that part of one lot was fenced and cultivated, and that the adjoining lot was unfenced.

4. There was no evidence that defendant Herrick obtained the contract from Israel Harris by undue influence or fraud. On the contrary, she paid a valid and valuable consideration therefor. She had no knowledge that Israel had made any payments to Creveling upon the contract out of the funds of the estates of either Myron or Miriam. The title of both Israel and of complainants had been cut off by the foreclosure sale and deed. As affecting the title of the defendant Herrick, the records of the deed from Israel to Myron, and of Myron to Miriam, were wholly immaterial. They do not in any manner affect the validity of her title. She was a purchaser in good faith. The decree of the circuit court must be affirmed, with costs.

CHAMPLIN, C. J., did not sit. The other justices concurred.

(80 Mich. 234)

GREEN V. SOLOMON. (Supreme Court of Michigan. April 18, 1890.) STATUTE OF FRAUDS - SUBSTITUTION OF DEBTORS.

In an action on an hotel bill contracted by a third person, evidence that defendant verbally promised to pay the bill on its presentation to the third person, and that plaintiff never afterwards looked to the third person for its payment, supports a finding that it was understood that the third person should be released, and defendant substituted as debtor.

Appeal from circuit court, Iosco county; WILLIAM H. SIMPSON, Judge.

Action by Willard N. Green against Rachael Solomon for an hotel bill contracted by Richard P. Pearson. Verdict and judgment for plaintiff, and defendant appeals.

Henry & Cornville, for appellant. McCutcheon & Elliott, for appellee.

MORSE, J. The plaintiff brought suit in justice's court against the defendant for $57.30, the amount of an hotel bill against one Richard P. Pearson, and recovered judgment. On appeal to the circuit court for the county of Iosco the plaintiff again had judgment. There was no dispute as to the items or amount of the bill. It was claimed by the plaintiff that at his hotel in Au Sable, in the presence of Pearson and one Selig Solomon, the husband and agent of defendant, the bill against Pearson was made out and presented; that thereupon Solomon agreed that his wife would pay the debt, and upon such assumption of the debt he released Pearson. It is conceded that Selig Solomon was the agent of defendant, and had authority to bind her. The defendant claimed that her agent simply promised to pay the Pearson account to Green in case, on settlement between her and Pearson, it was found there was anything due to Pearson from her upon a lumbering contract between them; that, instead of being indebted to Pearson, it was ascertained that he owed her a large amount; therefore she was not obligated to pay the account, and refused

to do so. The case was tried before a jury.

The defendant contends, first, that there was no testimony tending to show that plaintiff ever released Pearson, or agreed to do so; that the whole case of the plaintiff shows that Pearson at the hotel gave him an order for the bill on defendant, and that Selig Solomon, coming into the room, agreed for defendant that she would pay it; that it was simply a promise on his part to pay Pearson's debt, and within the statute of frauds.

We think there was testimony, if believed by the jury, sufficient to support plaintiff's claim. The defendant submitted the following special questions to the jury, which were by them answered in the affirmative: (1) Did Green, Pearson, and Solomon meet at the Winchester about the 2d of March, 1888, and there make a novation of the debt in question from Pearson to Solomon for Green's benefit? (2) At the meeting in the Winchester, did Solomon understand that Pearson was to be unconditionally released, and Solomon held for the debt in question? (3) Was it agreed between Green, Solomon, and Pearson, at the meeting in the Winchester about March 2, 1888, that Pearson was released from the debt in question? (4) At any time did Solomon, Green, and Pearson meet, and all understand that Pearson was to be released from the debt in question, and Solomon held therefor?

The defendant insists that there was absolutely no evidence tending to show that plaintiff ever released Pearson from the debt, but plaintiff, in answer to a question whether he afterwards held Pearson for it, testified: "No, sir; I never looked to him after that." Enough took place, according to the testimony of plaintiff's witnesses at the hotel, to warrant the jury in finding that Pearson was there released, and defendant accepted for the debt. Pearson was lumbering under a contract with defendant, and defendant was furnishing him advances and supplies, and was supposed to be owing Pearson at the time. Plaintiff and his clerk, Howard, and Pearson were present. Plaintiff told Howard to hand Pearson his account, which he did. Pearson said: "I will give you an order on Solomon for this. Plaintiff said, ‘All right.' Howard drew this order. About that time Solomon came in, and Howard says, 'Here is an order, Mr. Solomon, will you accept it? who answered: 'It is all right; I will pay it. I cannot pay it just at present. I have a large sum of money to pay in a few days.' Howard turned to plaintiff, and asked him if that was all right, and plaintiff replied, 'Yes; his word is good for it.'" As plaintiff never looked to Pearson afterwards, it would seem that the understanding and agreement there was plain enough that Solomon should pay the debt, and Pearson be released. It must have been so understood by all. In view of the special findings of the jury, the other errors assigned become unimportant, and need not be noticed. The judgment is affirmed, with costs. The other justices concurred.

(80 Mich. 218)

BURTON V. TUITE, City Treasurer. (Supreme Court of Michigan. April 18, 1890.)

PUBLIC RECORDS-EXAMINATION.

The "stub receipt books" in the office of a city treasurer, which contain the data, record of canceled tax certificates, and of lots sold for delinquent city taxes, and afterwards redeemed, are public records, within the meaning of Act Mich. 1889, No. 205, which provides that officers having the custody of any county, city, or town records shall furnish proper and reasonable facilities for the examination of the records and files in their all persons having occasion so to use them for any

offices, and for making memoranda therefrom, to

lawful purpose.

On petition for mandamus.

Act Mich. 1889, No. 205, provides that the officers having the custody of any county, elty, or town records shall furnish proper and reasonable facilities for the inspection and examination of the records and files in their offices, and for making memoranda or transcripts therefrom, to all persons having occasion to make examination of them for any lawful purpose.

Henry A. Chaney, for relator. John W. McGrath, for respondent.

MORSE, J. The respondent is city treasurer of Detroit. The relator is engaged in the abstract business in said city. We held, upon application of the relator for mandamus, (see Burton v. Tuite, 44 N. W. Rep. 282,) that certain records in said treasurer's office were public records, and that relator had a right to examine them, and to make memoranda or transcripts therefrom under Act No. 205, Pub. Acts 1889, subject to such proper and reasonable regulations as the treasurer might make consistent with the public use of such records. Our order in the case, as made and entered in the journal on the 8th day of January, 1890, commanded the said Tuite not only to allow the relator to inspect and examine the particular records involved in that case, but also to generally furnish to him and his subordinates reasonable and proper facilities for the inspection and examination of the records and files in his office, and for making memoranda and transcripts therefrom in compliance with said above-named act of the legislature. In the opinion, as well as in the order, of this court we meant to so express our views and commands as that there should be no mistake or misunderstanding as to the rights and duties of the respective parties to this controversy. But we are now called upon to enforce our order. January 13, 1890, a petition was filed in this court by the relator showing the proper service of our writ of peremptory mandamus upon respondent, and setting forth that, notwithstanding our order and command therein contained, the respondent had since said service refused to allow relator to have access to or look at certain other public records in said office of the city. treasurer, to-wit: One book containing the record of the certificates of tax-sales that have been canceled; one book containing a list of such lots as have been sold to the city of Detroit, or to individuals, for special city taxes, and have been from time to time redeemed; and a book containing a list of such lots or parcels of land in the city of Detroit as have

been heretofore sold to said city for delinquent city taxes, said sales being afterwards assigned by the city to individuals. issued an order to the said Thomas P. Upon this petition, January 15, 1890, we Tuite, to show cause why he should not be punished for contempt and disobedience of the said writ of mandamus of date January 8, 1890. Respondent answered this order on the 28th day of January, 1890, denying that the above-named books were public records, or that the relator had any right to examine them under the statute,

or our decision and order above stated. The books in question were denominated by the respondent as "Stub Receipt Books," and it was insisted in said answer that the same were not public records, but mere memoranda for the convenience of the office, and that all the data contained therein is entered in the "Record Books, which are accessible to relator. It was, however, admitted upon the argument that the transferring of the data upon these stub books to the record books might be delayed for days or weeks, at the pleasure of the respondent. After hearing both parties by counsel upon the petition and answer, we directed certain interrogatories to be served upon the respondent, to be answered by him under oath, and that other proofs be taken touching the truth of the matters involved in the petition and answer, as well as the nature and character and use of said books. The answers to said interrogatories and other testimony taken have been returned to us. We do not intend to again go into the discussion of the questions that were settled by us in the first opinion filed in this case. We are satisfied that the books referred to, by whatever name they are called, are public records in the treasurer's office, in the full sense of the statute, and under the opinion above referred to; that the respondent is guilty of contempt and disobedience of the order of this court in refusing to the relator the privilege of examining them, and making transcripts thereof. We think, however, that this disobedience has occurred, not so much from a willful disregard of our command, as from bad advice. Under the circumstances, we are not disposed to impose a heavy penalty, but we hope that our orders will hereafter be strictly complied with, and without delay or attempted evasion, as the fine in this case will not stand as a precedent in any future case of disobedience of the mandates or decrees of this court. An order will be entered adjudging the said Thomas P. Tuite guilty of contempt and disobedience of our aforesaid writ of mandamus, and that he pay to the people of the state of Michigan a fine of $25, with the costs of this proceeding to be taxed by the clerk of this court; such payment to be made to said clerk within 10 days after a copy of such order shall be served upon him. The other justices concurred. (80 Mich. 222)

EVERTS V. EVERTS. (Supreme Court of Michigan. April 18, 1890.) PASSIVE TRUSTS.

In a deed, executed by complainant's hus band without consideration, granting lands to de