Volume 146 — Michigan Reports

Submitted January-31, 1906. Bill by William Killefer, administrator de bonis non, with the will annexed, of the estate of Theodore E. Hendrick, deceased, against Fred R. Bassett, administrator of the estate of Elvira C. Hendrick, deceased, for an accounting. From a decree for complainant, defendant appeals.

Case by Howard Smith against Clinton Hockenberry for criminal conversation. There was judgment for plaintiff for less than the amount claimed, and he brings error.

Assumpsit by Clarence Duvall against John Ferwerda for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.

Case by Anthony Kaminski against the Great Camp of the Knights of the Modern Maccabees for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Richard Temby against the city of Ishpeming for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>1. Dedication — Private Alley — Evidence—Sufficiency.</p> <p>On the issue whether an alley was a public or merely a private way, evidence examined, and held, that it was open to the jury to find that while the primary motive of the person opening the alley was his own convenience, he intended to confer upon the public the same rights he had in it.</p> <p>2. Same — Conveyance—Effect.</p> <p>The mere fact of recording a conveyance of right of way over a lane or alley in use by the public, without any other notice to the public, and with out any change in the use of the alley or exercise of ownership over it, will not of itself change the character of the alley from public to private, so as to prevent the running of the statute of limitations.</p> <p>3. Same — Evidence—Sufficiency.</p> <p>On the issue whether an alley was a public or merely a private way, evidence examined, and held, that it was competent for the jury to find a dedication to the public from user for the statutory period, but that there was no competent evidence of acceptance by the public.</p> <p>4. Same — Acceptance—Necessity.</p> <p>In order that a way customarily used by the public may become a public way by user, the public must not only use it as a thoroughfare, but the implied dedication must be accepted by the public authorities, and the way taken in charge and maintained as other highways.</p> <p>5. Same — Ejectment—Burden of Proof.</p> <p>In ejectment against a city to recover a strip of land used as an alley, the city claiming it to have been dedicated by user, the burden is upon the city to show that the dedication was accepted by the public authorities. '</p> <p>6. Estoppel — Deeds—After-Acquired Title.</p> <p>Where one having possessory rights in land, the title to which is in the government, conveys it by deed containing full covenants of warranty except as to the government, and afterwards his title is confirmed by the government, the title so acquired inures to his grantee, and a subsequent deed by the grantor to a third person with full covenants is of no effect.</p>

Cross appeals from Ionia; Hosmer, J., presiding. , Bill by Ella M. Webber, executrix of the last will and testament of George W. Webber, deceased, against Mary C. Webber, executrix of the last will and testament of Andrew J. Webber, deceased, for an accounting. From the decree rendered, both parties appeal.

Replevin by the Morning Telegraph Publishing Company against the S. B. Hutchinson Company and John B. Corliss, trustee. Adolphus Fixel, trustee in bankruptcy of defendant corporation, intervened by petition and moved to vacate the writ of replevin. There was an order denying the motion, and intervener brings certiorari.

Quo warranto proceedings by John E. Bird, attorney general, on the relation of William Alexander, against Eugene T. McOlear to try the title to the office of drain commissioner. There was judgment for respondent, and relator brings error.

Bill by Triphena Goodenough against Edward A. Burton, administrator of the estate of Charles S. Burton, deceased, and others, for an accounting. From a decree dismissing the bill on failure to give security for costs, complainant appeals.

Assumpsit by Charles P. Wheelock and another against Edward M. Starkweather and another for goods sold and delivered. There was judgment for plaintiffs, and defendants bring error.

Assumpsit by Oharles Bakrow & Company in justice’s court against Frank M. Totten upon certain promissory notes. Plaintiff recovered judgment, and defendant appealed to the circuit court. There was judgment for plaintiffs, and defendant brings error.

Assumpsit by Roger B. Williams against Edward Meagher, Jr., and Daniel Meagher, copartners as Meagher Bros., for goods sold and delivered.' There was judgment for defendants, and plaintiff brings error.

Assumpsit by Joan Dees against the board of education of the city of Detroit on a teacher’s contract. There was judgment for defendant, and plaintiff brings error.

<p>1. Sales — Replevin by Buyer — Necessity oe Tender oe Price.</p> <p>Where a contract for the sale of hay provides that the buyer shall bale it at once at his own expense and pay a certain price per ton for it when delivered by the seller at the car at a certain station, the buyer cannot maintain replevin for the hay until he has paid or tendered the agreed price unless tender is waived.</p> <p>2. Same — Tender—Waiver.</p> <p>Where a seller of hay refuses to deliver it according to contract and makes no claim of lien upon it for the purchase price, but instead insists that he has absolute title to it and that the purchaser has no interest in it, his refusal to deliver is equivalent to notice that tender of payment under the contract will not be received and constitutes a waiver of such tender.</p>

Assumpsit by D. Harold McIntyre against E. Bement’s Sons, Detroit Trust Company, receiver, for breach of agreement to repurchase certain corporate stock. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Patrick Yore against Charles H. Meshew for money had and received. There was judgment for plaintiff, and defendant brings error.

Bill by Susan Faller against Morris Faller for separate maintenance. Defendant filed an answer in the nature of a cross-bill asking for a divorce. From a decree for complainant, and dismissing the cross-bill, defendant appeals.

<p>Master and Servant — Dangerous Appliances — Assumption op Risk.</p> <p>A capable dredge engineer, employed to erect and repair machinery, assumes the risk of injury from the slipping of a heavy casting while being lowered into the hold of a dredge.</p>

Bill by Edward Swift against E. A. Kleckner and another to set aside an execution levy and sale. From a decree dismissing the bill, complainant appeals.

Bill by Massie W. Scovel and others against the city of Detroit and others to restrain the construction of a speedway in a public street. From a decree dismissing the bill, complainants appeal.

Bill by Sarah A. Kerr against Peter Tierney and May H. Tierney for an accounting, and to redeem from certain mortgages. From a decree for complainant, defendants appeal.

, presiding. Case by William J. Sheon, by next friend, against the Kerr-Murray Manufacturing Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. The defendant was engaged under a contract in erecting for the Muskegon Traction & Lighting Company a large gas tank, consisting of three cylinders.

<p>Exceptions before judgment from Genesee; Wisner, J.</p> <p>Linus D. Maxfield and Lorinda Maxfield were convicted of keeping a house of ill fame.</p>

Petition by James B. Bradley, auditor general, for the sale of land delinquent for taxes: On objections filed by Willis H. Tuttle. From a decree for petitioner, contestant appeals.

There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. The testimony produced by plaintiff tended to prove •that he was employed by the defendant to work in its ■coal mine in the capacity of eager in January, 1901. He was not a miner, and never before worked in a mine. His duties were to place cars of coal upon the elevator which was operated in the shaft of the mine so that they might be hoisted to the surface.

Assumpsit by Harvey C. Taft, receiver of the Masonic Life Association, against George W. Chapel for an assessment. There was judgment for defendant on a verdict directed by the court, and plaintiff ■ brings error. Plaintiff, acting receiver of the Masonic Life Association, a Michigan corporation, in process of liquidation, sued defendant, a policy holder, to recover an assessment made by the circuit court, in chancery, for the county of Kent, upon members of the association.

Assumpsit by the Western Gas Construction Company against the Dowagiac Gas & Fuel Company on a building contract. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Execution — Body Execution — Issuance—Propriety.</p> <p>Under sections 10301 and 10305, 3 Comp. Laws, an execution cannot issue against the body of a defendant while an execution against his property is unreturned, and vice versa, without ah order of the court; hence, an execution issued without an order directed against both the property and the body of the defendant is unauthorized and is properly quashed.</p>

Bill by Wilbert L. Miller against Wilber W. Steele to quiet title to land. From a decree for defendant, complainant appeals. Bill to quiet title to land.

Mandamus by David A. Aitken to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate an order setting aside a default.. Relator filed his bill in the Chippewa circuit court, in chancery, against Chase S. Osborn, demanding a sworn answer, to which, on the expiration of the period allowed as an extension of the time for answering, Osborn’s solicitors filed an unverified answer.

Bill by Frank W. Foster against George F. Foster and Wilder D. Stevens, executor of the last will and testament of Wilder D. Foster, deceased, to obtain a construction of said will, and for an accounting. From the decree rendered, complainant appeals.

Case by John H. Beld against Warren Darst for breach ■of a contract for the raising of a certain crop. There was judgment for plaintiff, and defendant brings error.

Case by Moses V. Dupuis against the Saginaw Valley Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Mandamus by Alonzo E. Kenaston to compel Marcus W. Riker, justice of the peace, to issue a warrant against Erank Herrick for a violation of an ordinance. There was an order denying the writ, and relator brings certiorari.

Case by William Roberts against Charles F. Gates and Albert S. Sholes for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Case by William A. Hodge against the city of St. Louis for personal injuries. There was judgment for plaintiff, and defendant brings error.

Marshall L. Stringer, administrator de bonis non of the estate of Fanny Stevens, deceased, presented a claim against the estate of Thomas Stevens, deceased, for the payment of certain annuities. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.

Assumpsit by Shirley Bartlett and another against G. Howard Smith for breach of a land contract. There was judgment for plaintiffs, and defendant brings error. On April 18, 1902, plaintiffs and defendant executed a land contract, by which the defendant agreed to sell plaintiffs 40 acres of land for the sum of $400; $25 on delivery of contract, $50 per year for 6 years, and $75 the seventh year, with interest at 6 per cent., payable annually.

Bill by W. W. Crandall and others against Herbert E. McElheny, drain commissioner, to enjoin the construction of a drain. From an order sustaining a démurrer to the bill, complainants appeal.

Exceptions before judgment from Ionia; Davis, J. Isaac J. Smith was convicted of violating a city ordinance. Proceedings dismissed, and court below advised to proceed to judgment.

Assumpsit by the Ironton Cross Tie Company against Howard E. Evans and John L. Retting, copartners as H. E. Evans & Company, for breach of a contract for the sale of certain ties. There was judgment for plaintiff, and defendants bring error.

Mandamus by the township of West Bloomfield to compel the Detroit United Railway to comply with the provisions of its franchise. There was an order granting thp writ, and respondent brings certiorari. Affirmed. The relator, the township of West Bloomfield, granted a franchise to the Pontiac & Sylvan Lake Railway Company, a street railway corporation, its successors and assigns, to construct a road through the township.

Eeplevin by the Jackson, Lansing & Saginaw Eailroad Company against the Solomon Lumber Company. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Mandamus by Oswald H. Reed to compel James B. Bradley, auditor general, to issue a tax deed.</p>

Case by Abner Alberts against the city of Muskegon for the negligent burning of plaintiff’s barn. There was judgment for plaintiff, and defendant brings error. Plaintiff, the owner of a barn on premises abutting upon Olay avenue in the defendant city, sued the city in an action on the case for damages resulting from destruction of the barn and its content's by fire.

Case by Annie McWilliams against the Lake Shore & Michigan Southern Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by John Pasciészny against Boydell Brothers White Lead & Color Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Debt by Margaret Nixon against John L. Wright for the amount of a decree of alimony. There was judgment for plaintiff, and defendant brings error.

Magnus Locklund presented a claim against the estate of Axel Gr. Burman, deceased, for the amount of a promissory note. The claim was disallowed in the probate court, and claimant appealed to the circuit court. There was judgment for claimant, and defendant brings error.

<p>Error to Saginaw; Beach, J.</p> <p>Case by Miles A. Livingstone against the Saginaw Plate Glass Company for personal injuries. There was judgment for plaintiff, and defendant brings error.</p>

Case by William F. O’Leary, by next friend, against the Michigan State Telephone Company, for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by AlmedaE. Barker against the city of Kalamazoo for personal injuries. There was judgment for plaintiff, and defendant brings error.

. John H. Farrell was convicted of murder , in the first degree, and sentenced to imprisonment for life in the State prison at' Jackson. It appearing that respondent had formerly been convicted of manslaughter upon the same information, the judgment is reversed, and remanded with directions to sentence respondent for manslaughter.

Bill by Frances L. Fournier and others against Jonathan' L. Clutton and others to set aside an assignment of a decree for alimony. From a decree dismissing the bill, complainants appeal.

Case by Charles Clark, administrator of the estate of William F. Clark, deceased, against William Goldie and William Goldie, Jr., copartners as the Goldie Manufacturing Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendants bring error.

Error t'o Clinton; Stone, J. Assumpsit by the First National Bank of Ovid against George A. Steel and David S. French to recover damages for fraud and deceit. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Mandamus by Denias Dawe to compel, the board of health of the city of Monroe to audit, allow, and certify to the board of supervisors a bill for services in the treatment of contagious diseases. There was an order denying a request to frame issues of fact, and relator brings certiorari. In January, 1906, an epidemic of diphtheria and scarlet fever broke out in St. Francis Home, a charitable institution for the care of boys in Monroe.

<p>Petitions by George N. McCall against Walter H. North, circuit judge of Calhoun county, for a writ of prohibition restraining the trial of petitioner in the city of Battle Creek, and for a writ of mandamus compelling the vacation of the order establishing such place of hearing.</p>

Motion by the Title Guaranty and Surety Company, surety in the appeal of E. Bepaent’s Sons, to modify the decree heretofore entered in this court in said cause (143 Mich. 441), or for a rehearing.

Condemnation proceedings by the Boyne City, Gay-lord & Alpena Railroad Company against Frank Anderson. There was judgment for respondent and petitioner brings error. Mandamus by Frank Anderson to compel Frederick W. Mayne, circuit judge of Charlevoix county, to allow certain attorney fees.

Ejectment by Martha M. Coleman against Ammiel Robens and Maria P. Robens. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Bill by Franklin E. Holliday against Edward 0. Mathewson and others to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendants appeal.

Assumpsit by Joseph C. Stouffer against Edward Fletcher and Caroline Fletcher, copartners as E. Fletcher & Company, upon certain drafts. There was judgment for defendants, and plaintiff brings error. This suit is based upon two drafts for $95 each, drawn by the Puritan Manufacturing Company of Iowa City, Iowa, upon the defendants, a copartnership, doing business in Grand Rapids, Mich., under the firm name of E. Fletcher & Co., and accepted by them.

), J. Assumpsit by Joseph C. Stouffer against William F. Clark upon certain bills of exchange. There was judgment for defendant, and plaintiff brings error.

Bill by John Stapleton and another against Christopher C. Schaffer and another to reform a deed. From a decree for complainants, defendants appeal.

Grace E. Knapp presented her final account as administratrix de bonis non of the estate of Freeman Fishbeck, deceased. The account was allowed in the probate court, and Alma Jessup and Ida Smock appealed to the circuit court. From the judgment rendered, contestants bring error. Freeman Fishbeck died July 21, 1882, leaving a widow and five children, — three sons, named William, Charles, and John, and two daughters, Mrs. Ida Smock and Mrs. Alma Jessup.

Assumpsit by John F. Floyd, doing business as the J. F. Floyd Lumber Co., against Robert K. Mann and Wil liam G. Watson, copartners as Mann, Watson & Co., for goods sold .and delivered. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Bill by Anna Steverson Lofvander against Alfred Lofvander for divorce. Defendant filed an answer in the na.ture of a cross-bill asking for a divorce. From a decree awarding alimony, defendant appeals. After a married life of 37 days the complainant left her husband, and soon after filed this bill for a divorce, charging extreme cruelty. The defendant filed an answer, claiming the benefit of a cro^s-bill, charging extreme cruelty on the part of the complainant.

Submitted October 10, 1906. Petition by the city of Detroit for the separation of grades and the abolition of grade crossings over certain railroads, in which the C. EL Little Company was permitted to intervene and claim damages to a leasehold. From the order confirming the verdict of the jury, both parties appeal.

Case by Rebecca Bennett against the city of St. Joseph for personal injuries. There was judgment for plaintiff, and defendant brings error. The defendant city has 18 miles of cement sidewalks and 2 miles of board sidewalks. On one of its principal streets the cement walk was 10 feet wide, and was composed of two tiers of cement blocks or slabs, each block being five feet square.

' Assumpsit by Julius Kessler & Company against James Lackie and Colin McDonald for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.

<p>Exceptions before judgment from Muskegon; Sessions, J.</p> <p>Mary A. Hanes was convicted of violating a city ordinance.</p>

Assumpsit by the Rikerd 'Lumber Company against Charles Hoertz and William C. Hoertz, copartners as Charles Hoertz & Son, for goods sold and delivered. There was judgment for defendants, and plaintiff brings error. Defendants, contractors, contracted to erect a building for the Michigan Agricultural College. They made an oral contract with the plaintiff to furnish the frames, sash, doors, and inside finish for $1,000.

Case by Eva A. Lewis against the city of Marshall for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Error to Wayne; Rohnert, J.</p> <p>Case by Dulice Barribeau against the city of Detroit for personal injuries. Plaintiff brings error.</p>

Certiorari by Warren S. Silver, Joseph W. Allen, and Robert Fisch, school board of district No. 5 of Hamilton township, to review an order of the township board of Hamilton setting aside the action of the board of school inspectors in organizing said school district.

Bill by the Saginaw Suburban Railway Company against John E. Connelly to enjoin the removal of certain rails. From a decree for complainant, defendant appeals.

Albert W. Brown presented a claim against the estate of George N. Fletcher, deceased, based upon the decree of a foreign court. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for the estate on a verdict directed by the court, and claimant brings error. George N. Fletcher, a citizen of Michigan, domiciled at Detroit, Mich., died at Detroit November 5, 1899.

<p>1. Reformation of Instruments —Mistake —Mutuality—Evidence.</p> <p>To justify the reformation of a written contract upon the ground of mistake in drafting it, the alleged mistake must be proved by clear and satisfactory evidence, and must have been mutual and common to both parties to the contract.</p> <p>g. Same — Evidence—Sufficiency.</p> <p>On a bill to reform a contract for the sale of land on the ground of mutual mistake, evidence examined, and held, insufficient to support a decree for complainant with respect to certain coal sheds on land adjoining that sold, but to warrant a decree awarding complainant defendant’s interest in an alley adjoining same.</p>

Bill by Frederick C. Harrington and another against Alvin E. Knowles to rescind a contract on the ground, of fraud. From a decree for complainants, defendant appeals.

<p>Mandamus by the city of Flint to compel Charles H. Wisner, circuit judge of Genesee county, to set aside an order dismissing an appeal.</p>

<p>Petition by Cornelius O’Donnell for an order requiring Harvey Tappan, circuit judge of St. Clair county, to show cause why mandamus should not issue compelling him to strike from the files an answer to a bill of complaint.</p>

Frank E. Clow was convicted of peddling without a license, and sentenced to pay a fine of $50 or in default thereof to 40 days’ imprisonment in the county jail.

Assumpsit by Sarah E. Howell against the Lansing Sc Suburban Traction Company on a judgment against defendant’s predecessor. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Robert M. Gubbins against Glover J. Ashley and others for money obtained by fraud and deceit. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

<p>1. Master and Servant — Personal Injuries — Liability op Master — Existence op Relation.</p> <p>Where, at the time of an injury to an employé of railroad car shops, the railroad company defendant has, as between itself and its predecessor, assumed full control of the property constituting the railroad and taken upon itself the operation thereof, it occupies the position of an undisclosed principal with respect to the duty it owes to employés not apprised of the change of ownership, and is therefore liáble to such employés for its own negligent acts; the question in such case being not so much a question of contract right as of duty owed.</p> <p>2. Same — Scope op Employment.</p> <p>An employé of railroad shops, in the woodworking department, who had occasionally been called out of the shops to assist in clearing wrecks and to repair cars, held, not called out of the line of his regular employment by being instructed to assist in raising a loaded car in the yard on jacks for the purpose of repairing it.</p> <p>3. Same — Fellow-Servants—Incompetent Foreman.</p> <p>A foreman of a car repairing gang in railroad yards is the fellow-servant of an employé of the shops temporarily called out to assist in repairing cars, and the company is not liable for injuries to the servant resulting from such foreman’s ' negligence unless the foreman is incompetent and the company is at fault in employing him.</p> <p>4. Same — Notice to Master.’</p> <p>Where, immediately preceding an injury to a servant of a.railroad company, there was a change of ownership of the prop- • erty constituting the railroad, but the officers and employés by order continued in their several stations, notice to the master mechanic of the incompetence of a foreman car repairer, received before the change of ownership, continued to be notice thereafter, and bound the succeeding owner.</p> <p>5. Same — Assumption of Risk — Obvious Dancer.</p> <p>Whether the danger of going under a loaded freight car, one end of which has been raised up on jacks and the trucks removed, the car standing without other supports or braces, is so obvious that the servant so doing pursuant to order assumes the risk thereof, held, a question for the jury, in view of evidence that the foreman giving the order was incompetent.</p>

Judson L. Sibley presented for probate the last will and testament of John W. Morse, deceased. The will was allowed in the probate and circuit courts, and Rollin J. Morse, contestant, brings error.

<p>Appeal from St. Clair; Law, J.</p> <p>Bill by Jefferson G. Brown against Mary Hayes and Richard Hayes to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.</p>

Mandamus by the London Guarantee & Accident Company, Limited, to compel Morse Rohnert, circuit judge of Wayne county, to set aside an order denying an order for discovery.

<p>Mandamus by Jennie McGilvray and Blanch Baker to compel Charles H. Rose, circuit judge of Manistee county, to retax certain costs.</p>

Case by Mary E. Bickle against Ralph K. Jameson and others for fraud in the sale of certain land. There was judgment for plaintiff, and defendants bring error.

Assumpsit by Carey Ú. Edmonds against Emmett Evarts for breach of contract. There was judgment for plaintiff, and defendant brings error.

Garnishment proceedings by Anna Duryea against James L. Ash and Amy Ash as garnishees of John W. Raymond. There was judgment for defendants, and plaintiff brings error..

, Case by Willis Gurden, by next friend, against Theron Stevens for malicious prosecution. There was judgment for defendant, and plaintiff brings error.

Summary proceedings by Ernest W. Nagelspach against John Shaw for the possession of certain real estate. There was judgment for complainant, and defendant brings error. This is a summary proceeding, brought under the statute, to recover possession of a house and lot in the city of Detroit. James Shaw, the father of defendant, had owned them for over 30 years, and occupied them as his homestead. He was 74 years old. His wife was dead.

Case by August C. Groehrend and Edwin Wood against the Pere Marquette Railroad Company for failure to properly transport certain live stock. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error. The declaration contains two counts.

Bill by Robert Shaaf and' others against William O’Connor, trustee, and James B. Bradley, auditor general, to restrain an action of ejectment, and to quiet title. From a decree for complainants, defendant O’Connor appeals.

Assumpsit by John Godkin against Edward E. Corliss, city treasurer of Bay City, for taxes paid under protest. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>1. Fraud — Misrepresentations—Value — Reliance on Representations.</p> <p>Though, a representation as to value, or as to future dividends on stock, is not a misrepresentation, being a mere opinion, and an action for fraud will not lie when the party-alleging the fraud did not rely on the statements alleged to be fraudulent, but on information derived from other sources, one guilty of fraud cannot escape responsibility by sending his victim to a confederate for an opinion, nor by inducing him to make an investigation which will not disclose to him, if it would to an expert, the falsity of the statement.</p> <p>2. Contracts — Rescission—Fraud—Laches.</p> <p>A bill to rescind a contract for the sale of mining stock and obtain cancellation of a deed to property conveyed in payment for the stock, hied shortly after discovery of the fraud inducing execution of the contract, is not barred by laches, there having been no change in defendant’s situation to his injury, though complainant visited the mines, assisted in selling stocks, participated in the reorganization of one of the companies, and one of the mines has been sold on foreclosure.</p> <p>S. Same — Placing in Statu Quo.</p> <p>A bill to rescind a contract for the sale of mining stocks is not barred by the fact that the stocks, which are tendered back, have decreased in value.</p>

Assumpsit by Seward A. Bills against the A. W. Stevens Company for commissions on the sale of certain machinery. There was judgment for plaintiff, and de- ' fendant brings error.

Assumpsit by George W. M. Hunt against the United States Accident Association on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Plaintiff, 36 years of age, was engaged in playing a game of indoor baseball in the gymnasium of the Young Men’s Christian Association. The floor was smooth and slippery. The game is played with a soft ball, about twice the size of an ordinary ball.

Bill by Ellen Delaney against Evart J. Manshum and Louis Meier to enjoin a trespass. Defendants filed an answer in the nature of a cross-bill claiming contract rights in certain timber. From a decree for complainant, defendants appeal.

Assumpsit by Marcus Harris against Joseph Pellenz for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Case by Alexander Lewless against'the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.

Floyd De Oamp was convicted of larceny, and sentenced to imprisonment for not less than two nor more than five years in the State house of correction and reformatory at Ionia.

Exceptions before judgment from recorder’s court of Detroit; Phelan, J. Hume H. West was convicted of embezzlement. Respondent was convicted of embezzling $1,215 in money, the property of George Ponthieu. Respondent advertised himself as a broker, with an office on Griswold street, in the city of Detroit. Ponthieu was a French chemist, in the employ of Parke, Davis & Co. Ponthieu owned 32 shares of the stock of Parke, Davis & Co., which he desired to sell.

Mandamus by the Detroit United Railway to compel George W. Smith, circuit judge of Oakland county, to set aside an order dismissing a petition for the condemnation of land.

Assumpsit by Harry K. Haak against H. W. Kellogg and Ered W. Rainbow for goods sold and delivered. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Bill by Jerome T. Shaw against Eri Tabor and Ellen D. Tabor to enforce a vendor’s lien. Prom a decree dismissing the bill on demurrer, complainant appeals. The case made by the bill of complaint in substance and effect is: Complainant bargained with defendants to sell them a certain lot and to erect upon the lot a dwelling house; the agreed consideration for lot and house being $1,525. The agreement rested in parol.

), J. Covenant by Eugene White and Nellie E. White against Henry K. Gibson and Millie Gibson for breach of covenant in a deed. There was judgment for defendants on a verdict directed by the court, and plaintiffs bring error.

Assumpsit by James E. Geiger against Charles J. Cawley for stipulated damages for the breach of a trade agreement. There was judgment for defendant, and plaintiff brings error.

Assumpsit by James K. Wright against the St. Louis Sugar Company for work and labor. There was judgment for plaintiff, and defendant brings error.

Clair; Law, J. Assumpsit by Thomas McGovern against Albert D. Bennett for commissions on the sale of land. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Garnishment proceedings by Catherine Kelson against the Detroit, Grand Haven & Milwaukee Railway Company as garnishee of William dowry. There was judgment for plaintiff, and the garnishee brings error.

Case by Frank Hess, by next friend, against the Escanaba Wooden ware Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Walter R. Black, administrator of the estate of Charles Black, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Replevin by the Haak Lumber Company against George F. Crothers. There was judgment for plaintiff, and defendant brings error.

Bill by Benjamin W. Lott and Lottie Lott against Corell Lott, Louisa Lott, and Harriet McKibben to restrain an action at law, and to quiet title. From a decree for complainants, defendant Corell Lott appeals.

<p>1.. Limitation op Actions — Claims Against State.</p> <p>The claim of a private person against the State is subject to the same statute of limitation that the same claim against another private person would be.</p> <p>3. Mandamus — Propriety — Tax Sale — Compelling Repund— Limitations.</p> <p>Mandamus being a discretionary writ, issued only in furtherance of justice, will not issue to compel the auditor general to refund the taxes paid by the purchaser of the State’s bid at a tax sale, where an action of assumpsit on the claim, if otherwise maintainable, would be barred by limitations.</p>

Bill by John B. Corliss and Frank D. Andrus against the village of Highland Park and William H. Davison, village treasurer, to restrain the collection of a special assessment. From a decree for complainants, defendants appeal.

Ejectment by Lucy C. Dahlem against John Abbott and others. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Case by Frank Aldrich and Sarah E. Aldrich • against Enoch W. Scribner for fraud and deceit. There was judgment for plaintiffs, and defendant brings error.

Assumpsit by Eli B. Rogers against Byron S. Osborne and Jessie L. Osborne for interest on a promissory note. There was judgment for defendants, and plaintiff brings error.

Jacob J. Sayer filed his final account as executor of the last will and testament of Theodore Gunn, deceased, which was allowed in the probate court and Agnes Gunn, a legatee, appealed to the circuit court. There was judgment for contestant, and the executor brings error.

Bill by Daniel C. Hutchins, guardian of Gladys Murphy, an infant, against James Múrphy and Jennie Murphy to establish a lost deed. From a decree for complainant, defendants appeal.

Case by William H. Hodgson against the Michigan Central Eailroad Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Plaintiff was a laborer in the employ of defendant and was engaged in laying water pipe in a trench excavated by defendant. One and one-half miles of pipe in all were laid, and plaintiff had worked in and about the trench for about three weeks.

Bill by Albert F. Fowler and Elizabeth Fowler against Eliza De Lance, Martha Noble, and Gustave A. Wolf, guardian ad litem of Ethel Noble, an infant, to enforce the specific performance of a land contract. From a decree for complainants, defendant Wolf appeals.

Assumpsit by Charles T. Rogers against the Detroit Savings Bank for the amount of a promissory note lost thi-ough defendant’s negligence. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by Adam Ungers against Leman H. Chapman, sheriff, Cornelius De Boers, and John Miller to set aside an execution levy. From a decree for complainadt, defendants appeal.

Bill by Let J. Dean against Adin W. Skinner, treasurer of Clinton county, to require the payment of certain drain orders. From a decree dismissing the bill, complainant appeals.

Bill by William E. Rhodes and others against Yoluntine Rhodes and others to enforce an alleged trust. From a decree dismissing the bill, complainants appeal.

Bill in aid of execution by Robert Trombly, guardian of the person and estate of Joseph Buhler, an incompetent, against Andrew Klersy. An order was,made requiring defendant to appear before a circuit court commissioner and assign certain property to a receiver. From an order adjudging defendant guilty of contempt in refusing to comply with said order, he appeals.

Mary J. Barclay presented a claim against the estate of Sarah A. Barclay, deceased, for services rendered. The claim, was allowed in part by the commissioners, and Helen F. Coman, administratrix, appealed to the circuit court. There was judgment for claimant, and contestant brings error.

<p>1. Sales — Contracts—Modification—Retention of Title.</p> <p>The parties to a contract for the sale of goods have an undoubted right to so modify it that the seller shall retain title to the goods until they are paid for.</p> <p>2. Same — Delivery of Goods — Conditions Precedent — Payment . of Price.</p> <p>In the absence of an express agreement, the law will imply a contract to pay cash upon delivery of goods, and, in such case, payment or tender is a condition precedent to the buyer’s right of possession.</p> <p>3. Same — Retaking Property.</p> <p>If the seller delivers the goods and immediately demands payment, which is refused, he may retake them.</p> <p>4. Trover and Conversion — Conversion by Buyer — What Constitutes.</p> <p>Where a buyer of goods refuses to pay for them on delivery, and refuses to allow the seller to retake them, he is liable in trover, and the seller is not confined to an action for breach of contract.</p>

Sarah M. Jersey presented for probate the last will and testament of Wellington Jersey, deceased. The will was allowed in the probate court, and William W. Jersey and others appealed to the circuit court. There was j udgment for proponent on a verdict directed by the court, and' contestants bring error. Affirmed.

Assumpsit by Louisa Post against the Supreme Court of the Independent Order of Foresters upon a benefit certificate. There was judgment for plaintiff, and defendant brings error.

Bill by Rebecca M. Mathewson against the Supreme Council of the Royal Arcanum to enforce the payment of a benefit certificate. The defendant filed an answer in the nature of a cross-bill to establish the title of said certificate in others. From a decree dismissing the bill, complainant appeals.

<p>Appeal from Muskegon; Russell, J.</p> <p>Bill by William H. Smith against Isabelle E. Smith for a divorce. From a decree for complainant, defendant appeals.</p>

Submitted Trover by Elizabeth Root, administratrix with the will annexed of the estate of Tracy W. Root, deceased, against Chárles E. Beymer and Cyrus Johnston. There was judgment for plaintiff on- a verdict directed by the court, and defendants bring error.

Habeas corpus proceedings by Abraham Manaca to obtain his release from the Michigan reformatory at Ionia. There was an order denying the petition, and petitioner-brings certiorari.

Bill by Anna Dehring against John Beck to restrain the removal of certain brewery fixtures. From a decree for complainant, defendant appeals..

Case by Appoline Dedenbach against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the- court, and plaintiff brings error.

Bill by Amon W. Shaw and others against the city of Ypsilanti to restrain the collection of a paving tax. From a decree dismissing the bill, complainants appeal.

Habeas corpus proceedings ■ by Henry Mark to obtain his release from the county jail of Luce county. There was an order dismissing the writ, and petitioner brings certiorari.

Bill by Robert Miller against May Patterson Davis and William Gr. Patterson to correct a description in a deed, and to quiet title. Prom a decree dismissing the bill, complainant appeals.