Volume 152 — Michigan Reports

Bill by Michael Williams against the Supreme Council of the Catholic Mutual Benefit Association to enjoin a change in the terms of a benefit certificate. From a decree for complainant, defendant appeals.

Replevin by William J. Cavanaugh against Albert B. Sanderson. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. This case is the outgrowth of E. S. Knowles & Son v. Cavanaugh, 144 Mich. 260. The statement there made need not be repeated here. The property (a horse) is the same property the right of possession to which was there involved.

Case by Henry Richards against the city of. Ann Arbor for the flooding of plaintiff’s premises. There was judgment for plaintiff, and defendant brings error.

Bill by John C. McDonald and others to enjoin the township of Springwells and its officers from selling, transferring, or otherwise disposing of certain bonds. From a decree for complainants, defendants appeal. The electors of the township of Springwells, in the county of Wayne, at an election held April 1, 1907, by a vote of 152 to 122, voted to bond the township for $60,000 to be used to pave a road.

Ejectment by Homer G. Brown and others, by next friends, against Elsie R. Hannah and others. There was. judgment for defendants, and plaintiffs bring error.

<p>Intoxicating Liquors — Offenses—Keeping for Sale — Engaging in Business — What Constitutes.</p> <p>Under section 5379, 2 Comp. Laws, requiring the payment of the prescribed tax upon the business of selling or keeping for sale at retail intoxicating liquors, read in connection with section 5380, defining who are dealers, one who sells a single drink is a retail dealer sufficiently to subject him to the payment of the tax, and to punishment if he sell without having paid the tax.</p>

Aquilla Robinson was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than three nor more than ten years in the State prison at Jackson.

Case by Netiva Cousineau, by next friend, against the Muskegon Traction & Lighting Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Hue H. Driggs against Levi Bush and William Dean for breach of a contract for the sale of certain hay. There was judgment for plaintiff, and defendants bring error.

Bill by the Thayer Lumber Company against the city of Muskegon, the common council of said city, and the board of assessors of special sewer district No. 7, to set aside proceedings for the construction of certain sewers. From a decree for complainant, defendants appeal.

Case by Jennie Tucker against McKinstry Burt for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Defendant was the owner of a six-family apartment building known as the Pontiac Apartments. It was occupied by six families. The janitor, plaintiff’s son-in-law, Mr. Barber, received as compensation for his services $20 per month and the use of certain rooms in the basement for the use of himself and wife.

Case by Gertrude Ritzema, administratrix of the estate of John Ritzema, deceased, against the Valley City Brick Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plamtiff brings error. Defendant manufactures clay brick. It obtains its clay from a bank about 200 feet long and quite high, but how high is not shown. The clay is broken down from this bank into a pit.

Clair; Tappan, J. Case by Harry Rollo, by next friend, against the City Electric Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Plaintiff, a child about two and a half years old, while crossing defendant’s tracks on the outskirts of the city of Port Huron, about 4 o’clock in the afternoon, was struck by one of defendant’s cars- and seriously injured. For this injury he recovered a verdict and judgment of $10,000.

, presiding. Case by Frank W. Johnson against the Desmond Chemical Company for personal injuries. There was an order sustaining a demurrer to the declaration, and plaintiff brings error.

Assumpsit by the Detroit River Transit Company against the Union Trust Company, administrator of the estate of Joseph H. Berry, deceased, for breach of warranty. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.

Petition by James B. Bradley, auditor general, against Edgar A. Crane for the sale of land delinquent for taxes. From a decree for petitioner, defendant appeals.

Assumpsit by Frank L. Dodge against the Lansing & Suburban Traction Company for services rendered. There was judgment for plaintiff, and defendant brings error.

Case by John A. Marklewitz, by next friend, against the Olds Motor Works for personal injuries. There was judgment for defendant, and plaintiff brings error.

<p>1. Wills — Probate—Contests—Appeal to Circuit Court — Jurisdiction — Costs—Allow anoe.</p> <p>An appeal from the prohate court in a will contest does not remove the entire estate to the circuit court, the jurisdiction the circuit court acquires in such cases being only to hear and determine the will contest, including the right to tax costs in such cases and order the taxable costs to be paid out of the estate. Section 081, 1 Comp. Laws.</p> <p>2. Same — Appeal to Supreme Court — Expense—Allowance.</p> <p>Though the circuit court has authority on a will contest to order the taxable costs to be paid out of the estate (section 681, 1 Comp. Laws), it has no authority to order payment of the expense of perfecting an appeal to the Supreme Court out of the funds of the estate.</p>

Bill by Albe W. Smith and others against Albe Lull, individually and as executor of the last will and testament of Albe A. Lull, deceased, and others, for the specific performance of a contract. From a decree dismissing the bill, complainants appeal.

Bill by the Grand Rapids Wood Finishing Company against Charles E. Hatt to enjoin the manufacture, disposal, or divulging of certain secret formulas. Defendant filed an answer in the nature of a cross-bill for an accounting. From a decree for complainant and dismissing the cross-bill, defendant appeals.

Case by George P. Carr against the Grand Trunk Railway Company of Canada and the Cincinnati, Saginaw & Mackinaw Railroad Company for personal injuries. There was judgment for plaintiff, and defendants bring error.

Assumpsit by David Duford against the Parliament of the Prudent Patricians of Pompeii for services rendered. There was judgment for plaintiff, and defendant brings error.

Case by Ruth E. May, by next friend, against David Hill for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by the Fred Macey Company, Limited, against Frank Macey to obtain the cancellation of an agreement for the payment of royalties. From a decree for complainant, defendant appeals.

Mandamus by Eva C. Bresler and William E. Metzger, administrators, with the will annexed, of the estate of Joseph M. Bresler, deceased, to compel Edgar O. Durfee, probate judge of Wayne county, to approve a bond on an appeal from an order reviving a commission on claims. There was an order denying the writ, and relators bring certiorari.

. Case by Flora M. Williams against the city of Lansing for personal injuries. There was judgment for plaintiff, and defendant brings error.

, presiding. Bill by William V. Smith and J. Frank Woods against Keturah 0. Werkheiser and others to enjoin the foreclosure of a mortgage, and to set the same aside on the ground of fraud. Defendant Keturah 0. Werkheiser filed an answer in the nature of a cross-bill for the foreclosure of said mortgage. From a decree dismissing the bill, and granting the prayer of the cross-bill, complainants appeal.

Case by Clayton M. Yan Orman against the Lake Shore & Michigan Southern Railway Company and the Wabash Railroad Company for personal injuries. There was judgment for plaintiff, and defendants bring error. The defendants’ roads cross each other at right angles at Raisin Center, Lenawee county, — the Lake Shore running north and south and the Wabash east and west. On the night in question the Lake Shore was going north and. the Wabash going west.

David, William, and Howard Dowell presented three deeds for probate as the last will and testament of Jacob Dowell, deceased. The will was allowed in the probate court, and Francis Dowell appealed to the circuit court. There was judgment for proponents on a verdict directed by the court, and contestant brings error.

Ira W. Ashley, administrator of the estate of Hattie J. Bugbee, deceased, presented a claim against the estate of Moses B. Smith, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant, and defendant brings error.

Mandamus by the Detroit & Mackinac Railway Company to compel Frank Emerick, circuit judge of Alpena county, to vacate an order awarding the custody of certain hides pending an action of replevin.

Mandamus by Sarah J. Fitzgibbons to compel Frank D. M. Davis, circuit judge of Ionia county, to set aside an order granting an extension of time to settle a bill of exceptions.

<p>Mandamus by Andrew W. Comstock and another to compel Main J. Connine, acting circuit judge of Alpena county, to grant a change of venue.</p>

Bill by Orlin D. William^ against Florence M. Fox to quiet title to land. The defendant filed an answer in the nature of a cross-bill for the same relief. From a decree for complainant, defendant appeals.

Charles W. Ward appealed from an order of the probate court allowing the third annual account of Willis C. Ward, Franklin B. Ward, and George K. Root, executors of the last will and testament of David Ward, deceased. There was judgment disallowing the account in part, and the executors bring error.

Assumpsit by John Schweyer and Rudolph T. Kienle, copartners as John Schweyer & Co., against Louisa L. Jones for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.

, presiding. Ejectment by S. Henry Lasley against Philip W. Kniskern. There was judgment for defendant, and plaintiff brings error. This is an action of ejectment and was tried before the court without a jury and findings of fact and law made. Plaintiff claims title as the original owner, and in this regard has a complete record title. Defendant claims title by adverse possession. His grantor, one Fuller, obtained tax deeds and recorded them in 1884.

Case by Catherine Boyle against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Plaintiff claims to have been injured March 30, 1903, upon a defective sidewalk in the defendant city. On April 15, 1903, she presented a petition to the common council stating her claim and asking for an investigation. Her petition was referred to the committee on claims and accounts.

Bill by Albert Ferris, administrator of the estate of Katie Ann Baer, deceased, against William R. Poucher, administrator of the estate of John A. Baer, deceased, and others, to reach certain funds in the hands of defendant administrator. From a decree for complainant, defendants appeal. Complainant’s decedent, Katie Ann Baer, and defendant Poucher’s decedent, John A. Baer, were husband and wife.

Bill by Nelson W. Hinkley and others against S. Chase Bishopp, drain commissioner, and others to restrain the levy and collection of a drain tax. From a decree dismissing the bill, complainants appeal.

Assumpsit by Rose Dolan against the Supreme Council of the Catholic Mutual Benefit Association on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Defendant is a mutual benefit association organized under the laws of the State of New York. On the 24th of March, 1884, it insured the life of James Dolan, one of its members.

<p>1. Master and Servant — Street Railroads — Injuries to Motorman — Assumption of Risk — Question for Jury.</p> <p>In. an action by a motorman against a street-railway company for injuries resulting from his losing control of his car on a grade for want of sand to use on the rails, evidence examined, and held, that whether plaintiff assumed the risk of his car sliding on a slippery rail was for the jury.</p> <p>2. Same — Trial—Instructions—Sufficiency.</p> <p>Instructions examined, and held, not open to the objection that the court left a clear inference that the fact that the plaintiff allowed the car to slide was enough to convict defendant of negligence, in view of other portions of the charge in which the jury were told that plaintiff must himself have been free from negligence.</p> <p>3. Appeal and Error — Review—Questions of Pact.</p> <p>This court cannot determine the truthfulness or weight of a witness’ testimony.</p> <p>4. Master and Servant — Instructions to Servant — Reliance by Servant — Propriety.</p> <p>A street-car motorman, being fearful of the danger of operating his car without sand, on an incline, at a time when the track was slippery from frost, and communicating his fears to the superintendent, was justified in relying upon the superintendent’s assurance that sand was not necessary, and that with care the cars could be operated- successfully without it, the motorman having had no previous experience in operating cars upon a frosty track.</p> <p>5. Same — Safety of Appliances — Duty of Master — Instructions — Sufficiency.</p> <p>in an action against a street-railway company for injuries to a motorman claimed to have resulted from failure of defendant to provide sand and appliances for its use upon its cars, instructions examined, and held, not objectionable as charging that defendant was bound to use any known device for the protection and safety of plaintiff.</p> <p>6. Evidence— Opinions — Competency op Experts.</p> <p>In an action against a street-railway company for injuries to a motorman claimed to have resulted from failure of defendant to provide sand and appliances for its use upon its cars, witnesses who have worked as motormen for defendant for ,. several years, a part of that time upon the line upon which the accident occurred, are competent to state whether sand and appliances are essential to the safety of employés and passengers upon that line.</p> <p>7. Master and Servant — Injuries to Servant — Street-Railroad Company — Duty to Servants — Instructions — Sufficiency.</p> <p>In an action against a street-railroad company for injuries to a motorman claimed to have resulted from failure of defendant to provide sand and appliances for its use upon its cars, the use, in instructing as to the duty of defendant to use reasonable precautions to avoid danger, of the words “public” and “passengers” in connection with “motorman,” though unnecessary, is held, not misleading on the ground that the court submitted the case upon the theory that there was the same liability on the part of the defendant to its employés as to the public.</p> <p>8. Trial — Reception of Evidenoe — Admission Over Objection —Form of Ruling — Review—Question Considered.</p> <p>Where, upon defendant’s objecting to testimony offered by plaintiff, the trial judge stated that he left the responsibility with plaintiff’s attorney, the ruling did not relieve the court of the responsibility, and the question, upon review, is whether the court was in error in allowing the testimony admitted.</p> <p>9. Master and Servant — Injuries to Servant — Action —Evidence — Instructions to Servant.</p> <p>In an action against a street-railroad company for injuries to a motorman claimed to have resulted from failure of defendant to provide sand and appliances for its use upon its cars, plaintiff may testify whether he was ever notified by the company or its officers that it was necessary for him to have sand in pails or in boxes or any other way upon his car.</p>

. Assumpsit by Lee F. Middlebrook against Harley B. Slocum for work, and, labor. There was judgment for plaintiff, and defendant brings error.

Assumpsit by the People of the State of Michigan, for the use and benefit of Henry Houghten, against Truman H. Newberry and others on a statutory bond. There was an order overruling a demurrer to the declaration, and defendants bring error.

Case by Charles W. Findlater against Walter A. Dorland and Cecil R. Luton for fraud. There was judgment for plaintiff, and defendants bring error.

<p>1. Building Contracts — Construction —Powers of Architect —Conclusiveness of Determination.</p> <p>Where, under the terms of a building contract, the determination of the architect as to what is required of the contractor by the plans and specifications is conclusive upon the contractor, a construction that such determination is not likewise conclusive upon the owner is unconscionable and will not be adopted unless imperatively required by the language used.</p> <p>3. Same — Certificate of Architect — Conolusiveness.</p> <p>Where a building contract indicates that acceptance “by the owner and architect” is to be evidenced by the certificate of the architect, which the builder obtains, such certificate, being made by the owner’s unquestioned agent, acting entirely within the scope of his express authority, binds the owner, in the absence of any showing of fraud or collusion, as much as though he himself had signed it.</p> <p>3. Same — Defective Workmanship and Materials — Acceptance-Question of Pact.</p> <p>Where a building contract provides that neither inspection or certification by the architect, nor payments by the owner, shall relieve the builder of his obligation in regard to materials and workmanship, the question of acceptance working an estoppel of the owner to claim a set-off for defective workmanship and materials is one of fact for the jury.</p>

Assumpsit by Addie M. Ferris against the Loyal Americans of the Republic on a .policy of insurance. There was judgment for the plaintiff, and defendant brings error. This action is brought to recover upon a policy of insurance issued by defendant insuring the life of Marion L. Ferris, plaintiff’s husband. The policy is payable to plaintiff and her two sons,— one of whom was a minor.

Assumpsit by Addie M. Ferris against the Court of Honor on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Error t,o Delta; Stone, J. Garnishment proceedings by Charles Maloney & Company against the public schools of Escanaba as garnishee of Leonard Gonhue. Charles H. Norton and others intervened as claimants of the fund. There was judgment for plaintiff on a verdict directed by the court, and the claimants bring error.

<p>1. Railroads — Crossing Accident — Personal Injuries —Contributory Negligence — Question for Jury.</p> <p>In an action against á railroad company for injuries to a pedestrian at a street crossing, evidence examined, and held, that, in view of testimony that the crossing gates were not closed, thát the bell was not rung, that the presence of other cars and circumstanoes diverted plaintiff’s attention, that the train causing the injury came on silently, working no steam, and that plaintiff looked in both directions before attempting the crossing and satisfied himself that the train was stationary, it could not be said, as matter of law, that plaintiff was guilty of contributory negligence barring recovery.</p> <p>2. Appeal and Error — Saving Questions for Review — Exceptions — Assignments of Error — Necessity.</p> <p>Where no exception was taken or error assigned «upon the denial of a motion for judgment notwithstanding the verdict, the question cannot be considered.</p> <p>3. Same — Assignments of Error — Scope.</p> <p>Failure to assign error on the denial of a motion for judgment notwithstanding the verdict is not aided by an assignment on the refusal of requests to charge involving the same theory, the two matters being entirely distinct.</p> <p>4. Trial — Requests to Charge — Refusal—Propriety.</p> <p>■ Requested instructions based upon a misstatement of the adversary’s claims are properly refused.</p> <p>5. Damages — Aggravation of Existing Ailment — Delay in Treatment — Effect.</p> <p>Evidence of an aggravation of a nasal difficulty and delay in recovery therefrom by reason of the personal injury sued for is not inadmissible because of a delay of five months in procuring treatment, where plaintiff was confined to his house ' for four months by the injury, but the matter is for the jury under proper instructions.</p> <p>6. Same — Reduction of Damage — Duty of Person Injured.</p> <p>Where an existing ailment is aggravated by a personal injury, it is the duty of the person injured to use all reasonable efforts, considering the circumstances, to procure medical and surgical aid in correcting the trouble, so that the injury will aggravate the difficulty and retard recovery as little as possible.</p> <p>7. Evidence — Opinions—Experts—Examination.</p> <p>A physician, who assisted at the amputation of plaintiff’s leg, had been his family physician, knew the condition and history of the leg, and had qualified as an expert. The condition of the leg, the fact that gangrene had attacked it, that it had sloughed off, and the inability to wear an artificial limb had all been stated in detail. In response to a question as to what could be done to improve the condition of the limb and make it practicable for use in connection with an artificial limb, he answered that he could not say that an operation could be done and preserve the kneejoint, and that he feared there would not be enough bone left to have any influence in swinging an artificial limb. Held, that the latter statement was an opinion as to probable results, and a mqtion to strike it was properly overruled.</p> <p>8. Trial — Argument op Counsel — Appeal to Sympathy — Cure by Instructions.</p> <p>In an action against a railroad company for personal injuries, counsel for plaintiff stated, in effect, that defendant could spare the amount of a judgment better than plaintiff. The court soon after charged the jury that it was his duty to call their attention to the statement, and that they should not consider it, that litigants were considered upon an equality before the courts and juries, and the fact that defendant was a corporation and coúld stand a judgment should not be considered by the jury or weigh in any degree in their deliberations. Held, that, though the remark was improper, it was cured by the charge of the court.</p>

Mandamus by Orley C. Granger to compel Rufus S. French, comptroller, and John L. Boer, clerk, to issue warrants for the payment of a. salary. There was an order denying the writ, and relator brings certiorari.

<p>Certiorari to the recorder’s court of Detroit; Connolly, J.</p> <p>The Detroit United Railway was convicted of violating an ordinance, and sentenced to pay a fine of $25.</p>

Bill by Minnie Troub, Mina Perkins, and Joel H. Bera, administrator of the estate of George B. Thorp, deceased, against Loren G. Thorp and Percy Thorp to set aside a conveyance of real estate, and for an accounting. From a decree for complainants, defendants appeal.

Case by John Hutchinson against the Cleveland-Cliffs Iron Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by Charles A. Aldrich and Benjamin R. Smith against the Crawford Chair Company, Edward Crawford, Nettie Crawford, Charles H. Crawford, and Cornelius Marius to set aside the issue of certain stock in defendant corporation, and for an accounting. . From an order overruling demurrers to the bill, defendants appeal.

Bill by Alfred Sutliff against Elias Vreeland and others to construe the will of Michael Vreeland, deceased. From a decree dismissing the bill, complainant appeals.

Bill by O. LeGrand Allen against Elliott H. Crane and others to subject certain real estate claimed as a homestead to the payment of a judgment. From a decree dismissing the bill, complainant appeals.

, presiding. Assumpsit by George R. Ross against Otto Loescher for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. The defendant was overhauling the interior of his residence, and in June, 1905, he made a contract with plaintiff for certain building material to be used in finishing the interior. The contract rested in parol. Plaintiff produced a statement of the material proposed to be furnished.

Case by Patrick Higgins against the Peninsular Portland Cement Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>1. Sales — Passins Title — Bona Fide Purchasers.</p> <p>A genuine bill of sale reciting a consideration, accompanied by evidence of possession thereunder, is sufficient evidence of title to chattels, except as to creditors and subsequent good-faith purchasers for value, notwithstanding subsequent possession by the seller.</p> <p>2. Replevin — Right of Possession — Special Interest — Effect.</p> <p>After plaintiff had bought certain chattels they again came into possession of the seller and defendant bought them of him, making a payment on the price, in reliance upon his claim of ownership. Plaintiff did nothing to accredit the asserted title of the seller. After making demand for possession, refused on the ground of ownership,'plaintiff brought replevin, and on the trial defendant asked for judgment, on the theory that the demand for possession should have been accompanied by a tender of the amount he had paid for the property, declining to have his special interest determined. Held, that a judgment for plaintiff would not be disturbed.</p>

Assumpsit by Charles Christie and others, copartners as the Capac Horse Breeding Association, against John Crawford and Milton D. Comstock, copartners as Crawford & Comstock, for breach of warranty on the sale of a horse. There was judgment for plaintiffs, and defendants bring error.

), J. Case by Sarah Spangler against the Saginaw Valley Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Defendant operates a street railway on Warren avenue in Saginaw.

Case by Toivo Lehto, by next friend, against the Atlantic Mining Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

The probate court ordered the distribution of the estate of Sevilla Klein, deceased, among the sisters and children of deceased brothers and sisters. Julius J. Christensen, a grandnephew, appealed to the circuit court. There was a judgment sustaining the appeal, and Marie Cecilie Nielsen and others bring error.

Ejectment by Miranda Waldo against Mark S. Jacobs. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Mary C. Koenig, special administratrix of the estate of August W. Koenig, deceased, petitioned for authority to sell certain personal property. The petition was granted in the probate court, and Adam Koenig and William Koenig, administrator of the estate of Catharine Koenig, deceased, appealed to the circuit court. There was an order dismissing the appeal, and appellants bring error.

Assumpsit by Margaret Leonard against Leonard J. Piggott for money had and received. There was judgment for plaintiff, and defendant brings error. Plaintiff, a widow, brought suit to recover money claimed to have been loaned by her to the defendant, her nephew, before the death of her husband, and also money which came into defendant’s possession for her after his death. She recovered a verdict for $785.05.

Assumpsit by the Wayne County Savings Bank against School District No. 5 of Mikado Township for the amount of a bond. There was judgment for plaintiff, and defendant brings error.

Case by Annie Irene Pringle 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 Edwin R. Smith against Charles Dresselhouse ' to enjoin the use of certain water power. From a decree •for defendant, complainant appeals.

Case by Eva Hazen against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Sophia Shall, administratrix of the estate of Alexander Shall, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Erroi to Genesee; Wisner, J. Case by George T. Gorton, administrator of the estato of Matie Gorton, deceased, against Judson Harmon, receiver of the Pere Marquette Railroad Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error. Defendant’s railroad runs northwesterly and southeasterly. A highway known as “Atherton road,” running east and west, crosses the railroad at an angle of 35 degrees.

Assumpsit by Morris C. Baumgarth and Rudolph Baumgarth, copartners as Baumgarth Bros., against the Firemen’s Fund Insurance Company on a policy of insurance. There was judgment for plaintiffs, and defendant brings error. This suit is brought upon an insurance policy to recover the amount of a loss by fire. The property insured was a stock of goods.

Case by Dora Welton against the township of Crystal for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Joseph L. Trombley against Andrew McAfee and George McAfee for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by Alice L. Franken against the Supreme Court Independent Order of Foresters, Alexander Pelletier, administrator of the estate of Gertrude Franken, deceased, and others, to determine the title to a policy of insurance. From a decree for complainant, defendant administrator appeals.

Philip A. McHugh and Charles P. O’Neil were adjudged guilty of contempt, and sentenced to pay a fine of $250 each, and defendant McHugh to confinement for 30 days in the county jail. The respondents were found guilty of contempt of court and O’Neil fined $250 and McHugh fined $250 and imprisonment for 30 days.

Case by Mary A. Montross against Hugh Alexander, impleaded with Charles Crofoot and Fred Cox, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.

Case made from Berrien; Coolidge, J'. Assumpsit by the board of public works of the city of Niles against Benjamin W. Pinch on a contract of guaranty. There was judgment for plaintiff, and defendant appeals.

<p>1. Saving Questions for Review — Motion for New Trial — Necessity.</p> <p>Where appellant moved for a new trial, but did not assign as a reason therefor that the verdict was against the weight of the evidence, that question cannot be reviewed on writ of error.</p> <p>2. New Trial — Newly-Discovered Evidence — Diligence.</p> <p>A new trial on the ground of newly-discovered evidence was properly denied where plaintiff had notice that the witness might be material, and the excuse made for neglecting to call him is that, upon being interviewed before the trial, he did not inform plaintiff’s attorney of the facts set forth in the affidavit because he did not want to get mixed up in the matter.</p> <p>3. Contracts — Building Contracts — Construction—Question for Jury.</p> <p>In an action to recover for building a house and barn and for • certain extras, under a contract partly oral and partly in writing, evidence examined, and held, that it was a question for the jury what the contract between the parties actually was, and that it would have been error for the court to instruct that a certain memorandum and drawings and specifications constituted the contract.</p>

<p>Cancellation of Instruments — Deeds—Fraud—Undue Influence — Mental Incompetenoy of Grantor — Evidence—Sufficiency.</p> <p>On. a bill to set aside a deed made by the grantor to his sister in consideration of care and support, on the ground that it was without consideration and obtained through misrepresentation, fraud, and undue influence, at a time when the grantor was mentally incompetent, to execute it, evidence examined, and held, that a decree dismissing the bill was proper.</p>

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

Case by Edward M. Wilson 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.

Bill by Edward E. Scott against William H. Keeth and wife and the Citizens’ Savings Bank of Holly to enforce a mechanics’lien. From a decree for complainant, defendant William H. Keeth appeals.

<p>Error to Wayne; Hosmer, J.</p> <p>Trover by Frank A. Robertson, administrator of the estate of William Scott, deceased, against Pamelia Kennedy and James D. Kennedy. There was judgment for plaintiff, and defendants bring error.</p>

Case by William H. Christy against Frank E. Rice for malicious prosecution. There was judgment for plaintiff, and defendant brings error.

Motion by the Union Trust Company, trustee, against the Charlotte General Electric Company for the appointment of a receiver pending the foreclosure of a mortgage. Erom an order granting the motion, defendant appeals.

Assumpsit by the Fidelity Mutual Life-Insurance Company against James C. Gooch, principal, and Estella M. Johnson, surety, on a bond. There was judgment for plaintiff on a verdict directed by the court, and defendant Johnson brings error.

<p>Appeal from Saginaw; Gage (William G.), J.</p> <p>Bill by the Prather Engineering Company against the Detroit, Flint & Saginaw Railway and others to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by Delia Hamilton against Dollie Parent on a promissory note. There was judgment for plaintiff, and defendant brings error. Plaintiff declared upon the common counts in assumpsit and set out a copy of the note sued upon. It is dated October 10, 1898, due five years after date, is for $385, and is signed by the defendant.

Summary proceedings by Mary L. Murphy against Sarah E. McIntyre for the possession of certain real estate. There was judgment for defendant on a verdict directed by the court, and complainant brings error.

Assumpsit by Kate Garvin against Kittie G. Stone on an agreement for the payment of certain moneys. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

<p>1. Intoxicating Liquors —Civil-Damage Law — Suicide of Intoxicated Person — Cause of Suicide — Necessity of Proof.</p> <p>In an action by a widow under the civil-damage law (section 5398, 2 Comp. Laws), for damages arising from tbe suicide of her husband while intoxicated, it is not essential to plaintiff’s right of action that she shall show that the intoxication was the cause of her husband’s suicide.</p> <p>2. Same — Defenses—Unauthorized Acts of Agent.</p> <p>That defendant had instructed his regular bartender not to sell to plaintiff’s husband, and the liquor was furnished by a man employed only to fill the ice box and clean up the saloon, at a time when neither defendant nor his bartender were present, is no defense, since it cannot be presumed defendant would leave his place of business unattended.</p> <p>3. Saving Questions for Review — Excessiveness of Verdict-Necessity of Motion for New Trial.</p> <p>The question of excessiveness of verdict cannot be considered where there has been no motion for a new trial raising the point.</p>

Bill by the Whealkate Mining Company against Ollie Mulari and Mattie Dahlman to enjoin the violation of a condition in a deed. From a decree dismissing the bill, complainant appeals.

Garnishment proceedings by Charles R. Robertson against Charles W. Wipfler and others; garnishees of the Detroit Pattern'Works, and others. There was an order dismissing the writ, and plaintiff brings error.

Case by Catherine Burns against the Michigan Paint Company for personal, injuries. There was judgment for plaintiff, and defendant brings error. Plaintiff while driving on the streets of the city of Detroit was run into and injured by an express wagon driven by one William Boyseau. Boyseau was a licensed ex-pressman. He owned the horse and wagon which he was driving. He was delivering goods for the Michigan Paint Company, the defendant.

Bill by John J. Knight against the Michigan Female Seminary to enjoin the confirmation of a sale of its corporate assets. From a decree sustaining a demurrer to the bill, complainant appeals.

Petition by Lewis H. Blanchard against Catharine H. Young and others for a writ of assistance. Defendant Young filed a cross-petition for a rehearing, and to set aside the sale of certain land for taxes. Prom an order granting the writ and dismissing the cross-petition, defendants appeal.

Assumpsit by George Williams against Harry E. Merritt, treasurer of Benton township, and John B. Rudesill, drain commissioner of Eaton county, for taxes paid under protest. There was judgment for plaintiff, and defendants bring error.

Case by Meda Trimble against Nicholas D. Morrish for slander. There was judgment for plaintiff, and defendant brings error. This is a slander suit. Plaintiff recovered a verdict and judgment in the circuit court. The slander was spoken in a confidential conversation had by defendant with one Dr. Thomas N. Rogers. Dr. Rogers was a physician in practice in the city of Sault Ste. Marie. Plaintiff was his employé in charge of his office.

Mandamus by John Cox to compel the common council of the city of Jackson to approve a liquor bond and grant a license.

Ejectment by Jacob Kuite against Gerhard Lage. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>1. Equity —Chancery Practice — Witnesses—Examination in Open Court — Notice—Waiver.</p> <p>• The notice to take proofs in open court required by section 10188, 3 Comp. Laws, may be waived.</p> <p>2. Same — Stipulation—Effect as Waiver.</p> <p>A certain letter and stipulation, followed by notice of hearing on pleadings and proofs and an order setting the case for hearing on a day certain, examined, and held, in the light of the surrounding circumstances, equivalent to a consent that • the cause be heard on pleadings and proofs to be taken in open court, and that subsequent proceedings in open court amounted to a waiver of the notice of intention to take proofs in open court required by section 10188, 3 Comp. Laws.</p> <p>3. Mandamus — Propriety—Review able Order.</p> <p>Mandamus is not the proper remedy to secure a review of an - order allowing the complainant in a chancery case to take proofs in open court though no notice of intention was given as required by the statute, there being an adequate remedy by appeal.</p> <p>4. Same — Grounds—Expense.</p> <p>That unnecessary expense will be incurred if the chancery court is permitted to hear relator’s case on evidence taken in open court is not a sufficient reason why this court should interfere by mandamus to prevent it, though the order to so hear the case was irregular, the remedy by appeal being adequate.</p>

Bill by Edgar O. Whitman against the Muskegon Log Lifting & Operating Company to restrain the removal of logs from the bed of a navigable stream. From a decree for complainant, defendant appeals.

Bill by Henry J. Boerth against the Detroit City Gas Company to enjoin an unlawful discrimination in rates. From a decree dismissing the bill, complainant appeals. Complainant keeps a restaurant in the city of Detroit. In the month of October, 1901, he used for fuel purposes in said restaurant gas supplied by defendant to-the amount of 113,700 cubic feet. Defendant presented a bill charging complainant for said gas at the rate of 80 cents per thousand cubic feet.

Bill by the city of Detroit against George W. Myers, Margaret Myers, Clarence M. Burton, and John C. Goodrich to enjoin an encroachment upon a street. From a decree for complainant, defendants appeal.

Assumpsit by Henry Spitzley and Joseph Spitzley against John Rivard and John William Garrison on a promissory note. There was judgment for defendants, and plaintiffs bring error. Plaintiffs brought suit upon a promissory note for 11,166.66. The first-named defendant was the maker of the note and the second-named defendant was the indorser. It was claimed by defendants that their signatures were procured by fraud.

Bill by Alexander L. Clark against John Basso to reform a deed, and to enjoin an action at law. From a decree dismissing the bill, complainant appeals.

Assumpsit by Peter Peterson against the city of Ionia for work and labor. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Frank W. Scott against the University of Michigan Athletic Association and others for personal injuries. There was judgment for defendants on a verdict directed by the court, and . plaintiff brings error.

Mandamus by John E. Bird, attorney general, to compel the State board of agriculture to discontinue the furnishing of water to private parties. . Section 11 of article 13 of the Constitution of Michigan authorizes the legislature to establish and maintain an agricultural school.

Annie Bachinski filed a petition in the probate court under 3 Comp. Laws, § 9286, for a share in the estate of John Bachinski, deceased. The petition was granted, and Frances Bachinski, executrix of the will, appealed to the circuit court. There was judgment for petitioner, and defendant brings error.

, presiding. Assumpsit by Jennie Webb against Frances Depew for breach of a contract of employment. There was judgment for plaintiff, on a verdict directed by the court, for less than the amount claimed, and she brings error.