Theobold v. Louisville etc. Ry. Co., 66 Miss. 279, 14 Am. St. Rep. 564, 6 South. 230; Brainard v. Clapp, 10 Cush. 6, 57 Am. Dec. 74; Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 55 Am. St. Rep. 930, 19 South. 1; Chase v. City of Oshkosh, 81 Wis. 313, 29 Am. St. Rep. 898, 51 N. W. 560; Livingston v. Wolf, 136 Pa. St. 519, 20 Am. St. Rep. 936, 20 Atl. 551; Tate v. City of Greensboro, 114 N. C. 392, 19 S. E. 767.

The Justice continued: "The alleged right of recovery is not left to depend upon the infliction of actual and unnecessary damage, but upon the omission of a technical notice, which it is claimed may alone constitute a trespass. If this is so, the rule must extend to the cutting of any tree by the highway commissioner without notice and reasonable delay, no matter how great the exigency, and although it may be a benefit, instead of an injury to the abutting owner; and if this is so as to a tree, it is also true of the grass or the shrubs that spontaneously grow upon the borders of the highway. I think this position is untenable. We have held in the case of Wyant v. Telephone Co., 123 Mich. 51, 81 Am. St. Rep. 155, 81 N. W. 928, that the cutting of branches was not actionable unless excessive or unnecessary injury was inflicted, and that should be the rule here. If the cutting of a tree without notice is a trespass, the cutting of half of a tree without notice is a trespass."

Streets-Removal of Trees in.-Where shade trees have been planted and maintained in the streets of a town, by the abutting property owner, who owns to the center of the street, the town cannot cut down and remove them without notice to the owner to remove them: Stretch v. Cassopolis, 125 Mich. 167, ante, p. 567, 84 N. W. 51. When the public necessities call for the removal of such trees, however, the municipality may authorize such action: Stretch v. Cassopolis, 125 Mich. 167, ante, p. 567, 84 N. W. 51; Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 55 Am. St. Rep. 930, 19 South. 1.

SAX v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY COMPANY.

[125 Mich. 252, 84 N. W. 314.]

TRIAL-PLEADING AND PROOF-VARIANCE.-Where a declaration alleges a contract to employ the plaintiff as a brakeman on a passenger train, at which he had been employed before, and the proof shows that his previous service was as a brakeman on a freight train, the only variance being as to the recital of his former occupation, it is immaterial.

RAILROADS - GENERAL SUPERINTENDENT-RATIFI. CATION OF CONTRACT OF EMPLOYMENT.-The authority of the general superintendent of a railroad company to ratify an offer of employment made by a train master, in settlement of a claim for

personal injuries, and a completion of the contract, will be presumed in the absence of proof to the contrary.

CONTRACT OF EMPLOYMENT-STATUTE OF FRAUDS. Since a contract to employ another may be performed within a year, it need not be in writing to satisfy the statute of frauds.

CONTRACT TO EMPLOY - CONSIDERATION - MUTUAL PROMISES.-Where one agrees to release a former employer from liability for injuries while in his employ in consideration of a promise of re-employment, the execution of the release and the promise to re-employ are mutual and binding promises.

CONTRACT TO EMPLOY-SATISFACTION-DISCHARGE -REASONS.-Where one has been discharged by reason of dissatisfaction with service under a contract to perform duties to the entire satisfaction of the employer, the reasons for, or the justice of, the employer's dissatisfaction cannot be inquired into.

CONTRACT TO EMPLOY-BREACH OF SATISFACTION. Where one, who has been employed so long as his services are satisfactory, is laid off for some reason other than a dissatisfaction with his service, a failure to employ him thereafter constitutes a breach of the contract.

CONTRACT TO EMPLOY-BREACH-DAMAGES-MORTALITY TABLES.—In an action by one for the breach of a contract to employ him so long as his services were satisfactory, mortality tables cannot be introduced as bearing on the expectancy of life, in connection with the question of damages.

Geer & Williams and E. W. Meddaugh, for the appellant.

Watson & Chapman, for the appellee.

253 HOOKER, J. The plaintiff's hand was injured while acting in the capacity of brakeman upon a freight train upon the defendant's railroad, and he was idle for about four months. He then resumed work as a passenger brakeman upon another branch of defendant's road, and worked about four months, when he was dismissed, according to plaintiff's claim, and laid off because the service of a brakeman was dispensed with upon his trains, according to the defendant's contention. He brought this action to recover damages for the breach of a contract which he says was made between the defendant and himself after his injury, whereby, in consideration of a release of a claim for damages upon account of his injury, the defendant promised to give him a permanent position in its employ, which was to last during his lifetime, as long as his services and conduct were satisfactory to the company. The defendant has brought error upon a judgment of nineteen hundred and fifty dollars in plaintiff's favor.

254 The first point raises the question of a variance between the declaration and proof. Plaintiff's declaration stated that: "And afterward, on, to wit, the fifteenth day of January, A. D.

1896, said plaintiff and said defendant entered into a contract as follows: Said plaintiff agreed to release all claims against said defendant for damages on account of the above-named injuries in consideration that said defendant would give him reemployment so long as his services and conduct were satisfactory, said plaintiff having been theretofore employed by said defendant as a brakeman on a passenger train, and by the terms of said contract said defendant agreed to re-employ him as such."

The proof shows that his previous service was as brakeman on a freight train, while the declaration alleged that he had been employed upon a passenger train. The question was raised at the close of the testimony by a motion to strike out the evidence because the declaration alleged an agreement to employ the deceased as a passenger brakeman, while the proof tended to show a promise to employ him as a brakeman on freight trains, or to give him a permanent position. It was also raised upon a request to direct a verdict for the defendant. The declaration explicitly alleges that the defendant promised to employ the plaintiff as a passenger brakeman. Plaintiff testified that the agreement was to give him a permanent position during his lifetime, as long as he should perform his duties to the satisfaction of the company, and that there was talk about the kind of employment, and Mr. Cooper, the train-master, offered him the place of a gate-tender, and that he refused that, and asked for a passenger run on the T., S. & M. branch. Cooper said he (the plaintiff) would have to see Mr. Atwater. He afterward went to see Mr. Atwater, the general superintendent, at his office, and had a conversation with his clerk, who went into the next room, and told Mr. Atwater that Mr. Sax was there; and that Mr. Atwater said, "You tell Mr. Sax that we have made provision for him over on the T., S. & M.," and that he heard this conversation between the clerk and Atwater. 255 Atwater then said that he should report for duty to Mr. Wykes, who was defendant's agent at Owosso, and he did so about two months later. Wykes gave him a release to sign, and he went to work as a passenger brakeman. From this testimony it might be found that the minds of the parties met upon an employment as passenger brakeman, which is what the declaration alleges. The only variance between the declaration and the proof relates to a recital of his former occupation, which is an unsubstantial matter, and therefore immaterial: Lull v. Davis, 1 Mich. 77; Lothrop v. Southworth, 5 Mich. 436; Arnold v. Nye, 23 Mich.

286; Barton v. Gray, 48 Mich. 164, 12 N. W. 30; Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442, 4 N. W. 8; Tillman v. Fuller, 13 Mich. 113; Patterson v. Detroit etc. R. R. Co., 56 Mich. 172, 22 N. W. 260.

It is claimed that the talks with Cooper, and Main (the clerk), and Atwater were not admissible, because their authority to make such contract was not proved. If the matter rested upon the talk with the train-master, we should sustain defendant's contention, under the decision in Maxson v. Michigan Cent. R. R. Co., 117 Mich. 218, 75 N. W. 459; but, taken in connection with the conversation of the general superintendent, and the presentation of the release, which had been demanded in the talk with Cooper, and the subsequent employment, and the failure of defendant to introduce evidence to the contrary, we think. this conversation pertinent as tending to show knowledge and ratification of Cooper's offer, and completion of the contract, by the general superintendent, whose authority in matters pertaining to the business of operating the road will, in the absence of proof to the contrary, be presumed to cover such a contract: 1 Elliott on Railroads, sec. 297.

Counsel say that the court erred in refusing to direct a verdict for the defendant: 1. Because the contract was not in writing; 2. Because there was no consideration for the promise; 3. Because the defendant had a right to terminate it at will. The contract in question might have 256 been performed within a year, and therefore the first point is not well taken: Smalley v. Mitchell, 110 Mich. 650, 68 N. W. 978. The execution of the release and a promise to re-employ were mutual promises, and the contract was, therefore, binding. The difference between this case and Potter v. Detroit etc. Ry. Co., 122 Mich. 179, 81 N. W. 80, 82 N. W. 245, is easily apparent. The case does not fall within the rule of Koehler v. Buhl, 94 Mich. 496, 54 N. W. 157, because there is no claim in this case that plaintiff was discharged for the reason that the company was dissatisfied with him.

The court permitted the introduction of the mortality tables, as evidence bearing on the expectancy of life, in connection with the question of damages. It is urged that they ought not to be applied to a contract which the defendant might terminate at will. In answer to an inquiry made by a juror, the court told the jury that they should allow him damages, subject to his probable earnings, up to the expectancy of life, and that they should not take into account a possible re-employment by

the defendant. Under the contract alleged and proved, the defendant had the right to terminate the employment whenever the plaintiff did not perform his duties to the entire satisfaction of the defendant. Under the rule as settled in this state, the reasons for, or justice of, the defendant's satisfaction cannot be inquired into: See Wood etc. Machine Co. v. Smith, 50 Mich. 570, 45 Am. Rep. 57, 15 N. W. 906; Bucksport etc. Ry. Co. v. Brewer, 67 Me. 295; Singerly v. Thayer, 108 Pa. St. 291, 56 Am. Rep. 207, 2 Atl. 230; Seeley v. Welles, 120 Pa. St. 75, 13 Atl. 736; Campbell Printing-Press Co. v. Thorp, 36 Fed. 414; Pierce v. Cooley, 56 Mich. 552, 23 N. W. 310; McCormick Harvesting-Machine Co. v. Cochran, 64 Mich. 641, 31 N. W. 561; Plano Mfg. Co. v. Ellis, 68 Mich. 105, 35 N. W. 841; Platt v. Broderick, 70 Mich. 580, 38 N. W. 579; Koehler v. Buhl, 94 Mich. 500, 54 N. W. 157. It was admitted that the defendant company 257 discontinued the service of the plaintiff when the service of a brakeman on the trains upon which he was at work was dispensed with, for that reason, through Mr. Cooper, the train-master. It affirmatively appears, therefore, that he was not laid off by reason of dissatisfaction with his service, and a failure to employ him thereafter constituted a breach of the contract.

It has been held in some cases that mortality tables were not admissible in negligence cases where the injury did not result in death or permanent disability: See Mott v. Detroit etc. Ry. Co., 120 Mich. 127, 136, 79 N. W. 6; Nelson v. Chicago etc. R. R. Co., 38 Iowa, 568. In Texas it is held that the disability must be not only permanent, but total, to admit of such proof. In Texas-Mexican Ry. Co. v. Douglass, 69 Tex. 699, 7 S. W. 77, it was said that such evidence is admissible only when the earning capacity is entirely destroyed, and that, when the disability is only partial, such evidence would tend to confuse the jury: See, also, St. Louis etc. Ry. Co. v. Nelson, 20 Tex. Civ. App. 541, 49 S. W. 710; McDonald v. Chicago etc. R. R. Co., 26 Iowa, 139, 96 Am. Dec. 114.

Upon the theory that plaintiff had contracted for employment for life, and that the defendant wrongfully refused further employment after the expiration of four months, the jury might take into consideration the probable period of his ability to perform service; and the probable duration of his life would, in such case, be an element in that problem: Freeman v. Fogg, 82 Me. 408, 19 Atl. 907; Parker v. Russell, 133 Mass. 74; Tippin v. Ward, 5 Or. 450; Schell v. Plumb, 55 N. Y. 592; Burritt v.