Volume 173 — Michigan Reports

<p>1. Highways and Streets —Steam Roller — Motor Vehicles— Negligence — Statutes—Contributory Negligence.</p> <p>Violation of the statute requiring steam engines, etc., operated on the public highways to send ahead a person to give warning of the approach of the vehicle, etc., constitutes contributory negligence, preventing the recovery of damages for injury done to a steam roller in a collision at a crossing of defendant electric railway company. Act No. 71, Pub. Acts 1903. 2 How. Stat. [2d Ed.] § 4235 (amending 2 Comp. Laws, §5543).</p> <p>2. Negligence — Trial—Jury—Evidence.</p> <p>Except in case of a view of the premises by the jury, testimony relative to changes made at a crossing at which an aocident occurred is inadmissible.1</p> <p>3. Trial — Misconduct of Counsel — Saving Questions for Review.</p> <p>To review improper remarks of defendant’s attorney on the trial of a negligence case, a request for a ruling or motion to reprimand counsel or take some other appropriate action is necessary.</p> <p>4. Negligence — Notice—Prior Occurrences.</p> <p>It was not sufficient or competent evidence of notice to defendant that plaintiff’s apparatus was liable to be caught and stop on the crossing so as to require the reduction of speed in running defendant’s street cars, because on previous occasions the steam roller and other equipment had stopped on the tracks at the crossing and prevented the car from passing._</p> <p>5. Same — Gross Negligence.</p> <p>The court correctly charged the jury that if they found defendant guilty of ordinary negligence only, not wilful or wanton and reckless conduct, their verdict must be for defendant, but that plaintiff might recover if defendant’s motorman was guilty of gross negligence; that they might consider the testimony as to the distance at which the road roller could be seen by the motorman, the degree of curve in the track, the blowing of the whistle, the distance in which a car running 50 miles an hour could be stopped; that gross negligence meant intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and implied, also, thoughtless disregard of consequences, without the exercise of any effort to avoid them.</p>

Case by John Gradyszewski, Jr., by his next friend, against the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Mechanics’ Liens — Contracts—Performance—Breach.</p> <p>Complainant was not entitled to a mechanic’s lien under a contract providing that defendant should pay a stipulated sum when the work should be performed and accepted, upon a showing that he abandoned, the work before he completed the contract, that to complete it would cost §110, and that the actual cost of completion was $250, and that defendant never accepted complainant’s work.</p>

Mandamus by Fred J. Martin against William G. Gage,, one of the circuit judges of the county of Saginaw, to compel respondent to quash a writ of capias ad respondendum and discharge relator from arrest thereon.

Petition by Charles Evans for the writ of habeas corpus to secure the release of petitioner from imprisonment in State prison at Jackson.

Ejectment by Mary Gildea against Mary B. Warren. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Error to Wayne; Codd, J.</p> <p>Case by Teresa Branch against William F. Klatt for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Municipal Corporations — Sidewalks—Bond —Contracts— Trial — Charge.</p> <p>Instructions to the jury that plaintiff, suing to recover under a city ordinance which rendered the city liable for half the cost of cement walks built by the city contractor, was entitled to recover as assignee of the property owners if the jury found that he had filed his bond as required by municipal regulation, and had been advised by one of the commissioners that the bond was good, although it was later rejected by the commissioners, and if the walk conformed to the requirements of the ordinance, held to be sufficiently favorable to defendant.'</p> <p>2. Same — New Trial.</p> <p>Held, that the refusal to grant a new trial was sufficiently supported by conflicting evidence.</p>

Claim by Alice M. Austin against the estate of Prank Austin, deceased, for moneys expended in maintaining the minor children of decedent. It was allowed by the commissioners on claims. Lola M. Austin, executrix of the estate of decedent appealed to the circuit court where the judgment was affirmed. Defendant brings error.

<p>1. Railroads — Master and Servant — Negligence.</p> <p>There was sufficient evidence of negligence to warrant submitting to the jury plaintiff's claim that the switching crew of defendant railway corporation was guilty of negligence in failing to give warning to the crew of a standing train that they were about to couple certain cars on the train, at a time when plaintiff in the performance of his duties as head brakeman was between the engine and one of the cars, although the coupling was carefully and properly made, and the plaintiff had not displayed a flag or signal to show his presence between the standing cars.1</p> <p>2. Same — Contributory Negligence.</p> <p>Defendant’s rule or bulletin requiring car repairers and other employés having occasion to work on, under, or about cars to display a flag which would proteot the car from removal, coupling, etc., could not be said as matter of law to apply to a brakeman, who stepped between the locomotive and freight cars to shut off the air pressure from the engine to the rest of the train.</p> <p>3. Constitutional Law — Master and Servant — Fellow-Servants — Statutes.</p> <p>Act No. 104, Pub. Acts 1909, abolishing the fellow-servant rule as to common carrier railroads, is not unconstitutional within the provisions of the fourteenth amendment of the Federal Constitution forbidding States to deprive persons of life, liberty or property without due process of law, nor is it invalid under the similar provisions of the Constitution of Michigan, § 16, art. 2.2</p> <p>4. Same.</p> <p>It does not deprive railroad corporations of the equal protection of the laws.</p> <p>5. Same — Vested Interests.</p> <p>A person has no property, no vested interest in any rule of the common law, which is only one of the forms of municipal law and is no more sacred in character than any other.</p> <p>6. Same.</p> <p>The tendency of the changes made by the act is to compel carriers to avoid or prevent the negligent acts and omissions which are made the basis of the right to recover, thereby promoting the safety of employ és, and advancing commerce in which they are engaged.</p> <p>7. Same.</p> <p>The classification of railroads to be affected by the act so as to include only common carriers is not arbitrary or unauthorized.</p> <p>8. Same — -Railroads—Right of Contract.</p> <p>Section four of said act is not invalid because it unduly restricts the employer’s right to contract by depriving the defendant of the benefit of any contract against liability, or of indemnity, as an absolute defense.</p> <p>9. Same — Degrees of Negligence — Comparative Negligence.</p> <p>The legislature had power to provide that plaintiff might recover if his negligence was less in degree than that of the employe causing his injury: and the provisions of section two are valid and do not interfere with the established judicial power under the Constitution.</p> <p>10. Same.</p> <p>In order to recover plaintiff must establish actionable negligence: the court is not deprived of the duty to determine whether evidence is presented tending to show the same.</p> <p>11. Evidence — Damages—Earnings.</p> <p>Testimony showing that plaintiff was an extra, not a regular, brakeman, that he had earned about 538 a month before he received the injury, that he had worked 16 days in one month, and 13 in another, that his expectancy was slightly more than 40 years, warranted the admission of a computation made by a witness showing the present worth of annual earnings at 5800 a year, the total that plaintiff could earn at the rate of wages he received.</p>

, presiding. Henry Abel presented a claim against the estate of John W. Abel which was allowed in part by the commissioners on claims. Claimant appealed to the circuit court where judgment was rendered for the full amount claimed. Defendant estate, by Cornelia Roosenraad, executor, brings error.

Mandamus by Milo H. Crawford, trustee in bankruptcy of the estate of Fred C. Ross, to compel Henry A. Man-dell, one of the Wayne circuit judges, to vacate an order denying relator’s application for a more specific answer and discovery in a judgment creditor’s suit.

Bill by Mary E. Holden against Eva B. Butler for an accounting, injunction, and general relief. From a decree for defendant, complainant appeals.

<p>1. Damages — Pleading—Breach of Promise of Marriage.</p> <p>General allegations of damage are sufficient to warrant a recovery for physical and mental suffering resulting from breach of promise of marriage.</p> <p>2. Appeal and Error — Exceptions—Saving Questions for Review.</p> <p>An exception to the ruling of the trial court in passing on the admissibility of evidence is necessary on error.</p> <p>3. Evidence — Witnesses—Impeachment—Deposition.</p> <p>Testimony tending to show unusual or suspicious conduct of a witness whose testimony was taken by deposition was properly received in evidence, in an action for breach of promise, as affecting the credibility of the witness; since he was not present in court and his conduct could not be observed by the jury.</p> <p>4. Same.</p> <p>Where the witness claimed to have been unduly intimate with plaintiff, and on his cross-examination a foundation was laid for impeachment by asking witness if he had bought a ring for plaintiff of a jeweler to whom he made disrespectful remarks concerning plaintiff, the jeweler was correctly permitted to give testimonyin contradiction of the witness’ denial, and plaintiff to show that she had been notified about the remarks made by the witness and had asked for an explanation and ceased to associate with him afterwards.</p> <p>5. Breaoh of Marriage Promise — Instructions to Jury — Seduction.</p> <p>In an action for breach of promise of marriage and seduotion, wherein it was claimed by defendant that plaintiff had been unchaste after the marriage contract was alleged to have been made, defendant denying making such a promise, the court properly refused to charge, as requested, that such conduct constituted a defense to the action, if proved, and rightly instructed the jury that it could only be considered in mitigation of damages.</p> <p>6. Same.</p> <p>Error was not committed by the trial court in further charging, as requested by defendant, that the claimed misconduct of plaintiff would be an excuse for breach of the contract only if defendant learned of the misconduct of plaintiff and because of it refused to marry her, but where, on being advised by defendant’s counsel that he did not make any such contention, the court corrected the inadvertence and left the evidence to be considered in mitigation of damages only.</p> <p>7. Same.</p> <p>The court was also correct in charging the jury and was supported in the same by her testimony, that if the jury found after an admitted lapse from virtue she had retrieved her character and led a correct life until defendant seduced her under promise of marriage, she could recover.1</p> <p>8. Same — Charge.</p> <p>An erroneous assumption of the court made in charging the jury, corrected at the instance of defendant’s counsel and again made, but passed unnoticed, held, not to have misled the jury.</p> <p>9. Same — New Trial.</p> <p>A new trial is only authorized on the ground of newly discovered evidence if the moving party exercised due diligence in attempting to secure it.</p> <p>10. Same — Trial—Conduct of Counsel.</p> <p>Alleged objectionable and impassioned argument is not ground for reversal, unless it clearly appears that the argument was unwarranted by the evidence and probably contributed to the result: plaintiff’s attorneys were entitled to comment on defendant’s income, and amount of property and on plain- ' tiff’s loss of social position, luxuries, etc.</p>

, presiding. Bill by William R. Tebbel against the Spencer Electric Light & Power Company and another to determine conflicting power rights claimed by the parties. At the death of complainant, Mary Tebbel, executrix of his estate, was substituted as complainant. From a decree for defendants, complainant appeals.

<p>Error to Hillsdale; Chester, J.</p> <p>Assumpsit by George S. Molby against Abner Murray on a promissory note. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Pleading — Declaration—Joinder of Parties — Counts.</p> <p>No reversible error was committed on the trial of an action for negligence in which two defendants were joined by one count of the declaration, while each of the other counts severally charged one defendant with the injury, in overruling an objection to the declaration for misjoinder of parties.</p> <p>2. Same — Trial—Practice—Abatement and Revival.</p> <p>Circuit Court Rule 27, permitting plaintiff to go to trial as to joint defendants without discontinuing and requiring the jury to return a verdict against the defendants that are liable, applies to aotions of tort as well as to actions ex contractu.</p> <p>3. Evidence — Exclamations of Pain — Personal Injuries.</p> <p>Natural exclamations of pain made by plaintiff 30 minutes after her injury were competent, unless they amounted to narrations of past conditions.1</p> <p>4. Same — Photographs.</p> <p>When they are properly identified and their accuracy is proved, photographs of the place of injury are admissible, but pictures obtained after the accident should not he introduced without pointing out to the jury any changes that have occurred; the determination usually is of a discretionary nature, and rests with the trial judge.2</p> <p>5. Trial — Argument—Misconduct oe Attorney.</p> <p>Improper argument of plaintiff’s attorney to the effect that no one would sustain plaintiff’s injuries for any amount of money, where he withdrew his remark when defendant’s attorney objected, was not so prejudicial as to require that the case be reversed.</p> <p>6. Same — Charge.</p> <p>Nor will the court reverse the judgment because the trial judge omitted to instruct the jury as to the question of plaintiff’s negligence, which he might properly have referred to, no request being made for such instructions.</p>

Bill by Robert M. Dalton against William M. Mertz to redeem from an alleged mortgage in the form of an assign'ment of an interest under a land contract. From a decree for defendant, complainant appeals.

Bill by John G. Anderson against William J. Branstrom for an accounting under articles of partnership, for an injunction and other relief. From a decree for complainant, defendant appeals.

Bill by John B. Luscombe and others against Peter Peterson and another for the cancellation of a deed, and other relief. From a decree for complainants, defendants appeal.

<p>Error to Emmet; Shepherd, J.</p> <p>Case by Helen Berry against the Harbor Springs Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Houghton; Streeter, J.</p> <p>Assumpsit by Matt Pudas against Andrew Mattola on an account stated. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Muskegon; Sullivan, J.</p> <p>Case by Floyd Puffer .against the Muskegon Traction & Lighting Company for damages to plaintiff’s motorcar. Judgment for plaintiff. Defendant brings error.</p>

Bill by Albert J. Cote and others against the village of Highland Park and others for an injunction. From a decree for complainants, defendants appeal.

<p>Error to Oakland; Smith, J.</p> <p>Case by Avery O. Garfield, by next friend, against Floyd Lapham for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Anna L. Newkirk, Jacob Steketee, special administrator, being substituted after her death as complainant, and Margaret H. Billinghurst being admitted as a joint complainant, against Hawley A. Newkirk and others for the cancellation of certain deeds. From a decree for defendants, complainants appeal.

<p>New Trial — Juey—Misconduct of Counsel.</p> <p>On motion for a new trial, the circuit court should have set aside a verdict and judgment for defendant, when it was shown that defendant and his oounsel hired and paid one of the panel, who was not serving on the jury, to watch plaintiff and his oounsel and the jury, and gave him money to spend with the jurors; since the tendency of such misconduct was to bring the court and its proceedings into disrepute, whether or not it affected the final result.</p>

Bill by the People’s Savings Bank of Saginaw against Emma McKay and John A. McKay to foreclose a mortgage. From an order overruling a demurrer to complainant’s bill, defendant John A. McKay appeals.

<p>1. Bills and Notes — Checks—Holder in Due Oourbe — Good Faith.</p> <p>Where plaintiff took for collection defendants’ check given to the vendor of a horse purchased by defendants, and being a creditor of the vendor and holding his mortgage on the animal and on other property to secure it, gave him ’550 in cash, and credit for the remainder of the check, but retained the mortgage lien on the horse, etc., plaintiff was not entitled to recover on the check as a holder in due course; and defendants were entitled to defend against an action on the check upon the theory that they had been defrauded and had rescinded the sale by returning the animal.</p> <p>2. Appeal and Error — Trial by Court Without Jury.</p> <p>Findings of fact made by the court without a jury can only be overturned if there is a total want of evidence to support them or if they are contrary to the undisputed evidence.</p>

<p>Error to Branch; Knowlen, J.</p> <p>Case by L. J. Gripman against Horace Kitchel for libel. Judgment for plaintiff. Defendant brings error.</p>

Case by John McBride against the Jerry Madden Shingle Company for the loss of a team by reason of defendant’s negligent act. Judgment for plaintiff. Defendant brings error.

<p>Error to Kent; McDonald, J.</p> <p>Assumpsit by Carl Ernst against the Grand Rapids Engraving Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.</p>

<p>Certiorari to Ingham; Collingwood, J.</p> <p>Petition by Marie E. Stephenson to the Ingham probate court to require S. L. Kilbourne, executor of the estate of Cornelia W. Kilbourne, deceased, to render an accounting. The petition was dismissed. Petitioner appealed to the circuit court. An order setting aside the determination of the probate court and remanding the cause for further proceedings is reviewed by the executor on writ of certiorari.</p>

, presiding. Assumpsit by William H. Freeman against Nelson A. Shaw and another for the value of services rendered by plaintiff’s minor son. Judgment for plaintiff. Defendants bring error.

Assumpsit by Ellis Oawthorpe, executrix of the estate of Harriet C. Howell, deceased, against Caroline H. Clark upon three promissory notes. Judgment for plaintiff. Defendant brings error.

Assumpsit in justice’s court by William O. Wood and another against John J. Rooks for the price of books sold to defendant. From a judgment for plaintiffs for less than their claim, the plaintiffs appealed to circuit court. Judgment for plaintiffs. Defendant brings error.

<p>1. Master and Servant — Negligence—Personal Injuries.</p> <p>Plaintiff was in the employ of a corporation with which defendant company had contract relations for the manufacture and sale of motors, and was sent by his employer to defendant’s factory to assist in the inspection and testing of goods that defendant was engaged under contract in manufacturing for his employer. While doing his work of testing a motor, he found it necessary or convenient to put his hand through the pulley, by means of which power was transmitted to the machine, and was injured by the unanticipated starting of the machine by a servant of defendant, with whom plaintiff was working, and who knew plaintiff was in a dangerous situation if the machine should start, but forgot the fact for an instant. Held, that the servant of defendant was not free from negligence, as matter of law, and was not plaintiff’s fellow-servant.</p> <p>2. Same — Fellow-Servant.</p> <p>Servants of separate masters, although engaged in a common undertaking, are not fellow-servants. To constitute that relation servants must be in the employ or under the control of a common master.</p> <p>3. Same — 'Volunteer—Fellow-Servant.</p> <p>One who, having no interest in the work, voluntarily assists the servant of another, cannot recover from the master because of injuries done by the servant, since he cannot obtain greater rights than a hired employé.1</p> <p>4. Same.</p> <p>But such volunteer is to be distinguished from one assisting the servants of another for the purpose of expediting his own business or that of his master: if he is injured under such circumstances he is entitled to recover for negligence.</p> <p>5. Same — Contributory Negligence.</p> <p>The objection that plaintiff was guilty of contributory negligence because he selected a dangerous instead of a safer manner of doing his work was erroneously sustained by the trial court: the way was safe, if defendant’s servant had not negligently started the motor, and plaintiff was not bound to anticipate his wrongful act.</p> <p>6. Same — Evidence—Bes Gestas.</p> <p>What was said and done by plaintiff and his fellow workmen immediately before and at the time of the injury was competent : also testimony relating to the practice in carrying on the work.</p>

Assumpsit by the Clare County Savings Bank against Gerald Featherly, Blanche Featherly, and Frank Coleman upon a promissory note. Judgment for plaintiff as to two defendants, but in favor of defendant Coleman. Plaintiff brings error.

Case by Leroy E. Squires, an infant, by his next friend, against Louis Miller and the Michigan Bonding & Surety Company, for unlawful sales of intoxicating liquor, resulting in the death of William A. Squires, plaintiff’s father. Judgment for defendant. Plaintiff brings error.

Mandamus by the city of Detroit against the Detroit United Bailway to compel respondent to accept passengers at certain rates and to reduce fares on certain portions of its lines. An order issuing the writ is reviewed by respondent on writ of certiorari.

<p>Error to Kent; Brown, J.</p> <p>Garnishment by Bruce N. Keister against Frank Donovan. Judgment for plaintiff. Defendant brings error.</p>

Case by George C. Hubbard against Joseph W. Oliver for fraud and deceit. Judgment for plaintiff. Defendant brings error. Prior to the year 1907, defendant was the sole owner and operator of a manufacturing business, which he ran under the name and style of “ Oliver Machinery Co.” He had started the enterprise about the year 1900 in a small way and without capital. The business met with considerable success from the outset.

<p>Bill of complaint by Allen E. Macomber against George Cottrell and others. On motion to amend decree entered in case of Macomber v. Cottrell, 171 Mich. 371 (139 N. W. 68).</p>

<p>Exceptions before sentence from Emmet; Shepherd, J.</p> <p>John Karamol was convicted of violating the local-option law.</p>

<p>Error to Lenawee; O’Mealey, J.</p> <p>Joe Mire and three others were convicted of burglary with explosives. Said Mire brings error.</p>

<p>1. Criminal Law — Divorce—Desertion—Abandonment.</p> <p>Desertion or abandonment of wife and family within the meaning of Act No. 144, Pub. Acts 1907, includes both the idea of a wilful and perpetual separation by. the husband and failure to support.</p> <p>% Same — Alimony—Wife Desertion — Husband and Wife.</p> <p>After respondent’s wife had procured a divorce from him, awarding to her the custody of their minor children, and requiring him to furnish a stated sum each week for the support of the two children, his failure to comply with the order as to payments did not constitute abandonment under Act No. 144, Pub. Acts 1907.</p>

<p>1. Perjury — Evidence.</p> <p>Evidenoe tending to show that respondent in a civil suit denied receiving or depositing certain money in the bank, that he in fact made such deposit and that a deposit slip produced by him was falsified, held, to sustain a conviction of perjury.</p> <p>2. Criminal Law — Trial—Misconduct of Prosecuting Attorney —Evidence—Privileged Communications.</p> <p>Where the prosecuting attorney called to the stand the attorney for respondent in a civil suit, wherein it was claimed respondent had testified falsely, and asked him questions as to communications made to him by his former client, who was thereby compelled to claim that such communications were privileged and to object to the questions, the conduct of the prosecutor was prejudicial and required the reversal of the case.</p>

<p>Error to Oakland; Smith, J.</p> <p>Bennie E. Campbell was convicted of threatening injury to the property of another.</p>

Case-made from the superior court of Grand Rapids; Stuart, J. George Dudley was convicted of obtaining money under false pretenses.

<p>1. Criminal Law — Intoxicating Liquors — Evidence.</p> <p>Testimony that respondent had a quantity of intoxicating liquors on hand during the period charged in the information, which stated the off nse to be that of keeping a place where intoxicating liquors were sold, between May 1 and May 19, 1911, in violation of the local-option law (2 Comp. Laws, § 5412 et seq, 2 How. Stat. [2d Ed.] § 5017), was competent; and the prosecution was further entitled to show that respondent was engaged as a druggist in selling intoxicating liquors prior to May 1st.1</p> <p>2. Same — Intent—Similar Offenses.</p> <p>It was, however, erronéous to receive evidence of the manner in which respondent had conducted the business before prohibition was adopted in the county and to receive proof of alleged offenses committed by him during the preceding sixteen months: and the court improperly charged the jury that such evidence might be considered to determine the character of the place that respondent ran during the subsequent period of time.</p> <p>3. Evidence — Similar Offenses — Trial.</p> <p>While it is competent to show previous offenses of the same kind as those of which a respondent is accused, in order to establish a particular intent, it is not permissible to show that respondent is, in general, a violator of the law, by proving other offenses under different circumstances.</p>

<p>Error to Oakland; Smith, J.</p> <p>Hugh J. Brannen was convicted of being the father of an illegitimate child.</p>

Case by John C. Balderson against the Portland Telephone Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Error to Saginaw; Kendrick, J.</p> <p>Case by Fred Littlejohn against Chester H. Sample for false and fraudulent representations. Judgment for plaintiff. Defendant brings error.</p>

Alvin Apsey and another presented for probate an instrument purporting to be the last will of John Apsey, deceased. Jane A. DeYoung and other contestants asked leáve to prosecute a delayed appeal from an order admitting the will to probate. An order granting the petition is reviewed by proponents on writ of error.

Assumpsit by Simon Frohlich against the Independent Glass Company for breach of contract. After plaintiff’s decease, Edward Frohlich and Hannah Frohlich, his executors, were substituted as plaintiffs. Judgment for plaintiff. Defendant brings error.

Assumpsit by Joseph W. O’Brien against the Equitable Life Assurance Society of the United States on a policy of insurance. The court directed a verdict for plaintiff. Defendant brings error.

Assumpsit by Ransom Gillett against William E. Ivory and Una L. Bartenfelder, doing business as the Bank of Hadley, for certain sums deposited with defendants, evidenced by a certificate of deposit. Judgment for defendants on a directed verdict; plaintiff brings error.

<p>Appeal from Muskegon; Sullivan, J.</p> <p>Bill by Mabel C. Carson against Byron L. Carson for divorce. From a decree for complainant, defendant appeals.</p>

Case by Albert Felske against the Detroit United Railway and another for personal injuries. Judgment for defendants upon a directed verdict. Plaintiff brings error.

Assumpsit by Guy Harper against the Michigan Tornado, Cyclone & Windstorm Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error. On January 17, 1908, defendant issued one of its policies to Charles and Isabell Brown, who on that day, according to the terms of the policy, became members of the defendant organization. The policy was in the sum of $1,500, and covered a store building in the city of Owosso.

Mandamus by Arthur E. Starks to compel Frank Emerick, circuit judge of Presque Me county, to issue a preliminary injunction in a suit instituted by relator to restrain one Carl Theis, defendant therein, from opening a saloon in the city of Onaway.

Upon the petition of Thomas W. Robinson, guardian of the estate of Adeline Miller, an incompetent, for leave to sell real estate to pay debts of the incompetent, the probate court of Leelanau county issued license' to sell at private sale. From an order of said court confirming the sale made pursuant to the order or license, Charles Miller and others appealed to the circuit court, in which the order was affirmed. Appellants brings certiorari.

Mandamus by William D. Southwick against George S. Hosmer, one of the circuit judges of Wayne county, to require respondent to settle a proposed case on appeal in two consolidated suits in equity.

Bill by Richard Kennedy and others against the Niles Water Supply Company and others for an injunction restraining defendant from drawing water from Barron Lake. From a decree for complainants defendants appeal.

<p>1. Customs and Usages — Contracts—Evidence—Oil Wells.</p> <p>Evidence that it was customary in driving oil wells to include an extra charge for “rimming out” or enlarging the bore in order to admit the casing, was incompetent in an action for labor and materials furnished in driving a well under a written contract, containing complete terms and providing for a charge of five cents a foot for removing the casing under certain contingencies.</p> <p>2. Same — Written Instruments — Parol Evidence.</p> <p>A written contract cannot be varied or contradicted by proof of usage, although evidence is admissible, in the absence of express stipulations, where the meaning of the contract is equivocal, to explain the terms used.1</p> <p>3. Same — Wells—Contracts.</p> <p>Provisions that the methods employed in casing the well should be such as are usually employed in similar drilling and casing of oil and gas wells in oil territory, had no reference to the price, but referred merely to the methods of work; and no dispute having arisen relative to the manner of driving and casing the well, the clause .did not warrant admission of evidence as to custom.</p> <p>4. Same — Trial.</p> <p>Under undisputed evidence that an elevator, used in boring the well, was part of the necessary apparatus which plaintiff, the contractor, agreed by the written contract to supply, defendant was entitled to a direction in his favor that plaintiff could not recover extra compensation for furnishing the equipment.</p> <p>5. Same — Recoupment.</p> <p>And the defendant was entitled to recoup for the cost of procuring hydraulic jacks to raise the casing, which the contract provided should be withdrawn when necessary, plaintiff to receive five cents a foot for the work.</p>

John W. Bedford and others presented a claim against the estate of Frank M. Kelley, deceased, for contribution. From a judgment of the commissioners on claims allowing the claim, defendant estate by Lafayette Kelley, administrator, appealed to the circuit court. Judgment for claimants and said administrator brings error.

Case by Madeline Clements Wanner against Fred J. Martin for slander. Defendant pleaded in abatement and a demurrer to the plea was sustained. Defendant brings error.

Dellmore A. Butts presented to the probate court of Saginaw county a petition to admit to probate the last will of Anna Maria Butts, deceased. Contestants filed a plea to the jurisdiction of the court which caused the proceedings to be certified to the circuit court for determination. Petitioner demurred and the demurrer was overruled; petitioner brings error.

Bill by Harry J. Rill and others against John Garrity and others for the establishment of an alley pursuant to provisions of a lost deed. From a decree for complainants, defendants appeal.

Bill by Agnes Donnelly against Samuel J. Lyons and others, to quiet title to real property. From a decree for complainant, defendants appeal.

<p>1. Homicide — Manslaughter—Trial—Criminal Law — Charge.</p> <p>Respondent, who was convicted of manslaughter committed after an altercation in which the parties decided to go into the country and fight it out, respondent striking deceased soon afterwards and knocking him down, was not prejudiced by the charge of the court that if he acted in self-defense, fearing great bodily harm or danger to life, he should be acquitted; and the instructions were not open to the objection that they confused the issue, for if they were inapplicable on the ground that the parties were engaged in carrying out an unlawful purpose, the instructions were not harmful.1</p> <p>2. Same — Assault During Perpetration of Unlawful Act.</p> <p>The fact that respondent.prepared himself for the fight, and attempted to carry out the unlawful purpose, warranted a conviction of the offense.</p> <p>3. Same — Murder in Second Degree.</p> <p>Upon expert testimony that the injuries found upon the deceased victim of the assault could not have been produced by a blow of the fist or fall on the sidewalk, and that respondent surreptitiously left the scene immediately after the assault, returning in a few minutes, sufficiently justified the court in submitting to the jury the question whether the orime amounted to murder in the second degree.</p> <p>4. Same — Requests—Trial.</p> <p>Nor did the court err in refusing to give several requests in the exact language used, where he instructed the jury fully, covering the same ground in the general charge.</p> <p>5. Same — Distinction as to Offenses — Instructions.</p> <p>It was error to instruct the jury that the practical difference between the two offenses was the length of the maximum penalty, but a verdict finding respondent guilty of the lesser offense rendered the instruction harmless.</p> <p>6. Same — Trial—Further Instructions.</p> <p>The court was not in error in limiting further instructions asked for by the jurors, subsequent to their retiring, to the points desired by them, without instructing them a second time as to the matters of self-defense, or of reasonable doubt, that had been covered in the charge.</p> <p>7. Trial — Criminal Law.</p> <p>It was within the discretion of the court to refuse to communicate to counsel for the accused the contents of a written communication sent to him by one of the jurors through an official of the court: his action in taking no notice of the matter was proper, and so long as he did not hold communication with any of the jury, respondent suffered no prejudice.</p>

Bill by Caroline M. Clothier and another against David I. Miller and others for the annulment of certain tax deeds and other conveyances. From a decree for defendants, complainants appeal.

Mandamus by Walter I. Lillie, trustee of the estate of Mary A. White, deceased, against Oramel B. Fuller, auditor general, to compel the issuance of a certificate of error as against certain sales of State tax lands, and for other relief.

Clair; Beach, J. Bill by Horace G. Snover as receiver of the United Home Protectors’ Fraternity against Charles L. Boynton and others for an accounting and general relief. From an order overruling demurrers of the defendants to complainant’s bill defendants appeal.

<p>Brokers — Commissions—Contracts.</p> <p>Plaintiff, a broker, could recover commissions under a contract to pay him two per cent, commission if he should procure a purchaser through the agency of another broker, with whom plaintiff was associated and had listed the farm at a net price; the terms of the contract providing in substance as above stated were not ambiguous or uncertain or open to the construction that plaintiff must himself find a purchaser who would buy the land through the other agency.1 Ostrander and Stone, JJ., dissenting.</p>

Bill by John Miller, highway commissioner of Elk township, Sanilac county, against John Harmer for an injunction and other relief. Defendant filed a cross-bill for affirmative relief. From a decree for complainant, defendant appeals.

Mandamus by the public schools of the city of Muskegon against Frank H. Smith, secretary of the board of trustees of said schools, to compel respondent to sign and issue bonds authorized by the board. An order denying the writ is reviewed by relator on writ of certiorari.

Contempt proceedings by Agnes Hatch against Mary E. Daley for disobedience of an order of the court entered in the above entitled cause (166 Mich. 542 [131 N. W. 1127]).

<p>Error to superior court of the city of Grand Rapids; Stuart, J.</p> <p>Assumpsit by Carrie M. Walter against the People’s Health & Accident Insurance Company upon a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Sanilac; Beach, J.</p> <p>Bill in aid of execution by the Yale State Bank against Fred C. Fletcher and others. From a decree for defendants, complainant appeals.</p>

Bill by Ransom J. Barris, as administrator de bonis non of the estate of Alfred Emmons, against Emily E. B. Emmons and others, to set aside a conveyance of decedent for the benefit of creditors. From a decree for complainant, defendants appeal.

Bill by Flora R. Sturgis against Joseph Sturgis for divorce. Defendant filed a cross-bill. From a decree awarding defendant a divorce and adjusting property matters, defendant appeals.

Mandamus by Mary McNamara against John S. McDonald, judge of the circuit court for the county of Kent, to compel respondent to settle a record of the testimony taken in a suit in which relator was complainant and James McNamara and others were defendants.

Mandamus by John J. Alderson against Joseph Barton, circuit judge for the county of Newaygo, to compel respondent to settle and sign a record on appeal.

Mandamus by James O’Hara, city attorney of the city of St. Joseph, against Joseph R. Collier, Jr., one of the justices of the peace for said city, to compel respondent to issue a warrant applied for by relator. An order denying the writ is reviewed by relator on writ of certiorari.

Exceptions from the recorder’s court of Grand Rapids; Stuart, J. Ray Snyder was convicted of taking indecent liberties with a minor female child.

<p>1. Criminal Law — Evidence—Trial—Larceny.</p> <p>It was improper, upon the separate trial of one of two joint respondents charged with larceny, to permit the prosecuting attorney to cross-examine a witness who was produced to testify to the good character of respondent, relative to acts of the other respondent subsequent to the alleged crime, on an occasion when she was engaged in identifying property stolen at other times and from other persons than those mentioned in the information.</p> <p>2. Same — Opinions—Witnesses.</p> <p>Opinions of a witness as to respondent’s character, formed subsequent to the date of the alleged offense and after some of the facts had been made public, are not admissible to prove or disprove good character.</p> <p>8. Same — Character—Reputation.</p> <p>Witnesses called to attack or defend character can be asked on direct examination only as to the general character of the person in question, and will only be allowed to testify as to particular facts or instances upon cross-examination with a view to test the value of the testimony given: but cross-examination must be confined to acts occurring before the offense charged.1</p> <p>4. Same — Trial—Witnesses—Conduct op Prosecutor.</p> <p>It was also error for the prosecuting attorney to attack one of respondent’s witnesses, accusing her, without proof, of having knowingly received stolen goods.</p> <p>6. Same.</p> <p>And it was equally improper for the prosecuting attorney to praise one of the people’s witnesses and to extol his skill and ability to detect wrongdoers.</p> <p>6. Same — Appeal and Error — Saying Questions for Review.</p> <p>Upon counsel for respondent oalling the attention of the court to such alleged misconduct, although the court merely granted him an exception, respondent was entitled to treat the matter as an adverse ruling.</p>

Exceptions before sentence from the superior court of Grand Rapids; Stuart, J. Effie Tibbetts was convicted of keeping a house of ill-fame. Affirmed.

<p>I. Municipal Corporations — Notice op Claim — Personal Injuries.</p> <p>Where plaintiff’s notice to a city of the fourth class claiming damages by reason of personal injuries sustained in falling on a defective sidewalk contained a statement of her injuries as follows: “She was severely wrenched, strained, and bruised; her back and legs and the tendons and ligaments thereof were wrenched, bruised, and strained; she had, some two years prior to that time, undergone a surgical operation and that the attachments formed after suoh operation were torn loose and that she was severely and permanently injured internally, the extent of which is unknown to your petitioner at this time; that at the time of said accident she was in a family way and said fall caused her to have a miscarriage; that ever since said fall she has suffered great mental and physical pain, and has been incapacitated from doing any labor, and prevented from having any amusement, reoreation, and pleasure; that she is advised that her injuries are permanent and further developments may show other and different injuries than have so far beoome known,” it was a sufficient statement of the extent of injury to permit her to recover for injury to the pedicle of the left ovary and consequent hindrance to proper circulation, rupture of blood vessels, adhesion to the intestines and inflammation of the surrounding organs.1</p> <p>3. Same.</p> <p>A liberal construction of statutes requiring such notice is favored so as to permit a recovery if a substantial statement of the injury is made.2</p> <p>3. Same — -Declaration—Amendment op Pleadings.</p> <p>Plaintiff was not improperly permitted to amend her declaration after the trial had proceeded about eight days, the court granting to defendant an adjournment for two weeks, where the amendment changed the averment of the declaration that plaintiff had previously enjoyed good health and substituted for it allegations showing the operation, its effect on her health and described exactly and correctly the injuries sustained.</p> <p>4. Same — Evidence—Trial—Special Questions.</p> <p>And after admitting testimony that adhesions formed after plaintiff’s fall and that it might have torn them loose, the court’s charge that the evidence so admitted was incompetent, but submitting to the jury special questions based on the excluded testimony was misleading and prejudicial.'</p> <p>6. Same.</p> <p>It was also improper to admit testimony as to an operation performed on plaintiff which had nothing to do with the fall or injuries caused thereby.</p>

Bill by Joseph Mentlikowski and others against Jacob Wisniewski and another for specific performance of an option to purchase real property. From a decree for complainants, defendants appeal.

Bill by Mary Sehadfc against Daniel Brill and another for an injunction against the violation of building restrictions. From a decree for complainant, defendants appeal.

Clair; Law, J. Bill by the Michigan Salt Works against John Baird and another for an injunction. From an order overruling a demurrer to the bill of complaint, defendants appeal.

Assumpsit by R. J. Ederer Company against William P. Kavanaugh for goods sold and delivered. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Mandamus by Thomas E. Glinnan and others against James Phelan, one of the judges of the recorder’s court of the city of Detroit, to compel respondent to vacate an order changing the venue in certain criminal cases in which relators were made respondents.

Bill by Frederick L. Perkins, executor of the estate of Harriet M. Perkins, deceased, against Willis J. Perkins and others. From a decree for complainant, defendants appeal. On motion of complainant to dismiss.

<p>1. Contracts — Restraint of Trade — Consideration.</p> <p>A written agreement, made after concluding an oral sale of defendant’s business and after payment of a part of the purchase price, might contain an additional clause or promise not included in the parol agreement, and prohibiting the defendant from engaging in business within the city, where the sale took place, while complainant should remain in business there; payment of the purchase price was sufficient consideration to support the covenant.</p> <p>2. Same — Evidence.</p> <p>In a written contract all previous parol contracts relating to the same matter are merged, and they are not admissible in evidence.</p> <p>3. Same — Illegality—Public Policy.</p> <p>The clause in restraint of trade was neither unreasonable as to space or time, and was valid, being within the exception of Act No. 329, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2942).</p> <p>4. Same — Incompetency—Ratification.</p> <p>On the ground of alleged incompetency to contract, proof of defendant’s nervous and weakened condition was not a sufficient foundation to invalidate the restrictive covenant in the contract, which, he had not attempted to repudiate as a whole by returning the consideration or by other affirmative action, although he had recovered his health and desired to re-engage in business.</p> <p>5. Same — Conspiracy.</p> <p>Evidence showing that defendent’s wife opened a furniture business under the name of Eccles Furniture Company, that defendant furnished the money and credit to launch it, and acted as manager, using his wife’s name and the trade name to evade the stipulation against competition with complainant, and that she knew about the agreement, warranted a finding of conspiracy between them to violate the terms of the covenant and justified a decree against both restraining them from violating the contract.</p>