almost immediately accelerated the speed of Complaint is made that counsel did not conthe automobile and attempted to cross. The fine his efforts to showing previous contrastreet car was going at a high speed, esti- dictory testimony, but that, without first mated by some of the witnesses as at least bringing out any affirmative statements on 30 miles an hour. The motorman was called the point in question, he tried to bring out by the plaintiff as an adverse witness for and read into the record as aflirmative evicross-examination. He testified that the car dence the testimony of this witness before was going at full speed and down grade, but the coroner. An examination of the record estimated the speed as 18 or 20 miles an hour, discloses that when reference was first made stating that he did not believe the car could to this prior testimony, the witness had just go any faster than that. He admitted hav- stated that he did not know whether or not ing testified at the coroner's inquest that the the speed of the car he operated at the time car was going 30 miles an hour, but insisted of the accident was 30 miles an hour. He exthat he was mistaken and from later experi- plained that more than two years had elapsence and observation believed that 18 or 20 ed since the accident, and that some of the miles an hour was a more correct estimate. details had slipped his mind; that the deHe admitted that the car was going as fast tails as to speed, distances, etc., were freshas any he ever operated, and that he had er in his mind within a week or two after never seen a street car in the city of Detroit the accident than at the time he was being travel faster than his was going at the time questioned in this case. It was then that of the accident. He further testified that he plaintiff's counsel began to read to him cerfirst saw the automobile when he was about tain questions and answers from his testi150 feet from Twelfth street; that it was mony at the inquest, manifestly for the purslowing down and was about even with the north curb of Porter street; that it traveled pose of refreshing his recollection as to these details. But the witness, instead of either a few feet before its speed began to acceler- verifying his estimate of 30 miles an hour ate, at which time his car was about 100 as given at the coroner's inquest, or reiteratfeet from the east curb of Twelfth street; ing his former statement that he did not that he then began to do something to stop know, shifted his ground and asserted quite his car, but not all that he could have done, positively a new estimate of the speed, claimbecause at that time he "judged it was going ing that while he had given his testimony at to get across the track"; that when he was the inquest in perfect good faith, yet furwithin 50 feet of the east curb of Twelfth street he came to the conclusion that the automobile could not get across safely, and that he then threw off the current and re versed the car and kept the reverse on until the car came to a stop about 100 feet beyond the west curb of Twenth street. At the close of the testimony the defendant moved the court to direct a verdict in its favor, which motion being overruled, the court was thereupon requested to reserve final decision of the question under the Empson Act (Act No. 217, Pub. Acts 1915), and such reservation was made. The case was submitted to the jury, who returned a verdict for the plaintiff of $7,000, upon which judgment was duly entered. Defendant thereupon filed a motion for a new trial or for judgment non obstante veredicto. This motion was denied, and defendant filed written exceptions to the decision of the court thereon. Appellant's counsel have argued the 25 assignments of error under 8 heads. We think the following discussion will fairly dispose of the case. [1, 2] 1. The first four assignments allege error in connection with the examination of the witness, Percy Morgan, the motorman of the car, who was called by the plaintiff under the statute for cross-examination. He had been a witness at the coroner's inquest, and his testimony at the trial of the present case varied somewhat from that given at the inquest. Concerning these inconsistencies he ther experience as a motorman had convinced him that he had then overestimated, and wished to state that he would fix the maximum speed of the car at 18 or 20 miles an hour. He could give no definite basis for this belief, had made no tests or anything of the kind, but insisted that that was his best judgment at the time of the trial. We are unable to discern any effort on the part of counsel to make the questions and answers given at the coroner's inquest affirmative evidence in this case, but are clearly impressed that the original purpose in referring to them was to refresh the memory of the witness, and upon his denying the correctness of his previous testimony, to use it in testing the credibility of the witness. There was other affirmative evidence as to the speed of the car. [3, 4] 2. Assignments of error 6 to 11 relate to the refusal of the court to direct a verdict in favor of the defendant on the ground that there was no proof of negligence on the part of defendant, and also for the reason that plaintiff's intestate himself was guilty of negligence contributing to the injury. Cases in which a plaintiff has been injured by being struck by a car while attempting to cross the tracks ahead of it fall into two classes: First, those in which the circumstances clearly show an entire failure on the part of the plaintiff to look for the car, or at best a mere careless glance, or else evident recklessness in making the attempt to cross. See Bor would have been correct. In such cases the question is one for the jury. * 551; Hilts v. Foote, 125 Mich. 241, 84 N. W. 139; Merritt v. Foote, 128 Mich. 371, 87 N. W. 262; Colborne. v. Det. United Ry., 177 3. Some complaint is also made concerning Mich. 145, 143 N. W. 32; Miller v. Det. Unit- the charge of the court, and that the verdict ed Ry., 200 Mich. 388, 166 N. W. 870. Sec- is against the weight of the evidence. In ond, cases where the plaintiff saw the ap- view of our conclusion that the question of proaching car and decided there was suffi- the negligence of the defendant and the concient time to cross ahead of it, under circum-tributory negligence of plaintiff's intestate stances which do not clearly show reckless- were questions properly to be submitted to ness in the formation of such judgment. See the jury, an examination of the charge is Ryan v. Det. Cit. St. Ry. Co., 123 Mich. 597, convincing that the issues thus presented $2 N. W. 278; Chauvin v. Det. United Ry., were clearly and fairly presented to the jury 135 Mich. 85, 97 N. W. 160; Gaffka v. Det. with proper instructions, and there was suffiUnited Ry., 143 Mich. 456, 106 N. W. 1121; cient evidence to sustain the verdict. The La Londe v. Trans. St. Mary's Tract. Co., court did not err in denying the motion for 145 Mich. 77, 108 N. W. 365; Seebach v. a new trial based on this ground. Mich. United Ry. Co., 177 Mich. 1, 142 N. We find no error, and the judgment is W. 1086; Hildebrandt v. Det. United Ry., therefore affirmed. 167 N. W. 29. In cases of the first class we have held that a verdict should be directed for the defendant, and it is this line of cases upon which appellant's counsel rely, particularly the case of Colborne v. Det. United Ry., supra. But in the latter case it is expressly stated: "This is not of that class of cases in which the car has been seen, and the plaintiff, reasonably believing a crossing could safely be made, has attempted to cross and been injured, owing to the fact that the car was run at an excessive rate of speed, or being otherwise negligently operated, and therefore the question of whether plaintiff, in the exercise of common prudence, might have reasonably judged there was sufficient time to pass became a question of fact, upon which opinions might reasonably differ." NESBITT v. ONAWAY-ALPENA TELE- (Supreme Court of Michigan. July 18, 1918.) Where the vice president of a company in active management of its affairs by fraudulent artifice possessed himself of certificates of stock of a woman of limited business experience, a constructive trust arose as to stock. 2. TRUSTS 356(1) RIGHT TO FOLLOW TRUST PROPERTY TRANSFER TO THIRD PERSON. Where vice president of company possessed himself of shares of stock of a third person by fraudulent artifice, the constructive trust which arose would follow the stock into the hands of one not a bona fide purchaser. 3. TRUSTS 365(5)-ENFORCEMENT-LACHES. tablish a constructive trust in stock which was In action against defendant company to esprocured by the vice president by fraud and artifice, and later transferred to company without delay in bringing action after discovery of fraud. consideration, held there was no unreasonable Appeal from Circuit Court, Branch County, in Chancery; Frederick W. Knowlen, Judge. Action by John S. Nesbitt, administrator, etc., against the Onaway-Alpena Telephone Company and others. Decree for plaintiff, and defendants appeal. Affirmed. Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ. The quotation well describes the second class of cases above referred to, and we think it is clear that the instant case falls within this class. Here the motorman was admittedly operating his car, in a thickly settled district of the city, at the extreme limit of its speed; he admits that he realized, when he was at least 100 feet from the crossing, that the automobile was attempting to cross the track ahead of his car, yet he not only failed to reduce the speed sufficiently to avoid the collision, but did not succeed in bringing his car to a stop short of 100 feet beyond the west curb of Twelfth street. He admits that he did not at once take extreme measures to stop the car, because he judged that plaintiff had time to cross safely. Yet, under these circumstances, defendant takes the position that the motorman's conduct was not negligent, but that decedent, in relying upon a similar judgment on his own part, was, as a matter of law, guilty of contribuBROOKE, J. Prior to the 13th day of tory negligence. Deceased had brought his March 1913, 400 shares of stock of the Onautomobile under control on approaching away-Alpena Telephone Co., a Michigan corPorter street, had looked towards the ap- poration, stood in the name of "Warren D. proaching car, and apparently had reached Baker or Martha E. Baker." The par value the conclusion that there was ample time to of said stock was $10. This stock or the cross in safety. From the fact that the auto- stock of the Onaway-Telephone Company, mobile was struck at the hub of the rear which was exchanged, share for share, for wheel it is apparent that, had the car been this stock, was purchased by Warren D. going at almost any speed less than its ex- Baker from M. T. Streeter about the year treme limit on a down grade, his judgment 1911. Mr. Streeter was vice president of the Henry & Henry, of Alpena, for appellant Onaway-Alpena Telephone Co. H. H. & B. E. Barlow, of Coldwater, for appellee. telephone company and active in the man- | sconded from the state. An action brought agement of its affairs. On said 13th day by the company to recover from him sums of March, 1913, Warren D. Baker died, and about six weeks later, on April 30, 1913, said Streeter went to the home of Martha E. Baker, the widow of Warren D. Baker, and after some negotiations with her secured possession of said stock certificates, giving her at the time the following papers: "$10,000.00. "Union City, Mich., April 30, 1913. "On or before one year after date, I promise to pay to the order of Martha E. Baker, Ten Thousand Dollars, interest at seven per cent. paid each six months, at Mrs. Baker's home. Value received. M. T. Streeter." "Union City, April 30th, 1913. "This agreement made this day between M. T. Streeter of Lansing, Michigan, party of the first part and Martha E. Baker, of Union City, Michigan, party of the second part, witnesseth: the said first party has given his note for ten thousand dollars to be paid on or before one year for Cnaway-Alpena Telephone stock, to be handled and sold and turned into cash to take care of said note bearing even date herewith. Morris T. Streeter." Of this stock, 180 shares of the par value of $4,500 were, by Streeter, turned over to the telephone company, the certificates of transfer being signed: "Martha E. Baker, widow of Warren D. Baker," and indorsed across the face, "Turned back and held as Treasury Stock." Ninety-seven shares of such stock, said to be nonnegotiable, are outstanding in the name of Morris T. Streeter. The remaining 123 shares were disposed of by Streeter to persons who paid valuable consideration and purchased without notice. Prior to the commencement of this action Martha E. Baker assigned to John S. Nesbitt, plaintiff herein, as administrator of her husband's estate, all the right, title, and interest in and to said certificates of stock. The bill was filed for the purpose of establishing the title to said stock in said Martha E. Baker. She testified that her husband had paid for said stock $10,000 in cash; that Streeter had on various occasions offered to sell said stock for her husband and herself if they desired to get their money back; that at the time she delivered said stock certificates to Streeter he represented to her that he would take the stock and have the certificates changed to certificates standing in her own name; that her understanding was that she was not making a sale of the stock to Streeter, but that she was turning it over to him as a representative of the company for the purpose indicated. It is clear from the record that Streeter's management of the telephone company was irregular in many respects; that he had illegally withdrawn from the treasury of the company considerable money, and had sold stock of the corporation in excess of that allowed by the Michigan Railroad Commission. In July, 1913, he was ousted from the management of the affairs of the cor wrongfully taken by him from it could not be prosecuted because he could not be found within the state. A perusal of the record convinces us that Streeter by fraudulent artifice possessed himself of the certificates of stock here in question, knowing that he was dealing with a woman lately bereaved and of limited business experience. Under the facts as disclosed by this record there is no question but that Streeter could have been compelled to return the stock to the person from whom he secured it, without consideration. As to the 97 shares that precise situation exists. Touching the 180 shares delivered by Streeter to the telephone company, the learned circuit judge held that as to these shares there was no evidence of any consideration having passed from the telephone company to Streeter; that the telephone company was not a bona fide holder for value without notice; and that therefore the same should be issued to the plaintiff herein. The defendant introduced no testimony in the case, but Charles S. Davis, now president of the company, was called by plaintiff under the statute. The transaction between Streeter and the company occurred before Davis's incumbency of the office of president. He testified: "I think it (the stock) was received into the company's hands to reimburse the company for money or stock that they had sold beyond what they had any right to sell." [1] We can find no evidence in the record that the company parted with anything of value to Streeter at the time of the delivery to it of the 180 shares of the Baker stock, or even that Streeter was, credited for the value of the same upon his indebtedness to the company, which it is said was considerable at that time. We have no doubt that under the authorities a constructive trust arose as to this stock in the hands of Streeter, and that such trust follows the stock in the hands of any person not a bona fide holder for value without notice. Morris v. Vyse, 154 Mich. 253, 117 N. W. 639, 29 Am. St. Rep. 472, and Weir v. Union Trust Co., 188 Mich. 452, 154 N. W. 357. [2] The claim is made on behalf of the appellant the telephone company that the failure of Mrs. Baker or her assignee, the administrator of her husband's estate, to act earlier should bar them from the relief sought. Streeter was ousted from the management of the corporation in July, 1913, and the bill of complaint in this case was filed September 26, 1914. Mrs. Baker testified that in the meantime she had endeavored to correspond with Mr. Streeter, but had failed to get into communication with him. The record does not disclose at what period she became aware of the fraud that had been practiced upon her. In any event the delay in starting the proceeding has apparently been of no dis The decree is affirmed. HARMON et al. v. MICHIGAN UNITED (Supreme Court of Michigan. July 18, 1918.) pany. It has not changed its position in re-ground by having the same reproduced on liance upon her silence. While it is true that this score board. It was a secondhand board, one defrauded must be active in disaffirming and, after having purchased the same, Hara contract obtained through fraud and must mon took it to the defendant company's not sleep upon his rights, we are unable to freight office in the city of Kalamazoo and find from this record that there was any un- arranged to have it shipped to the city of reasonable delay in action after the fraud Detroit. It is his claim that he talked with the defendant's agent and was assured that was discovered. the board, if shipped on that day, would be delivered in Detroit the next morning at 7 o'clock or thereabouts, and that he informed the agent at that time that he had leased a building in Detroit and wire service, and also that he had heavily advertised the exhibition which he was to give, and that it was very important that the board should reach there on the morning of the 18th, and that, if he could not be assured that the board would reach there at that time, he would ship it in some other manner; that, upon receiving assurance that the shipment would arrive in Detroit at the promised time, he left the board with the defendant, consigned to Harmon & Brennan in Detroit, and received the usual bill of lading, which he signed, and which was also signed by the representative of the defendant; that a triplicate thereof was executed and delivered to him, representing the shippers, at the time of the shipment. It further appears that after the score board was received by the defendant defendant's employés attempted to put it into the trailer car, which car usually went through to Detroit over the lines of the defendant company to Jackson and from there over the lines of the Detroit United Railway to its destination. It was found, however, that the score board was too large in size to put into the trailer car, and it was put into the motor car, which did not go through to Detroit, but stopped at Jackson. Upon the arrival of this car at Jackson, the board was taken from the car, and there was turned over to the Where bill of lading provides for transportation of goods "with reasonable dispatch," parol evidence of a conversation wherein carrier assured shipper before signing of bill of lading that goods would reach destination before certain time is admissible as bearing on carrier's understanding of what was a reasonable time, and is not objectionable as varying terms of bill of lading. 2. CARRIERS 103-DELAY IN TRANSPORTA TION-PLEADING-VARIANCE. In action against carrier for delay in transportation, where plaintiff pleads specific agreement by carrier to deliver before certain time, there is no variance between such pleading and proof of bill of lading containing agreement to deliver with reasonable dispatch, where parol evidence showed carrier's understanding of reasonable dispatch required delivery before time alleged. Kuhn and Brooke JJ., dissenting. Error to Circuit Court, Kalamazoo County; Geo. V. Weimer, Judge. Action by Anna Harmon and another against the Michigan United Traction ComJudgment for defendant, and plainpany. Reversed, and new trial tiffs bring error. granted. Argued before OSTRANDER, C. J., and MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ. Jackson & Fitzgerald, of Kalamazoo, for appellants. Sanford W. Ladd of Detroit (Warren, Cady, Ladd & Hill, of Detroit, of counsel), for appellee. KUHN, J. This is an action instituted by the plaintiff's as copartners doing business as Harmon & Brennan, but upon the trial of the case, on motion of plaintiffs' attorneys, the allegation as to their being copartners was stricken from the declaration, so that the action proceeded with the plaintiffs as individuals against the defendant company. George P. Harmon, acting as agent for the plaintiffs, went to the city of Kalamazoo on the 17th of September, 1915, and purchased an electric score board, to be used for the purpose of reproducing a game of ball which might be played at some distant city, play by play, showing every move made on the ball Detroit United Railway, but on account of damages, for which this action was brought. [transported the property in question with reaThe case was submitted to the jury, and re- sonable dispatch, in accordance with the terms sulted in a verdict for the plaintiff in the of the bill of lading. It is contended that the sum of $1,677. After the trial counsel for conversation had between Harmon and the defendant renewed a motion which they had agent of the defendant company was admismade for direction of a verdict, the final de-sible as bearing upon the question of what cision of which the court had held in abey-constituted reasonable dispatch under all the ance, and at the same time also argued a circumstances surrounding the transaction. motion for a new trial; the motion for new In denying the motion for a new trial, the trial being made conditional in case the court did not grant the motion to enter a verdict for the defendant. The court set aside the verdict and entered a judgment for the defendant. Whether the court erred in doing this is the principal question now before us for consideration. The declaration upon which this action is brought alleges the following: "And, being so desirous, they entered into a specific contract with the said Michigan United Traction Company, defendant herein, through its agents and representatives, to receive the said score board, supplies, and appurtenances aforesaid, properly crated and boxed, in the city of Kalamazoo, Mich., on, to wit, the 17th day of September, 1915, and to deliver the same to the order of the plaintiffs herein in the city of Detroit not later than the morning of the said 18th day of September, for a consideration to be paid to said defendant. And relying upon the said promises and agreements of the said defendant to so transport the same to the said city of Detroit and have the same there on the morning of the said 18th day of September. * Plaintiffs further allege that relying upon its contract with the said defendant. * * * * * * * ** trial judge was of the opinion that the admission of this testimony was error and prejudicial, and with this we agree. It is clearly apparent from a reading of the declaration that the theory upon which this case was started is, as was indicated by the trial judge in his opinion passing on the question of directing a verdict, that a specific oral contract was entered into between the parties upon the 17th of September, providing that the goods should be delivered at destination on the 18th following, and it was not until the case came to trial that a different theory was insisted upon. The rule is well settled that parol evidence is not admissible to vary the terms of a bill of lading, and the conversation testified to by Harmon, if admitted, would be clearly an effort to establish a special agreement as to delivery of the property in addition to the agreement contained in the bill of lading. The rule is stated in 4 Ruling Case Law, p. 22, as follows: "Where no time of performance is expressed in a bill of lading, the instrument is not on that account to be regarded as incomplete, so as to admit proof of a distinct and separate The trial judge, in the opinion filed in de- agreement as to time. In such case the parciding the motion to direct a verdict, said: ties are presumed to have intended that the "It appears that the bill of lading was sign-carrier's obligation as to the time of performed by the witness George Harmon on behalf ance shall not extend beyond that imposed on of the plaintiffs and the proper agents of the it in law in all undertakings for the transdefendant company in its behalf. * He portation and delivery of goods, which requires was allowed to testify over the objection of no more than that the same be done without This implied agreement the defendant to an alleged conversation with unreasonable delay. the agents of the defendant prior to and coin- is as much a part of a bill of lading silent as cident with the delivery of the board for ship- to the time of performance as if expressed in ment and the signing of the bill of lading by it in so many words; and the rule which fordefendant's agent and himself as the agent of bids the introduction of parol proof to vary the plaintiffs, to the effect that the defendant's the terms of a written instrument excludes agent absolutely guaranteed delivery of the board evidence of a prior or contemporaneous parol at Detroit at 7 o'clock a. m. September 18th. agreement that the goods shall be delivered ** * It is very apparent that the declara- within a definite and specific time." tion was framed upon the theory of a specific oral contract, and that the bill of lading was then considered merely a receipt for the property. It is equally apparent that that position was untenable under the proofs which showed conclusively that the bill of lading constituted the contract between the parties." It is the contention of counsel for plaintiff and appellant that the case was tried and submitted to the jury upon the theory that the score board was not delivered in Detroit by the defendant within a reasonable time under the provisions of the bill of lading. Section 3 of the provisions printed on the back of the bill of lading provided in part as follows: "No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon." The trial judge did submit to the jury the See Central Railroad Co. v. Hasselkus, 91 Ga. 382, 17 S. E. 838, 44 Am. St. Rep. 37; McElveen v. Southern Ry. Co., 109 Ga. 249, 34 S. E. 281, 17 Am. St. Rep. 371. This rule has been approved in this state in Sloman v. 999, which case is cited with approval in National Express Co., 134 Mich. 16, 95 N. W. Sturges v. Detroit, etc., R. Co., 166 Mich. 231, 131 N. W. 706. In a case properly brought the question of whether or not under the terms of the bill of lading the property had been transported with reasonable dispatch would unquestionably be a question of. fact for the jury under all the Juris, p. 286. circumstances of the case. See 10 Corpus In the instant case, however, we agree with the trial judge, because under the declaration as filed and the proofs as submitted plaintiff sought to enforce a special contract of carriage outside of the bill of |