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hadn't heard anything in the matter of improvements. Particularly I hadn't heard whether or not the previous building restrictions would be enforced, but it was supposed that they would not be.

"Q. You supposed they would not be ?

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'A. Would not be; yes, sir, from the fact they were selling it at auction.

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"Q. How long, as near as you can fix it, before the sale that you got the impression that the old building restrictions would not be enforced?

"A. I could not answer that question.

"Q. It might have been a week?

"A. It might have been a week.

"Q. You hadn't made any inquiry to verify the truth of that impression?

"A. No, sir."

Complainant contends that, in view of the representations made by defendants or their predecessors in title, an equitable obligation arose binding them, in equity and good conscience, to insert the restrictions in all subsequent deeds made by them, and that such obligation was enforceable by complainant, citing numerous authorities, among others: 11 Cyc. p. 1078; 13 Cyc. p. 716; 3 Pomeroy on Equity Jurisprudence (3d Ed.), § 1295; Kirkpatrick v. Peshine, 24 N. J. Eq. 206; De Gray v. Club House Co., 50 N. J. Eq. 329; Bridgewater v. Railroad Co., 62 N. J. Eq. 276; Evans v. Foss, 194 Mass. 513 (9 L. R. A. [N. S.] 1039); Parker v. Nightingale, 6 Allen (Mass.), 341; Tallmadge v. East River Bank, 26 N. Y. 105; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Lewis v. Gollner, 129 N. Y. 227; Frink v. Hughes, 133 Mich. 63; Harris v. Roraback, 137 Mich. 292; James v. Irvine, 141 Mich. 380.

We understand the bill of complaint and the brief to proceed upon the theory, not that a binding contract was entered into between these parties which was enforceable by an action at law, but that the representations, conduct, and actions of the defendants and their predecessors before and since the making of the contract burdened them and

their remaining lands with an equitable obligation. As said in Tallmadge v. East River Bank, supra:

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'Selling and conveying the lots under such circumstances, and with such assurances, though verbal, bound Davis in equity and good conscience to use and dispose of all the remaining lots, so that the assurances upon which Maxwell and others had bought their lots would be kept or fulfilled. This equity attached to the remaining lots, so that anyone subsequently purchasing from Davis any one or more of the remaining lots, with notice of the equity as between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity."

Treating this suit as one which, though praying for an injunction, is in the nature of an action for the specific performance of an equitable contract, which, having been entirely executed on the one part, may be enforced against the other parties, it is apparent that the complainant has failed to establish the contract as set forth in his bill of complaint. The bill of complaint alleges the contract or representations to have covered the tract north of Grand River avenue and between Avery and Trumbull, without distinction as to any street within the tract. It appears that in 1896, when the complainant entered into the second contract, numerous lots had been sold in this tract, elsewhere than on Commonwealth avenue, of a width of less than 50 feet, and that buildings which did not comply with the restrictions had been erected. While it is true he claims that he was only interested in Commonwealth avenue, it seems clear that the erection of buildings on Avery and Trumbull avenues near complainant's lot might have as evil an influence over its value as the erection of buildings at the southern boundary or in the northern part of the tract. At all events, the complainant saw fit to state definitely in his bill of complaint what the representations and agreement actually were; and, having done so, he is required to prove the contract which he desires enforced substantially as stated.

We are not satisfied that the evidence of Mr. Stott is

entirely candid with reference to the reason assigned for not adhering to the statement of the agreement as contained in his bill of complaint, but we are of the opinion that he reformed his statement in consequence of the answers of the defendants setting forth numerous departures from the agreement as alleged, which must have been within his knowledge. Brown v. Brown, 47 Mich. We are further of the opinion that complainant by his own conduct has shown himself not to be entitled to equitable relief. It appears from his own testimony that he knew that these lots were to be sold at auction under different restrictions than he claimed he was entitled to enforce against them. He took no steps to forbid the sale, so far as prospective purchasers were concerned, and gave them no notice whatever of any rights which he claimed attached to their property, but, on the contrary, authorized them to suppose that the sale was a legal one from his standpoint by purchasing a lot himself. He waited from the 9th of November until the 30th day of April before filing his bill for an injunction, at which time there was no ground for an injunction; the property having been contracted to innocent purchasers without notice. As stated in Bridgewater v. Railroad Co., 62 N. J. Eq. 276:

"The very object of the courts in raising such implied covenants, and permitting their enforcement by any purchasers under the general plan, is to secure, not damages to the actor in the enforcement, nor an ascertainment of the proportion of injury done to him, but the specific observance of the general plan for the benefit of all who have purchased the right of that observance."

It is clear from the testimony in this case that the ascertainment of the damages flowing from the failure to enforce the restrictions is very difficult; complainant's expert testifying that, so far as the damages due to the failure of maintaining the restrictions were concerned, an estimate was mere guesswork. It might well be said, where the person violating the agreement to enforce the restric

tions had done so without the knowledge of the person complaining, or opportunity on his part to enforce his rights by injunction, that he might enforce them by an action in equity, if that were the only action open to him, as we are inclined to think it is; but we do not think it should be permitted to a complainant who, as in this case, with knowledge that his rights are being violated, and having time and opportunity either to file his bill for an injunction, or to charge all the parties at the sale with notice of his rights, stands by and permits the sale to proceed without notice to the purchasers, so as to render relief by injunction impossible. In such a case we think the complainant is not entitled to recover. Hatch v. Cobb, 4 John. Ch. (N. Y.) 559; Kempshall v. Stone, 5 John. Ch. (N. Y.) 193; Morss v. Elmendorf, 11 Paige (N. Y.), 277; Milkman v. Ordway, 106 Mass. 232-253; Hazen v. Lyndonville Nat. Bank, 70 Vt. 543; Mack v. McIntosh, 181 Ill. 633; 1 Pomeroy on Equity Jurisprudence (3d Ed.), § 237; Lamb Knit-Goods Co. v. Lamb, 119 Mich. 568; Brown v. Gardner, Har. (Mich.) 291; Beal v. Chase, 31 Mich. 490; Perry v. Reed, 147 Mich. 146.

The decree is affirmed.

GRANT, MONTGOMERY, MOORE, and MCALVAY, JJ., concurred.

HODGINS v. BAY CITY.'

1. MUNICIPAL CORPORATIONS-NEGLIGENCE-GovERNMENTAL FUNC TIONS-MASTER AND SERVANT-NEGLECT OF CORPORATE AGENTS -ELECTRICITY.

A city which furnishes electric light to patrons for commercial purposes is not relieved from liability for the neglect of its employés on the theory that the business relates to local governmental functions, but is bound to exercise reasonable care in insulating dangerous wires.

2. CONTRIBUTORY NEGLIGENCE-MUNICIPAL CORPORATIONS-RELIANCE ON CARE EXERCISED.

A lineman of a telephone company whose poles are used by a city for the purpose of stringing electric wires may rely on the exercise of due care on the part of the city in properly insulating and inspecting its wires, and is not guilty of contributory negligence if his duties bring him in contact with a wire which would not be dangerous if properly insulated. 3. NEGLIGENCE - ELECTRICITY - INSPECTION CONSTRUCTIVE NO

TICE.

A charge in an action for negligent death, that if the defective insulation was caused by a change since the original construction, defendant was not liable unless the condition existed for such a length of time that the defendant might, in the exercise of reasonable diligence, by a proper inspection, have discovered the defect and repaired it, sufficiently protects defendant's rights.

4. SAME

CONTRIBUTORY NEGLIGENCE-Knowledge of Danger. It was proper to instruct the jury that, unless the danger aris. ing from the defect was such that it would, in the exercise of ordinary care, naturally attract the attention of the lineman, he would not be charged with notice of it; and only with notice of the danger incident to a similar wire properly insulated; but that his degree of care must be commensurate with his extensive experience, and if the conditions would have naturally attracted his attention, in the exercise of due care, and caused him to discover the danger, he was guilty of negligence.

5. WEIGHT OF EVIDENCE-MOTION FOR NEW TRIAL.

A verdict for the plaintiff was supported by the evidence. 1 Rehearing denied July 15, 1909.

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