Volume 131 — Michigan Reports

Assumpsit by the board of water commissioners of the city of Detroit against the Detroit Citizens’ Street-Bail-way Company to recover compensation for water furnished for street sprinkling. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>1. Partition — Parties—Right of Redemption.</p> <p>A co-tenant whose interest has been foreclosed, but who still has a right to redeem by reason of an extension of time, is a proper party to a partition proceeding.</p> <p>2. Same — Notice—Defense.</p> <p>A party to a partition proceeding is chargeable with notice of the contents of the bill, and, if any of the allegations therein affect his rights adversely, he should appear and defend at the proper time.</p> <p>3. Same — Default—Motion to Set Aside —Delay —Want of Joint Ownership.</p> <p>A bill to partition two parcels of land set up the foreclosure • of a mortgage on the interest of a defendant in one parcel, but alleged that the foreclosure sale was still open to redemption, because of an agreement extending the time; and the answer of the mortgagee was silent as to such allegation. The bill was taken as confessed against the mortgagor, after due service of process. Three years later, after partition had been made at considerable expense, she moved to set aside the default, and have the proceedings declared void, on the ground that she in fact had no interest in the mortgaged parcel at the time the bill was filed. Held, that the motion was properly denied.</p>

Case by Hester A. Lindley against the city of Detroit for personal injuries. Prom a judgment for plaintiff, defendant brings error.

Assumpsit by the Thayer Lumber Company against the township of Springfield to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.

Assumpsit by Terrence O’Boyle against the city of Detroit for work and labor. Prom a judgment for plaintiff, defendant brings error. Plaintiff was employed by the board of park and boulevard commissioners of the city of Detroit on May 15,1897, as driver of one of the park phaetons. He remained in that service until September 27, 1897, when he was dismissed. He was employed again a short time in the month of October. He was paid weekly.

Mandamus by the village of Dearborn to compel the Detroit, Ypsilanti, Ann Arbor & Jackson Railway to construct and maintain certain street crossings. From an order granting the writ, respondent brings certiorari.

Assumpsit by Ered R. Gartner against the city of Detroit upon a sewer contract. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.

Proceedings by the Wm. Barie Dry-Goods Company against Spurgeon D. Casler under the fraudulent debtors’ act. From an order quashing the proceedings, plaintiff brings certiorari.

Quo warranto by the people of the State of Michigan, on the relation of Frank H. Esper, against the Detroit & Saline Plank-Road Company, to forfeit respondent’s charter. From a judgment for relator, respondent brings error.

Assumpsit by Ira N. Bronson against George H. Marsh for contribution as co-surety on a liquor bond. Prom a judgment for plaintiff, defendant brings error. Plaintiff and defendant were co-sureties upon the liquor bond of William L. Bronson, a son of plaintiff, who in 1894 kept a saloon at Homer. One Mrs. Camburn brought suit upon the bond for the sales of liquor to her husband, on account of which she was injured. She recovered a verdict and judgment of $500.

Assumpsit by Annie Pokrefky, individually and as guardian of Charles Pokrefky, a minor, against the Detroit Firemen’s Fund Association, to recover for death benefits. From a judgment for defendant, plaintiff brings error.

Trover by George H. Greene, executor of the last will and testament of James F. Smiley, deceased, against Herbert E. Williams, sheriff of Calhoun county. From a judgment for plaintiff, defendant brings error. Plaintiff’s decedent, James F. Smiley, being the owner of a stock of drugs, medicines, and other goods, on April 30, 1890, entered into a contract to sell the same to one W. F. Church. The contract was in writing.

Assumpsit by Henry Schliess against the city of Grand Rapids to recover a balance due on a building contract. From a judgment for plaintiff, defendant brings error. In November, 1898, plaintiff made a contract with the defendant city to build the foundation walls for a municipal electric-lighting plant. By the charter of the city (title 9, §§ 13,14, 30) the board of public works is intrusted with the control of the erection and construction of such buildings.

Clair; Whipple, J. Assumpsit by John Hayes against George Stortz for money had and received. From a judgment for plaintiff, ■defendant brings error.

Mandamus by M. Hubert O’Brien to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order disallowing costs on the dismissal of a bill in chancery, in which relator was solicitor for the defendants.

<p>Exceptions before judgment from Muskegon; Russell, J.</p> <p>John W. Morse was convicted of violating the pure-food law.</p>

<p>1. Criminal Law — Resisting Ofeioer — Collection of Taxes.</p> <p>Where a village treasurer, by virtue of his tax roll and warrant, levied on personal property in the possession of the one against whom the tax was assessed, the levy was valid, and interference with such treasurer by a third person, claiming to own the property, was unlawful, and rendered such person guilty of the offense of resisting an officer.</p> <p>2. Municipal Corporations — Organization—Collateral Attack.</p> <p>In a prosecution for resisting a village treasurer in the execution of a tax warrant, the validity of the organization of the village cannot be attacked.</p>

Bill by Adah Hamilton and others against Paul Gr. Wickson and others to quiet title. From a decree for complainants, defendants appeal.

Appeal of William H. Leggett from an order of the probate court allowing the final account of Darius J. Davison, as executor of the last will and testament of Eliza S. Leggett, deceased. From a judgment for contestant, the executor brings error.

<p>Certiorari to Wayne; Donovan, J.</p> <p>Mandamus by Charles F. Hammond to compel the Edison Illuminating Company of Detroit to issue to relator certain shares of its corporate stock. From an order granting the writ, respondent brings certiorari.</p>

Trover by the Huron Land Company, Limited, against Samuel A. Davison. From a judgment for part of its claim, plaintiff brings error. Plaintiff became the owner of certain lands by deed from George N. Fletcher, executed November 7, 1885. The deed, after the granting clause, contains the following words: “Reserving all pine and hemlock timber.” The deed was silent as to time for removal.

, presiding. Assumpsit by Austin C. Newman against John S. Baker and Martha R. Baker to recover the purchase price of land. From a judgment for defendants on verdict directed by the court, plaintiff .brings error.

Assumpsit by Dena De Boer against Evert Harmsen for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Clair; Vance, J. Ejectment by John W. Thomson, Jr., and Kate V. Calder against the Flint & Pere Marquette Railroad Company, the McMorran Milling Company, and the Chicago & Grand Trunk Railway Company. From a judgment against the first-named defendant, and in favor of the other defendants, plaintiffs bring error. Lots 41, 42, and 43 of the village of Peru, now city of Port Huron, are water lots fronting on the St. Clair river, lying adjoining to, and south of, Court street.

Bill by Emeline, Elizabeth, Amber, Rebecca, and Mary Alice Groh against Albert and Lillian H. Groh and Emma Swan to enforce an easement in the nature of a right of way over defendants’ lands. From a decree for complainants, defendants Groh appeal.

Bill by John Daschke and Charles Daschke, copartners as John Daschke & Co., against Harry L. Schellenberg, to enforce a mechanic’s lien. From a decree dismissing the bill on demurrer, complainants appeal.

Exceptions before judgment from Iosco; Connine, J. James H. Gillingham was convicted of unlawfully fishing on May 16,1901, with a pound net having meshes less than 2J inches in size.

<p>Error to Washtenaw; Kinne, J.</p> <p>Frederick J. Shoemaker was convicted of horse stealing, and sentenced to imprisonment for 10 years in the State prison at Jackson.</p>

Mandamus by Julius Stroh against the city of- Detroit and the common council of said city to compel the vacation of a tax assessment. From an order granting the writ, respondents bring certiorari.

<p>Contempt — Enforcement of Civil Remedy — Punishment.</p> <p>A contempt proceeding for the violation of an injunction issued at the suit of the attorney general to enforce a judgment of ouster against a foreign corporation is a proceeding to enforce a civil remedy, within chapter 301, 3 Comp. Laws, justifying the imposition of the punishment in said chapter provided. 1 Comp. Laws, § 1103.</p>

Assumpsit by Thomas Murphy against the Northern Steamship Company for moneys expended and services rendered. From a judgment for defendant, plaintiff brings error.

Mandamus by Julius G. Wagner to compel Nelson Sharpe, circuit judge of Gladwin county, to vacate an order striking a replication from the files in a mandamus proceeding.

Assumpsit by the Thomas Iron Company against the Jackson Iron Company for the breach of a contract to sell and deliver iron ore. Prom a judgment for plaintiff, defendant brings error.

Assumpsit by Ernest Rehberg against the Tontine Surety Company of New Jersey on certain tontine diamond contracts. From a judgment for plaintiff, defendant, brings error. Plaintiff sued defendant upon four contracts, — two made with the plaintiff direct, and two with other parties, and assigned to plaintiff. The contracts had been fully performed by him and his assignors, and were due when suit was brought.

Assumpsit by Clark, Mason & Company against Parker, Webb & Company for money had and received. Prom a judgment for defendant, plaintiff brings error.

Case by Alfred L. Dompier, by next friend, against Henry B. Lewis, for personal injuries. From a judgment for defendant, plaintiff brings error.

Petition by Edwin A. Wildey, commissioner of the State land office, for a writ of prohibition restraining Perry E. Powers, auditor general, from canceling certain tax deeds. Relator, the commissioner of the -State land office, asks the writ of prohibition to prohibit respondent, the auditor general, from canceling certain tax deeds. The suit is evidently a friendly one, to obtain a construction of certain provisions of the tax law.

Mandamus by Milton H. Briggs and F. M. Jackson, trustees of the village of Grant, to compel Alex. J. McKinley, Owen Colligan, and William Hudson, also trustees of said village, to join with relators in rescinding the approval of a liquor bond. From an order denying the writ, relators bring certiorari.

Exceptions before judgment from Calhoun; Smith, J. Steven S. Hulbert was convicted of polluting the source of the water supply of the city of Battle Creek by bathing in Goguac Lake, in violation of section 26 of Act No. 428, Local Acts 1887.

Bill by the township o£ Merritt against William Harp, drain commissioner of Tuscola county, and Francis Dawson and William Findlay, highway commissioners of Gilford and Denmark townships, respectively, in said county, to restrain the flooding of complainant’s highways. From an order overruling separate demurrers to the bill, defendants appeal.

Assumpsit by the People of the State of Michigan against Ernest L. Shurly to recover the statutory penalty for an alleged violation of 2 Comp. Laws, § 4453, relating to the reporting of contagious diseases. From a judgment for defendant, the people bring error.

Assumpsit by the People’s Savings Bank of West Bay City against Frederica Hine upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

<p>1, Plats — Discrepancy—Boundaries.</p> <p>Where there is a shortage or a surplusage in the actual land platted into lots and blocks with intervening streets, and the original monuments indicating the limits of the lots have disappeared, each block should, if possible, be treated as distinct, and the shortage or surplusage therein be apportioned among the lot owners, except so far as possession has fixed the limits.</p> <p>2. Boundaries — Location—Survey—Evidence.</p> <p>Where, in ejectment, the issue was as to the exact location of the boundary line between two lots, and plaintiff sought to show the location of the line by a surveyor who testified that he took as his starting point the center of a railroad track situated on a right of way bordering the block, and had assumed that the track was originally located in the exact center of the right of way, and had not been changed, it was error to reject defendant’s offer of evidence that the track had been moved.</p>

Assumpsit by Lorenzo D. Haggerty and John S. Haggerty, copartners as Haggerty & Son, against Stephen Baldwin, to recover the amount of a check. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

Assumpsit by Daniel D. Barney against the Tontine Surety Company of New Jersey on certain tontine diamond contracts. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by Frederick Schmid, surviving partner of the firm of Mack & Schmid, against the village of Frankfort, upon municipal bonds. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Ejectment — Boundaries—Surveyors—Evidence.</p> <p>Where, in ejectment involving a disputed boundary, several surveyors had testified to the lines, the refusal to permit one surveyor to testify as to the effect on old lot lines if the line of a certain other surveyor were accepted was not prejudicial; the same being plainly deducible from the testimony.</p> <p>2. Same.</p> <p>Nor was it prejudicial to refuse to permit a question as to the depth of the lots; the same not being in issue, and the witness having testified that he had made no survey to ascertain the depth of one of them.</p>

Mandamus by William K. Clute, prosecuting attorney of Ionia county, to compel Frank D. M. Davis, circuit judge of said county, to vacate an order remitting the penalty of an alleged recognizance.

<p>1. Injury to Servant — Assumption of Risk.</p> <p>Plaintiff, an adult employé, was injured while operating a hoisting apparatus consisting in part of a wheel turned by an endless rope, which was kept in place on the wheel by V-shaped pieces of wood. Some of these pieces had split off of the wheel, and the injury was occasioned by the rope running off. Held, that the danger of the rope running off the wheel if not kept in line, and the defect therein, were so apparent that plaintiff should be deemed to have assumed the risk.</p> <p>2. Same — Weight of Evidence — New Trial.</p> <p>Where, in an action for injuries received in operating a hoisting apparatus, plaintiff testified that he had never operated it before, but on cross-examination he showed a familiarity with it hardly consistent with the statement, and nine other witnesses testified that they had seen him operate it, a verdict for plaintiff was so contrary to the weight of the evidence that a new trial should have been granted.</p>

Case by Louisa Blumrich against the village of Highland Park for personal injuries. Erom a judgment for plaintiff, defendant brings error. Plaintiff claims to have fallen upon a defective sidewalk and received an injury, for which she sued the defendant, and recovered verdict and judgment. She presented no claim in writing to the common council.

Eldon P. Mains, administrator of the estate of Antoinette C. Webber, deceased, presented a claim against the estate of George W. Webber, deceased, for the value of property-alleged to have been converted by him in his lifetime. The claim was disallowed in the probate court, and claimant appealed to the circuit, where defendant again prevailed. Claimant brings error.

<p>Error to Kent; Wolcott, J.</p> <p>Eliza A. Borden, by Frances B. Eby, her guardian, ^ presented a claim against the estate of Niram A. Fletcher, deceased, upon a promissory note. From a judgment for defendant on verdict directed by the court, claimant brings error.</p>

<p>1. Accident Insurance — Intentional Homicide.</p> <p>An intentional homicide is an accident, within the meaning of an accident policy, if insured himself was in no way responsible for his death.</p> <p>2. Same — Suicide or Murder — Question for Jury.</p> <p>Evidence examined, and held not necessarily inconsistent with the theory that insured came to his death through homicide rather than suicide; making it a proper case for the jury.</p> <p>3. Same — Evidence—Opinions.</p> <p>Upon an issue whether insured committed suicide or was murdered, a witness could not give his opinion, from the condition of the snow in which the body was lying, the condition of the body, and other surroundings, as to whether the body fell in such position or was placed there, or whether a man, shot while in a cutter, could have fallen in such a position; the drawing of such conclusions being for the jury.</p> <p>4. Same — Circumstances or Deceased.</p> <p>But testimony that insured had been intemperate in his habits for some time prior to his death, and was in straitened financial circumstances, and had worried about his affairs, was admissible.</p>

Assumpsit by Leander S. Baumgardner and another, copartners as L. S. Baumgardner & Co., against Horace E. Henry and another, copartners as Henry Bros., for goods sold and delivered. From a judgment for defendants, plaintiffs bring error.

<p>Error to Shiawassee; Smith, J.</p> <p>Assumpsit by Abraham L. Beard against Henry Hill upon a promissory note. From a judgment for plaintiff, defendant brings error.</p>

<p>Exceptions before judgment from Emmet; Shepherd, J.</p> <p>George W. Rotter was convicted of selling colored oleomargarine.</p>

Mandamus by Arthur G. Templar to compel the State board of examiners of (barbers to permit him to take the examination provided for by law.

Trespass bjr Ebenezer W. Monroe against Daniel W. Reynells. Plaintiff recovered a judgment in justice’s court, and defendant took out a writ of certiorari to the circuit. From an order dismissing the writ, defendant brings error.

<p>1. Careless Use of Firearms — Absence of Malice — Evidence.</p> <p>On a prosecution under 3 Comp. Laws, § 11511, for injuring another by the discharge of a firearm pointed at him intentionally, but without malice, the evidence showed that respondent and two boys were looking at a gun. One of the boys claimed he must go to work, when respondent put a shell in the gun, and said, “Look out, or I will shoot you,” . and simultaneously did shoot him. Held, not necessarily to preclude a finding of absence of malice.</p> <p>2. Same — Res Gestas'.</p> <p>Evidence that on the occasion of the shooting, and just before, respondent pointed the gun at another boy, who was present, was admissible as part of the res gestae, tending to show absence of malice.</p> <p>3. Same — Remarks of Court — Harmless Error.</p> <p>A remark by the court that, “All that is necessary to constitute this offense is the fact that this young man pointed the gun at the other young man, and that he was shot and maimed,” made in relation to an objection in the course of the trial, was harmless error, where the charge fully covered the law applicable to the case.</p>

<p>Mandamus by Willard T. Warren, treasurer of Montmorency county, to compel Perry F. Powers, auditor general, to expunge a certain charge against the county.</p>

Mandamus by James E. Scripps to compel Edgar O. Durfee, judge of probate of Wayne county, to proceed with the hearing on certain petitions. From an order-denying the writ, relator brings certiorari. George H. Scripps died April 13, 1900, in California, then his temporary place of residence. His legal domicile-was formerly in Detroit, Mich. He left a will, with two codicils attached; the will being executed in 1894 at Detroit, then his legal domicile.

Mandamus by the Deckerville High School District to compel School District No.' 3 of the townships of Marion and Bridgehampton to pay to relator one-half of certain primary school interest moneys. From an order granting the writ, respondent brings certiorari. In 1901 the legislature organized the relator as a school district from a part of the territory of the defendant school district.

Case by Arthur L. Pearl against the township of Benton for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>1. Additional Insurance — Estoppel.</p> <p>Where a policy holder writes the insurer that he has taken out additional insurance, that his policy issued by it is in a certain bank, and that he does not remember its conditions, and says, “If there is anything that conflicts with your policy, please advise me,” the insurer, receiving the letter and not answering it, is estopped to claim that its policy is avoided by additional insurance, whether taken out before or after the writing of the letter. Grant, J., dissenting.</p> <p>2. Letters — Mailing — Receipt — Presumption — Question for Jury.</p> <p>A letter shown to have been properly addressed, stanrped, and mailed is presumed to have been delivered; and, while such presumption is not conclusive, a denial of its receipt is none the more so, but makes the question one for the jury.</p> <p>3. Estoppel — Future Transactions.</p> <p>An estoppel cannot be based upon future transactions, unless the party against whom the estoppel is sought to be enforced was informed that such things would be done. Per Grant, J.</p>

Debt by Edward Q-. Crosby and Robert R. Rice, copartners as the Crosby Transportation Company, against the Pere Marquette Railroad Company, to recover a penalty. Prom a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Assumpsit by Charles Hoffman and others, copartners as the Hoffman Manufacturing Company, against Anna Goldsmith, for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.

Case by Augusta Boettcher against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Oakland; Smith, J.</p> <p>Assumpsit by Michael F. Lillis against the Pennsylvania Casualty Company for services rendered. From a judgment for plaintiff, defendant brings error.</p>

Assumpsit by Patrick Kerrigan against Samuel B. Poole, superintendent of the Mackinac Island State Park, to recover license fees paid under protest. From a judgment for plaintiff, defendant brings error.

Bill by Mabel A. Coryell against Philo P. Hotchkiss and Georgiana Hotchkiss for the specific performance of a land contract. Prom a decree for complainant, defendants appeal.

<p>Divorce — Evidence—Appeal.</p> <p>A decree dismissing a bill for divorce, held to have been justified by the testimony.</p>

Albert E. Miller, treasurer of the diocese of- Marquette, presented a claim against the estate of Hervey C. Parke, deceased, for the amount of a subscription. The claim was disallowed by the commissioners, and claimant appealed to the circuit court, where verdict was directed for defendant. Claimant brings error.

Assumpsit by Dora Bice against John W. Walker to recover the balance of the purchase price of certain chat-, tels. From a judgment for plaintiff, defendant brings error.

Case made from Kent; Perkins, J. Frank L. Carpenter petitioned the probate court for his appointment as administrator of the estate of Samuel S. Wood, deceased. The petition was denied on a contest made by decedent’s widow, Loretta R. Wood, and petitioner appealed to the circuit court, where the order of the probate court was affirmed, and he again appeals.

Mary Barber presented a claim against the estate of Margaret Eberle, deceased, (for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.

Assumpsit by James E. White, judge of probate of Kalamazoo county, for the use and benefit of Henry L. -Chipman, against Herman H. Schaberg, impleaded with Lawrence N. Burke, executor, etc., and Patrick H. Burke, upon an executor’s bond. From a judgment for plaintiff, ■defendant brings error.

Petition by Ernestine Peters against the Union Trust Company, receiver of the City Savings Bank of Detroit, and Harris & Tkroop, representing the commercial depositors of said bank, to establish a preference in certain securities in favor of tbe savings depositors. Prom a decree for petitioner, defendants appeal.

<p>Juvenile Offenders — Report of County Agent —Habeas Corpus.</p> <p>A juvenile offender sentenced to the industrial school at Lansing will be released on habeas corpus where it appears that the report of the county agent, required by 1 Comp. Laws, § 2261, was dated five days after the commitment.</p>

Andrew J. De Mary, John R. Heintz, and Richard D. Lyman, copartners as De Mary, Heintz & Lyman, presented a claim against the estate of James Burtenshaw, deceased, for a balance due on account of the purchase and sale of certain wheat. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. From a judgment for claimants, defendant brings error.

<p>Appeal from Wayne; Hosmer, J.</p> <p>Bill by Mathias Esper and Karolina Esper against Charles T. Miller, Edwin S. Sherrill, Elisha H. Elinn, James H. Bell, Ernest T. Tappey, Jacob H. Hahn, Charles A. Rathbone, John W. Simons, Charles W. Hitchcock, Agnes Andrus, Kate H. Jacobs, Lewis A. McCreary, and the Fairview Land Company, for the specific performance of a land contract. From a decree dismissing the bill •except as against defendants Miller and the Fairview Land Company, complainants and said company appeal.</p>

Bill by Alfred Charles Moross and Emily Catherine Moross, by guardian, against Victor J. Moross, Emma Ray, Celina Parent, Louisa V. Moross, and Augustus C. Stellwagen, administrator, for a partition of certain real estate. From a decree for complainants, defendants appeal.

Petition by Crawford Angelí and others, trustees of the Masonic Life Association, for the removal of Charles W. Calkins as receiver, and for an accounting. From the order made, both parties appeal.

Bill by the township of Gladwin against the township of Bourrett for an accounting. From a decree for complainant, defendant appeals.

Assumpsit by Rush Culver against Eranklyn H. Smith to recover a commission on the purchase of certain lands. From a judgment for plaintiff, defendant brings error.

<p>1. Attorney’s Lien — Decree of Divorce.</p> <p>Under a decree in a divorce case, the wife was permitted to acquire title to real estate owned by'herself- and husband jointly, on paying the sum of §800, which represented what was left after taking out her original interest and the sum awarded as alimony. Held, that the husband’s solicitor had no lien on such money for his services.</p> <p>2. Homestead — Construction of Statute.</p> <p>The homestead provisions of the Constitution and statutes should be liberally construed.</p> <p>3. Same — Sale—Title to Proceeds.</p> <p>General creditors can have no lien on money derived from the sale of their debtor’s homestead, made in pursuance of a decree in a divorce case.</p>

Bill by Florence N. Newbro against James Friar to set aside an assignment of a land contract. From a decree dismissing the bill, complainant appeals.

<p>Error to Kent; Perkins, J.</p> <p>Assumpsit by Maggie Ford against John H. McLane for money loaned. From a judgment for plaintiff, defendant brings error.</p>

<p>Error to Washtenaw; Kinne, J.</p> <p>Replevin by Herschel Goodspeed and Delbert C. Good-speed, copartners as Goodspeed & Son, against George Hildebrand. From a judgment for defendant, plaintiffs bring error.</p>

<p>Appeal from Berrien probate court; Ellsworth, J.</p> <p>Condemnation proceedings by the Benton Harbor Terminal Railway Company against Alexander C. King and Julia King. From a judgment for petitioner, respondents appeal.</p>

<p>Appeal from Berrien probate court; Ellsworth, J.</p> <p>Condemnation proceedings by the Benton Harbor Terminal Railway Company against William S. Dunbar and Alice T. Dunbar. From a judgment for petitioner, respondents appeal.</p>

<p>Condemnation Proceedings — Evidence—Appeal.</p> <p>Where the record on appeal in condemnation proceedings does not contain the testimony, an objection that there was no evidence to sustain the averment of the petition that petitioner had been unable to acquire title to the land will not be considered.</p>

Bill by Ira Oar ley against Llewellyn A. Jennings to restrain the obstruction of a water-course. From a decree for complainant, defendant appeals.

<p>Exceptions before judgment from Cass; Carr, J.</p> <p>Hiram Bressler was convicted of seduction.</p>

Exceptions before judgment from Kalamazoo; Adams, J. John W. Phillips was convicted of having colored oleomargarine in his possession, with intent to sell it.

Exceptions before judgment from Delta; Stone, J. Clayton Yoorhis was convicted of violating the liquor law. Respondent was convicted of the offense of selling and offering for sale brewed and fermented liquors at wholesale without having paid the tax as required by sections 5379, 5380, 3 Comp.

Replevin by William B. Hall against the city of Kalamazoo and Fred Winslow, city treasurer. From a judgment for defendants, plaintiff brings error..,

<p>Error to St. Clair; Whipple, J.</p> <p>Case by Frederick I. Merryman against Edmund Hall for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

<p>Error to Clinton; Stone, J.</p> <p>Assumpsit by Lyman R. Wickes against Columbus E. Pulfrey on an account stated. From a judgment for defendant, plaintiff brings error.</p>

<p>Error to Mecosta; Palmer, J.</p> <p>Assumpsit by Arthur Meigs against Enoch Bromley, Mahlon Carman, and J. Herbert Childs on certain promissory notes. From a judgment for defendants, plaintiff brings error.</p>

Case by Gardiner F. Snyder, administrator of the estate of Leo R. Snyder, deceased, against the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment in his favor for a part of the damages claimed, plaintiff brings error.

Assumpsit by Robert T. Teakle and George W. Golden, copartners as Teakle & Golden, against James H. Moore, for labor performed and materials furnished in the construction of a building. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.

<p>1. Choses in Action — Assignment—Consideration.</p> <p>Where a claim against a railroad company for an injury to-cattle has been regularly assigned, it is no objection to the -right of the assignee to recover thereon that the only consideration for the assignment was his agreement to turn over the amount collected to the assignor.</p> <p>2. Same — Action—Jurisdiction.</p> <p>The. right of an assignee of several claims to maintain a single action thereon in the circuit court is not affected by the fact that, in the absence of such assignment, they would all have been within the exclusive jurisdiction of h justice.</p>

<p>Divorce — Adultery—Evidence.</p> <p>Evidence in a divorce case reviewed, and held to establish, a charge of adultery.</p>

<p>Garnishment — Appeal erom Justice’s Court — Disclosure — Amendment.</p> <p>A garnishee, against whom a judgment has been rendered in justice’s court, may, on appeal, be permitted to file a plea, and show that his disclosure was a mistaken one, and that he did not owe the defendant, but another person.</p>

Case by Adelpbia A. Styles against the village of Decatur for personal injuries. From a judgment for plaintiff, defendant brings error.

<p>Appeal from Menominee; Stone, J.</p> <p>Bill by the Menominee Loan & Building Association ■against John Lovell and Martha M. Lovell to foreclose a mortgage. From a decree for complainant, defendants appeal.</p>

Assumpsit by Addison E. Johnson and others against James W. Doon and Frederick J. Doon, copartners as J. W. Doon & Co., for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.

Case by Silas M. McTiver against the township of Grant for, injuries to horses, caused by a defective highway. From a judgment for plaintiff, defendant brings error.

<p>1. Railroads — Passenger on Freight Train — Assumption op Risk.</p> <p>One who takes passage on a freight train assumes the risk of injury from such jarring and jolting as is incident to the ordinary operation of such a train.</p> <p>2. Same — Negligence—Evidence.</p> <p>Plaintiff sued for injuries alleged to have been received by being thrown from a bunk in a freight caboose while the cars were being coupled. The only testimony as to the manner of the accident was that given by himself; and he testified that he was lying in the bunk, half asleep, when he suddenly found himself on the floor of the car, and then heard the clatter of the cars bumping together. Held, insufficient to warrant an inference of negligence in the management of the train.</p>

Replevin by the Pioneer Fuel Company against John Molloy, marshal of the city of Gladstone. From a judgment for defendant on verdict directed.by the court, plaintiff brings error.

Bill by Henry A. Harmon, trustee of Albert Ives, Butler Ives, and Albert Ives, Jr., bankrupts, against Adolph Feldheim and Leo M. Butzel, trustee, to set aside an assignment of collateral as a preference under the bankruptcy law. From a decree dismissing the bill, complainant appeals. Albert, Butler, and Albert Ives, Jr., constituted the banking firm of Ives & Sons, which, at the time of the transactions complained of, had been engaged in business for more than 30 years.

<p>1. Seduction — Evidence.</p> <p>In a prosecution for seduction, evidence that prosecutrix’s mother was insane, and that her father had not cared for her since she was 14 years old, was improperly admitted, but, being merely preliminary, did nob, of itself, constitute ground for a reversal.</p> <p>3. Same.</p> <p>Subsequent acts of intercourse cannot be shown on a trial for seduction.</p> <p>3. Same — Cross-Examination op Prosecutrix.</p> <p>In a prosecution for seduction, where the proof of the charge made depended almost wholly on the testimony of the prosecutrix, and she testified that the act of intercourse relied on occurred between 11 and 12 o’clock p. m., but admitted on cross-examination that she had testified on the preliminary examination that it occurred at about 9:30 p. m., and that such testimony was false, an objection to a question as to why she had given such former false testimony was erroneously sustained.</p> <p>L Trial — Conduct of Counsel.</p> <p>Where, notwithstanding repeated rulings of the trial court, counsel continues to put questions in an objectionable form, he cannot complain if he is somewhat severely reprimanded.</p> <p>5. Same — Seduction—Adverse Witness — Surprise.</p> <p>Where respondent’s counsel in a prosecution for seduction called a witness to show that he had sustained illicit relations with prosecutrix prior to the alleged seduction, but the witness denied that he had done so, counsel was entitled to examine the witness with a view to showing that he had previously made a different statement to counsel; not as a matter of substantive proof, but merely to show the jury why the witness had been called, that respondent might not be , prejudiced.</p> <p>6. Saííe — Improper Remarks of Prosecutor.</p> <p>Statements by the prosecuting attorney in his address to the jury in a prosecution for seduction, characterizing the mode of defense as “brutal, cowardly, and contemptible,” charging respondent's counsel with falsifying, and with having “raked the purlieus of hell ” for evidence against prosecutrix, commenting on the superlative villiany of respondent and the extreme baseness of his crime, and suggesting that, if prosecutrix had a father or a brother, there would have been no occasion for a trial, were erroneously permitted, and ground for a reversal.</p> <p>7. Same.</p> <p>In a prosecution for seduction, in which respondent had not testified, the prosecuting attorney said in his argument that no one saw what occurred at the time of the alleged seduction except prosecutrix, respondent, and the allseeing eye of God, and that prosecutrix had told her story, and there was not a word to prove that it was untrue. Held, to constitute a reference to respondent’s failure to testify, not permissible under 3 Comp. Laws, § 10211.</p> <p>8. Seduction — Information—Time of Offense.</p> <p>An information for seduction charged the offense to have been committed on October 22d. The prosecutrix had testified before the examining magistrate that it occurred on that date, but had also fixed the time as the first time she had intercourse with respondent, and on the date when they attended a certain entertainment. An investigation disclosed that this entertainment was on September 22d, and on the trial prosecutrix testified that the seduction was on that date. Held, that it was not error to permit a conviction as for an offense committed on September 22d.</p>

Trover by John W. Anderson, receiver of the estate of Charles L. Ortman, against Herman Besser. From a judgment for plaintiff for less than the amount claimed, he brings error. Plaintiff was the owner in fee of certain timber lands. The defendant cut and removed therefrom the timber, and hauled the same to the railroad track, where he sold it. Plaintiff brought this action of trover to recover the value of the timber so cut and removed.

Assumpsit by David H. Holmes against Edgar B. Foss for commissions on the purchase of certain timber. From a j u dgment for plaintiff, defendant brings error.

<p>1. Building and Loan Associations — Interest—Usury.</p> <p>2 Comp. Laws, § 7584, providing that no premiums, fines, nor interest on premiums accruing to a building and loan association organized under the act of which said section is a part shall be deemed usurious, does not extend to a specific reservation of interest on a loan, and, if the same exceeds the rate prescribed by the general statute, the contract is usurious.2</p> <p>2. Same — Premiums—How Payable.</p> <p>Under 2 Comp. Laws, § 7581, providing that the premium bid by a borrowing stockholder in a building and loan association may be deducted from the loan in one amount, or may be paid in installments, such premium need not be a definite sum, but may be a continuing premium of a stated per cent, on the loan.</p> <p>3. Interest — Usury—Application op Payments.</p> <p>Under 2 Comp. Laws, §§ 4857, 4858, providing that the court shall declare void the interest reserved by a usurious contract, and that the debtor shall not be compelled to pa/ any interest, money paid specifically as interest under a usurious contract, should be applied.on the principal.</p>

Hosmer, J. Case by Herman Kaiser against the Detroit & Northwestern Railway for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

<p>Error to Van Burén; Carr, J.</p> <p>Replevin by Frank Cutter against Dan Wait and Elijah L. Green. From a judgment for plaintiff, defendants bring error.</p>

Case by Lucy Stickley against the township of S'odus for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff was driving with a horse and buggy down a roadway leading from the top of the bluff along the east bank of the St. Joseph river, in the defendant township, to what is known as “King’s Landing.” The bank is high and steep. She was precipitated over the bank and injured.

<p>1. Rape — Age oe Consent — Evidence.</p> <p>On a prosecution for carnally knowing a girl under 16 years old, respondent’s admissions that the girl was “under age,” as well as the appearance of the girl, are competent to be considered by the jury.</p> <p>2. Same — Question eor Jury.</p> <p>On such a prosecution, several witnesses testified to respondent’s admissions that the girl was under age. The girl and her mother both testified that she was over 16 at the time of the alleged offense, but it appeared that they had testified to the contrary on the preliminary examination, and, in order to substantiate her claim on the trial, the mother was obliged to change the date of the birth of each of her several children from that given on the examination. Held, that the question of the girl’s age was for the jury.</p> <p>8. Same — Subsequent Relations.</p> <p>It was competent for the people to show that, after the commission of the alleged offense, and while the girl was with child, the relations between her and respondent were intimate and friendly.</p> <p>on rehearins.</p> <p>1. Criminal Law — Witnesses—Impeachment.</p> <p>The prosecution in a criminal case may show contradictory statements of a hostile witness, whom the law compels it to call, for the purpose of affecting his credibility. Carpenter and Moore, JJ., dissenting.</p> <p>2. Trial — Objections to Testimony — Appeal.</p> <p>Where, on objection made to certain testimony, the court holds it admissible for a particular purpose not within the scope of the objection, an exception to such ruling will, it seems, raise the question of the admissibility of the testimony for the purpose stated by the court.</p>

Mandamus by Lue A. Thornton and Harry De Golia to compel the board of supervisors of Gratiot county to allow a bill for the board of certain jurors. From an order denying the writ, relators bring certiorari.

Assumpsit by Henry A. Harmon, trustee in bankruptcy of Albert Ives, Butler Ives, and Albert Ives, Jr., copartners as A. Ives & Sons, against Bryant Walker and Hinton E. Spalding, copartners as Walker & Spalding, to recover an alleged preferential payment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

<p>Error to Ionia; Davis, J.</p> <p>Case by Alonzo O. Freeman against the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Mandamus by Isaac P. Newton to compel Perry P. Powers, auditor general, to refund the amount paid on the purchase of certain State tax lands. The circuit court for the county of Muskegon held certain assessments for taxes to be void, and dismissed the auditor general’s petition. The case was appealed to this court, and the decree of the court below reversed. Auditor General v. Hutchinson, 113 Mich. 245 (71 N. W. 514).

<p>1. Settlement — Fraud—Rescission.</p> <p>One who seeks to rescind a settlement for fraud or mistake must first place the other party in statu quo.</p> <p>2. Same — Tender—Sufficiency.</p> <p>Plaintiff, after settling a claim against defendant for personal injuries, went with his attorney to defendant’s office, where they notified defendant’s agent that they repudiated the settlement on the ground of fraud, and inquired if he would take back the money paid plaintiff. On receiving a negative reply they started to leave, when the agent expressed a doubt as to their having any money, and asked to see it. Though they had arranged to obtain the money, they did not in fact have it with them, and they withdrew without making any direct answer to the agent’s request. Held, that there was no such tender as would effect a rescission of the settlement and# enable plaintiff to sue for the injuries.</p>

<p>Appeal from Muskegon; Russell, J.</p> <p>Bill by Milo A. Boynton against Everett Veldman, Gertie Veldman, and John Bramer to foreclose a land contract. From a decree for complainant, defendants appeal.</p>

Case by Juna E. Smalley against the Detroit & Mackinac Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error. On Sunday, August 25, 1901, defendant ran an excursion train from Bay City to Alpena. Plaintiff was a passenger on the return trip from Alpena, and designed to alight from the train at Pinconning, where she resided. The train was composed of an engine and ten cars.

Assumpsit by the National Lumberman’s Bank against Isabella G. Miller and John A. Miller upon a promissory note. Erom a judgment for plaintiff, defendants bring error. This suit is brought upon a promissory note for $4,045, dated December 30,1899, with defendant Isabella as maker and defendant John as indorser. With the plea of the general issue defendant gave notice that she was the wife of her codefendant, and that said note was for money obtained for his individual use.

<p>Error to Ottawa; Padgham, J.</p> <p>Certiorari by Cornelius Huys'er to review the action of the township boards of school inspectors of the townships of Zeeland, Olive, and Blendon in establishing a school district. From a judgment declaring the proceedings void, respondents bring error.</p>

Case by the Peninsular Trust Company, administrator of the estate of Ruby M. Behrend, deceased, against the city of Grand Rapids, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

<p>1. Divorce — Discontinuance oe Suit — Nonpayment oe Solicitor’s Fee — Contempt.</p> <p>Where, after the court has made an order in a divorce case requiring the husband to pay a fee to the wife’s solicitor, but before any demand has been made on the hdsband for a compliance therewith, the parties become reconciled and discontinue the suit without the knowledge of their solicitors, the court has no power thereafter to adjudge the husband in contempt for failure to pay the fee in accordance with said order.</p> <p>2. Mandamus — When Lies — Order oe Contempt.</p> <p>An order adjudging a party guilty of contempt, and requiring him to pay a certain sum within 10 days or be imprisoned, is reviewable by mandamus; the remedy by appeal not being sufficiently expeditious.</p>

Franklin B. Galbraith, as trustee in bankruptcy of the estate of Mary E. Young, petitioned for his appointment as administrator of the estate of Mary Ann Osmun, deceased. The petition was granted in the probate court, and William H. Osmun, Sr., husband of deceased, appealed to the circuit, and, on affirmance there, brings certiorari.

William Peck presented his annual account as executor of the last will and testament of Ezekiel D. Webb, deceased. The account was allowed in the probate court, and Nathan H. Webb, a legatee, appealed to the circuit, where certain items were disallowed, and the executor brings error.

<p>1. Negligence — Management oe Steamer — Defective Equipment — Evidence—Question for Jury.</p> <p>In an action for injuries caused by the breaking of a fender strap on a steamer as the vessel struck the dock, the question of defendant’s negligence in approaching the dock at too high a rate of speed, arid in using an unsound fender rope, held, under the evidence, to have been properly left to the jury.</p> <p>2. Same — Contributory Negligence.</p> <p>The question of the contributory negligence of plaintiff, who was struck by the fender while standing on the dock, was likewise for the jury.</p>

Case by Marie La Fond against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.

Assumpsit by the City National Bank of Lansing against Permelia L.. Stone and Harry L. Stone, alleged to have constituted the firm of W. B. Stone & Son, on certain promissory notes and an overdraft. Prom a judgment for plaintiff on verdict directed by the court, defendant Permelia L. Stone brings error.

Clair; Thomas, J. Case by William Carr against the St. Clair Tunnel Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Plaintiff was employed by the Grand Trunk Railway Company as brakeman and switchman in its yards on the Canadian side of the defendant’s tunnel. The tunnel is a part of the railroad of the Grand Trunk, although the defendant, a separate corporation, constructed the tunnel and owns it.

<p>Error to Tuscola; Beach, J.</p> <p>Assumpsit by Louis Newman against Stephen Meddaugh upon a promissory note. From a judgment for «defendant, plaintiff brings error.</p>

Assumpsit by Anna Yoss and others against the Connecticut Mutual Life-Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.

Ejectment by Sara' H. Thomas against Charles L. Wagner, the Wagner Lake-Ice Company, and Frank Van Blacum. From a judgment for plaintiff, but allowing defendants compensation for improvements, plaintiff brings error.

Assumpsit by Eranciska Jaskulski against the Citizens’ Mutual Fire-Insurance Company of Kent, Allegan, and Ottawa Counties on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error. This is a suit upon an insurance policy to recover for a loss by fire. The policy was issued in 1895 to one Joseph Navrot, the owner of the land. The dwelling upon it was insured for $250.

<p>Mandamus by Leopold Freud to compel Morse Robnert, circuit judge of Wayne county, to vacate an order granting a change of venue.</p>

Assumpsit by James Hanley against the United States Fidelity & Guaranty Company to recover the premium paid for a bond. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

Assumpsit by Florence M. Gillett against Abel A. Burns on a promissory note. There was a judgment for plaintiff, and, a new trial having been refused, defendant brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Case by Charles Butler against the Detroit, Ypsilanti & Ann Arbor Railway for personal injuries. From a judgment for plaintiff, defendant brings error.</p>

Case by Daniel Plant against Michael P. Heraty and John C. Weadock, receivers of the Bay Cities Consolidated Street-Railway Company, for personal injuries. From a judgment for defendants on verdict directed by the court, plaintiff brings error.

Assumpsit by David Trotter and Marius Hanson, co-partners as Trotter & Hanson, against Morris R. Tousey, for the breach of a contract for the sale of certain lumber. From a judgment for plaintiffs, defendant brings error. On January 31,1900, defendant, a resident of Bay City, Mich., sent by mail to plaintiffs, residents of Toledo, Ohio, .an offer to sell and deliver to them, f. o. b. cars Toledo, 500,000 feet of merchantable'hemlock lumber; at certain prices named.

Debt by the township of Richland .against William H. Cliff, principal, and Barney Mills and Charles H. Prescott, sureties, on a township treasurer’s bond. From a judgment for plaintiff, defendants bring error.

<p>1. Logs and Logging — Driving—Obstruction—Action for Expense — Parties—Interest in Judgment — Partnership.</p> <p>Where plaintiffs agreed to drive B.’s logs as well as their own down a river on the payment by B. of his pro rata share of the actual cost, B. was not a partner with plaintiffs, or a necessary party to a suit to recover from defendant the expense incurred in driving its logs, which obstructed the stream, although a recovery would reduce the amount to be paid by B.</p> <p>2. Same — Damages—Evidence—Custom.</p> <p>In an action under 2 Comp. Laws, § 5075, to recover the cost of driving defendant’s logs down a stream, it is competent to show, as bearing on the question of damages, that hard-wood logs put in a river early in the spring, as were defendant’s, will not float readily, and for that reason it had become customary not to put them in until the soft-wood logs had passed down the stream.</p> <p>3. Same.</p> <p>It is likewise competent, for the same purpose, to show what part of defendant’s logs plaintiffs had to drive in order to bring down their own logs.</p>

Assumpsit by Theodore Toombs against A. U. Stock-well upon a guaranty of payment for goods sold. From a judgment for defendant, plaintiff brings qrror.

Bill by Bernard Wolff “against the Alpena National Bank and George L. Maltz for an accounting. From a decree dismissing the bill, complainant appeals. One Max Jasspon, a partner of complainant, being indebted to. complainant, the defendant bank, and other parties, on October 31, 1896, executed a chattel mortgage in favor of his creditors, preferring the complainant, whose debt is stated therein to be $4,117. The complainant was then living in New York.

, presiding. Case by James H. Hunt against theutownsbip of Lincoln for personal injuries. From a judgment for plaintiff, defendant brings error. Plaintiff, on April 9, 1901, was drawing over the defendant’s highway to market a load of bolts, 38 inches long, loaded in a rack with long boards at the sides, and piled about 3£ feet high. The wagon tires were 3 inches wide.

Quo loarranto proceedings by Horace M. Oren, attorney general, on the relation of L. E. Kies and others, against Thomas J. Lowrey and others, to inquire by what right respondents claimed to exercise the office of trustees of the public schools of the village of Jerome. From a judgment of ouster, respondents bring error.

Mary Jane Zibble presented for probate the last will and testament of Bradley Zibble, deceased. The will was .allowed in probate court, and Clarence Zibble and Julia Dunscomb appealed to the circuit. From a judgment for ■contestants, proponent brings error.

, presiding. Bill by William Snyder, John Snyder, and others against Benjamin F. Snyder and Thomas C. Snyder to set aside a deed and an assignment of a mortgage. From a decree dismissing the bill, complainants appeal. Jacob Snyder and Elizabeth Snyder, his wife, came to Michigan in 1851, and settled upon a farm of 10 acres in Hillsdale county, where they lived during their lives.

Bill by the Detroit & Birmingham Plank-Road Company against the Oakland Railway Company to enjoin the laying of certain track. From a decree dismissing the bill, complainant appeals.

Case by Aretus A. Bedell, administrator of the estate of Aretus Alfred Bedell, deceased, against the Detroit, Ypsilanti & Ann Arbor Railway, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

Assumpsit by George L. Duteher against the Grand Rapids Fire-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error. The defendant issued a policy of insurance to one Riley. A loss occurred, and the amount thereof was duly ascertained and admitted. Subsequently one Heald commenced a suit against Riley in justice’s court, and garnished the defendant company.

Assumpsit by the Eredonia National Bank against Paul Tommei on certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendant brings error. This is a suit upon two promissory notes, — one dated December 20, 1900, for $300; the other dated February 19, 1901, for $328.25; both executed by the' defendant to the order of White & Flagg.

<p>Mandamus by Frank A. Schulte to compel Perry F. Powers, auditor general, to issue a certificate of error.</p>

Assumpsit by Daisy H. Harts, and Daisy H. Harts and Edwin B. Harts, as administrators of the estate of E. S. Hanson, deceased, against the city of Mackinac Island, to recover taxes paid under protest. Erom a judgment for defendant, plaintiffs bring error. Plaintiffs paid their taxes under protest, and brought this suit to recover the amount so paid. The case was tried before the court without a jury, and a finding of facts made.

Assumpsit by the Darling Milling Company against Robert A. Chapman and others, copartners as the R. A. Chapman Hay Company, for the breach of a contract for the purchase of hay. From a judgment for defendants, plaintiff brings error.