in there in the morning of the 28th day of It appears from the evidence that the | Mr. Skinner said to you when he first came prosecutrix, with her husband and family, resided in the rear rooms of a store building situated in the village of Alstine; that the residence portion was separated from the store-room by a partition, through which there was a door or passage-way from the residence portion to the store, and which, just previous to the time the alleged assault was made, was open. It also appears that prior to the alleged occurrence the families of the prosecutrix and the defendant were on friendly terms; that the defendant had boarded in the prosecutrix's family at one time; had assisted her in the store; and that the two were frequently seen engaged in friendly conversation with her head upon his breast. At the time of the alleged assault the store was kept by one J. P. Smith, in which Mr. Smith was at the time. The husband, Mr. | Rogers, had gone into the country that day, which fact was known to the accused. The plaintiff in error, on the day in ques--on the 28th day of December? A. I saw tion, went into the store, where Mr. Smith was, and passed on into the room occupied by the prosecutrix and her children. We quote the testimony of Mrs. Rogers, giving in detail what occurred in her room. "Question. Did you see the defendant on the 28th day of December, 1888? Answer. I did. Q. Where did you see him? A. He came to my house. Q. Where were you at the time he came to your house? Ă. I was in the kitchen at work. Q. About what time of day was this? A. It was in the morning early he came first. Q. What time? He came during the day again? A. Yes, sir; he came there about four times between eight o'clock that morning and ten. Q. Was any one with him? A. No, sir. Q. Who was with you at these times on the 28th day of December that he came there? A. There weren't any one in the room with me but my children; but Mr. Smith was there in the store building. Q. Was any one in the kitchen with you? A. No, sir... Q. What did Mr. Skinner do and say to you when he came there first in the morning? A. Well, he came that morning, and spoke, and said, 'Good morning,' to me. Then he sat down by the stove, and he asked me when we were going away. (we were talking about leaving.) I said I didn't know when we was going; and then he began to inquire about a letter that we had got on the Monday before, and he asked me what it was, and who wrote the letter. I told him I didn't know, and he wanted to know what was in the letter. I said I didn't know, and I would not tell him what was in the letter; and he wanted to know what he was going to do about it. I said he wasn't going to do nothing. He said: 'Is he going to leave you?' Q. Who did he refer to when he asked you what he was going to do about it? A. He wanted to know what Mr. Rogers was going to do about it, what he was going to do about the letter. That was the matter. Q. Go on and state what was said. A. He says: Is he going to leave you?' Said 1: 'No.' He says: 'Won't you go with me?' I says: No, I would not.' Q. Mrs. Rogers, I wish you to narrate now what took place,-what him go over the hills, and he was gone Smith and two other men were in the store-room at the time of the occurrence on December 28th; that the defendant did not attempt to disturb her clothing; that, when she told the defendant if he did not let go of her she would halloo, he let loose; that the prosecutrix had never told her husband or any one else of the first alleged assault until after December 28th; that on a Sunday in December, after the first and prior to the last alleged assault, the prosecutrix and her husband went home with the defendant and his wife, took dinner and spent part of the day with them, and that the defendant stopped overnight at the prosecutrix's on the 27th day of November, a few days after the first alleged assault. did. A. Well, when I told him I would holler if he didn't let loose of me, he let loose of me then, and I had been ironing, and I picked up the clothes, and ran out of there, and went around the house, and ran into the wareroom, and stayed there until I thought he would be gone. Then I went into the store building. He had gone. I told Mr. Smith what had happened, and he said, 'Yes;' he heard it, and he had gone home then. He hadn't been home but just a few minutes when he came carrying something over that he had borrowed of us. He came to the door, and I didn't want to go to the door. He asked He asked me to make up. I told him, 'No;' I didn't want to; but I went to the door, and he paid me for a jar that he had broken, and went out. Then he went home again, and I was in the kitchen working, and he came into the store again, and he came to my door, and wanted me not to say anything about this. He says: 'Let us make up friends, and not make any trouble.' * Q. Has the defendant made any attempts to assault you prior to the 28th day of De-in regard to the assault. Is it sufficient cember, 1888? A. He did. Q. When was 99 99 * * * J. F. Smith testified that the defendant went into the room of the prosecutrix through the store on December 28th; that he heard some noise and some talking which was not very loud. We have given substantially all the testimony contained in the bill of exceptions to support the verdict? We think not. In the case of Garrison v. People, 6 Neb. 274, it was held that, "to constitute an assault with intent to commit a rape, there must have been an intent to commit a rape, and that intent must have been manifested by an assault for that purpose upon the person intended to be ravished. Both of these ingredients are necessary to constitute the offense." It was undoubtedly the defendant's desire to have sexual intercourse with the prosecutrix. The evidence fails to show that he intended to compel her to submit to his desires by force, but the entire circumstances establish that he expected to accomplish his purpose by procuring her consent, and, failing in that, he desisted. The place and time of day when the act was committed, the previous acts of the parties, the fact that her clothes were not disturbed, that there was no indication of violence on her person, and that the defendant ceased urging his solicitations when the prosecutrix threatened to make an outcry, indicate that the defendant did not intend to commit a rape. He must have intended to use whatever force was necessary to overcome her resistance, and compel her to submit to his passions, to make out the crime of an assault with intent to commit rape. The evidence fails to sustain the verdict. The judgment of the district court is reversed, and the cause remanded for a new trial. The other judges concur. (80 Mich. 260) BOICK V. BISSELL. (Supreme Court of Michigan. April 18, 1890.) NEGLIGENCE-EVIDENCE-QUESTION FOR JURY. 1. In a suit for damages for personal injuries, alleged to have been caused by the negligence of defendant's driver, it appeared that plaintiff, a teamster, was standing beside his wagon, with his head down, binding on a load of lumber, when defendant's truck, although there was ample room in the drive-way, passed so near as to catch plaintiff between the wheels, and injure him. Held that, al though plaintiff saw the truck approaching when 10 or 12 feet distant, the questions of contributory negligence and negligence of defendant's driver should have been left to the jury. 3. It was error to exclude testimony offered on behalf of plaintiff to show that he was loading his wagon in the customary way in that passage, and that defendant's driver knew what was the cus tomary way. 3. Plaintiff having testified that if defendant's driver had driven in a straight line from where plaintiff saw him he would not have touched plaintiff, it was error to exclude the further question as to how far, in such case, the truck wheels would have come from his feet. 4. The reputation of defendant's driver as a careful driver was immaterial, and testimony on that head was properly excluded. Error to circuit court, Wayne county; GEORGE GARTNER, Judge. Corliss, Andrus & Leete, for appellant. Henry M. Duffield, for appellee. | Bissell's team to pass without injuring plaintiff, and it would have done so, as plaintiff claims, if the driver had not swerved from his course in towards the plaintiff. His foot was caught by the hind wheel, and he was thrown down between the vehicles, severely injuring both legs. The truck of defendant was not over eight feet wide. The hind wheels were six inches wider than the forward wheels. The plaintiff testified that if defendant's driver had driven in a straight line from where he first saw him he would not have touched him. He was asked if he had so driven how far the truck wheels would have come from his feet. He was not allowed to answer the question, which was a proper one. It was shown that the track of the truck wheels passed within from 6 to 12 inches of plaintiff's wagon. The drive-way was planked its whole width, and there were no obstacles in the way of Bissell's driver except plaintiff and his wagon. MORSE, J. This is an action to recover damages for personal injuries to plaintiff alleged to have been received through the negligent driving of defendant's servant. The circuit judge directed a verdict for the defendant. This was error. The case The circuit judge, in his charge to the should have been submitted to the jury jury, stated that the defendant's driver upon the question of the negligence of de- "might have left more space between himfendant's driver, and also as to the contrib- self and plaintiff's team." This is also eviutory negligence of plaintiff. No testi- dent from the testimony. The circuit mony was offered on the part of the de- judge further said the defendant's driver fendant. The facts, as shown by the plain-"might have seen him, [plaintiff,] and he tiff and his witnesses, were substantially might not have seen him. There is no evias follows: The plaintiff, a teamster, was dence that he did see him, or that he drove hauling lumber on the 17th of December, faster than men usually drive in that 1887, from the depot of the Detroit, Grand drive-way, or that he drove in any other Haven & Milwaukee Railway Company, way, or in any other manner, than a careat Detroit. Teams go in and out from the ful or prudent person would drive. To my depot in a drive-way from Atwater street. mind there is no evidence in the case upon The drive-way is about 25 feet wide from which you could find negligence on the the platform of the freight sheds at the de- part of the driver." From all the testipot to the car tracks. The north side of mony, it appears that there was a clear the drive-way, adjacent to the tracks, is space of at least 14 feet outside of the devoted to the loading of freight directly plaintiff, in which the defendant's driver from the cars. The plaintiff drove his might have passed, leaving from 6 to 8 feet wagon to the north side of the drive-way, between his load and plaintiff. The plainoccupying a space from five to eight feet of tiff had a right to be in the drive-way, and the same, and was loading lumber from was using no more space than he was enthe cars upon his wagon, which was about titled to. The driver of Bissell's wagon five feet wide. He had put on a small load was bound by the law to notice plaintiff's of lumber, and was engaged in binding his wagon, and to use all due diligence and load at the time of the injury. His horses care in passing, so as not to injure him. were facing to the west, and he stood be- It was for the jury to say, under the cirtween the hind and forward wheels, wind- cumstances, whether driving within from ing the chain around the wagon reach, or 6 to 12 inches of plaintiff's wagon was orusing the chain for the purpose of tighten- dinary care and prudence, considering the ing and securing his load, at the time he character of his load, and where the drivwas hurt. He came around from the front er sat upon it. If his position was such of his horses to bind the load, and, as he that he could not look down and see so came around, saw the defendant's team where his wheels were going, it was the coming. Bissell's team was drawing a driver's duty to take space enough to preheavy freight truck, loaded with from 40 vent collision, as long as the space was to to 50 bags of clover seed, weighing about be had. If he did not wish, for any rea180 pounds each. The driver sat upon the son, to take this space, it was his duty to top of the load, and in front. This truck keep his eyes out to see whether or not he was loaded upon the other side of the was going to run against or over plaindrive-way, from 75 to 150 feet away from tiff. If, under the circumstances, he had plaintiff, and while loading the team was collided with plaintiff's wagon or team, faced to the east. When the load was com- his negligence would have been apparent. pleted, the driver turned his horses around, As it is, his negligence is a question to be and drove out past plaintiff. Defendant's properly decided by a jury. team was 10 or 12 feet east from plaintiff's wagon when he first saw it. He stood, as it passed, with his face to his own wag-feet after the forward wheels of defendant's on, and his back to defendant's truck, and within two or three feet of his wagon, and was stooping over, or hending forward, engaged in tying his chain or in binding his load. There was plenty of room for It is claimed by defendant's counsel that the plaintiff must have thrown out his truck had passed, and that such act was to pass without touching the plaintiff, and it was at noonday, and when, as plaintiff says, if the driver had kept on in a straight course, as he was driving, he would not have struck plaintiff, it was for the jury to say whether or not it was negligence in the plaintiff to turn his back to the roadway, relying upon the course of the defendant's wagon as headed, and upon the fact that there was plenty of room in which to pass him without collision. The reputation of defendant's driver as a careful driver was not in issue, and was immaterial. Williams v. Edmunds, 42 N. W. Rep. 534. It was competent to show that plaintiff was loading his wagon in the customary way in such drive-way, and that defendant's driver knew what the customary way of loading was there, as affecting the question of his negligence in driving as close as he did to plaintiff's wagon. The judgment is reversed, and a new trial granted, with costs. The other justices concurred. (79 Mich. 607) HANLEY et al. v. WALKER. (Supreme Court of Michigan. April 11, 1890.) ASSUMPSIT-CONTRACTS-CONSTRUCTION-QUANTUM MERUIT. 1. Where a contract by plaintiffs, for plastering, provides that, before payment can be demanded, plaintiffs must obtain the certificate of approval of specified architects, their failure to obtain such certificate is a defense to an action on the contract, in the absence of fraud or collusion on the part of the architects and defendant. 2. A contract provided that plaintiffs should do certain plastering, in accordance with certain plans and specifications, for a certain sum, and that defendant should pay them, as the work progressed, on the certificate of the architects, deducting a certain per cent., and that on the completion of the work, and its acceptance and approval by the architects and owner, the balance should be paid. The architects pointed out certain defects which plaintiffs claimed to have remedied. Held, that they could not recover on a quantum meruit without the architects' certificate. 3. Defendant's taking possession of the premises after plaintiffs quit work was not a waiver of the condition requiring plaintiffs to obtain the architects' certificate before they were entitled to payment. Error to circuit court, Wayne county; GEORGE GARTNER, Judge. William Aikman, Jr., (Atkinson, Carpenter, Brooke & Haigh, of counsel,) for appellant. John J. Speed, for appellees. CHAMPLIN, C.J. The plaintiffs composed the firm of George Hanley & Bro., who were house plasterers doing business in the city of Detroit. In 1886, defendant was building brick dwelling-houses situated upon John R. and Watson streets, in the city of Detroit. They were five in number. On the 26th day of May, 1886, the plaintiffs entered into a contract with defendant to do the plastering in these houses according to certain plans and specifications then prepared for said work by William Scott & Co., architects, which plans and specifications were made a part of the contract. The plaintiffs were to furnish and provide all the good, proper, and sufficient materials and labor of all kinds as should be necessary and sufficient for completing and finishing the whole of the lathing and plas tering of the five dwelling-houses, for the sum of $2,475. The contract contained this clause: "It is also agreed by and between the parties that the specifications and drawings are intended to co-operate, so that any works exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if they were mentioned in the specifications and set forth in the drawings, to the true intent and meaning of the said drawings or specifications, without extra charge, and, should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by William Scott & Co. and decision shall be final and conclusive. "It also contained the following: "The contractor, at his own proper costs and charges, to provide all manner of labor, materials, apparatus, scaffolding, utensils, and cartage, of every description, necessary for the due performance of the several works." The fifth article reads as follows: "Should the owner, at any time during the progress of said works, require any alteration of, deviation from, addition to, or omissions in, this contract, consisting of this agreement and the said plans and specifications, made a part hereof, he shall have the right and power to make such change or changes; and the same shall in no way injuriously affect or avoid this agreement, but the difference shall be added to or deducted from the amount of this contract, as the case may be, by a fair and reasonable valuation. No changes shall be made except by written notice from the owner, which may be served on the contractor, subcontractor, or foreman. No omission of work or materials from the plans or specifications Ishall be deemed extra work if the same is necessary to complete said building in accordance with the general design or purpose for which the same is intended, and the provisions of said plans and specifications, and no work shall in any case be considered extra unless a separate estimate, in writing, for the same shall have been submitted by the contractor to the architect and the owner, and their signatures obtained thereto; and should any dispute arise respecting the true value of any extra work, or of the works omitted by the contractor, the same shall be valued by two competent persons,-one to be chosen by the owner, and the other by the contractor,—and these two shall have the power to name the third, in case they cannot agree, and the decision of the two shall be binding on all parties, in case there be no fraud or collusion." The specifications required the first, second, and third stories to be plastered with two coats,-the first, of rich brown mortar; the second, excepting coves and splays, to be one hard coat white finish, with plenty of sand; finish composed of cold run putty and plaster of paris, well mixed and put on,-troweled down hard and smooth. They also require the contractor to put up centers, to cost $15 net, in each house, to be selected by the owner or architect. The specifications also contained the following: "Parlors, halls, sitting and dining rooms, to have plaster coves as shown in sketch, rough plastered, and set with peb bles and shells, combed, as may be directed. Second-story halls, and two chambers in each house, to have 9splayed angles, rough plastered and coarse combed. Plaster to run in beads on angles of all plastered angles, and finish and set ornamental brackets. The plasterer will remove all rubbish occasioned by his work from the premises, and leave the building broom clean; furnish and put up cotton cloth to the windows, where required; pay for all broken glass while he is performing his work; and furnish heat and labor for drying the plastering." The contractor was to be paid from time to time, as the work progressed, upon the certificate of the architect, deducting 10 per cent., until the whole job was completed and accepted, when the balance and such percentage was to be paid on the architects' certificate after the expiration of 30 days after acceptance and approval by the architect and owner, and the full, satisfactory adjustment of all things pertaining thereto. The contract relative to payment contained this proviso: "That before each and every payment is made a certificate shall be obtained from, and signed by, William Scott & Co., architects, to the effect that the work has been done, and materials have been furnished, in strict accordance with this agreement, said drawings and specifications, and that he considers the payment properly due. Said certificate, however, is in no way to lessen the total and final responsibility of said contractor." No time is stated in the contract when the work shall be begun, nor when it shall be completed. Two facts, however, are suggested by the contract: First. That the buildings were not then so far completed as to be in readiness for plastering. This is apparent from the fact that the contract stipulates that Hanley & Bro. shall build the houses, and furnish all material therefor. But this is not claimed, and explanation is found in the fact that a blank form of building contract was used in making the agreement for plastering. Second. The specifications show that the plastering might not be performed until cold weather, as they provide that the contractor shall "furnish heat and labor for drying the plastering." Hence it appears that it was in the contemplation of the parties, on the 26th of May, that the work would be done when the season would require artificial heat to dry the plastering. The plaintiffs claim that there were two modifications of the written contract: First. On account of delay of the builders, the dwellings were not ready for the plasterers until late in the season of 1886. The plaintiff George Hanley testifies that they entered upon the performance of the contract about the middle or last of October; that he had a conversation with defendant about the 1st of October, in which, after mentioning the cause of delay, he said: “We are into the cold weather and we will have to provide some means of heating;' and he asked me to suggest something to get over the difficulty. I told him that the only way we could do it now would be by using salamanders and coke fires until such times as he would be able to get his proper heating arrangements in shape, and he said he would furnish the coke if I would supply the salamanders. He asked me if I could not make our mortar in the cellar, in order to protect it from the weather. I told him it was not necessary; that we could do it outside as well." He further testified that salamanders were fit only for use in drying out the brown coat; that it is not usual to use them during the progress of the second coat, as it has a tendency to discolor the work; and that he did not use them in this work for that reason. He testified that the second coat was put on after the first coat was dry. From the testimony of Mr. Hanley, it appears that no modification whatever was made in the terms of the contract except that Mr. Walker agreed to furnish coke for the heating, which relieved Mr. Hanley of that expense. The other modification claimed by Mr. Hanley to have been made was in reference to the manner in which the coves were to be finished. The testimony of Mr. Hanley in support of this claim is as follows: "The coves were not put in according to specifications. They were finished in soap-stone, by an arrangement with Mr. Crittenden. I considered that Mr. Crittenden was acting for Mr. Walker in his absence. Previous to Mr. Walker going away, I had an interview with him, and he said to me that anything I needed, to call down and see Mr. Crittenden, and, if there was anything I wanted an explanation about, to come down there and have a talk with Mr. Crittenden. He was in Mr. Walker's office, and apparently in charge of the office business,-book-keeping, or something of that kind. I called Mr. Crittenden's attention to what would be the appearance of the work if put in according to specifications. So we finished the coves in soap-stone, according to the specimen furnished to Mr. Crittenden. * I told Mr. Crittenden that, while soapstone was more costly work, as Mr. Walker was away, I would not charge anything additional for the change." On cross-examination he testified: "Mr. Walker did not say anything to me with regard to Mr. Crittenden's agency. He merely said, if I needed anything to go down and see him. That was in the latter part of November, as near as I can recollect; just before Mr. Walker went west." The defendant testified in his own behalf that he never authorized any change in the plans and specifications. He claims that the work was not done according to the contract. That the last coat was not hard finish, but would rub off when touched, leaving a white powder upon the hand, and that the cove and finish was not in accordance with the specifications. On the 23d of February, 1887, Scott & Co, architects, served notice upon plaintiffs that the plastering would not be accepted; that the surface rubbed off; that there was some defect in the last coat, or the frost had touched it; that, in order to make a good job, it would be necessary to calcimine the entire walls. On receipt of this notice, plaintiff sent his men; and they sponged the walls, and claimed that they left them in good order. They received another no |