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in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the court in the like cases in personal actions."

In Wheeler v. Wilkins, 19 Mich. 78, relied upon by appellant, the proceedings in replevin were quashed on motion of defendant. In the order which was made was the provision that the cause "stand for assessment of damages." No notice of assessment was given, and no judgment of waiver of return of the goods was entered, but at a subsequent term the court heard testimony and assessed damages for detention.

if it is constitutional it is applicable, we find no reason for overruling the action of the circuit court. It is affirmed.

SILFVER v. DAENZER.

(Supreme Court of Michigan. Nov. 3, 1911.) 1. APPEAL AND ERROR (8 534*) — BRIEFSBRIEFS NOT MADE PART OF REcord.

Briefs not made a part of the record cannot be considered by this court. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 534.*]

2. APPEAL AND ERROR (§ 1033*)—EXCEPTIONS

-REFUSAL OF REQUESTED INSTRUCTIONS.

Requests for findings filed by plaintiff are of no advantage to defendant on appeal, as only the party whose requests are refused is entitled to complain thereof.

In Hill v. Webber, 50 Mich. 142, 15 N. W. 52, also relied upon by appellant, it appeared that neither party had noticed the cause for trial, although notices for two terms of court might have been given. Three days in advance of the opening of the second term [Ed. Note. For other cases, see Appeal and defendants moved specially for nonsuit, filing and serving copy of affidavit and enter-Error, Cent. Dig. §§ 4052-4062; Dec. Dig. ing the motion in the special motion book. Later, in the absence of attorneys for plaintiff, the motion was granted, defendants filed a waiver of return of the property and submitted proofs of its value, for the amount of which the court at once entered judgment. These cases are not controlling of the pres

ent case.

It

In this case, the cause was noticed for trial at two terms of court, and we assume at the third term. The record is not very complete upon the subject, but we assume from what appears and from the arguments which are made that at the third term the cause was regularly on the calendar and reached for trial. A jury was selected; the plaintiff was called and did not appear. is provided in 3 Comp. Laws, § 10,673, that: "After issue joined in any action of replevin either party may give notice of trial and if neither party shall have noticed the cause for trial, the defendant may move for judgment as in the case of non-suit, in the same manner as in personal actions." We have no such case. We do not understand that defendant was required to accept merely a judgment of nonsuit with such interlocutory order as would continue the cause to some subsequent date; but that, being in court ready for trial, he had the right to then proceed as he might be advised to have his rights determined.

[3] The point that the law violates the Constitution is not much discussed in the brief for appellant. It is suggested, rather than urged, that the appellant will be deprived of his property without due process of law, and, further, that the surety in a replevin bond in justice's court cannot be presumed to have contemplated that in the circuit court, on an appeal, judgment might be rendered against him without a hearing. We shall not seek for infirmity in the statute, and, as it appears to be admitted that

1033.*]

3. JUDGMENT (§ 359*)-DISCRETION OF LOWER COURT-VACATION OF JUDGMENT.

At the trial by the court of a purchaser's action to recover an advance payment on the contract, the purchaser, at the close of the testimony, requested findings of fact and law, but the court entered judgment for him without filing any findings, and defendant moved to vacate the judgment on this ground. Held, that there was no such abuse of discretion in denying the motion to vacate the judgment as to warrant the reversal of the order.

[Ed. Note.-For other cases, see Judgment, Dec. Dig. § 359.*]

4. APPEAL AND ERROR (8 846*) — REVIEW—

TRIAL BY COURT.

Where a cause is tried by the court, and no findings of fact or law are made, its conclu

sions will not be reviewed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3347-3362; Dec. Dig. § 846.*]

5. VENDOR AND PURCHASER (§ 341*)-RECOVERY OF PURCHASE MONEY-PLEADING.

In an action on the common counts to recover an advance payment made on an executory contract for the purchase of land, the plaintiff filed a bill of particulars, stating that his action was brought for money paid on the price of certain lands under an executory contract, which contract was thereafter rescinded by the plaintiff, "for the reason that the defendant did not have, and could not furnish, a good marketable title thereto, and could not perform said contract in accordance with its terms." Held that, though the declaration contained no special count on the contract, evidence as to the contract was admissible under the declaration and the bill of particulars.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 341.*]

6. VENDOR AND PURCHASER (§ 144*) - TITLE OF VENDOR-TIME FOR CURING DEFECTS.

It is not necessary that the vendor have a perfect title at the time of the execution of the contract, but it is sufficient if his title, though defective, may be perfected, and that the contract is made by the vendor in good faith, and that he has such an interest in the subjectmatter of the contract, or is so situated with reference thereto, that he can convey a good title at the proper time; and hence the vendor

is not in default before the time when the con- due season all taxes and assessments, extract requires him to convey.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. 88 271-275; Dec. Dig. § 144.*]

traordinary as well as ordinary, that shall be taxed or assessed on said land, including the taxes thereon for the year 1907. It is agreed by the parties hereto, that the said

Error to Circuit Court, Newaygo County; party of the first part, on receiving payment Clarence W. Sessions, Judge.

Action by Oscar Silfver against George F. Daenzer. Judgment for plaintiff, and defendant brings error. Reversed, and new trial ordered.

Argued before OSTRANDER, C. J., and BIRD, BROOKE, BLAIR, and STONE, JJ. Everett & Riblet, for appellant. William Carpenter, for appellee.

BLAIR, J. This is an action on the common counts to recover the down payment on a land contract because of the vendor's defective title.

The following bill of particulars was filed:

Take notice that the following is a bill of particulars of the plaintiff's demand in this cause, and for the recovery of which this action is brought,

to wit:

1907. Sept. 27. Money paid to the defendant by the plaintiff as a part of the purchase price of the following described lands situated in the township of Sherman, county of Newaygo and state of Michigan, viz: The east half (E. 1⁄2) of the N. E. 4 of section 3; the north half of the S. W. and the S. W. 4 of the S. W. 4 of section 11, all in town 13 N., range 13 W., under an executory contract for the sale thereof made between the defendant and the plaintiff on that date, which contract was thereafter rescinded by the plaintiff for the reason that the defendant did not have, and could not furnish, a good marketable title thereto, and could not perform said contract in accordance with its terms...... 1908. Jan. 25. Paid to Wm. Carpenter for examination of title to said lands and opinion thereon at the request of the defendant

To interest on the above items.

$400 00

15 00

in full of the said principal and interest at the times and in the manner above mentioned, and of all other sums chargeable in his favor hereon, shall and will, at his own proper cost and expense, execute and deliver to the said party of the second part, a good and sufficient warranty deed of said above described land, free and clear of and from all liens and incumbrances, except such as may have accrued on said land subsequent to the date hereof, by or through the acts of negligence of said party of the second part. It is also agreed by the parties hereto, that said party of the second part shall have possession of said land under this contract, on the 27th day of September, 1907."

When the contract was offered in evidence, defendant made the following objections: "We desire to at this time object to any evidence being received under the declaration, for the reason that its being based upon this contract must necessarily have a special count declaring especially upon the contract. We have here a simple declaration on the common counts, and not a special count upon the declaration which is required under the rule of law, as we look at it, and for that reason we object to it as being incompetent. And the further objection that they must aver in their declaration a tender of the purchase money in full and set forth a reason for the nonpayment before he can recover back such of the purchase money as he may have paid on it." The objections were overruled and exceptions taken.

*

At the time of executing the contract, defendant told plaintiff that the title was good, and that he would send him the abstracts. Early in October, 1907, defendant mailed the abstracts to plaintiff at Peoria, Ill., where he resided. Plaintiff submitted them to his attorney at Peoria, who advised him that the title was defective, and defendant was notified to that effect. November 4, 1907, defendant wrote to plaintiff, in part, as follows: "I received your letter a few days ago. I am also in receipt of a letter from T. A. Cameron with abstract for the land enclosed. I note also the objections he makes to title and I now suggest that you place the abstracts with a Michigan attorney for examination, the same to be at my expense if not found good."

By the contract executed September 27, 1907, the defendant agreed to sell to plaintiff, for a consideration of $1,500, 200 acres of land in Sherman township, Newaygo county. The terms of the contract, in part, are as follows: "First party reserves all saw timber, and cedar, with privilege to remove for a period of three years from the first day of April, 1908, for the said sum of fifteen hundred dollars, which said party of the second part hereby agrees to pay to the said party of the first part, as follows: Four hundred dollars on delivery of this contract, receipt being hereby confessed and acknowledged, and three hundred dollars each and every six months until the full amount of the said fifteen hundred dollars is paid. Second party reserves the right to pay on or before the dates above mentioned, with interest on all sums at any time unpaid thereon at the rate of six per cent. per annum, payable with each payment. Said party of the second part also agrees to pay in *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

In accordance with this letter, the plaintiff caused the abstracts to be submitted to Mr. Wm. Carpenter, of Muskegon, for his opinion, which coincided with that of the Peoria lawyer. Prior to April 3, 1908, the abstracts and the opinions thereon were for

Plaintiff testified: "At the time I discovered the defects, I was willing to take the property if those defects were cured. Q. You were willing to allow Mr. Daenzer time in which to remedy these defects if it was necessary? A. Yes."

warded to defendant with a letter addressed | of. to Mr. Daenzer, of White Cloud, Mich., stating that Mr. Silfver desired to call off the deal or rescind the contract which he had made for the purchase of these lands mentioned in this contract in evidence, and that he demanded the return of the money paid by him and of the payment of $15 which he had paid under an agreement with Mr. Daenzer to Mr. Carpenter; that he would not | terial and incompetent for the reason, first, wait longer; that nothing had been done towards perfecting the title thus far, so far as they knew; and that he would wait no longer, and wanted his money and interest upon his money.

On April 3, 1908, defendant wrote to the Peoria lawyer in part as follows: "In reply to your last letter regarding Mr. Silfver money, I will not send it back to him, but I am going to carry out my part of the contract and straighten up the title. I have the abstracts, but my attorney has been out of town. He will return home tomorrow.

* Please tell Mr. Silfver that I have not received the $300.00, with interest, which was due the 22nd of last month. Tell Mr. Silfver to carry out his part of the contract as it calls for. I will have the title straightened up as soon as possible."

On April 16, 1908, defendant's attorney wrote the following letter: "Mr. Fred Daenzer has handed me several abstracts of some land in Sherman township, this county, together with a letter addressed to you by Mr. Carpenter of Muskegon, this state. I am this day writing Mr. Daenzer with a view of getting this matter in hand and I believe that if you will have just a little patience with us that there will be no difficulty in convincing you that Mr. Daenzer has a marketable title and is in a position to convey it to your client."

On March 6, 1909, plaintiff served formal notice of rescission of the contract, and demanded repayment of his money. This was refused, and in July, 1909, this suit was commenced. Upon the trial, defendant's counsel made the following statement: "We might state that we do not claim that the whole of these titles have been perfected up to this time, but I may state that our claim in that connection is that we are not obliged to perfect it; under our claim we have until the fulfillment of the contract on the part of Mr. Silfver in which to complete the perfecting of title, if there are any defects in it."

Defendant testified: "I don't now claim that I have the title all cleared, but pretty nearly all cleared up. I have proceedings pending in court to perfect a portion of the title. There was considerable done towards perfecting the title prior to March 6, 1909. I turned it over to Mr. Riblet two years ago this last March, and he went to work to clear up the title."

The lands in question were wild lands, and

The abstracts of title were received in evidence as Exhibits C, D, E, and F, against defendant's objection that they were "imma

that the plaintiff here cannot recover without first tendering the performance of the contract on his part, and tendering possession back to the defendant, Mr. Daenzer. There is further reason that they are incompetent under the pleadings. The Court: You mean because the declaration does not set forth the contract with the special count? Mr. Everett: That is one thing; yes." Exception was duly taken.

Defendant further excepted to the refusal of the court to strike out the testimony of Mr. Carpenter that he had never received notice of the perfection of the titles, "for the reason that it is immaterial under our view of the case; we will claim and now claim that the plaintiff cannot recover, for the reason that he has not paid the entire purchase price stated in the contract, nor tendered it, and until that time he cannot recover, and for that reason any evidence with reference to this title is absolutely immaterial."

The case was tried by the court, and after the close of the testimony and the argument the plaintiff made and filed a request for findings of fact and law, and "the defendant presented to the court such points of law as the defendant deemed material."

The court entered judgment for plaintiff without filing findings of fact or of law. Defendant moved for an order vacating the judgment, "so that the request of findings of fact and law now on file in this court may and will have legal effect, for the following reasons: (1) Because to vacate and set aside the judgment for the purpose above mentioned will give the defendant the right to review said case in the Supreme Court of this state on all questions which would be open to him. (2) Because if said judgment was not set aside and vacated, and the defendant given the right to file the request for findings of fact and law prior to the entry of judgment, it would deprive him of right and justice. (3) Because said defendant believed that on account of the filing of request for findings of fact by the plaintiff's attorneys in this case that findings of fact and law would be filed prior to the entry of judgment." This motion was denied and exception taken.

Defendant alleged various exceptions to the rendition of judgment, and brings the record to this court for review upon writ of error. The assignments of error raise the following questions: (1) Did the court err

evidence being received under the declara- amount due and demand a deed is of no imtion? (2) Did the court err in permitting portance, since he never undertook to avail Exhibits C, D, E, and F to be received in himself of the right. At the time plaintiff evidence? (3) Did the court err in denying | brought suit, he, and not the defendant, was defendant's motion to strike out the answer in default. It was not necessary that deof witness Carpenter to the question, "Were you ever notified by Mr. Riblet or Mr. George F. Daenzer of the perfection of those titles?" (4) Did the court err in not filing findings of fact and law before entry of judgment? (5, 6) Did the court err in ordering judgment to be entered for the plaintiff? (7) Did the court err in denying defendant's motion to vacate the judgment rendered herein? (8) Did the court err in allowing plaintiff to put in evidence concerning the title of the land described in Exhibit A?

fendant should have had a perfect title at the time of making the contract. It is sufficient "that the contract is made by the vendor in good faith, and that he has such an interest in the subject-matter of the contract, or is so situated with reference thereto, that he can convey a good title at the proper time." 29 Ency. of Law, 608; Dresel v. Jordan, 104 Mass. 407.

The judgment is reversed, and a new trial ordered.

1. RAILROADS (§ 348*)-PERSONS ON TRACKPERIL EVIDENCE.

[1-3] The brief in which defendant claims to have presented the points of law deemed material in alleged compliance with circuit FOX v. CHICAGO, ST. P., M. & O. RY. CO. court rule 26 is not made a part of the rec-(Supreme Court of Wisconsin. Nov. 14, 1911.) ord, and is not therefore before us for consideration. The rule, however, as well as the statute, contemplates the filing of re quests which shall apprise the court of the demand for such findings. Doubtless counsel in this instance relied upon the requests for findings filed by plaintiff, which, in our opinion, were of no advantage to him. Only the party whose requests are refused is en

titled to complain. We are also of the opin

ion that there was no such abuse of discretion in denying the motion to vacate the judgment as to warrant the reversal of the order.

In an action for death of a watchman at a railroad crossing, evidence held insufficient to warrant finding that the members of the switching crew on the engine by which decedent peril on the track in front of the moving engine, was struck must have seen him in a position of if they kept a lookout in approaching and passing over the crossing, and were therefore guilty of gross negligence.

Dec. Dig. § 348.*]
[Ed. Note. For other cases, see Railroads,

2. RAILROADS_(§ 312*)-PERSONS ON TRACK-
DEATH OF WATCHMAN-GROSS NEGLIGENCE
-OMISSION TO KEEP LOOKOUT.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 988-1003; Dec. Dig. § 312.*] 3. RAILROADS (§ 348*)-CROSSING ACCIDENTEVIDENCE.

In order to predicate gross negligence on [4-6] It follows that the only questions the failure of those running a switch engine over crossing to keep a lookout for persons on properly presented for our consideration are the crossing, it must appear that the passing those raised by the assignments of error of the crossing without lookout, under the cirbased upon exceptions to the rulings of the cumstances, was such reckless and wanton concourt upon the admission of testimony.duct as to suggest that the operatives of the engine were wholly indifferent as regards the Markey v. Life Ins. Co., 164 Mich. 350, 129 rights and safety of persons whose peril of beN. W. 694. We are of the opinion that the ing injured they must have known. court did not err in overruling defendant's objection to the taking of any testimony under the declaration. Wright v. Dickinson, 67 Mich. 580, 35 N. W. 164, 11 Am. St. Rep. 602. Taken together, we think the assignments fairly present the main question in the case, viz.: Can the vendee in an executory contract for the purchase of lands rescind the contract and recover the portion of the purchase price paid because of defective title to a portion thereof in advance of the time when, by the terms of the contract, the vendor is bound to convey?

In considering this question, it is to be borne in mind that this is not a case where the vendor had no title at all, and was not in a position to acquire title, but is a case of defective title to a portion of the land, which was susceptible of being perfected, and which, according to the undisputed testimony, would be perfected by decree in the case pending for that purpose. The fact that by the terms of the contract the plaintiff was entitled to pay at any time the entire

In an action for death of a railroad watchman at a crossing, evidence held insufficient to warrant a conclusion that the engine crew, as they approached the crossing, was apprised of other persons from the engine. any actual or known dangers to decedent or

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 348.*]

Appeal from Circuit Court, Eau Claire County; James Wickham, Judge.

Action by Garry M. Fox, as administrator of the estate of Dennis E. Fox, deceased, against Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action to recover damages for personal injuries to Dennis E. Fox, and for his death, alleged to have been caused by the gross negligence of the defendant.

North Dewey street in the city of Eau Claire passes over a hill and runs north and

south. In a curve on the hillside, four of the locomotive of the logging train saw tracks of the defendant cross North Dewey the deceased standing in the road between street, running in an east and west direction. the street railway tracks and the sidewalk An interurban railway track on North Dewey to the south of the track occupied by the street crosses the tracks of the defendant. logging train. He was unable to state posiThere is a sidewalk along the westerly side tively whether or not the deceased was of North Dewey street, and to the west standing between the rails of the southernof the sidewalk is a shanty belonging to the most track of the defendant, or whether or defendant. There is a large amount of not he stood south of the track. Mr. Fox travel on this street across the tracks of the carried a lighted green lantern in his hand. defendant, and pedestrians cross the street The brakeman did not observe whether Mr. anywhere. No gates are maintained at this Fox was facing the logging train. He was crossing by the defendant, but by an ar- unable to see sufficiently distinctly. None of rangement between the defendant and the the rest of the crew on the logging train interurban company a night watchman at saw Mr. Fox. this point is paid his wages by the inter- On engine No. 28 were the fireman, the urban company, and has shelter in the shan-engineer, and three brakemen. Their evity of the defendant, and receives his lantern and other supplies from the defendant. For some time prior to February 17, 1908, Dennis E. Fox had been such night watchman; his hours of work being from 6 o'clock in the evening until 6 o'clock in the morning.

About 7:30 o'clock on the evening of February 17, 1908, the body of Dennis E. Fox was found lying six or eight feet west of the sidewalk on the west side of North Dewey street, between the two most southerly of the four tracks of the defendant. The legs were severed from the body, and lay between the rails of the southernmost track a few feet east of where the body lay. On the north rail of this track, for a number of feet east of where the body lay, were flesh marks. Mr. Fox was still breathing when discovered, but was unconscious and died in a few minutes. Some cinders had been ground into the skin of the face, and there was a bruise upon the forehead.

dence in effect is that the engine backed to its destination; that the tender was before them; that the engineer and fireman were each looking at the track ahead of the tender; that two of the brakemen were also watching the track; that the bell on the engine automatically began to ring when the engine started, and that it continued ringing while the engine was crossing the street; that there was a headlight on the tender, and that the light from it struck the ground about 12 feet in front of the tender; that in coming around the curve the track would be visible from the cab only two or three car lengths in front of the tender; that the posts on the flat cars making up the logging train on the curve made practically a solid obstruction to a view across the cars; that the place where the brakeman testified that he saw the deceased standing was not clearly lighted by the electric lights of the street, and was in the shadow of some tall trees; that none of It appears from the evidence that about them saw the deceased or his lantern, that 7 o'clock on the evening in question the they felt no jar from passing over his body; regular passenger train of the defendant left that the tender was ahead of the engine, the depot just east of North Dewey street and that any jar to the tender could not be and passed west over the track on which felt in the engine cab, and that the engine the body was found. At 7:15, a freight was not going to exceed six miles an hour train, consisting of 24 empty logging flat when it passed over the street. There was cars, started from the depot and passed west evidence that this engine could have been over the crossing on the track next north stopped within 15 or 20 feet when going of the one on which the body was found. two or three miles an hour, and within 25 Shortly after the freight train pulled away feet if going 12 miles an hour. Engine No. from the station, engine No. 28, a switch 28 had a sloping tank for the special purengine used in the yards, left a point a lit-pose of giving its occupants a clear view of tle west of the station and passed west over the track over it. Mr. Fox's lantern and the crossing on the track on which the body cap were found upon the running board of was found. Engine No. 28 passed over the the tender when the engine arrived at Dells crossing after the engine of the logging train switch, a few miles beyond the street crosshad passed it, and while the flat cars were ing. passing it, but before the caboose of this train had passed over the crossing.

The plaintiff, a son of the deceased, was a conductor on an electric interurban car. He testified that at about 7:10 o'clock on the evening in question he passed the time of day with his father at a point just east of the sidewalk on North Dewey street and a few feet south of the defendant's southern

At the close of the testimony, the court directed a verdict for the defendant, on the ground that the evidence would not warrant an inference that the defendant's agents and employés had been guilty of gross negligence, as alleged in the complaint. This is an appeal from the judgment entered on the verdict as directed.

Fred. Arnold, for appellant. Bundy & Wil

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