between the parties hereto that the clearing of the aforesaid described land shall be completed by September 1st. The Millersburg Driving Association, party of the first part, agrees to pay E. M. Lewis the price of $15.00 per acre for clearing the aforesaid described land, as follows: One-half of the price per acre as the work shall progress and be acceptable to the board of managers; and the bal ance, that is to say, $7.50 per acre, when the aforesaid land shall have been cleared and accepted by the board of managers. And for the true and faithful performance of all and every of the covenants and agreements above mentioned the parties to these presents bind themselves, each unto the other, in the penal sum of one dollar as fixed and settled damages to be paid by the failing party. In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written. "THE MILLERSBURG DRIVING ASSOCIATION, "Signed, sealed, and delivered in presence of: "H. L. ABRAHAMS." It is claimed by plaintiff that, whether for any reason this contract as between defendants and the independent, contractor was or was not valid and enforceable, it is not material, for the reason that the court was in error in directing a verdict against him on account of said contract; that defendants under the circumstances of this case were estopped by their misrepresentations, and their silence when they should have spoken, from interposing such a defense. The brief of defendants concedes that this unorganized voluntary society was capable of suing and being sued. Such admission necessarily follows the reliance upon such contract as a relief to them from liability. The court in his charge to the jury correctly held that these defendants were carrying on their operations by agreement, associated together for a definite purpose, that they were responsible for their acts individually, and as a whole. This court has so held. Detroit Light Guard Band v. Independent Infantry, 134 Mich. 598 (96 N. W. 934), and cases cited; section 10025, 3 Comp. Laws. The record shows affirmatively that a majority of these defendants were personally notified and warned of the danger and damages which would arise from setting these fires. Such notices and warnings were given by plaintiff's sons at times when they were making inquiry as to who were the parties responsible and in control of this work. No one of these defendants claimed or intimated that there was any independent contractor; on the contrary, when asked directly who was in charge and control, it was stated that the work was in the hands of the stockholders, and one of them stated that he was the manager of this work. Further, at the request of one of plaintiff's sons to a defendant, a promise was made to bring the matter of the notice and warning before all the stockholders, which was done, and the answer was returned that, when they needed instructions in the management of their business, they would call for it. The fact that there was an independent contractor was directly concealed and suppressed by them when, by reason of the notice and warning of the danger arising from setting fires and inquiries as to who were the responsible parties, opportunity was offered and defendants were in duty bound to give the information if they had it, and relied upon it. Their conduct and statements misled plaintiff, and gave him distinctly to understand that they were responsible, and deprived him of the right and opportunity to give notice and warning to and deal with the independent contractor. We are forced to agree with this contention, and can come to no other conclusion but that defendants are estopped from interposing the defense that they are not liable by reason of this independent contract. It is well established that an estoppel arises from silence as well as from statements, when there is a duty and an opportunity to speak. There was in this case on the part of the defendants both a duty and an invitation, and defendants did not speak. Every element of an equitable estoppel has been established by the testimony on the part of plaintiff. The general doctrine of estoppel in pais is familiar, and has been frequently recognized and applied by this court. Citation to these decisions is not necessary. The court was in error in holding that defendants were relieved from liability by this contract. The facts and circumstances of this case, as presented by the plaintiff's evidence, as far as its consideration at this time is concerned, must be accepted as true, together with all legitimate inferences to be drawn therefrom. There appears to be no dispute about the ownership of these lands of plaintiff and the Fair Association, or that the fire occurred as claimed and ran over the plaintiff's lands, causing great damage. Plaintiff made ample proof of this, and also that defendants took control and possession of the fair grounds, and caused them to be cleared; that the season was the dryest ever known in that country, and great care and caution were necessary to protect and guard against fires; that many of these defendants were personally notified of these dangers, and requested to use care in the matter of setting fires to burn over this land south of plaintiff's homestead; that no attention was paid to the warnings given, but the brush and trees on the fair grounds were cut, piled, and fired by those in control and occupying said lands when a strong wind was blowing toward plaintiff's property, in what was claimed to be a wanton, careless, and wilful disregard of plaintiff's rights. In addition to the evidence on the part of plaintiff in that regard, this court, from its files and records, and from its knowledge of the history of that locality, will take judicial notice of the great drought during that summer and fall, and the great danger to life and property from extensive forest fires. The further contention of plaintiff is that, if the contract we have considered was admissible, or the proofs of defendants would show that the damages in this case arose from the acts of the servants of an independent contractor, the court erred in instructing a verdict for defendants, for the reason that, under the circumstances and known conditions, and the warnings of defendants, it was their duty to use all reasonable precautions to prevent damage by fire, and they were not only bound to stipulate in the contract that proper precautions should be taken, but also to see that they were observed, otherwise they would be liable for consequences; that there are exceptions to the general rule that the principal is not liable for damages arising from the wrongful acts of an independent contractor. We agree with this contention. It is founded upon reason and authority. Judge COOLEY, in his work on Torts, says: "If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible, *for I cause acts to be done which naturally expose others to injury." 2 Cooley on Torts (3d Ed.), p. 1091. This exception was recognized in a recent case by this court (Rogers v. Parker, 159 Mich., at pages 282 and 283 [123 N. W. 1111, 34 L. R. A. (N. S.) 955, 18 Am. & Eng. Ann. Cas. 753]), where the following quotation taken from an eminent author is quoted: "So it is the duty of every person who does in person, or causes to be done by another, an act which from its nature is liable, unless precautions are taken, to do injury to others, to see to it that those precautions are taken, and he cannot escape this duty by turning the whole performance over to a contractor, etc. Mechem on Agency, § 747, and cases cited." In 26 Cyc. pp. 1559, 1560, this rule is recognized, and the cases there cited amply sustain it: "Where the work is dangerous of itself, or as often termed, 'inherently' or 'intrinsically' dangerous, unless proper precautions are taken, liability cannot be evaded by employment of an independent contractor to do the work. Stated in another way, where injuries to third persons must be expected to arise, unless means are adopted by which such consequences may be prevented, the contractee is bound to see to the doing of that which is necessary to prevent the mischief. The injury need not be a necessary result of the work, but the work must be such as will probably, and not which merely may, cause injury if proper precautions are not taken." It is suggested that to hold in accordance with this recognized exception to the general rule applied in the case of an independent contractor is to abrogate the rule as followed by this court. It would seem that a careful consideration of what has been said in this opinion, and of the authorities cited, is a sufficient answer to such suggestion. Mr. Justice BLAIR, speaking for this court, in Rogers v. Parker, supra, a case framed entirely upon the statute, from which we in this opinion have taken this quotation from Mechem, supra, said: "It seems evident that the liability of the owner of lands for negligently permitting fire to escape therefrom is predicated upon his knowledge of the existence of a fire thereon, or, at least, of knowledge of facts which would charge him with notice that the danger of such fire breaking out thereon was imminent. This record is barren of any such evidence." The Supreme Court of Ohio in a well-considered case has approved this doctrine, quoting from the leading Eng. lish cases: "The doctrine of independent contractor, whereby one who lets work to be done by another, reserving no control over the performance of the work, is not liable to third persons for injuries resulting from negligence of the contractor or his servants, is subject to several important exceptions. One of these, applicable as we think to this case, is where the employer is, from the nature and character of the work, under a duty to others to see that it is carefully performed. It cannot be better stated than in the language used by Cockburn, C. J., in Bower v. Peate, 1 Q. B. Div. 321, 326, a leading and well-consid ered case. It is, 'that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to |
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