station could reach it. The platform about the station was so high as not to be conveniently reached, particularly by women, without a step. The defendant provided no step. As a result, some one else, no matter who, provided a way-a temporary expedient-for getting over the difficulty. This temporary expedient was adopted by the public. It grew into a common way. The station agent used it. Everybody used it. There was a wellbeaten path leading to it. If a person approaching the station looked along the platform, for a step upon which to ascend it, and saw none, there was the plank, with the beaten path, inviting him. Although the platform at the west end was lower, it was not enough lower to attract attention to it as the place especially intended or designated for people to enter it. When the plaintiff attempted to use the plank on the day of the accident, she did so only after her companions had preceded her in safety. It may have appeared safe. The declaration alleges that its insecurity lay in the fact that it was not fastened. The plaintiff testified: "Just as I got almost ready to step my foot on the platform, this plank slipped back and went down; and I went with it, of course." The court charged the jury: “(3) If the defendant habitually received and let off their passengers at such place by way of a plank, they must be expected to use such care as the circumstances called for; and if they did not use such care they would be guilty of negligence; and, if the plaintiff was injured thereby without any fault or negligence on her part, or want of due care on her part, she would be entitled to recover." "(5) If the jury find that the company did not provide the plank in question for the purpose of its being used by people going to and from the depot, but it was procured and used for the purpose and in the way stated by Mr. Shannon, the agent, then the company is not liable for the use of it by the plaintiff in the manner she did, on account of which she got hurt, unless you find that the company knew that said plank had for a long and continuous time been used by people doing business with said company, for the purpose of ingress and egress to and from the passenger depot of said company." We think the court was justified by the evidence in these instructions. The duty of the railroad company to provide a safe means of reaching the station is clear. If, with full knowledge of the facts, it permitted an unsafe and dangerous means to be provided and used, it is as much liable for an injury arising therefrom as if it had itself set up and maintained the dangerous way. Cross v. Railway Co., 69 Mich. 363, 37 N. W. Rep. 361; Beard v. Railroad Co., 48 Vt. 101; Railroad Co. v. Trautwein, 19 Atl. Rep. 178; Keefe v. Railroad Co., 7 N. E. Rep. 874. Error is assigned upon the admission of evidence tending to show how long the plank had been in use, and how much it had been used by the public. We think such testimony was competent to show the extent to which the way had been used. The judgment will be affirmed, with costs. The other justices concurred. (80 Mich. 302) DUMANOISE V. TOWNSEND et al. (Supreme Court of Michigan. April 25, 1890.) CONTRACT-JOINT UNDERTAKING-STATUTE OF FRAUDS. 1. Two persons agreed to purchase logs and manufacture lumber. One was to advance the money, and the other to attend to the business. They jointly examined the timber, and the one who was to make the advances, in most instances, paid for the purchases, and for the labor of hauling and sawing. He was to reimburse himself for his advances, interest, and services from the sale of the lumber, and for that purpose retained control thereof. Held, that the arrangement was a joint undertaking, and that a laborer employed by one was entitled to recover against both. 2. A promise by the one making the advances to pay a laborer employed by the other to haul the logs, is not a promise to answer for the debt or default of the other, but a promise to pay his own debt. 3. In an action for hauling the logs, defendants' admissions of a joint liability, made when they purchased the timber from a third person, are admissible in evidence, as the purchase, hauling, and sawing constitute but one transaction. Appeal from circuit court, Genesee county; WILLIAM NEWTON, Judge. Action by Theodore Dumanoise against Thomas Townsend and Rufus R. Worden for a balance due for labor. There was a verdict in favor of both defendants, and plaintiff appeals. R. C. Johnson and Durand & Carton, for appellant. Geer & Williams, for appellees. CHAMPLIN, C. J. This action was brought to recover a balance claimed by plaintiff to be due to him from defendants for hauling black-walnut logs, and loading blackwalnut lumber upon a car. The plaintiff claimed a joint liability on the part of defendants. Townsend defended, denying all liability. The plaintiff introduced testimony which tended to show that defendants were partners in the purchase of certain black-walnut logs of different farmers in the vicinity of Davison, a station on the Chicago & Grand Trunk Railway, where a saw-mill was located, and in the manufacture of such logs into lumber, and the sale thereof; and he claims that their relations were such, in carrying forward the business, that they were partners, and jointly liable to him for the labor performed. Plaintiff showed that defendants went in company with each other to different farmers, and bargained for black-walnut trees and logs, and for the cutting and hauling them to the mill, and that Worden went alone to a farmer by the name of Long, and represented that he and Townsend were in partnership in purchasing black-walnut, and that Townsend would pay him therefor, and that Long went to Townsend, and told what representations Worden had made, and he said it was all right, and afterwards paid him for the logs, and for hauling them to the mill; that Worden was irresponsible, and known to be so by those from whom the timber was purchased; that Worden engaged plaintiff to haul black-walnut logs to the mill which had been purchased of farmers. He told him that Townsend would see that he got his pay for it. Before he had finished hauling, there being but four or five loads more to haul, he requested two of hi teamsters who were hauling logs for him to see Townsend per- | sonally, and ascertain if he was responsible for his pay. They did see Townsend, and asked him if he was to be responsible for the pay for hauling the logs; and he said he was, for every dollar. They reported this conversation to plaintiff, and he went on, and completed the hauling of the logs. Plaintiff also showed that Worden engaged him to load the lumber sawed from the logs upon a car for shipment; that Worden and Townsend were both present at the time he was engaged in loading, and Townsend kept tally of the lumber, and, after it was loaded, plaintiff told Townsend and Worden, as he testifies, that he wanted pay for his work, and they said they would like to have him wait until they got their returns from the lumber, and he refused, because there was a difference in their accounts, and then was the time to settle, and, if they did not, he would stop the lumber there; that they then looked over his account, and concluded it was correct. He told them he must have $15 to send to his wife in New York, and Townsend said he should have it, if he would wait for the rest until they got their returns for the lumber. He assented to this, and received the $15. He also showed that Townsend paid for sawing the logs into lumber, and that it was shipped to Detroit in his name for sale, and that he received the money for which the lumber was sold. a detailed statement of the sums he had paid directly to different persons for logs, and for hauling and for sawing, and to Worden, aggregating $337.36. From some of the persons from whom logs were purchased, Townsend obtained credit, or time in which to make payment, until after he should receive returns for the lumber. He also testified that the reason why the lumber was shipped or billed in his name was that he expected to receive the pay for the lumber before it was shipped, but, when he found otherwise, he had it shipped in his name; that he received a draft for the avails of $416.94; and he testified that the amount of advances made by him, including $2 for interest and $12 for his time, amounted to $414. He did not explain or account for the difference between the aggregate claimed to have been advanced by him and the amount as shown by his itemized statement. Partnership liability, at the common law, takes the form of a joint obligation; and especially is this so with reference to third persons. In a proceeding to charge one person with a liability in conjunction with another, the issue is not necessarily upon the existence of a partnership between them, but upon the performance of an act to which the law attaches a joint obligation. Pars. Partn. §44. The learned author further says: "To admit the plea of no partnership as a defense, and as a corollary to compel the plaintiff to prove the existence of the relation, abrogates the law, by displacing the point of contro The testimony introduced on the part of the plaintiff was ample to warrant the jury in finding that defendants were joint-versy, which is made to turn upon the fact ly interested as partners in the transaction of dealing in black-walnut lumber from the purchase of the logs to the manufacture and sale of the lumber, and were liable as such for hauling the logs to the mill, and unloading the same upon the cars. At the close of the plaintiff's testimony the defendants' attorney moved the court to direct the jury to render a verdict for the defendants, which motion the court correctly refused. The only witness produced and examined on the part of the defendants was defendant Townsend. He was permitted to testify, again plaintiff's objection, that he was not a partner of Worden's in the business of hauling black-walunt logs. He testified that his arrangement with Worden was as follows: "I told Worden I would go with him to see the logs and timber, and, if I thought it would do, I would advance him the money; and he was to pay me interest, and for the time I spent." The defendant Townsend further testified that he was to have security for the money he let Worden have on the lumber until he got his pay; that he was to have no interest in the proceeds more than to reimburse him for his money, the interest upon it, and his time, and that he went with Worden to examine timber, and spent eight days; that nothing was said as to how much he was to receive a day, but he afterwards charged him $1.50; that he advanced Worden money to buy lumber and logs, and to pay plaintiff for putting in the logs; that he let Worden have money at different times to pay for this lumber, hauling, sawing, etc., and he gave of partnership inter se, instead of the liability of a man for his acts. The charge reverses the order of proof. Every person who performs an act is liable, whether he is a partner or not." The real test, in actions ex contractu, is a joint interest in the contract. Such joint interest makes the parties liable, whether they are partners or not. Edmunds v. Bushell, L. R. 1Q. B. 97; Eastman v. Clark, 53 N. H. 276; Sager v. Tupper, 38 Mich. 258. All partners are co-principals, but all co-principals are not partners. Whether they are partners or not depends upon the nature of the act, and the kind and scope of the business in which the act was done; and in determining whether there is a joint interest in the contract the benefit accruing from the contract has an important bearing. The liability does not depend upon the intention of the party to assume the obligation. It is the performance of the act which creates the liability for the consequences, whether done by a single individual or by several. The undertaking carries with it the liabilities which arise out of the business, and they cannot be shaken off. Pars. Partn. § 45; Moore v. Davis, 11 Ch. Div. 261. The law charges the principals in a joint transaction as if they had contracted with each other to perform it. For an act done on behalf of several, the law charges all concerned in the transaction, whether known or unknown, without reference to any agreement, or absence of agreement, upon the subject of their liability. Pars. Partn. § 46. From all the testimony in the case, it appears appears that Worden and Townsend en tered into an agreement to purchase blackwalnut logs, have them hauled to a sawmill, and there sawed into lumber. Worden was to do the buying and attend to the business, and Townsend was to advance the money for that purpose. They jointly examined the timber. Both engaged in treating for the purchase, in some instances. Worden referred the vendors for payment to Townsend, who paid for most of the purchases without the money passing through Worden's hands. He also paid some parties for hauling. He paid for the sawing. It was a part of the contract that he should advance the money to carry the business through. He took no chattel mortgage upon the lumber, but was to have a claim upon the lumber for his security; and out of the proceeds he was to reimburse himself for the money advanced, and interest thereon, and for his services in the carrying on the business venture. Nothing can be plainer than that it was a joint undertaking for their mutual benefit, and that he was a co-principal in the transaction, and as such liable to plaintiff for the balance due him for hauling the logs. The plaintiff was entitled to have his first request given to the jury, which was that, under all the evidence, the plaintiff was entitled to recover. The statute of frauds was not applicable to the case. The promise of Townsend to plaintiff to pay him the balance due him for hauling and loading was not the promise to answer for the debt or default of another, but it was a promise to pay his own debt, and one which, in his agreement between himself and Worden, by his own testimony, he had agreed to advance the money to pay. It does not matter whether, technically, as between Townsend and Worden, he was a partner or not. He was jointly interested with Worden, in all the contracts, as a principal; and calling him a partner with Worden does not change or limit his liability as a coprincipal with Worden in the venture. The facts as stated by Townsend do not make him a mere lender of money to Worden. The fact that Worden was totally irresponsible would not incline one to believe that Townsend placed the money advanced absolutely in Worden's hands, which is the test whether it is a mere loan or partnership or joint venture. On the contrary, Townsend's testimony shows that he did not place the money absolutely in Worden's hands, and trust to his integrity to put it to the agreed use. He (Townsend). paid the purchase price of the logs in a majority of cases; and this whether he and Worden were together when the bargain was made, or whether Worden agreed for the purchase, assuming in this respect a control in the expenditure and management inconsistent with the relation of a mere lender of money to Worden. The question whether he was a mere lender of money to Worden, or a coprincipal in the transaction, turns upon the destination and control of the fund. Townsend not only stipulated that the money should be retained and used in the business, but he managed and controlled the application of the money. Not only that, but he retained control of the lum ber in which the money was invested. These acts determined the relation of Townsend with third parties dealing with Worden in pursuance of the common design of Worden and Townsend with reference to the lumber, and attached to Townsend the liability of a partner or joint contractor. The testimony discloses that Worden became indebted to plaintiff for a benefit moving directly and simultaneously from plaintiff to Worden and Townsend, and the same cause which made Worden a debtor to plaintiff necessarily made Townsend a debtor also; and therefore they are jointly liable as partners. Upon the trial the court regarded the transaction in relation to buying the logs as so different from the contract to haul the logs to the mill that he struck out the testimony of the witness McNeal relative to Worden and Townsend bargaining with him for the purchase of black-walnut trees in which both took part. In this he erred. The purchase of the timber, and the hauling to the mill, were parts of one business transaction, in which these parties were engaged; and what Townsend did and said in reference to the purchase had a tendency to prove that he was a principal with Worden both in purchasing and in having the logs hauled to the mill. The purchase would be futile unless the logs were taken to the mill where they were to be sawed. For the same reason the court erred in excluding the answer of the witness Baxter to the question: "State what was said." Plaintiff's third request was as follows: "If the jury find that defendant Townsend was to or did reap the benefit, or a portion of the benefit, from the lumber transaction, and was jointly interested with Worden in the lumber, he is liable with Worden for the labor of plaintiff." The court refused to give this request. It should have been given. What we have said in reference to the law which should be applied in this case renders it unnecessary to particularize the instructions given by the court to the jury upon which error is assigned. Such portions of the charge as are not in harmony with what we have stated as the law are overruled. The judgment is reversed, with costs, and a new trial granted. The other justices concurred. (80 Mich. 317) PEARL V. WALTER et al. (Supreme Court of Michigan. April 25, 1890.) DECEIT PLEADING AND PROOF. 1. In an action for fraudulent representations, whereby defendants obtained plaintiff's note for the price of oats at an exorbitant price in return for an agreement and bond of a fictitious corporation to sell a larger quantity for plaintiff at the same price on commission, it is error to direct judgment for defendants on the theory that the transaction was illegal, and the parties in pari delicto. Following Hess v. Culver, 43 N. W. Rep. 994. 2. The delivery of the oats does not relieve de fendants from liability for their fraudulent representations except as to the amount of their value. 3. Where the declaration alleges a conspiracy on the part of three defendants to defraud plain tiff in the sale of oats, an allegation that the oats Appeal from circuit court, Clinton county; JOSEPH B. MOORE, Judge. J. O. Selden, for plaintiff. H. E. Walbridge and O. L. Spaulding, for defendant Walter. Will H. Brunson, for defendant Bailey. belonged to defendant B., and were delivered by consciously wrong, the fact that the transhim, and that he first called on plaintiff and stated action is against public policy in law will that the others were selling the oats for him, is not necessarily compel the victim to subsufficient to show that plaintiff relied on represen-mit to the fraud of the actual villain." tations made by the other two defendants as the The declaration shows that when the derepresentations of B. fendant Bailey first approached plaintiff upon the subject of buying these oats plaintiff told him that he was afraid of the scheme, and he thought there was something wrong about it. This is all there is in the declaration to show that plaintiff supposed he was to become a party to any fraud. The declaration charges a conspiracy to defraud him on the part of the defendants, and sets out the details of such conspiracy, and the acts and declarations of the conspirators in the accomplishment of their object, and we think a case is made against all of them. Bailey went to see plaintiff first. When the plaintiff doubted the rightfulness of the transaction, as above quoted, Bailey named a reputable attorney at Ovid, with whom he said he had consulted, and had been advised by him "that said Bohemian Oat Company's mode of doing business was legitimate, and that the dealing in said oats, as was being done in many places, was legal and all right." He also stated that the defendants Walter and Wright were selling Bo MORSE, J. This case, as presented by the plaintiffs' declaration, is so nearly like that of Hess v. Culver, 43 N. W. Rep. 994, as to be governed by it. The suit was commenced by summons in the circuit court for Clinton county. No service was obtained upon defendant Wright, and he did not appear. The others appeared by separate attorneys. Declaration was filed May 12, 1888, to which defendant Walter demurred on the 17th of the same month. September 1, 1888, defendant Bailey filed his plea of the general issue. November 26, 1888, the circuit judge, Hon. V. H. SMITH, overruled the demurrer of Walter, and February 16, 1889, he pleaded the general issue. October 14, 1889, the case came on to be heard before Hon. J. B. MOORE, pre-hemian oats for him. Afterwards Bailey siding judge, and a jury was impaneled and sworn. Upon the offer of testimony by the plaintiff to support his declaration, the defendant Bailey objected for the reason that such declaration did not set forth any cause of action, and was insufficient in law. The judge, after hearing argument, decided the objection to be well taken, and directed a judgment for the defendants. The only material difference between the present case and that of Hess v. Culver, supra, is that the plaintiff received the oats, which were of some value, but this cannot alter or diminish the fraud, except as regards the damages. It is claimed, also, that plaintiff knew the scheme was a fraud when he went into it, and therefore should not be permitted to recover on grounds of public policy; that this knowledge sufficiently appears from the declaration, but, independent of that, it ought to be presumed that he knew that the oats could not be sold for $15 per bushel, except by perpetrating a fraud upon a third party. It has been said by this court in two cases that this Bohemian oat scheme carried upon its face the evidence of its fraud. McNamara v. Gargett, 68 Mich. 454, 36 N. W. Rep. 218; Davis v. Seeley, 38 N. W. Rep. 901. But we have also recognized the fact that, transparent as it seems to us, it has yet been accepted by thousands in this state, many of whom did not understand its true character, and had no suspicion of wrong, and that it is "so cunningly devised that, in the hands of a sharp, shrewd, and designing man, hundreds of the unwary have been defrauded." McNamara v. Gargett, 68 Mich. 459, 460, 36 N. W. Rep. 218. And we also said in Hess v. Culver, supra: “Where a man is defrauded, as often happens, by the misrepresentations of some one who assumes knowledge, and where, under the circumstances, he is actually deceived, and not sent Walter and Wright to plaintiff, and their representations induced him to buy the oats. Among other things, they represented that they were the agents of the "Bohemian Oat & Cereal Company of Ypsilanti;" that it was a legal and responsible corporation, incorporated under the laws of this state. They showed him a paper, purporting to be a certificate of the secretary of state that the company was duly incorporated. They also presented him "a nicely printed paper, with a broad golden seal upon it, which they asserted and declared to be a bond" of said company, and said that if he would buy 30 bushels of said Bailey's Bohemian oats at $15 per bushel, and give Bailey his negotiable note for $250 at 14 months, with interest at 7 per cent., and a like note to said Walter at 13 months, they would fill out the blanks in said bond and deliver the same to plaintiff. If the bond was not fulfilled, all the plaintiff would have to do would be to go to the state treasurer at Lansing, with whom the company had deposited $100.000, and there he would receive the full amount of his damages. Relying upon these statements, which were false, the plaintiff bought 30 bushels of said oats, and gave his promissory notes as above, and he avers that he would not have bought said oats, or given his said notes, had he not believed said statements to be true, and had not the said bond been delivered to him. The bond was as follows: "No. 432. F. A. Bond. Capital stock, $100,000. Home Office, from Ypsilanti, Michigan. The Bohemian Oat & Cereal Company, incorporated under the laws of the state of Michigan, December 21, 1884. Know all men by these presents that the Bohemian Oat & Cereal Company do hereby agree to sell 60 bushels of Bohemian oats for Mr. Lewis Pearl at $15 per bushel, in cash or by note, for which said Pearl is to pay 33% per cent. commission for selling; said commission to be paid in notes for which said grain is sold; said grain to be sold on or before September 23, 1887; the price on this grain being a fictitious value for speculative purposes. In testimony whereof the said Bohemian Oat & Cereal Company has caused this bond to be signed and sealed by the superintendent of said company this 23d day of October, 1886. This company will not be held responsible for any outside contracts made by agents other than those expressed on face of this bond. This bond is void without the company's seal and signature of superintendent. J. W. ORCUT, Superin tendent. It will be noticed that the selling of the oats to be raised by plaintiff was to be done by the company, and nowhere is it stipulated or agreed that plaintiff should in any way aid in such selling except to furnish the oats. We do not think plaintiff's part in the transaction shows upon its face any knowledge that a fraud was necessarily to be perpetrated upon any one else, or any intent upon his part to participate in any fraud upon third persons. It must be remembered that many people do not have the intelligence to discern a fraud as easily as those whose business it is to discover and punish frauds. The court may at a glance detect the swindle in a transaction which, plausibly disguised, may deceive many good and honest men, and the moral perception of one man may not be so quick and clear as that of another, and yet both may equally be honest in the sight of the law, and entitled to its protection. It must not, therefore, be considered that the remarks of this court in Davis v. Seeley, 38 N. W. Rep., at page 903, in which this scheme upon its face is declared to be a "transparent fraud," were intended to cut off all men from relief as against the chief swindlers in these Bohemian oat transactions. The law takes note of the ignorant, the credulous, and the unwary, and will make their ignorance and want of cunning their innocence, and protect them. To do otherwise would put a premium upon villainy, if such villainy but reach its end by an appeal to the hope of gain, which animates us all, so plausibly and cunningly worded as to make the worse appear the better to one not skilled in the ways of the world. In this case the plaintiff was a farmer, whose fear that the scheme was wrong was easily dispelled by what was said to be the counsel of a good lawyer, by the pretended certificate of the secretary of state that the company was incorporated, and that which was to him an immense sum of money was deposited with the state treasurer at Lansing, sufficient to pay all damages occasioned by the non-fulfillment of the obligations of the bond. It cannot be said as a necessary legal deduction that he knew that his part in the transaction would in the end swindle or defraud some one; nor in fact did it. It turns out that he alone in this transaction was defrauded. It may well be conceived that the plaintiff, under the representations made and the documents shown to him, did not stop to reason out the consequences beyond himself, and to consider that some time in the future, if his bond was fulfilled, somebody else must suffer loss to make his gain. What we may now see in the light of many cases like the one before us, or what a lawyer or other skilled business or professional man might have seen in such a scheme upon its presentation, cannot be held up as a guide and standard for all of our people. We must, in order to do justice, remember that this kind of swindling is practiced almost universally upon those whose means of knowledge and whose experience in the frauds and deceits of the world are limited within narrower bounds than ours; and we are not authorized to take it for granted, as argued by counsel, that every honest man would at once discover the fraud in this Bohemian oat scheme. It is argued very strenuously by the counsel for the defendant Bailey that the declaration does not show that he made any representations upon which the plaintiff relied; that such representations were made entirely by Walter and Wright. But as Bailey was selling his own oats, and delivered them, to plaintiff, and first called upon plaintiff to sell them, and there stated that Walter and Wright were selling oats for him, and afterwards sent them to plaintiff, we are satisfied that he was the main man in the concern, and responsible for all that was done or said by any of the defendants. The judgment must be reversed, and a new trial granted, with costs of this court to plaintiff. The other justices concurred. (80 Mich. 332) SMITH et al. v. PINCH et al. (Supreme Court of Michigan. April 25, 1890.) LIFE INSURANCE-WAGERING POLICY. Laws Mich. 1887, Act No. 187, § 16, provides that any contracts of insurance on lives of more than 65 years issued by co-operative and mutual benefit associations, "organized, existing, or doing business in this state under or by virtue of" its provisions, "shall be void as to the beneficiary therein named, but the amount thereof shall be payable to the heirs of the member." Held, the law does not apply to a policy issued prior to its passage, and the heirs of the assured have no claim upon money voluntarily paid to the beneficiary of a void policy. Appeal from circuit court, Calhoun county, in chancery; FRANK A. HOOKER, Judge. Jesse M. Hatch, (John C. Patterson, of counsel,) for appellants. Shriner & Fox, for appellees. CHAMPLIN, C. J. This case comes before us upon a general demurrer for want of equity to the complainants' bill of complaint. The bill is filed by the heirs at law and the administrator of Abigail Smith, deceased. It charges that the Old People's Mutual Benefit Society of Elkhart, Ind., a corporation of the state of Indiana, and doing business in Michigan, on the 1st of August, 1883, issued a policy of insurance upon the life of Abigail Smith, then residing in Lee, Calhoun county, Mich., insuring her life for the sum of $3,000, payable upon her death to Elvira Smith, of Walton, Eaton county. That Abigail Smith died October 18, 1887. The bill further states and charges that Elvira Smith was a daughter-in-law of Abigail Smith, but |