Volume 165 — Michigan Reports

Bill of interpleader by the Ancient Order of Gleaners against Byron C. Bury, Caroline Bury, Willard Leroy Bury, and Clellan B. Bury, to determine defendants’ interests in an insurance policy. From a judgment for Byron C. Bury, codefendants, Caroline Bury and others, appeal.

<p>1. Damages — Trespass—Standing Timber — Logs and Logging.</p> <p>In trespass for cutting growing timber, that was in part too small to have a market value, the damages were properly-determined by the trial court hearing the cause without a jury, on the basis of the damage to the freehold, taking into consideration the value of the merchantable timber cut and the decrease in value caused by cutting the small timber.</p> <p>2. Same — Treble Damages — Statutes.</p> <p>On a record showing that trespassers on timber lands went over the land three years previously, and that the evidence was conflicting as to their intent and want of care in determining the correct boundaries, the trial court was justified in trebling the damages under 3 Comp. Laws, §§ 11204, 11205.</p>

<p>Error to Muskegon; Sessions, J.</p> <p>Case by Mary Dykstra against the Grand Rapids, Grand Haven & Muskegon Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by George Allen against the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, on a policy of insurance. Held: as a matter of law, that the first policy was in force and permitted the jury to fix the amount of plaintiff’s loss upon the barn thereunder. This loss was fixed by the jury at $500, which, together with the conceded loss upon personal property, $197.92, made up the verdict of $697.92.

Assumpsit in justice’s court by the Chamberlain Medicine Company against Jacob Vander Veen and Claude E. Vander Veen. Plaintiff obtained a judgment, from which defendants appealed specially to the circuit court. A judgment for defendants is reviewed by plaintiff on writ of error.

, presiding. Mandamus by the township of Ross to compel the Michigan United Railways Company to observe the provisions of a franchise. An -order granting the writ is reviewed by respondent on certiorari.

Bill by the Harbauer-Marleau Company against George S. Thwing for specific performance. From an order granting an interlocutory injunction to restrain defendant from disposing of the property involved in the proceedings, and from the refusal, on motion, to dissolve the injunction, defendant appeals.

<p>Fraud — Contracts—Evidence—Concealment.</p> <p>A decree canceling a contract and deed on the ground of fraud is " warranted by evidence tending to show that defendant, as a part of the consideration for the contract, agreed to contribute a specified sum to the support of his mother during her life, that complainant, his brother, did not know that, in fact, the mother was dangerously ill with blood poisoning at the time, and although defendant knew of her illness, he con- . cealed the circumstance; and while the evidence as to active fraud was contradictory, the decree of the circuit court, whose opportunity to see and hear the witnesses testify afforded it a peculiar advantage, is affirmed.</p>

<p>1. Vendor and Purchaser — Foreclosure of Land Contract-Adverse Possession.</p> <p>Equitable considerations do not demand the granting of relief, in a suit to foreclose a land contract which was made 17 years before the institution of suit, and on which no subsequent- ' payments were made, the vendee having conveyed the land through several successors in title to the defendant, who knew nothing of the original unrecorded land contract, and who with her grantors maintained continuous and hostile possession for the statutory period, and made valuable improvements on the premises.</p> <p>2. Same — Adverse Possession — Hostile Nature.</p> <p>The vendee in the land contract in actual possession under a tax deed from the State was entitled to purchase the outstanding claim of the vendor without impairing his own rights or acknowledging the validity of the title bought.</p> <p>3. Same.</p> <p>And the vendor was bound to take notice that the vendee was in possession under the adverse claim.</p> <p>4. Adverse Possession — Color of Title — Waiver.</p> <p>Adverse possession is not broken by negotiating with other claimants if there is no waiver or nonclaim on the claimant’s part.</p>

<p>1. Contracts — Work and Labor — Master and Servant — Compensation.</p> <p>In an action for services renderéd by claimant to defendant under an alleged arrangement, denied by defendant, that they should work together in his hotel, and divide the profits, and in case of his death he would give plaintiff all the property that he should accumulate after the execution of the agreement, a verdict for the value of plaintiff’s services on the theory that the contract which she claimed to have made was void under the statute of frauds, was not against the overwhelming weight of the evidence, notwithstanding testimony produced by defendant as to contradictory admissions of plaintiff.</p> <p>2. Appeal and Error — New Trial — Weight of Evidence.</p> <p>The court, on writ of error, will only reverse a judgment as against the weight of the evidence when the verdict is against the overwhelming weight thereof.</p> <p>3. Evidence — Admissions—Impeachment.</p> <p>Alleged contradictory statements of a party, both in and out of court, are for the consideration of the jury.</p>

Frank Myron presented a claim against the estate of John Myron, deceased, which was allowed by the commissioners on claims. On appeal to the circuit court, judgment was rendered for claimant. Defendant brings error.

Assumpsit in justice’s court by Wilbur W. Bennett against James H. Wallace. Plaintiff appealed to the circuit court from a judgment for defendant. Judgment for plaintiff. Defendant brings error.

Assumpsit by the Grand Union Tea Company against the city of Ionia to recover back license fees paid under protest. Judgment for defendant. Plaintiff brings error.

Clair; Law, J. Case by Rosetta Woods against the White Star Line for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Bill by Edmund L. Ebert against James H. Cullen for specific performance of an agreement' to convey real estate. From a decree sustaining a demurrer to the bill of complaint, complainant appeals.

<p>Error to Kent; McDonald, J.</p> <p>Case by Cornelius A. De Vos by Herman Arnstein, his nest friend, against Solomon Caplan for false imprisonment. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the Sargent Manufacturing Company against the Travelers’ Insurance Company on a policy indemnifying plaintiff against accidents to employés.… Held: as you undoubtedly know, that when the motion is overruled, Judge Sessions ought to file a written opinion, and if he omits to do so, we ought to make a demand upon him in writing and save exceptions to his refusal to grant a new trial, or for his failure to assign reasons for his refusal to file a written, opinion.

<p>Fraud — Building Contracts — Evidence—Mechanics’ Lien.</p> <p>In a suit to enforce a mechanics’ lien for extra work done under an agreement supplemental to the original construction contract, plaintiff’s claim that he was defrauded by a false estimate of cost made by the contractor, is held, not be sustained by the proofs.</p>

<p>Appeal from Delta; Stone, J.</p> <p>Bill by Francis L. Baldwin against the Escanaba Liquor Dealers’ Association, an unincorporated association, Peter Lemmer, Philip Dupont, Irenee Marchand, Neis Ahlquist, Jacob Miller, Bert Boddy, Arthur GK Crose, John J. Cleary, and Menasip Perron for an injunction and damages. From a judgment for complainant, defendants appeal.</p>

Case-made from Wayne; Rohnert, J. Case by William Hartley against Frank P. Miller and August Lootens for personal injuries. A judgment for defendant Miller on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Error to Houghton; Streeter, J.</p> <p>Assumpsit by the Drake Coal Company against Joseph Croze for goods sold and delivered. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by Edward M. Rorabacher against Albert L. Nichols, county clerk of Shiawassee county, to compel the payment of jury fees in eminent domain proceedings. An order denying the writ is reviewed by relator on certiorari.

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Samuel Waldhorn against Anna Waldhorn for divorce. From a decree for complainant, defendant appeals.</p>

<p>1. Certiorari — Questions Reviewable — Supreme Court Practice-Municipal Corporations.</p> <p>The common-law writ of certiorari does not lie to review in the Supreme Court the action of a municipal common council in passing an ordinance requiring an electric power and light company to remove from the streets its poles and wires, which the corporation has erected and claims the right to maintain under a municipal franchise.</p> <p>2. Same — Legislative Action — Judicial Proceedings.</p> <p>Certiorari is not the proper remedy to review acts of a ministerial, executive, or legislative character not done in the exercise of judicial power.</p> <p>3. Same.</p> <p>Certiorari is not a flexible remedy, nor is it adequate to raise or dispose of questions of fact relating to such legislative action.</p> <p>4. Same — Practice.</p> <p>The allowance of the writ by a circuit court commissioner is not conclusive on this court, which may at any time consider and determine the propriety of the allowance and dismiss the proceeding, if the writ was improvidently granted.</p>

Mandamus by Clarence B. Smith to compel Oramel B. Fuller, auditor general, to countersign a certificate and issue a warrant for relator’s salary as assistant secretary of the senate.

<p>Error to Hougnton; Streeter, J.</p> <p>Case by Dolphis Cardinal against the Houghton County Street Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Constance Reed Brown against Horace J. Fuller and Lizzie P. Fuller to enjoin defendants from obstructing a sewer and to require them to rebuild portions already destroyed. From a decree for complainant, defendants appeal. Complainant and defendants were, respectively, owners of adjoining lots facing Burdick street, in the city of Kalamazoo.

<p>Insurance — Fire Insurance — Construction of Contracts — Property Covered by Policy.</p> <p>Under a policy of fire insurance which described the property insured as a one-story brick building and its additions adjoining and communicating with the foundations, which was executed in compliance with the request of the insured to include in the policy a wooden building connected with the brick structure by a covered passageway eight feet in length, the parties canceling a previous policy that covered only the brick building, plaintiff was entitled to recover for damages by fire to the wooden building, which was the only addition to whioh the terms of the contract would apply.</p>

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by Earl Goldsmith against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

<p>Error to Washtenaw; Kinne, J.</p> <p>Assumpsit by Lucius D. Watkins and L. Whitney Watkins against Harrison T. Phelps, Fred A. Kanska, and Edward A. Phelps for breach of warranty. Judgment for defendants. Plaintiffs bring error.</p>

<p>1. Damages — Sales—Market Price.</p> <p>The damages for breach of warranty of apples sold by defendant to plaintiff was correctly stated by the trial court, in charging the jury, to be the difference between the value of the apples as they were warranted to be, and as they actually were.</p> <p>2. Same — Place op Delivery — Warranty op Quality.</p> <p>It was error to permit the jury to find that the place of delivery of the apples was in South Dakota, in which State plaintiff was engaged in business, where the testimony showed that the contract provided for delivery f. o. b. Williamsburg, Michigan, from which point they were shipped by plaintiff’s agent to him.</p> <p>3. Same — Special Damages — Assumpsit.</p> <p>Unless information was imparted by plaintiff to defendant at the time the contract was made, that the apples were to be shipped to South Dakota, or that the plaintiff desired them for a particular market, or that he had contracted to sell them for a particular price, he could not recover special damages, based on such facts, for a breach of warranty.</p>

<p>Error to Montcalm; Davis, J.</p> <p>Case by Rizpah A. Hunt against the township of Douglass for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by the Michigan Trust Company, as administrator of the estate of Mary McNamara, deceased, against Mary McNamara and numerous other defendants, praying that defendants may be required to interplead. From an order overruling a demurrer of defendant Mary McNamara, she appeals.

Bill by Hugh Curran and Daniel Kurtz against Charles L. Bartlett, trustee of the estate of Matilda P. Hitchcock, and Effie A. Gibney, Alice M. Gibney, Lyman Gibney, and Thomas J. Allen, to establish a resulting trust. From a decree granting a part of the relief claimed by complainants, all parties appeal.

Assumpsit in justice’s court by the Stockbridge Elevator Company against Robert Booth. Defendant appealed to the circuit from a judgment against him. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

<p>Master and Servant — Fellow-Servant—Foreman.</p> <p>A foreman in charge of several employes, engaged in removing wrecked cars from the track by means of a derrick, having authority to hire and discharge the men, and to direct their work, was not defendant’s vice principal for whose negligence it would be liable in ordering plaintiff to take hold of the greasy and slippery spokes of a wheel connected with the drum of the derrick, plaintiffs injuries resulting from his hand slipping from the wheel into revolving cogs of the apparatus.1</p>

Assumpsit by Albert Brittson and Marion Smith, co-'partners, against William H. Smith. A judgment for defendant on a verdict directed by the court, is reviewed by defendant on writ of error.

Bill by Mary O. Pegg against John Pegg, James Pegg, William Pegg, Mary Pegg, and Sarah Nichols to quiet title. Prom an order overruling a demurrer to the bill of complaint, defendants appeal.

<p>Error to Newaygo; Palmer, J.</p> <p>Clyde Bowen was convicted of murder in the second degree.</p>

<p>1. Homicide — Evidence—Husband and Wife — Adultery — Motive.</p> <p>It was competent for the prosecution to show that respondent who was charged with murder had illicit relations with the wife of deceased.</p> <p>2. Criminal Law — Evidence—Witnesses.</p> <p>The respondent was properly refused permission to show that the prosecution caused several witnesses to attend, but did not place them on the stand.</p> <p>3. Same — Trial—Conduct of Court.</p> <p>In overruling objections of respondent, urged on the ground of immateriality of the testimony, the>court committed no prejudicial error in stating that it was material or in requesting counsel not to be so quick about taking an exception.</p> <p>4. Same — Charge.</p> <p>Nor did the court err in charging the jury that they might believe respondent’s testimony that he had not been unlawfully intimate with the wife of deceased, but that they should take into consideration the fact that respondent was oharged with a serious offense, and was under inducement to tell a story that would most redound to his credit.</p> <p>5. Same — Trial—Presence op Respondent.</p> <p>The court did not commit prejudicial error in calling the jury back, in the absence of the accused, and advising them to come to an agreement.</p>

Bill by John F. Cuenat, Marie O. Chambers, and John F. Cuenat as administrator of the estate of Clemence Surleau, deceased, against Mary Y. Keenan, personally and as administratrix of the estate of Jacques Surleau, deceased, to set aside certain deeds and for an accounting. From a decree awarding complainants a part of the relief prayed, both parties appeal.

Summary proceedings by Elizabeth Hilsendegen and the estate of V. Hilsendegen against the Hartz Clothing Company to recover possession of certain portions of a store building. From a judgment of the circuit court commissioner awarding restitution, defendant appealed to the circuit court. A judgment for complainants on a verdict directed by the court is reviewed by defendant on writ of error.

Emma K. Raymor presented a claim against the estate of Edward A. Raymor, deceased, which was disallowed by the commissioners on claims. Claimant appealed to the circuit court, where the cause was tried without a jury. Judgment for claimant. The Michigan Trust Company, administrator of said estate, brings error. Emma K. Raymor, the claimant, filed a claim against the estate of Edward A. Raymor, deceased, in the probate court for Kent county.

Case by Michael Borkowski against the American Radiator Company for personal injuries. Judgment for plaintiff. Defendant brings error. The plaintiff, a young man 21 years of age, started to work for defendant September 27, 1909, as a molder’s helper. About two years earlier he had worked for defendant in the same shop and in the same capacity for a period of about 2-| months.

Mandamus by Francis H. Warren against William F. Connolly, judge of the recorder’s court for the city of Detroit, to require the court to vacate an order entered without a hearing or notice.

Bill by John B. McArthur against Alice J. Newhall, Fanny F. Griffith, Clara B. Skaats, and Joseph L. Roberts, to reform a deed and enjoin an action at law. From a decree for defendants complainant appeals.

Bill by Charles J. Davis and Mary A. Lindsay Smith against James R. McCamman and Amanda M. Martin for an accounting by one of defendants as administrator of the estate of Malvina R. McCamman, deceased, and for other relief. From a decree sustaining a plea to the bill, complainants appeal.

Assumpsit by Andrew T. Sherman against George E. Burton on a special contract. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Edward G. Rigge against Wickes Brothers, a domestic corporation, for personal injuries. Emma Rigge, administratrix of plaintiff’s estate, was substituted as plaintiff after the decease of intestate. A judgment for defendant, on a verdict directed by the court, is reviewed, by plaintiff on writ of error.

<p>1. Master and Servant — Contributory Negligence — Personal Injuries.</p> <p>An employé working on a trestle, with knowledge that a cable used to draw tram cars had previously come off the idler on which it ran, and that it would straighten out if it did come off, so as to strike a person on the right-hand side of the trestle and throw him off, was guilty of contributory negligence for walking on the dangerous side of the trestle after adjusting the cable on the idler from which it had slipped.</p> <p>2. Evidence — Opinions.</p> <p>It was error to permit a witness to testify that the side of the trestle on which plaintiff was walking was as safe as the other side, when it was self-evident that the cable, if it came off, would be thrown to the inside of the curve, so as to strike a person on that side.</p>

Case by Eliza Delbusso, administratrix of the estate of Anthony Delbusso, deceased, for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Jacob Panela against the Castile Mining Company for personal injuries. A judgment overruling a demurrer to a part of plaintiff’s declaration, is reviewed by defendant on writ of certiorari.

. . Garnishment proceedings by William F. Bowen against Robert M. Quigley in justice’s court. Defendant appealed to the circuit court, from a judgment against him. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Petition by Catherine H. Young, by next friend, against Lewis H. Blanchard to vacate a tax sale, and writ of restitution. From a decree for petitioner defendant appeals.

Garnishment by Alfred Nachtegall against James Reilley, principal defendant, and Gaius W. Perkins, garnishee defendant. An order dismissing the proceedings on motion of principal defendant to quash, is reviewed by plaintiff on writ of error. Prior to August 37, 1909, differences had arisen between the Nachtegall Manufacturing Company and James E. Reilley and Eugene H. Reilley.

Case by Albert Neifert against Curtis L. Metier for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error The plaintiff, a young man then 27 years of age, was seriously injured on May 22, 1903, while attempting to put a belt upon a revolving pulley in defendant’s sawmill. The mill, operated by water power, was a small one, requiring but three men to run it.

Assumpsit by W. A. Sturgeon & Co. against Grace Van Studdiford for goods sold and delivered. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Robert W. Weeks was convicted of a felony. The defendant was convicted of a felony and has thus appealed. The record shows: (1) That he was bound over to the circuit court upon examination. (2) An information was filed on August 16, 1910. (3) At the September, 1910, term he announced himself ready for trial, but the cause was postponed to an adjourned term in October at the instance of the prosecuting attorney.

<p>Landlord and Tenant — Emblements—Growing Crops — Termination of Lease by Conveyance of Premises — Parties—Contracts.</p> <p>An action for the value of growing crops on property leased subject to sale of the premises, which were sold after the commencement of the tenant’s term, is an action for the value of emblements, and could not properly be maintained by the tenant as plaintiff on a showing that he leased the property for his relative who provided the funds, put in the crop, and was in possession at the time of eviction.</p>

Settled pending decision by court. Case by Charles Yerlinde, administrator of the estate of Peter Yerlinde, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

Ejectment by Simeon Le Roy, Sr., and John Le. Roy against Margaret Collins. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.

Trover by H. J. Oheney Company against Charles E. Allgeo, for the conversion of money, apples, and other property of plaintiff. An order quashing the writ of capias ad respondendum and dismissing the action, is' reviewed by plaintiff on writ of error.

Case by Mark Anthony against the Cass County Home Telephone Company for the negligent killing of plaintiff’s horses. Judgment for plaintiff. Defendant brings error.

Bill by the Commercial National Bank against Josephine Gaukler to foreclose a mortgage. From a decree for complainant, defendant appeals. This is an appeal from a decree of foreclosure. The record shows that the bill was filed March. 28, 1908. Defendant was personally served with process on April 1, 1908, and the bill was taken as confessed April 17, 1908.

<p>1. Insurance — Fire Policy — Contracts—Divisibility—FraudIncumbrances.</p> <p>A policy of fire insurance on buildings, stock, and other property, giving the separate amounts for which each item was insured, and covering the live stock anywhere in several counties named, is a divisible contract, which is good as to other property, but void as to real estate on which the insured placed an incumbrance, in contravention of the conditions of the contract, and with reference to which he had made false statements in his application. Hooker and McAlvay, JJ., dissenting.</p> <p>2. Same — Personal Property.</p> <p>As to personal property contained in' the dwelling house on said real estate, falsely represented to have brick or tile chimneys, the policy was also void.</p>

Ira B. Gage presented his final account as executor of the estate of Nelson F. Choate, deceased. From an order of the probate court charging the executor with the value of certain stock, both parties appealed to the circuit court, where the order was modified and affirmed. Both parties appeal.

Case by Albert Light against the Detroit & Mackinac Railway Company for wrongfully ejecting plaintiff from a train. Judgment for plaintiff. Defendant brings error.

Bill by Daniel D. Smith against George H. Nelson and Emma A. Nelson for an injunction against the enforcement of a judgment at law, and for specific performance. From a decree dismissing complainant’s bill, he appeals.

<p>Error to Ingham; Wiest, J.</p> <p>Assumpsit by the Peerless Motor Company against Joseph H. Linn for the price of a gasoline engine. Judgment for defendant. Plaintiff brings error.</p>

Bill by Annagusta Cudner against Rebecca Clement and Jacob H. Swope, to enjoin the flooding of complainant’s land. From a decree dismissing the bill, complainant appeals.

Assumpsit by Charles A. Lamberson and James C. Bogard against Charles M. Love. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.

<p>1. Evidence — Collateral Issue — Negligence — Dangerous Place — Stairways.</p> <p>In actions for negligence it is incompetent to show that other accidents have occurred at the place of injury to show the dangerous condition of the place, as a collateral issue would be raised by the evidence.</p> <p>2. Same.</p> <p>Nor is evidence that no other accidents have occurred at the place competent to prove its safe condition.</p> <p>8. Negligence — Stores — Duty to Guard Stairways — Merchants.</p> <p>Where a customer fell down a stairway at the end of a show counter in the back part of defendant’s store, in the daytime, and brought action claiming that the place was dark, a request to instruct the jury that if defendant neglected to place guards at the stairway or to warn plaintiff of the danger, she would be entitled to recover, was properly refused, because plaintiff’s obligation to use due care was omitted.</p> <p>4. Same.</p> <p>Plaintiff was not entitled to an instruction that she was not guilty of contributory negligence even though she might have seen the opening if she had looked, based on the theory that every one may assume that the floor of a store which he enters is safe.</p> <p>5. Same — Charge.</p> <p>An instruction that the evidence showed plaintiff’s sight was good was not erroneous because of the fact that plaintiff else. where testified that her eyes blurred, after she had admitted that her eyesight was good.</p> <p>6. Same.</p> <p>It was not negligence for a storekeeper to omit to place a gate or bar before a stairway in plain sight and out of the place where customers are expected to go.</p> <p>7. Same — Contributory Negligence.</p> <p>A customer who, on being asked by a clerk to step this way, followed him to the rear of the store, and at the end of a show counter stepped down an open stairway, guarded on either side by a railing, and visible in the daytime, the accident occurring about noon, was guilty of contributory negligence, in the absence of testimony that plaintiff could not see the stairway.</p>

<p>1. Fraud — Bills and Notes — Rescission—Waiver.</p> <p>The purchasers of a stallion, who signed joint promissory notes for the purchase price, on the representation of the seller’s agent, and who, instead of rescinding the transaction after they had discovered the falsity of such representations, kept, used, and controlled the horse, thereby waived the right to avoid the transaction on the ground of fraud.</p> <p>2. Same — Sales.</p> <p>The purchaser of property who seeks to defend an action for the purchase price on the ground of fraud, must show that he rescinded the contract and refused to retain the subject matter thereof.</p> <p>3. Same — Rescission for Fraud.</p> <p>And by keeping and using the horse, after they had attempted to rescind the contract for fraud and breach of warranty they waived the right of rescission.</p> <p>L Bills and Notes — Bona Fide Holder — Breach of Warranty as Defense.</p> <p>That the purchaser of promissory notes, given by several joint makers for a stallion, knew that the payee had warranted the horse, and that the notes were the consideration of the sale, but did not know the warranty was broken, having purchased them before the horse had shown any of the alleged defects, was insufficient to charge plaintiff with bad faith.</p> <p>5. Same.</p> <p>Failure of consideration, in whole or in part, after a bona fide transfer, does not affect the character of the indorsee, although he may have known the consideration for which the negotiable instrument was given.</p> <p>6. Same.</p> <p>Nor was such a transaction against public policy. (Distinguishing People’s Building & Loan Ass’n Co. v. Rutz, 158 Mich. 440 [123 N. W. 6].)</p> <p>7. Same — Negligence—Bad Faith.</p> <p>The court erred in saying in his charge that if the plaintiff, from circumstances brought to-his knowledge, as an ordinarily prudent man, had reason to believe that some defense might be made to the notes that he held, he would not be a bona fide purchaser; since neither suspicions nor gross negligence constitute bad faith.</p> <p>8. Same.</p> <p>It is not a ground of defense that the holder in due course was informed that the note was made in consideration of an executory contract, unless he was also informed of its breach.</p>

<p>1. Evidence — Hearsay.</p> <p>Testimony that a witness heard plaintiff, a conductor of defendant’s car, repeat to the train dispatcher of defendant, over the telephone, an order just given to plaintiff to meet another car at a specified point, was not objectionable as hearsay, in a personal injury case, in which plaintiff claimed that he wag negligently ordered to meet the other car at the wrong place and a collision resulted from the mistake.</p> <p>2. Appeal and Error — Necessity op Exception — Argument.</p> <p>A judgment will not be reversed for alleged improper argument of plaintiff’s counsel, on a record which does not show that the objection was raised at the trial.</p>

Ejectment by Charles H. Chase against the Michigan United Railways Company. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Assumpsit by James L. Houghteling, William R. Stirling, Augustus S. Peabody, Alexander Smith, and James L. Houghteling, Jr., copartners as Peabody, Houghteling & Company, against the Gogebic Lumber Company for breach of a special contract. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.

Petition by Robert Love and Oscar E. Peterson for writs of assistance against Georgie Fay Merrill, Mary Van Arkel, and Mattie Fay, in foreclosure proceedings by David D. Erwin against Eliza T. Fay. Respondents filed objections which were overruled, and they appeal.

Case by Vincenzo Longo, Gaetano Longo, and Frank Carlotta, copartners, doing business as the Longo Fruit Company, against Vincenzo Crachiola for fraud. A judgment for the defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.

<p>Error to Muskegon; Sessions, J.</p> <p>Assjumpsit by Victor Hokanson against Charles Oat-man for fraud. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the L. Starks Company against the Manistee & Northeastern Railroad Company on a contract of shipment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Garnishment proceedings by the People’s Savings Bank against Arie Van Allsburg and Louis Van Allsburg. A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.

John Sutton presented his final account as administrator of the estate of William Crawford, deceased, and the same was. disallowed in part by the probate court. On appeal to the circuit court by the administrator, the order was modified. Claimant brings error.

Bill by William J. Burton against Robert F. Snow, personally and as administrator of tbe estate of Frederick F. Snow, deceased, and the W. J. Burton Company, to enjoin the sale of corporate stock, and determine its ownership. From a decree dismissing the bill of complaint, complainant appeals.

<p>1. Adverse Possession — Open Possession — Evidence—Continuity.</p> <p>Adverse possession may be evidenced in other ways than by residing on the premises, as by making permanent improvements, or carrying on logging or similar operations, and though operations may have ceased for a time, possession is not broken if visible improvements exist and remain openly upon the premises.</p> <p>3. Same — Taxation—Payment — Statute op Limitations — Continuity.</p> <p>' That one in possession of lands permitted them to be assessed to a former owner, and purchased the tax titles annually, is not conclusive of his inhostile occupancy, nor did the fact interrupt the running of the statute.</p> <p>3. Same — Evidence.</p> <p>Such conduct is, however, admissible to show the character of the occupancy.</p> <p>4. Same — Tacking- Possession — Land Contracts.</p> <p>Nor did the fact that he sold the land on contract to successive purchasers who forfeited their rights, interrupt the possession of the vendor, who, if he promptly took possession, was entitled to tack onto his occupancy the possession of his vendees.</p> <p>5. Evidence — Hearsay.</p> <p>Entries made by the vendor of land of payments indorsed on the land contract, being hearsay, are not competent to show the nature of his possession in ejectment against his grantee.</p>

Bill by Ida Mack and John Mack against George Engel, James W. Latta, Jacob L. Engel, the Doxtator Revolving Cased Shelving Company and Louis C. Parmenter for an injunction, an accounting and other relief. From a decree for defendant, complainant Ida Mack appeals. Complainant John Mack had been engaged in manufacturing carriage bodies, sleighs, and cutters since 1873. In 1892 he erected a building in Grand Rapids and continued in the same line of business until 1902.

Case by Nellie Adams against Thomas J. Henry for malpractice. A judgment for defendant, on a verdict directed by the court, is reviewed by plaintiff on writ of error. This is an action against defendant, a physician, for malpractice. On December 26, 1907, plaintiff, who was then in an advanced state of pregnancy, claims to have received a jar while alighting from a street car which brought on premature labor. On that evening defendant was called and prescribed for her.

Clair; Law, J. Bill by Amy A. Downing against Gertrude F. Hill to cancel certain mortgage discharges and reinstate the mortgages. From a decree for complainant, defendant appeals.

Bill by Lizzie Swaine, Florence Swaine, and Jessie Swaine, against Robert W. Hemphill to set aside his discharge as administrator of the estate of Frederick J. Swaine, deceased, and for an accounting. From a decree dismissing the bill of complaint, complainants appeal. Complainants are, respectively, the widow and daughters of Frederick J. Swaine, who died intestate on April 14,1897.

<p>Appeal from Benzie; Lamb, J.</p> <p>Bill by Cynthia M. Osgood against Tillie M. Osgood to cancel a deed. From a decree dismissing her bill, complainant appeals.</p>

Bill by Amariah B. Conklin, Mary L. Bailey, and Amariah F. Freeman against Ebenezer M. Conklin, personally and as executor of the estate of Mary A. Hitchcock, deceased, for specific performance of a written contract. From a decree for complainants, defendants appeal.

Mandamus by William Mikkola against Albert T. Streeter, circuit judge for the county of Houghton, to compel respondent to vacate an order granting a dilatory appeal from justice’s court.

Valentine Staniszewski presented a claim of personal injuries against the estate of Ellen Sullivan, deceased. It was disallowed by the commissioners on claims and claimant appealed to the circuit court. Judgment for claimant. Defendant brings error.

<p>Equity — Jurisdiction—Adequate Remedy at Law — Debtor and Creditor.</p> <p>Equity has jurisdiction to require an accounting as of a trust-fund of money received for the purchase price of land, which fund complainant, an aged woman, transferred to her son in trust, in consideration of the payment of interest during her life, and on complainant’s death to belong absolutely to the son, where she had previously intended to create a similar trust in the land, and the son had agreed to a sale of it, if she would turn over the. proceeds under said arrangement.</p>

<p>Error to Ingham; Wiest, J.</p> <p>Case by Charles Moses against the Reo Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Bill by the village of Reed City against the Reed City Veneer & Panel Works, Charles A. Withey, Fred S. Torrey, and the First National Bank of Reed City to enforce a resulting trust. From a decree overruling a demurrer to the bill of complaint, defendants appeal.

Case-made from Livingston; Miner, J. Assumpsit by the Nernst Lamp Company against Carl C. Conrad on open account. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on case-made. The plaintiff is a foreign corporation, with a manufacturing plant in Pittsburg, Pa.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by the United States Fidelity & Guaranty Company against Mary F. Munroe on a written guaranty. Judgment for defendant. Plaintiff brings error.</p>

<p>Pledges — Equity—Principal and Agent.</p> <p>Evidence examined and considered insufficient to establish the fact that defendant held stock of complainant as a pledge to secure a debt of complainant’s husband.</p>

<p>Error to "Wayne; Donovan, J.</p> <p>Assumpsit by Thomas J. Carney against the Ionia Transportation Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.</p>

Bill by Wilhelm A. Roewer and Lena Roewer against Waldeman M. Roewer and Franklin B. Gottschalk for the cancellation of certain conveyances. From a decree for complainants, defendant Waldeman M. Roewer appeals.

Assumpsit by the Abbott Voting Machine Company against the city of Eaton Rapids for the price of certain voting machines. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.

Assumpsit in justice’s court by William G. Gilmore against John Bolio for broker’s commissions on a sale of real property. From a judgment for plaintiff, defendant removed the cause to the circuit court by certiorari, where judgment was entered for defendant. Plaintiff brings error.

<p>1. Highways and Streets — Negligence —Pleading—Declaration.</p> <p>Plaintiff’s declaration, in an action against a contractor engaged in paving a street, for failing to light or protect an excavation at a street crossing, sufficiently averred that the in- - jury occurred on a public street, by stating that the street - was, on the day of the injury, and for a long time previous thereto had been, used as a public highway, and that the intersecting street where plaintiff" was injured, was so used and occupied.</p> <p>2. Same.</p> <p>And whether defendant rightfully under his contract with the " municipality, or wrongfully, excavated the street, he was liable for an omission to properly guard the public against injury.</p> <p>3. Same.</p> <p>There being evidence that he failed to display a danger signal, the question was for the jury.</p> <p>4. Same — Contractors — Municipal Corporations — Public Works and Improvements.</p> <p>No notice to the contractor of the time, place, and extent of plaintiff’s injury was required although the municipal charter provided for notice to the city.</p> <p>5. Same — Contributory Negligence.</p> <p>And the question of plaintiff’s contributory negligence was properly submitted to the jury.</p>

<p>Error to Kent; McDonald, J.</p> <p>Assumpsit by the L. Starks Company against the Grand Rapids & Indiana Railway Company to recover money paid defendant. Judgment for defendant. Plaintiff brings error.</p>

Garnishment proceedings in justice’s court by the Interstate Shirt & Collar Company, a foreign corporation, against Pearl S. Windham. From a judgment for plaintiff, defendant appealed to the circuit court. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

<p>1. Evidence — Competency.</p> <p>A lease otherwise admissible in evidence should not be excluded because defendant claimed it was void, as a lease of his homestead without his wife’s signature, when it had not appeared in evidence that he had a wife or a homestead.</p> <p>2. Appeal and Error — New Trial — Saving Questions for Re view.</p> <p>The question of excessive damages is not reviewable on error, in the absence of a motion for a new trial.</p> <p>3. Damages — Replevin—Speculative Profits.</p> <p>Upon testimony tending to show that 61 chickens, replevined from defendant, would have produced to plaintiff twenty-five cents a day profit during the time of their detention by defendant, a verdict for damages on such basis was not objectionable as speculative.</p> <p>4. Same — Value of Goods Taken.</p> <p>Where the return of replevined property was not waived by plaintiff, and defendant gave a bond to retain the property, no reversible error was committed on the trial by requiring the jury to find the value of the property.</p>

Case by Lulu L. Little as administratrix of the estate of Alvah S. Little, deceased, for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Certiorari by John C. Hartz against Berton D. Brown, commissioner of highways of Plymouth township, and Cyrus A. Pinckney, clerk of the same, to review eminent domain proceedings in laying out a highway. An order of the circuit court dismissing the writ is reviewed by plaintiff on writ of certiorari.

Proceedings by Oliver H. Loomis and other freeholders of the township of Plymouth, Wayne county, Michigan, to lay out a highway. From an order of Berton D. Brown, highway commissioner, laying out a highway over lands of defendant, John C. Hartz, the defendant appealed to the township board, and, from its affirmance of the proceedings, to the circuit court. An order of the circuit judge dismissing the appeal is reviewed by defendant on certiorari.

Case by Theresa Branch against William F. Klatt for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>1. Elections — Recount—Public Officers.</p> <p>Where respondent, a candidate for election as supervisor, was also a member of the board of election canvassers, and signed the report of a recount declaring respondent elected, but a majority of the board without counting respondent signed the report, it was valid and conclusive of the facts stated therein. 1 Comp. Laws, § 3725.</p> <p>3. Same — Supervisors—Recount—Board.</p> <p>A recount of the vote for township supervisor was properly held before the township board as a board of canvassers under 1 Comp. Laws, § 3725, one of the candidates who was a member of the board not participating in the proceedings, and the contention that the inspectors of election had jurisdiction is not sustainable.</p> <p>3. Same — Petition—Precincts.</p> <p>The recount was properly limited to the precinct in which the petition alleged fraud and mistake occurred.</p> <p>4. Same — Officers—Books and Records — Mandamus—Remedies.</p> <p>Respondent, who was declared elected to the office of supervisor by the township board after a recount and who took the oath of office and assumed the functions thereof, may not be dispossessed on mandamus, by which title to office is not triable.</p>

<p>Error to Kent; Perkins, J.</p> <p>Case by Magdaline Wells against Emery Toogood for slander. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by Elijah Haney against Oramel B. Fuller, auditor general of the State of Michigan, to compel the issuance of a certificate of error canceling certain tax sales. On motion to settle issues:

Case by' Robert A. Madam against Carrie Hallam, Laura Manthei, and Clara Mack for personal injuries. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

Bill by William Vincent against George W. Evans and others to enjoin an action of ejectment, and to quiet title to certain land. From a decree for complainant, defendants appeal.