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tion of the execution of the contract, and other questions connected therewith. The rulings of the court in this respect were correct.
5. Each of the defendants filed an affidavit with his plea, denying the execution of the contract. The court charged the jury that the burden of proof was on the defendants to show that the contract was not executed. In this the court clearly erred. Whenever the execution of an instrument sued on is denied by affidavit under circuit court rule 79, the burden of proof is upon the plaintiff to show the execution of the instrument. No instrument is executed until delivered. In such case, delivery, which is an essential part of the execution, cannot be inferred from possession. The burden of proof remained throughout the trial upon the plaintiff.
6. The court admitted an unsigned memorandum of an agreement drawn up by Parker previous to the contract sued on as rebutting testimony. He testified that it was drawn pursuant to instructions or conversations, but from whom or with whom does not appear. Its admission was error. It was wholly incompetent and immaterial.
Judgment reversed, and new trial ordered.
CONTRACTS IN WRITING PAROL EVIDENCE. — As to whon parol evidence may and may not be admitted to explain or throw light upon a written contract, see Gilbert v. Stockman, 76 Wis. 62; 20 Am. St. Rep. 23, and note.
CORPORATIONS SHARE-HOLDERS. A subscriber to corporato stock cari. not be released except by the consent of all the other subscribers: Cartwright v. Dickinson, 88 Tenn. 476; 17 Am. St. Rep. 910. As to conditions and contemporaneous agreements relieving the liability of subscribers for unpaid subscriptions, see note to Thompson v. Reno Sao. Bank, 3 Am. St. Rep. 823, 824; Cravens v. Eagle Cotton Mills Co., 120 Ind. 6; 16 Am. St. Rep. 298.
CORPORATIONS — RATIFICATION. — To effect a valid ratification by a cor. poration of an act or contract made for it without the proper authority, it. must appear that the corporation knew the whole nature of the act or con.. tract, and gave its consent thereto: Blen v. Water etc Co., 20 Cal. 602; 81. Am. Doo, 132, and note.
FERGUSON V. GIES,
[82 MICHIGAN, 358.) CIVIL RIGHTS — DISORIMINATION BECAUSE OF COLOR. — Under the common
law and the statutes of Michigan, the keeper of a public restaurant cannot discriminate against a colored person as to the part of the building in which he shall be served, solely on account of his color. In a suit to recover damages, the colored person thus discriminated against need
not declare upon nor refer to the statute. CIVIL Rrohts — DISCRIMINATION BECAUSE OF COLOR. – In Michigan, there
is an absolute, unconditional equality of white and colored persons beo fore the law in all public places, and a discrimination in such place against a colored man, solely on account of his color, is a ground for the
recovery of civil damages. DAMAGES. - IF A STATUTE IMPOSES UPON ANY PERSON & specific duty for
the protection or benefit of others, if he neglects or refuses to perform such duty he is liable for any injury or detriment caused thereby, if the injury so caused is of the kind the statute was intended to prevent
D. A. Straker, for the appellant.
William Look and H. F. Chipman, for the respondent.
MORSE, J. The defendant, at and before the time this suit was brought, was the manager of a public restaurant in the city of Detroit, and was licensed by that municipality to conduct such public restaurant. It was, to all intents and purposes, a public place. On August 15, 1889, the plaintiff, a colored man, in company with a friend, entered this restaurant, and sitting down at one of the tables provided for that purpose, ordered supper. The plaintiff claims, in substance, that the restaurant was divided in two parts, not separate rooms, but one side or part of the room was known as the “restaurant side," and the other as the "saloon side.” The restaurant side was furnished with tables covered with table-cloths. Glasses were on the tables, with napkins in them, and there was an electric fan over the tables. The tables had a very neat appearance. The tables on the saloon side were furnished with beer-glasses, and were beer-tables such as are usually found in saloons. The plaintiff testifies that he and his friend sat down on the restaurant side, at the first table from the last in the second row, and called for a lunch. The waiter said: "I can't wait on you here.” Ferguson said: “What do you mean by that?” The waiter replied: “We cannot serve you kind of people here. It is against the rules of the house to serve colored people in the restaurant. If you want anything to eat, you will have to go on the other side of the house."
After waiting a few minutes, Ferguson went to the office, and said to the defendant: “Mr. Gies, I came into your restaurant with a friend, and I have been insulted by one of your waiters," and told him what the waiter had said. Gies replied: “That is all right. That is the rule of this house, if you want any. thing to eat.”
They had some conversation, which ended by defendant saying to plaintiff that he would get nothing to eat unless he went on the other side. Plaintiff asked if he could not sit at the table adjoining, or at any of the tables behind him, which were empty, but the defendant refused to serve hiin at any of the tables on that side of the room. Plaintiff went away without eating anything. While he was sitting at the table, several white persons came in, sat down, and had refreshments at different tables on the restaurant side of the house.
The defendant admits that he refused to serve refreshments of any kind to the plaintiff at the table were he sat, for no other reason than that Ferguson was a colored man, and that he said to him: “That is the rule of the house. We cannot serve colored people right at those certain tables." But he testifies that he further said: "Ferguson, there is no use in your waiting here. We cannot serve you at these tables. If you will sit over at the next table in the other row, I will see that you are served there all right, the same as any other person will be."
Ferguson said, "No." There was about six feet between the two rows of tables. Defendant admits also that there was a difference in the tables, being of different shape; that the tables at which he told Ferguson he might be served were at the time uncovered, and that the covers were taken off to accommodate the crowd that came in for beer, but testifies that he told plaintiff he would cover the table, and furnish it the same as the one he was sitting at, and that he should be waited upon and served the same as those on the other side of the room.
Defendant denies that this was in the saloon part of his place. He says it was a part of the restaurant, but situated in a more private place, as the bar would hide them from the view of those in the front part of the place. There was no partition between the tables. They were in the same room, and divided only by space. Colored people were not permitted to sit except in one part of the room, but white men were served wherever they liked. The circuit judge, Hon. George Gartner, instructed the Ax. gr. R XP., VOL. XXI. — 37
jury that the plaintiff was entitled, under the law, to full and equal accommodations at this restaurant with all other citi. zens; that “all citizens, under the law, have the same rights and privileges, and are entitled to the same immunities, -it makes no difference whether white or colored. A different idea or principle than this never rested in reason. The reaBoning of Chief Justice Taney, in his opinion in the Dred Scott case, is now largely and almost universally regarded as fallacious and contrary to the principles of law then claimed to exist. The emancipation of the slaves followed, and then the Fifteenth Amendment placed the colored citizen upon an equal footing in all respects with the white citizen. Since then, in many of the states, laws have been enacted to modify and overcome the prejudices entertained by many of the white race against the colored race, and to place the latter upon an equal footing with the former, with the same rights and privileges. Thus the legislature of this state, in 1885, passed a law with that object and for that purpose; and in certain instances a denial of such rights is made a crime under the law of this state.”
He further said to the jury that if they found that the plaintiff was denied full and equal accommodations, the defendant was liable in damages for such denial. So far, the learned judge was eminently sound in his reasoning, and correct in his law; but in his application of the law to this par. ticular case he was in error. The jury, under the defendant's own version of the transaction, should have been instructed to find a verdict for the plaintiff.
In his definition of “full and equal accommodations," the court said: “It is claimed by the defendant that he did not refuse to serve the plaintiff, but told him, substantially, that he would not serve him on that side of the house; but that if he would go over and take a seat at a table on the other side of the room in the restaurant, he would then serve him in pre cisely the same manner in which he would be served at the table at which plaintiff had seated himself; and that the rule of the house was, not to serve colored persons on that side of the house. Now, gentlemen, the defendant would not have the right to refuse to serve the plaintiff in the restaurant proper; but it is claimed by the defendant that the saloon portion is divided from the restaurant, and that the table at which he requested the defendant to sit was in the restaurant. While the defendant had no right to make a rule providing
for an unjust discrimination, still, he would have the right, under the law, to make proper and reasonable rules for the conduct of his business, and governing the conduct of his patrons; and whether this was a reasonable rule, I will submit to you for determination. Thus the defendant has the right to reserve certain portions of his business for ladies, and other portions for gentlemen, while he may also reserve other portions for his regular patrons or boarders. He might also, under the law, reserve certain tables for white men, and others where colored men would be served, providing there be no unjust discrimination. And this brings me to an explana. tion of the term which I have used, viz., 'full and equal accommodations. By this term, 'full and equal,' is not meant identical accommodations, but by it is meant substantially same accommodation. A guest at a restaurant has no more right to insist upon sitting at a particular table than a guest at a hotel has the right to demand a particular room, as long as the accommodations offered are substantially the same. This is all the law demands and requires, and if you find from the evidence in this case that the defendant offered to serve the plaintiff in one part of the restaurant proper, in the same manner as guests were served in other parts, and that he offered the plaintiff full and equal, although not identical, accommodations, and if you find that the rule made by the defendant did not make an unjust discrimination, but was reasonable, then your verdict must be for the defendant."
Under this charge, the jury found for the defendant. The fault of this instruction is, that it permits a discrimination on account of color alone, which cannot be made, under the law, with any justice. As far as it relates to the right of a restaurantkeeper to make rules and regulations based upon other considerations, the charge is of no concern in this case, and we shall not express any opinion as to its correctness. But in Michigan there must be, and is, an absolute, unconditional equality of white and colored men before the law. The white man can have no rights or privileges under the law that are denied to the black man. Socially, people may do as they please within the law, and whites may associate together, as may blacks, and exclude whom they please from their dwellings and private grounds; but there can be no separation in public places between people, on account of their color alone, which the law will sanction.
We have been cited to a large number of cases upholding