Volume 103 — Michigan Reports

<p>Error to Mason. (McMahon, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Shiawassee. (Newton, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts ■are stated in the opinion, and in 91 Mich. 495.</p>

<p>Error to Washtenaw. (Kinne, J.)</p> <p>Argued June 21, 1894.</p> <p>Case. Plaintiff ■ brings error.</p> <p>The facts are stated in the opinion.</p>

(Stone, J.) Bill to declare a stay of execution null and void, etc. Complainant appeals. The facts are stated in the opinion.

(Frazer, J.) Appeal from an order of the probate court disallowing the probate of a will. Contestants bring error. The facts are stated in the opinion.

(Reilly, J.) Bill to subject certain lands to the payment of partnership debts, and for an accounting. Defendant Race appeals. The facts are stated in the opinion.

<p>Summary proceedings — Treble damages — Landlord and tenant— Interest.</p> <p>1. Under How. Stat. § 8306, which provides that the complainant obtaining restitution of any premises under the provisions of that chapter (386) shall be entitled to an action of trespass or trespass on the case against the defendant, and may recover treble damages from the time of the forcible entry or forcible' detainer, or of the notice to quit or demand of possession, as the case may be, a plaintiff who has recovered judgment of ouster from leased premises is entitled to treble damages, notwithstanding the finding of the jury that the defendant held ' possession because he in good faith believed that he had a lawful right so to do.</p> <p>2. In determining the damages to which the landlord is entitled, interest should be allowed upon installments of rent from the time they became due and payable under the terms of the agreement, which is taken as the basis of recovery.</p>

<p>Street railways — Gross negligence — Proximate cause — Pleading— Damages — Evidence.</p> <p>1. Plaintiff’s intestate, while engaged with other members of a band in giving a street parade, and while walking near defendant’s track ahead of an approaching oar, was overtaken and struck by the car. The motorman knew that the band was ahead of the car, and that deceased was in close proximity to the track. He heard the band playing, and knew that the noise of the car would be liable to be drowned by the noise of the band, yet, if the testimony of plaintiff’s witnesses be true, he did not slacken his speed, but kept the lever in next to the fastest notch, at least until within a few feet of the members of the band. The car, according to the testimony, ran over 30 feet after striking the deceased. It appeared from the testimony of the motorman that, if he had had the car under control, he could have prevented the injury. And it is held that, notwithstanding the negligence of the deceased, it was a question for the jury to determine whether or not the motorman used that care and caution which, under the circumstances, he was bound to exercise, in view of the danger as he must have seen it.</p> <p>3. In a personal injury case the declaration averred that the plaintiff was seriously hurt, wounded, and crippled, and his back and spine seriously hurt, crippled, bruised, sprained, and injured, by his being struck by the defendant’s car, which injuries were permanent and incurable. A physician was allowed to testify that the condition of plaintiff’s lung— chronic inflammation of the lung — and the tenderness of the spine might result from a severe injury to the back and spine. The testimony was objected to on the ground that no injury to the lung was averred in the declaration. And it is held that the declaration is sufficient to admit the evidence, under the rule laid down in Johnson v. McKee, 87 Mich. 471, which does not require the plaintiff to aver all the physical injuries which he sustained, or which may have resulted from or been aggravated by the tort, even though they do not necessarily result from the original injury; that if such injuries can be traced to the act complained of, and are such as would naturally follow from the injury, they need not be specifically averred.</p>

<p>Trover — Estoppel—Set-off—Attorney and client — Lien upon moneys.</p> <p>1. A husband secreted in his house a sum of money, a portion of which was taken by his wife, and deposited in a bank in her own name. The wife afterwards returned to her husband a portion of the deposit, and, pending divorce proceedings, let her solicitor have $170, which she drew from the bank in which she had made the deposit. The solicitor gave her a receipt for the money, to be returned on demand. In an action of trover brought by the wife against the solicitor to recover the $170, she testified that her husband consented to her retention of the remainder of the deposit not returned to him, and he denied giving such consent. The solicitor was conversant with all of the facts when he received the $170. And it is held that he cannot he heard to say that the $170 was not plaintiff’s money.</p> <p>2. The defendant is entitled to set off his claim for services in the divorce suit, or show the extent of such claim in reduction of plaintiff’s damages, and thereby avoid circuity of action.</p>

(Person, J.) Appeal from the disallowance of a claim against the «state of a deceased person by commissioners on claims. Defendant brings error from a judgment of allowance in the circuit court. The facts are stated in the opinion.

<p>Error to Wayne. (Hosmer, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

Oertiorari to the recorder’s court of Detroit. (Chapin, J.) Respondent was convicted of a violation of an ordinance of the city of Detroit prohibiting peddling and hawking without a license, and sentenced to pay a fine of $26. The facts are stated in the opinion.

<p>Criminal law — Preliminary deposition — Evidence—Bastardy.</p> <p>1. Where the preliminary deposition of the complaining witness in a bastardy case is admitted in evidence, it is unnecessary to have her detail its contents, or to ask her if she remembers the same, and the court exercises a proper discretion in rejecting the question.1</p> <p>2. In preserving an exception to a ruling refusing to strike out a portion of the testimony in a bastardy case, the court remarked, “ Exceptions don’t amount to anything in this case, I suppose you understand.” And it is held that there is no force in the contention of counsel for the respondent that, while the remark was technically correct, yet its tendency was to prejudice the rights of the respondent with the jury.</p> <p>8. In a prosecution for bastardy the court refused to strike out the testimony of a witness for the people that, after the first trial of a seduction case based upon the same facts, the respondent told him that he wished he had won the case, because, if he had, he had $500 in his pocket that he proposed to present to the complaining witness, because he felt sorry for her. And it is held that, if any error was committed, it was cured by a subsequent ruling striking the testimony from the case.</p> <p>4. In a prosecution for bastardy, evidence of previous acts of intimacy and sexual intercourse between the parties is competent.</p>

<p>Error to Kent. (Adsit, J.)</p> <p>Trespass. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(McMahon, J.) Petition to compel the receiver of the Citizens’ Electric Light & Power Company to turn over to the sheriff certain property claimed by virtue of an attachment levy. The receiver appeals from an order granting the relief' prayed. The facts are stated in the opinion.

<p>Contract — Offer—Acceptance.</p> <p>An owner of land in Michigan, who resided in Iowa, offered, by letter, to sell the land to a resident of the city in which it was situated for $500 cash, net. And it is held that this meant the payment of the purchase price to the offerer at his place of residence in Iowa, and that an acceptance by letter of the offer as to price, coupled with a request that the deed be sent to a third person in the city where the offeree resided, and a statement that the offeree would pay for the land there, if it was the same to the offerer, but, if he had any objections, he could do differently, is not such an unqualified acceptance of the offer as to complete a contract for the sale of the land.</p>

<p>Error to Kalamazoo. (Buck, J.)</p> <p>Trespass. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Moore, J., presiding.) Summary proceedings to recover the possession of land. Defendant brings error. The facts are stated in the opinion.

<p>Practice in Supreme Court — Assignments of error — Deed—Recording laws — Evidence—Mortgage foreclosure — Sheriff’s deed.</p> <p>1. Where the correctness of the ruling of the court in directing a verdict depends entirely upon the correctness of prior rulings admitting certain evidence, error should be assigned upon such earlier rulings as well as upon such direction.</p> <p>2. An objection to the introduction in evidence of the record of a deed executed in another state, and certified so as to entitle it to record under the law then in force in this State, on the ground that the certificate does not show another fact made essential by a later statute, is untenable.</p> <p>8. The introduction in evidence of a sheriff’s deed executed on the foreclosure by an assignee of a mortgage by advertisement under chapter 218, Comp. Laws 1871, was objected to because:</p> <p>■a — The notice of sale did not state at what particular place the sale would be made.</p> <p>b — The notice did not state where the assignment of the mortgage was recorded.</p> <p>c — The notice did not assert that the sale would be made to the highest bidder.</p> <p>d — There was no proof that any showing was furnished the sheriff prior to or at the time of the sale that the notice of sale had ever been published at all.</p> <p>e — There was no proof that the mortgaged premises were offered for sale, bid upon, or struck off to the highest bidder.</p> <p>/ — There was no proof that the deed was “forthwith” deposited with the register of deeds.</p> <p>And said objections are disposed of as follows:</p> <p>a — “At the court-house in the village of Mason, Ingham county” (being the county in which the mortgaged premises were situated), sufficiently described the place of sale.1</p> <p>b — A failure to give the book and page where the assignment was recorded was not a fatal omission, its date and the ■date of its record being given.</p> <p>c — An “auction sale” implies a sale to the highest bidder, and it will be presumed that a sale, made pursuant to a notice that the mortgaged premises would be sold at public auction, was made to the highest bidder.</p> <p>d — The production of copies of the newspaper in which the notice of sale was published, showing its publication for 13 consecutive weeks prior to the sale, was sufficient proof of the publication required by the statute, and it was not necessary that the sheriff should, at the time of the sale, have an affidavit of such publication before him.</p> <p>e — In the absence of proof in the printed record that the sheriff’s deed was filed with the register of deeds, it will be presumed that the deed was so filed.</p> <p>/ — The sheriff’s deed, which (as appears by the original record) was filed on the day of the sale, but not acknowledged by the sheriff until five days afterwards, was notice to the mortgagor, and he was not deprived of the right of redemption.</p>

(Person, J.) Petition to require the receiver of the Central Michigan Savings Bank to pay to Daniel B. Johnson certain funds claimed to have come into the hands of the bank as agent before the failure.. The receiver appeals. The facts are stated in the opinion.

<p>Pleading — Assignee of chose in action — Trial—Appeal—Replevin— Demand — Verdict—Judgment—Instructions to jury — New trial.</p> <p>1. One of two partners, as successor of the firm, brought replevin for a piano sold by the firm to the defendant upon a contract-reserving title in the firm until the puróhase price should be paid. On the trial the plaintiff testified without objection to-the purchase by him of the interest of his partner in the firm business, and that he had succeeded to all the firm assets. No question was raised by the defendant upon the trial, or upon his motion for a new trial, as to the right of the plaintiff to recover because of his failure to prove an assignment to him of the contract. And it is held that the question cannot now be considered.1</p> <p>2. The court instructed the jury that if they found that, before-the suit was commenced, plaintiff demanded a return of the piano, that such demand was refused, and that at that time-the defendant was in default, plaintiff was entitled to recover. There was undisputed testimony to such demand and refusal, and no question was raised on the trial as to the sufficiency of the demand or of the proofs to support the instruction. And it is held that the defendant cannot insist for the first time on appeal that no demand was made.</p> <p>8. The jury found generally in favor of the plaintiff, and, in response to questions by the court, found further that $58 of the purchase price of the piano was still due the plaintiff, and that he had a lien upon the piano (which was not recovered upon the writ) for that amount. The verdict, as entered, was that the defendant did unlawfully detain the property, and that the damages of such detention amounted to $58. A judgment was entered upon the verdict, which, after reciting said findings, adjudged that the plaintiff should recover said damages, together with his costs and charges to be taxed, and that he have execution therefor. And it is held:</p> <p>a — That the entry of the verdict and judgment was not. warranted by the findings.</p> <p>b — That the defendant is not prejudiced by the fact that the verdict was, in form, under How. Stat. § 8342,1 which provides-that “when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the good»' and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, int all cases arising under the chapter, and the finding of the jury or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties;” that the verdict disposes of all the questions growing out of the transaction, and in a manner most favorable to the defendant; that the judgment entry may be corrected so as to give plaintiff a judgment for the balance found to be due on the contract, with costs, and provide for the payment of said sum within a given time,— otherwise, that the property be delivered up and sold to satisfy such judgment, and that plaintiff have execution under How. Stat. § 8344, which provides that the execution to be issued upon a judgment rendered under How. Stat. § 8343, for the replevy and delivery to the plaintiff of property not recovered upon the writ, shall command the sheriff to levy the plaintiff’s damages and costs of the goods and chattels, lands and tenements, of the defendant, as in other executions against property, and also to replevy the goods and chattels described in. the declaration, which shall also be specified in the execution, and to deliver them to the plaintiff, if they can be found within the county, and, if not, then that he levy the value of such goods and chattels, specifying the same, together with the aforesaid damages and costs, of the goods and chattels, lands and tenements, of the defendant, as above provided.</p> <p>4. The sole contention of the defendant on the trial was that nothing remained due under the contract of purchase; hence, that he was entitled to the possession of the piano. And it is held that his present contention that the jury determined no issue except that as to the amount due on the contract is untenable; that if the $58 was due, and defendant had refused to pay it (which latter fact was not disputed), plaintiff was, under the contract, entitled to the possession of the piano upon demand therefor, and as a matter of law the detention was unlawful.</p> <p>5. The verdict as entered is not conclusively presumed to be the verdict as rendered. The bill of exceptions, when filed, became a part of the record, and contains the action of the court prior to the time when the verdict was put in force by the clerk; and the entry made by him does not necessarily compel the Court to conclude that the, bill of exceptions is in any respect untrue.</p> <p>Ü, A defendant in replevin is not prejudiced by an instruction which, as he claims, fixes the value of the property as the measure of plaintiff’s damages, where the jury assess no sum as damages.</p> <p>7. Where the only ground urged in support of a motion for a new trial is newly-discovered evidence, and the same is merely cumulative, there is no abuse of discretion by the circuit judge in refusing the motion.</p>

<p>Error to Wayne. (Donovan, J.)</p> <p>Assumpsit. Both parties bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Malicious prosecution — Attachment—Probable cause — Malice—Advice of counsel — Evidence.</p> <p>1. Want of probable cause and malice must concur, to entitle the plaintiff to recover in a suit for the malicious prosecution of a writ of attachment.</p> <p>3. In an action for the alleged malicious prosecution of a writ of attachment, the defendant may show that he acted under the advice of counsel, before whom he had placed all' of the facts, and the jury may consider such advice in determining the questions of probable cause and malice.1</p> <p>3. The testimony of plaintiff’s bookkeeper as to her knowledge of his business and financial affairs at the time of the attachment, and his efforts to borrow money, was admitted, and those elements were included in the charge to the jury as part of what was claimed by the defendants to justify the attachment, she having previously communicated such facts to them. And it is held that the testimony was competent and admissible as bearing upon the questions of probable cause and malice, and to enable the jury to say whether the defendants did more than what careful and prudent men would have done under like circumstances; citing Brand v. Hinchman, 68 Mich. 601.</p>

<p>Error to Clinton. (Daboll, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 96 Mich. 510.</p>

<p>Logs and logging — Contract—Construction—Conclusiveness of tally.</p> <p>1. A contract for cutting the pine and hemlock timber on a designated section of land provided that the contractor should cut everything suitable to work up into shingles or lumber; that he should furnish a scaler, to be agreed upon by the parties, to scale said lumber logs; and that he should have said scaler furnish the scale sheets to the contractee each week. The contract further provided that the contractee should pay $2 per thousand for the lumber logs, according to said log scale; that said log scale should include mill culls, but not dead culls; that the contractor was to be paid for the mill culls, the same as for other lumber; that upon the final settlement the shipping tally of a certain lumber firm which was to saw the logs should be final as to the number of thousand feet of said lumber, and that said settlement should be made according to said shipping tally. And it is held that the contract is free from ambiguity, and its meaning should be stated to the jury by the court; that the contractor was to cut and put afloat all of the timber mentioned, regardless of what it would produce; that he was to have advancements upon his own scale, and final settlement and payment according to the shipping tally of said lumber firm, which was to be final; and that the contractor was not to be paid for dead culls.</p> <p>2. “Dead culls” are an unavoidable product from the saw, in sawing logs, distinguishable from higher grades produced, which higher grades, in the contract and tally hereinbefore referred to, included shipping culls and better, and mill culls, being everything above the grade of dead culls.</p> <p>8. The shipping tally included a quantity of dead culls, and it was: contended by the contractor, in an action brought by him to-obtain pay for cutting the amount of logs from which such dead culls were made, that there was evidence tending to show that the lumber called “dead culls” in the shipping tally included some lumber that, according to the grading of other dealers, would be included in the “mill culls.” And it is ¿.eld that the contract made the shipping tally of said lumber firm final; that it was not the custom of the trade as to grading, but the grading of said lumber firm at the time of shipment, that was to govern; and that the plaintiff cannot repudiate that, because dissatisfied with the grading, and ask for some other scale.</p> <p>4, Plaintiff sought to recover upon the quantum meruit for putting into the lake in which-the logs were to be delivered a quantity of logs which had been marked in the woods as unfit to saw. And it is held that, inasmuch as the contract required the plaintiff to put all logs into the lake, and gave the defendant the right to require it, no reason for complaint is discovered; that the fact that the logs in question were not tallied in the woods is immaterial; that the tally at the mill, at the time of shipment, was relied on to determine the amount of lumber produced from the logs, and presumably included all that were put into the lake and sawed.</p> <p>5. Plaintiff contended that, because the defendant realized something from the sale of the dead culls, they were merchantable, and that it was unjust to deny him payment for the same. And it is held that, under the- contract, payment was to -be made according to a certain tally; that all that the logs produced was defendant’s; that, if he could get anything for the dead culls, the plaintiff was not thereby injured, and it was a matter of no concern to him.</p>

<p>Conditional sale — Fraud—Estoppel—Evidence.</p> <p>1. A copy of a contract in the form- of an order for the purchase of an engine and separator, in which the vendor stipulated for the retention of title until the purchase price should be paid, was left with the purchasers. Upon the delivery of the property, four notes were given for the purchase price, in each of which it was stated that the express conditions of the transfer of the possession of the property were such that the title did not pass from the vendor until the note should be paid in full. The fourth note was secured by a real-estate mortgage' executed by one of the purchasers, and in the condition for payment reference was had to a “title-clause note” of even date, executed by the mortgagor to the mortgagee as collateral security. With this knowledge of the contents of the note and mortgage the mortgagor signed the securities, and, in company with one of his co-vendees, took possession of the engine and separator, and used the same for two years, when he sold his one-third interest therein. In a suit by the purchaser of said interest against the vendor, who had seized the property, to recover the value of said interest, the plaintiff, who claimed to have purchased without knowledge or notice of the defendant’s rights, sought to show that the mortgagor was induced to sign the contract by fraud, in that, before signing the same, the agent of the vendor read it over to him, as he did not have his glasses with him, and could not read without them, and that the agent did not read the printed stipulation as to title. And it is held that it cannot be contended, under the facts stated, that the mortgagor did not know of this stipulation.</p> <p>2. The contract described the vendor as. the party of the first part, and the three vendees as the party of the second part, and stated that the party of the first part, in consideration of the payments and agreements thereinafter contained, agreed to sell to the party of the second part the engine and separator for a price named, payable in four negotiable notes. Of the notes given in- accordance with the contract, the first was signed by the three vendees, the second and third by two of the vendees, and the fourth by the third vendee, who secured the same by a real-estate mortgage. It was further provided in the contract that the vendees were to pay the freight. And it is held that the contract is not ambiguous, and that the contention of the plaintiff that it conveyed separate interests in the property, and that he was entitled to show what the arrangement and agreement was with each vendee, is untenable.</p> <p>S. A sale of personal property upon condition that the title shall remain in the vendor until the purchase price is paid does not become absolute by reason of the acceptance by the vendor of additional security by way of the indorsement of one of the purchase-price notes and the securing of another note by a real-estate mortgage.1</p>

<p>Attorney and client — Services—Contract—Evidence.</p> <p>1. An agreement by a client to pay certain of his attorneys as much for their services to be rendered in a given pase as he paid either of two other attorneys, who were connected with them in the case, is not void for want of mutuality and certainty.</p> <p>2. Where the ground of an objection to the admission of testimony is not stated, a ruling admitting the testimony will not be reviewed.</p> <p>3. The court is warranted in excluding testimony which would be valuable only when supported by an agreement alleged to have been made between the parties, until the proper evidence of the agreement is introduced.</p> <p>4. In a suit by an attorney at law to recover for his professional services, it is competent for him to prove his character, reputation, standing, and known ability as a lawyer, as bearing upon the value of said services.</p>

<p>Supersedeas bond — Clerical error — Conditions.</p> <p>1. In a suit upon a supersedeas bond, in which, as declared upon, the judgment was stated at “ two hundred and twenty-five dollars,” it appeared, on offering the bond in evidence, that the word “two” was written “twn.” And it is held that this was a mere clerical error, and was properly disregarded by the court; citing King v. Merritt, 67 Mich. 194, and cases cited.</p> <p>2. A defendant, in order to secure a stay of proceedings upon a judgment rendered against him, executed a bond conditioned (as required by 3 How. Stat. § 7621c) to pay said judgment if not set aside, or (as required by How. Stat. § 8679) to prosecute his writ of error to effect, and pay and satisfy such judgment as might be rendered against him thereon. And it is held that there is no uncertainty or ambiguity in the bond; that it is substantially in compliance with the statute, and, if not in strict compliance therewith, it is a good common-law bond (Mealy v. Newton, 96 Mich. 228); that the fact of its being in the alternative cannot affect the liability of the surety, as in either event the amount is certain.</p>

(Wilber, J.) Appeal from tbe allowance of a claim by commissioners, on claims. The estate brings error. The facts-are stated in the opinion.

<p>Error to Wayne. (Hosmer, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The; facts are stated in the opinion.</p>

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order setting aside a stipulation for discontinuance. The facts are stated in the opinion.

(Lillibridge; J.) Relators applied to the circuit court for mandamus to compel respondent to rescind its action in placing the name of a certain candidate on the official ballot, and to place the name of another thereon. The facts are stated in the opinion.

<p>Error to Bay. (Cobb, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to St. Olair. (Vance, J.)</p> <p>Negligence case. Defendant Flint & Pere Marquette Railroad Company brings error.</p> <p>The facts are stated in the opinions.</p>

(Stone, J.) Bill to compel the cancellation of a mortgage and the .accompanying bond upon payment of a certain amount. Complainant appeals. The facts .are stated in the opinion.

<p>Appeal from Wayne. (Carpenter, J.)</p> <p>Bill to redeem from a mortgage foreclosure. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Sale — Warranty—Authority of agent — New contract.</p> <p>Defendant ordered a harvesting machine through plaintiff’s general agent. The order provided that the machine was purchased and sold under a warranty and agreement thereinafter set forth, which no one had any authority to add to, abridge, or change in any manner, and that keeping the machine during harvest, whether kept in use or not, should be deemed conclusive evidence that it filled the warranty. The defendant, upon ascertaining that the machine did not comply with the warranty, refused to keep it under the contract, and the agent who took the order persuaded defendant to retain the • machine, and advised him that he might do so, and if he kept it beyond the harvest it would be all right, and the machine would be the plaintiff’s, and not the defendant’s. And, in a suit brought to recover the purchase price of the machine, it is held that the machine was retained by the defendant under this new arrangement, which the agent had a right to make, and that the defendant is not bound to pay for the machine because he held it over the harvest.</p>

(Donovan, J.) Bill to enjoin the construction of a street railway along a certain highway. Complainants appeal. The facts are stated in the majority opinion.

<p>Master and servant — Negligence—Independent contractor.</p> <p>Plaintiff was struck by a barrel of sugar, which was suddenly and without warning rolled out of the defendant’s warehouse upon the sidewalk in front by a truckman in the employ and under the control of a cartage company, which was under contract with the defendant to furnish it trucks, teams, and men to-do all its cartage at a certain price per year. The defendant simply pointed out the goods that were to be carted, and their-destination, and did.not control the manner in which they should be transferred to the trucks, nor the route that should, be taken in taking them to their destination. And, in affirming the action of the trial court in directing a verdict in. favor of the defendant, it is held that the case is governed by DeForrest v. Wright, 3 Mich. 868, in which the question is-well considered, the authorities discussed, and the correct rule-adopted.</p>

<p>Appeal from St. Clair. (Beach, J., presiding.)</p> <p>Bill to enforce a mechanic’s lien. Defendants Wilson appeal.</p> <p>The facts are stated in the ■opinion.</p>

<p>Error to Delta. (Stone, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>The facta are stated in the opinion.</p>

<p>Error to Wayne. (Frazer, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Appeal from Wayne. (Donovan, J.)</p> <p>Bill to enjoin the collection of a paving assessment. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Wayne. (Donovan, J.)</p> <p>Bill to enjoin the collection of , a paving assessment. Defendant city of Detroit appeals.</p> <p>The facts are stated in Goodwillie v. City of Detroit, ante, 283.</p>

(Peck, J.) Summary proceedings to recover the possession of land. Defendant brings error. The facts are stated in the opinion.

(Kinne, J.) Appeal from the allowance of the final account of an administrator. Sarah C. Nuckols, one of the heirs of the-deceased, brings error. The facts are stated in. the opinion.

(Buck, J., presiding.) Bill to enjoin the defendant from issuing or negotiating certain waterworks bonds. Complainant appeals. The facts are stated in the opinion.

(Carpenter, J.) Summary proceedings to recover the possession of a hall. Complainant brings error. The facts are stated in the opinion.

<p>Municipal corporations — Defective sidewalk — Contributory negligence — Damages—Evidence.</p> <p>1. The plaintiff in a personal injury case, who at the time of the accident had been engaged for about six months in cooking for a lunch counter at $4 per week, was permitted to testify that, for five or six years previous to the injuiy (which was received early in the month of April), her business háü been that of a pastry cook, and that her wages had been $1 per day, except in the winter time, when she received $5 per week. And it is held that, as the testimony covered the time up to within a very few months of the accident, it was not too remote.</p> <p>8. Plaintiff, on a dark and stormy night in April, was injured by stepping into a hole in a defective sidewalk. She testified that she knew of the bad place in the walk; that, on gassing over it earlier in the evening, she spoke of it to two girls who were with her; that on her return she said to the girls, “We will have to look out for that bad place in the walk;” that she was walking on the outside of the walk, and her companions on the inside; that they all walked somewhat rapidly in that way until she stepped into the hole; that she was paying attention to the defect in the walk, watching for it, but reached it sooner than she expected. And it is held that the case is ruled by Lowell v. Township of Watertown, 58 Mich. 568, where it was held that “a person is not necessarily precluded from recovering for an injury caused by a defect in a highway «imply for the reason that he was aware of such defect, but this fact, with all others, is proper to be taken into consideration by the jury in determining whether, under all of the facts and circumstances, he was guilty of such carelessness or negligence without which he would not have been injured.”</p>

<p>Error to Wayne. (Carpenter, J.)</p> <p>Case for libel. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Real-estate brokers — Commissions—Instructions to jury — Waiver of objections.</p> <p>1. A real-estate broker who secures a purchaser, and brings the parties together, cannot be deprived of his earned commissions by the acceptance by the owner of the land of substantially the same offer, secured from the same customer by another party, and upon terms more favorable to the purchaser, notwithstanding the fact that the sale may have been finally consummated by the other party.</p> <p>2. In a suit to recover a commission for the sale of real estate, the court stated to the jury that, under the undisputed evidence in the case, the plaintiff had the right to secure a purchaser for the land, and, in case of a sale through his procurement, he was entitled to a stated commission on the selling price. And it is held that, if the statement of the court was incorrect, it was the duty of the defendant’s counsel then and there, before the case was finally submitted to the jury, to direct the attention of the court to the fact, and, not having done so, it must be presumed that the court was correct, and counsel cannot afterwards be permitted to contend otherwise.</p>

<p>Contract — Escrow—Delivery,</p> <p>The direction of a verdict in favor of the defendant, on the ground that the contract sued upon had never been delivered to the plaintiffs, is sustained.</p>

<p>Error to Kent. (Adsit, J.)</p> <p>Assumpsit. Defendant Joseph W. Oliver brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ingham. (Person, J.)</p> <p>Negligence case. Plaintiff brings error..</p> <p>The facts are stated in the majority opinion.</p>

Mandamus: Relator applied for mandamus to compel respondent to receive and file the reports of a fraternal beneficiary association, and to issue the statutory certificate authorizing it to do business. The facts are stated in the opinion.

Exceptions before judgment from Hillsdale. (Lane, J.) Respondents were convicted of a violation of the local •option law. The facts are stated in the opinions.

<p>Error to Wayne. (Brevoort, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are-stated in the opinion.</p>

<p>Error to Kalkaska. (Aldrich, J.)</p> <p>Trespass. Defendant brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Trespass — Damages—Evidence.</p> <p>In trespass for digging a drain across the plaintiff’s land under void proceedings, it appeared that the plaintiff, at the time she commenced her suit, had taken no steps to incur the expense of filling up the drain, which she claimed on the trial should be her measure of damages. The defendants sought to show, that the drain was a benefit, and not an injury, to plaintiff’s land, and contended that plaintiff should recover only nominal damages. .And^it is held that the_ defendants were entitled to. make the proposedbsEowing; that, if the jury should so find the facts, the rule of damages cbntended for by defendants would be the proper one; blit that if they should fail so to find, and should find that plaintiff intended to fill up the drain, it would not be unreasonable to allow her the cost of doing so as an element of damage, it appearing that such cost would not exceed the value of the land.</p>

(Adsit, J.) Bill to set aside a foreclosure sale and for an' accounting. Defendants appeal. The facts are stated in the opinion, and in 95 Mich. 71.

<p>Appeal from Ingham. (Person, J.)</p> <p>Bill for the appointment of a receiver. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Hosmer, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Partnership — Evidence—Admissions—Estoppel—Instructions to jury.</p> <p>1. An admission by one of two defendants, who are sued as partners, that such relation exists, made in the absence of his co-defendant, while not admissible to prove the partnership as against the absent defendant, is admissible for that purpose as against the defendant making the admission.</p> <p>2. Where, in a suit against alleged partners, there is testimony that each defendant has admitted the existence of the partnership, it is proper to submit that question to the jury, even though both defendants deny making such admissions, and testify to facts which, if believed, show that they are not partners.</p> <p>3. In a suit to recover for goods sold by the plaintiffs to the de-' fendants, and upon a like claim which had been assigned to them by a third party, the main question at issue was whether or not the defendants were partners. There was testimony which, if believed, would estop the defendants from denying the existence of the partnership as against the assignor of said claim, but not as against the plaintiffs in their own right. And it is held reversible error so to instruct the jury as to allow them to apply said estoppel to both claims.</p>

<p>Error to Bay. (Maxwell, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Release and discharge — Claim for personal injuries — Railroad companies — Contract for employment — Authority of officers —Breach—Waiver—Measure of damages.</p> <p>1. Two division superintendents of a railroad company represented tire company on the final settlement of a personal injury case, and the company carried out the settlement as made by Prepayment of the amount agreed upon. The claimant sued the company for the breach of a contract which he alleged was-made with him by said superintendents in behalf of the company at the time of said settlement, under which he was to be furnished with employment at a fixed monthly salary during his life, or during his ability and disposition to perform the duties pertaining to said employment. And it is held that it was proper to allow the jury to find that said officers had authority to make said contract.</p> <p>3. The plaintiff testified that the contract was signed by the officers who made the settlement, and his attorney testified that the contract was drawn, but that he was not sure that it was signed. The evidence tended to show that the contract was lost. And it is held that the question of whether or not the evidence established the contract was properly left to the jury.</p> <p>3. The plaintiff was entitled to employment according to the terms of the contract, if made, during the period of his ability and fidelity, but, if he became incompetent, unfaithful, or disobedient, he was subject to discharge,' and forfeited his rights under the contract.</p> <p>4. The plaintiff was at first given employment at' the agreed salary, but shortly afterwards his salary was reduced, and he accepted the same for 15 years without protest. And it is held that this was evidence of a waiver of his right to the agreed salary for the time covered by such payments, and, if unexplained, amounted in law to such waiver.</p> <p>5. Where, as a part of the settlement by a railroad company of a claim for personal injuries, the company agrees to furnish the injured party employment at a given monthly salary during life, or during his ability and disposition to perform the duties of his position, the injured party is entitled to recover, for a breach of the contract, its fair and reasonable present value.</p>

<p>Estates of deceased persons — Mortgage—Subrogation—Dower.</p> <p>An administrator contracted in writing with the widow of the decedent, who had remarried, for the purchase of her interest in the estate for the benefit of the heirs, for which interest she was to receive $1,400 and some personal property belonging to the estate. The estate was appraised at $5,704.15, of which $1,004.15 was personalty. The administrator secured a license, and mortgaged a portion of the land for §1,000, which sum he paid to the widow. The mortgagee filed a bill to foreclose the mortgage, and a decree was made declaring the mortgage void, but a valid claim or lien upon the dower interest of the widow. The heirs were given the right to pay the complainant the amount due on the mortgage, and thereupon to require of the widow a release of her dower interest. On their failure to elect to make such payment, the complainant was given the privilege of applying for the appointment of commissioners to assign and set apart said dower interest, after which it was to be sold, and ten-fourteenths of the proceeds applied, first, to the payment of costs and expenses, and, second, to the discharge of complainant’s claim, and the surplus, if any, to be paid to the administrator. And it is held that there is no error in the decree of which the defendants can complain.</p>

<p>Error to Hillsdale. (Lane, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Kinne, J.) Bill to set aside a resolution expelling complainant's husband from defendant's order, and to compel the payment of an endowment certificate. Defendants appeal. The facts are stated in the opinion.

Exceptions before judgment from Ingham. (Person, J.) Eespondent was convicted of having procured an obscene picture of herself for the purpose of exhibition, loan, and circulation. The facts are stated in the opinion.

Errpr to Chippewa. (Steere, J.) Summary proceedings to recover possession of certain premises. Complainant brings error. The facts are stated in the opinion.

(Kelley, J.) Eespondent was convicted of murder in the first degree, and sentenced to imprisonment in the State prison for life. The facts are stated in the opinion.

Joseph. (Loveridge, J.) Respondent was convicted of having carnal knowledge of a female child under the age of 14 years, and sentenced to imprisonment in the State prison for 15 years. The facts are stated in the opinion.

<p>Error to Manistee. (Judkins, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts ar.e stated in the opinion.</p>

<p>Error to Bay. (Maxwell, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The-facts are stated in the opinion.</p>

<p>Error to Wayne. (Carpenter, J.)</p> <p>Trover. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Adverse possession — Waiver—Findings of fact.</p> <p>1. Where there is testimony tending to support findings of fact, the appellate court is not authorized to go into the testimony for the purpose of ascertaining whether or not it would have reached the same result upon the facts.</p> <p>'2. A defendant in ejectment, in support of his claim of title to the land in dispute by adverse possession, introduced testimony tending to show that the land had been inclosed as a part of his farm by a line fence for more than the statutory period; that during that time he had cut wood on said land, and performed other acts indicating ownership, and tending to show occupancy up to the line of the fence. And it is held that said testimony tended to establish the adverse possession claimed; citing Greene v. Anglemire, 77 Mich. 168; Sanseraintev. Torongo, 87 Id. 69.</p> <p>3. A parol agreement, made by the defendant after he had acquired such title, that he would in the future unite with the adjoining land-owner, who claimed to own the disputed piece of' land, in having a survey 'made to determine the true division line, will not — certainly, until such agreement is acted upon, and the line actually established — divest the defendant of his. title; citing Burns v. Martin, 45 Mich. 22.1</p>

<p>Error to Kent. (Adsit, J.)</p> <p>Assumpsit. Defendant Shaw brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Alpena. (Kelley, J.)</p> <p>Trover. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Saginaw. (Wilber, J.)</p> <p>Assumpsit. Both parties bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Contract of employment — Discharge of employe — Evidence—Damages — Practice in circuit court.</p> <p>1. Where, during the argument of a case to the jury, exception is taken by the opposing counsel to a statement that there is evidence of a certain fact, it is proper for the attorney, in defense of his position, to challenge the attention of the court to the particular evidence which he claims he referred to in his argument. ,</p> <p>2. In a suit by a lumber inspector to recover damages alleged to have been sustained by reason of being wrongfully prevented from performing his contract for measuring and inspecting a season's cut of lumber for the defendant, the plaintiff was allowed to recover for the amount of lumber sawed during the season at the agreed price for measurement and inspection, less what he had received pay for, and less the sum of $200, which he testified it would have cost him to inspect the rest of the lumber. Objection was made that this was not the proper measure of damages, for the reason that the plaintiff’s personal presence would have been required, for the remainder of the season, and that he was shown to have done other work, which should be considered in reduction of damages. The amount of plaintiff’s earnings was not shown, nor did it appear that he received any pay for work performed during the remainder of the season. And it is held that the burden was upon the defendant to show said facts; citing Farrell v. School-District, 98 Mich. 47.</p> <p>3. A lumber inspector contracted to measure and inspect a season’s cut of lumber at an agreed price per thousand feet. After entering upon the performance of his contract, he asked for leave of absence for a few days, and offered to have his brother take his place. His request was granted, with the understanding that he should be telegraphed for when wanted, and he was paid for the services already performed. The contractees, owing, as they claimed, to the dissatisfaction of one of their customers with the inspector’s measurements, desired to terminate the contract, and to that end negotiated with the inspector by letter, and in one letter stated that they thought the inspector had better call his man (who had meas■ured some of the lumber) home, and quit. The inspector, in reply, sent a formal offer of compromise, after which he offered by letter to perform the contract, and threatened suit if not permitted to do so, to which the contractees replied that they had done the best they could for the inspector, and intimated that he could bring the threatened suit if he thought best to do so. And it is held:</p> <p>a — That the desire on the part of the contractees, as evidenced by their letters, to terminate the contract, coupled with the negotiations with the contractor to that end, did not amount to an infringement of his rights under his contract.</p> <p>b — That the statement by the contractees in their letter that the contractor had better call his man home, and quit, was not equivalent to a refusal on their part to carry out the contract, but that it justified the contractor in writing the letter tendering his services in performance of the contract, and that, as said offer terminated the negotiations, the jury might consistently find, from the time of its reception, a refusal by the contractees to perform the contract.</p>

<p>Sale — Bona fide purchaser — Pre-existing debt.</p> <p>A naked, pre-existing debt is not such a consideration or payment for the transfer of a stock of goods as -will defeat replevin by the original vendors, who set up fraud in the purchase of the goods from them.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Kent. (Grove, J.)</p> <p>Garnishment proceedings. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari to Wayne. (Gartner, J.)</p> <p>Respondents bring certiorari to review condemnation proceedings.</p> <p>The facts are stated in the opinion, and in 89 “Mich. 209, 92 Id. 33.</p>

(McMahon, J.) Bill to cancel a promissory note, and to restrain the further prosecution of an action at law thereon. Defendants-appeal. The facts are stated in the opinion.

(Dickerman, J.) Summary proceedings to recover the possession of land.. Defendant brings error. The facts are stated in the opinions.

(Donovan, J.) Bill to restrain the defendants from constructing an electric railway tfack upon a portion of Woodward avenue in the city of Detroit. Defendants appeal. The facts are stated in the opinion.

(Moore, J.) Bill to compel defendant to convey a half interest in certain lands to complainant. Defendant appeals from order overruling demurrer. The facts are stated in th& opinion.

(Kelley, J.) Respondents were convicted of murder in tbe first degree, .and sentenced to imprisonment in the State prison for life. The facts are stated in the ■opinion.

(Kelley, J.) Despondent was convicted of murder in tbe first degree, .and sentenced to imprisonment in the State prison for life. The facts are stated in People ■v. Fuhrmann, ante, 593.

<p>Error to Manistee. (Judkins, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading — Amendment of declaration — Evidence—Breach, of contract — Damages.</p> <p>1. In a suit by a contractor against a railroad company to recover damages for the failure of the defendant to furnish the number of cars agreed to be furnished per day to be loaded with gravel, the declaration averred that the defendant agreed to furnish 100 cars per day for that purpose, and plaintiff’s evidence showed that the cars were to be flat cars. A motion to strike out the testimony relating to flat cars, as not covered by the declaration, was denied. And it is held that, if the declaration was technically faulty in that regard, it would, under the circumstances of the case, the testimony having been received without objection, have been the duty of the court, upon the question being raised, to permit an amendment of the declaration so as to cover the proof, and said amendment will be treated as having been made; citing Smith v. Pinney, 86 Mich. 484; Enright v. Insurance Co., 91 Id. 238; Warder, etc., Co. v. Gibbs, 92 Id. 29.</p> <p>-2. The plaintiff testified that at the time the contract, which was verbal, was agreed upon, he made a memorandum of its contents, and that no reference was made in said memorandum to flat cars. The plaintiff proved the alleged contract by the uncontradicted testimony of two witnesses. And it is held that the defendant was not injured by the reference to the memorandum.</p> <p>-3. A railroad company contracted for the loading with gravel of 100 cars per day, which number of cars it agreed to furnish for that purpose. In a suit by the contractor to recover damages claimed to have been sustained by reason of the failure of the railroad company to furnish the agreed number of cars per day, the defendant sought to recoup damages sustained on .account of the failure of the plaintiff to keep the excavator used in loading the gravel in repair, thereby obliging the cars ■and employés of the defendant to remain idle. And it is held that the request of the defendant for an instruction that, if the plaintiff failed to perform the alleged contract upon his part, he could not recover any damages from the defendant, whether it performed its part of the contract or not, was properly refused; citing McGregor v. Estate of Ross, 96 Mich.. 103.</p>

Mandamus. Relators applied for mandamus to compel the Attorney General to file an information in the nature of quo warranto to inquire by what right a certain street-railway company claims to and does exercise, in certain streets in-the city of Detroit, the franchise of maintaining and using street-railway tracks in said streets. The facts are stated in the majority opinion.

<p>Landlord and tenant — Subletting—Holding over — Estoppel.</p> <p>1. Where a tenant has sublet the whole or any part of the leased premises, and the subtenant is in possession at the termination of the original lease, the tenant must remove him, otherwise he will not be in a situation to render that complete possession to which the landlord is entitled; and, unless the entire possession is surrendered, the responsibility of the tenant for rent will continue, although it may have become impossible for him, in consequence of the obstinacy or ill will of the subtenant, and his refusal to quit, to give the landlord full possession.</p> <p>2. The lessee for a term of years of two stores sublet one of the stores, and, about a month before the expiration of the lease, notified the subtenant that he did not desire to take a new lease, and, if the subtenant desired to retain possession, he had better see the lessor. The lease expired on Sunday. Prior to that time, the subtenant had commenced packing his goods, preparatory to vacating the store. On the following Monday the lessor’s agent came to the store, took down a sign “To. Rent,” which had been placed there by the lessee, and informed the subtenant that the store had been rented to the lessee. The subtenant, relying upon such statement, and thinking that, the lessee did not wish immediate possession, delayed the removal of his goods for a short time. The lessee, on learning of such delay by being called upon for the payment of a. month’s rent, notified the subtenant, who moved out, and the keys were surrendered to the lessor on the ninth day after the termination of the lease. And it is held that this was not such a holding over as would constitute a new lease by the lessee for another year.</p>

<p>Error to Saginaw. (Wilber, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Bay. (Cobb, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Gartner, J.) Proceedings to condemn land for union depot purposes, under Act No. 244, Laws of 1881 (Iiow. Stat. chap. 93). Petitioner appeals from an award of $49,800 in favor of respondent. The facts are stated in the opinion, and in 92 Mich. 33.

<p>Will — Grant of poiver to executor — Authority of administrator with will annexed — Sale of real estate — “Satisfactory” title.</p> <p>1. A testatrix made specific bequests amounting to about $15,000. Her property consisted of a house and lot valued at $25,000, and an insignificant amount of personal property. The will directed the executor to pay, out of the first moneys received by him from any portion of the estate, the debts and funeral expenses of the testatrix, and vested in him full power to dispose of the real estate in fee simple, or for a term of years, or otherwise. The executor refused to accept the trust, and an administrator with the will annexed was appointed, who advertised and sold the house and lot under the power contained in the will. The purchaser paid a portion of the purchase money, and, under the advice of two lawyers of experience, refused to pay the remainder unless the administrator would obtain authority to sell under the order or decree of the probate court. On the refusal of the administrator to do this, the purchaser sued him to recover the money paid. And it is held that the trust was not one personal to the executor named in the will, but was properly executed by the administrator, under How. Stat. § 5840, which provides that such an administrator shall proceed in all things to execute the trust in the same manner as an executor would be required to do.</p> <p>2. The receipt given for the down payment stated that the remainder of the purchase price was to be paid in 30 days, and that the amount receipted for was to be refunded in case the title to the house and lot was not satisfactory. And it is held that the purchaser was justified in refusing to be satisfied with the title tendered, and in rescinding the sale, and bringing suit to recover the money paid.</p>