Volume 175 — Michigan Reports

<p>1. Brokers — Contracts—Phrases—Net Rentals.</p> <p>Under terms of a broker’s contract to secure tenants for real property for $500 and 10 per cent, of the net rentals, the phrase “net rentals” included the entire sum received for rent of the property less expense of maintenance, plaintiffs conceding that taxes and insurance should be first deducted.</p> <p>2. Same.</p> <p>Defendant was not entitled to deduct the cost of certain partitions and improvements to the building and premises required to make the same fit for the purposes of the tenant, although such cost was added to the annual rent in sums sufficient to reimburse the landlord for the outlay.</p>

<p>Error to Wayne; Murphy, J.</p> <p>Case by Anna Bosek against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case by Martha Noack, administratrix of the estate of Carl Noack, deceased, against Williams, Davis, Brooks & Hinchman Sons, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>1. Trial — Findings of Fact — Appeal and Error.</p> <p>When causes are tried by the court without a jury and findings are properly requested, it is contemplated by the statute and court rules that the court will find and state ultimate facts material to the issue, and, separately, conclusions of law based thereon; on error the questions usually presented in this court are whether there is testimony supporting the conclusions of fact and whether the facts found sustain the judgment.</p> <p>2. Same — Questions' Re viewable.</p> <p>Findings of fact supported by evidence will not be disturbed: the testimony need not be printed at all unless it is claimed that there is none to support a finding or that the court refused to find an undisputed fact considered to be material.</p> <p>S. Same.</p> <p>In such cases, on appeal, the Supreme Court sits to review errors of law only, and will not find facts or try the cause de novo.</p> <p>4. Same — Insurance—Fraternal Benefit Associations.</p> <p>Where, in an action on a benefit policy, it was claimed that an officer of the society had no authority to issue a dispensation relied on by plaintiff and necessary to plaintiff’s case, and the trial court made a finding that defendant conceded the officer’s authority to issue the dispensation but the record failed to sustain such finding, the question as to authority being a mixed issue of law and fact, this court will reverse the judgment and order a new trial.</p>

<p>Í. Execution' — Description—Deeds.</p> <p>Notice of execution levy on “Lot 5, Block Q, Mitchell’s revised plat of Cummer & Gerrish’s Addition to the village of Clam Lake, now city of Cadillac,” was insufficient to affect the title of a hona fide purchaser of ‘.‘Lot 5, Block Q, of Mitchell’s revised plat of the village of Clam Lake,” although there was no Block Q in the plat known as Cummer & Gerrish’s addition to said village, and no plat known as “Mitchell’s revised plat” of such addition.</p> <p>2. Vendor and Purchaser — Record of Levy.</p> <p>A description sufficient to convey land between man and man or to authorize specific performance of an agreement to convey, may not be sufficient to constitute constructive notice to a purchaser in good faith, without knowledge of an execution levy recorded in the office of the register of deeds.</p> <p>3. Same — Execution.</p> <p>Where an officer levies on real estate, his indorsement upon the writ should describe the land levied upon with a sufficient degree of certainty to enable every person to know what property has been taken.</p>

<p>1. Appeal and Error — Saving Questions for Review — Exceptions — Sufficiency.</p> <p>Where counsel’s exception to a ruling of the court left it in doubt whether the exception covered the court’s refusal to strike out testimony as to damages, or its ruling on a proposed amendment to the declaration, the verdict being small in amount, prejudicial error was not shown for refusing to eliminate the testimony which also might have been admissible under an allowable amendment denied by the trial court.</p> <p>2. Trial — Examination—Witnesses.</p> <p>The matter of permitting leading questions on the cross-examination of a witness, called by one party and after-wards recalled by the other, is largely discretionary.</p> <p>3. Amendment — Declaration—Variance.</p> <p>In permitting plaintiff to amend his declaration as to the side on which he was injured, the court exercised a proper discretion.</p> <p>4. Master and Servant — Contributory Negligence — Railing.</p> <p>Whether plaintiff, a night watchman, was chargeable with contributory negligence in falling from a ladder or stairway not provided with a handrail, because of plaintiff’s knowledge or notice of the condition and familiarity with it during two months' previous use of the stairway, was a question for the jury; as was the issue whether the absence of a railing was the cause of his injury, it appearing that he might have saved himself from falling if a handrail had been present.1</p> <p>5. Same — Stairway—Ladder—Statutes.</p> <p>Under the provisions of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4022), it is the duty of the master to provide stairways with substantial handrails for the use of servants and the duty is not performed by providing a ladder without handrails, although employers are not required to construct stairways to unused or unfrequented parts of the building or in places where the construction of a stairway is impracticable.</p>

Case by Louise K. Mitchell as administratrix of the estate of Charles F. Mitchell, deceased, against the Van Keulen & Winchester Lumber Company for the negligent killing of decedent. Judgment for defendant on a directed verdict; plaintiff brings error.-

Case by Hugh Lamb, administrator of the estate of Roy Lamb, deceased, against the township of Clam Lake for the wrongful killing of decedent. Judgment for plaintiff. Defendant brings error.

Assumpsit in justice’s court . by Albert F. Schmand against Charles S. Jandorf for breach of a contract of employment. From a judgment for the plaintiff, defendant appealed to circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Fraud — Corporations—Liability of Directors — Evidence.</p> <p>Without actual evidence that the directors of a corporation authorized the issuance or use of á fraudulent circular, fraud should not be inferred as to a member of the board who did not profit personally by the representations.1</p> <p>2. Same — Evidence—Parol Testimony.</p> <p>Parol proof of contents of a land contract, not within the jurisdiction of the court, was properly excluded, no evidence being offered to excuse the failure to produce the written instrument and no attempt having been made to procure competent evidence by commission. Phillips v. Benevolent Society, 125 Mich. 186 (84 N. W. 57).</p> <p>3. Same — Vendor and Purchaser — Stockholders.</p> <p>Representations made in a circular issued by a development corporation to the effect that the corporation owned certain lands, were not of a fraudulent character, where it appeared that the company owned an interest in the property under a land contract.</p> <p>4. Vendor and Purchaser — Freeholder—Land Contracts.</p> <p>The vendee of realty under a land contract is a freeholder.</p> <p>5. Fraud.</p> <p>Upon a record showing that representations regarding the value of land owned by a corporation as described in a circular were vague and uncertain, and that after being cleared and cultivated the property was more valuable than the circular stated, it was not erroneous to direct a verdict for defendant, a director, that plaintiff claimed participated in the fraud.</p>

Assumpsit by F. Dayton Davis against the public schools of the city of Escanaba for breach of a contract of employment. Judgment for defendant on a directed verdict; plaintiff brings error.

Bill by Herbert O. Alger and others against the Cheney Lumber Company and others for an accounting and other relief. From a decree for defendants, complainants appeal.

Mandamus by Charles E. Soule against Orien S. Cross, judge of the circuit court for the county of Ottawa to vacate an order refusing to quash a writ of capias.

Clair; Tappan, J. Bill by Frederick C. Kendrick and others against Elizabeth B. Louk and others to restrain defendants from obstructing an easement. From a decree for complainants, defendants appeal.

Bill by Ellen McBride and others against Elizabeth Thompson and another for specific performance of a contract and other relief. From a decree for complainants, defendants appeal. Modified and affirmed.

<p>Error to Kent; McDonald, J.</p> <p>Submitted June 21, 1912.</p> <p>Case by Louis J. Oest against Edward Hendershot for personal injuries. Judgment for defendant on a directed verdict; plaintiff brings error.</p>

Case by the Harrison Granite Company against the Grand Trunk Railway System and National Dispatch Great Eastern Line for damage to a consignment of freight. The court directed a verdict against the Grand Trunk Railway System for less than the claimed damages. Plaintiff brings error.

<p>Error jto Kent; McDonald, J.</p> <p>Case by Bert Cavanaugh against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by John Pettinger against the Alpena Cedar Company for goods and supplies furnished to another on defendant’s credit. Judgment for plaintiff. Defendant brings error.

Bill by the Detroit Trust Company as receiver of E. Bement’s Sons, an insolvent corporation, against Louisa A. Goodrich and others for the recovery of dividends unlawfully paid out of capital to preferred stockholders of the insolvent. From an order overruling demurrers to complainant’s bill, defendants appeal.

Bills by Levitt L. Merrill and others and by Richard Hill and others against Edward Brant and others for the enforcement of mechanics’ liens, the suits being consolidated by consent. From a decree for complainants, defendants appeal.

<p>Error to Wayne; Mandell, J.</p> <p>Cáse by Julia McBroom against the B. Siegel Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error..</p>

Bill by Carrie A. Bialy against Robert C. Bialy for divorce. After affirmance on appeal, complainant applied for an attachment to enforce the payment of the decree. From an order fixing the balance to be paid, complainant appeals.

Mandamus by Hugh Shepherd, prosecuting attorney for the. county of Wayne, to compel William F. Connolly, judge of the recorder’s court of the city of Detroit, to set aside an order quashing an information and to proceed with the trial of Frank G. Lafer. ’

<p>Error to Kalamazoo; Knappen, J.</p> <p>Case by Marie C. Dorrance against the Michigan United Railways Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by the Grand Haven Arbeiter Unterstutzungs Verein against Charles E. Soule and others for removal of a cloud from complainant’s title and to redeem from a tax sale. From a decree overruling a demurrer to the bill, defendant Soule appeals.

<p>1. Master and Servant — Lighting—Negligence.</p> <p>In conducting excavation at night by means of steam shovels and of engines and cars to haul away the dirt, running into a pit 30 feet in depth between high walls, it was the employer’s duty to provide such a reasonably sufficient lighting system as to render the operations safe for its employees; particularly when it appeared that trains were not subject to any set rules, schedules or regulations, and lights were necessary to safely operate them.</p> <p>2. Same — Evidence.</p> <p>Testimony in plaintiff’s behalf that the lights became smoky or dim and some of them were out, that the night was stormy and dark, and that a collision occurred with some empty cars left on the track where it had not been customary to leave them, presented a question for the jury as to defendant’s negligence, notwithstanding evidence offered by defendant to show that the lights had been inspected and were burning properly.</p> <p>3. Same — Assumption oe Risk — Incidental Dangers.</p> <p>Unless the risk was incident to plaintiff's employment or he knew of the existence of the danger encountered, he could not be held to have assumed it.1</p> <p>4. Same — Custom—Negligence.</p> <p>The issue whether it was customary to leave empty cars on the track where the collision occurred being supported by conflicting evidence on either side, it was open to the jury to infer that the engineer had a right to assume that his track was clear and that his negligence was not the cause of the collision.</p> <p>5. Same — Charge.</p> <p>The trial court correctly charged the jury that plaintiff could not recover if the cause of the accident was the negligence of his fellow-servants, that if it was an ordinary or frequent occurrence to leave cars on the track in question, the engineer must have known of the possibility of danger and if fog or.mist obscured his sight, or the lights were insufficient, he should have approached so carefully as to avoid an accident, that plaintiff knew his employment was dangerous when he went to work, and if he knew that the work was being carried on in such a way that an accident was likely to occur, he assumed the risk of it by remaining in the employment.</p>

<p>Appeal from Muskegon; Sullivan, J.</p> <p>Bill by Henry R. Klett against Christopher Klett and others for specific performance. From a decree for complainant, defendants appeal.</p>

Contempt proceedings based on an injunction issued in a suit instituted by the Fletcher Paper Company against the Detroit & Mackinac Railway Company and another. From a decree adjudging respondents, the Detroit & Mackinac Railway Company and the Lob-dell & Churchill Manufacturing Company, guilty of contempt, both respondents appeal.

Assumpsit by Frederick Hebinger against John C. Ross and another for goods sold and delivered and on a special contract. The court directed a verdict for plaintiff for less than the amount claimed. Plaintiff brings error.

<p>1. Insurance — Policy—Standard Form — Waiver—Estoppel.</p> <p>Waiver or estoppel because tbe insured acquainted tbe agent of the insurer with the fact that there was an incumbrance outstanding against insured chattels may arise under the standard policy law, Act No. 277, Pub. Acts 1905 (3 How. Stat. [2d Ed.] § 8328), and amendments, although a permit in writing was not attached to the policy.</p> <p>2. Same — Assignment—Attorney and Client — Parties.</p> <p>Where plaintiff had assigned to his attorneys as security for their fees all his interest in his policy of insurance, they were hound by the result of the action which they commenced in his name and took part in, so that the assignment was not a valid ground of defense to the proceedings.</p> <p>3. Same — Interest—Appeal and Error.</p> <p>An assignment of error based on the theory that interest should not have been allowed from the date of loss but from sixty days thereafter, is not reviewable on appeal if the point was not brought to the attention of the lower court.</p> <p>4. Same — Damages—Excessive Verdict.</p> <p>Plaintiff’s insurable interest being shown by testimony to equal or exceed the verdict, the trial court did not err in denying a motion for new trial for alleged excessive •damages.</p>

Case by Louis F. Perkett against the Manistee & Northeastern Railroad Company for the loss of a car load of apples. Judgment for plaintiff on a directed verdict. Defendant brings errors

Submitted January 17, 1913. Bill by George S. Hosmer and Clarence M. Burton, executors of the estate of James Scott, deceased, against the city of Detroit and others for a construction of the last will and testament of decedent. From a decree for complainants, defendant city appeals.

Bill by Jennie B. Walker and others against Eva May Schultz and others to quiet title to real property. From a decree for defendants, complainants appeal.

Case by Lynn J. Lewis against Charles A. Weidenfeller for slander. An order overruling a demurrer to the declaration is reviewed by defendant on writ of certiorari.

<p>1. Vendor and Purchaser.</p> <p>Where the purchaser of land under contract learned on the day following the execution of the agreement that the vendor’s title was encumbered by a deed given as security for a loan to the vendor, and thereafter paid to the vendor a part of the consideration, mating no demand for a return of the first payment, he was in no position to maintain, in defense of an action for tne purchase price remaining unpaid, that plaintiff, who was then in position to give a clear title, had defrauded or deceived him as to the state of his title.</p> <p>2. Teial — Cross-Examination — Witnesses — Compromise and Settlement.</p> <p>In an action for a balance claimed by plaintiff to be due upon a land contract and other items, defendant claiming that all matters had been settled and compromised by paying the balance agreed upon, it was error to restrict the cross-examination of plaintiff as to time of payment, the time of surrendering possession, and like questions relating to the issues in dispute.</p> <p>3. Same — Charge."</p> <p>It was also error, having a tendency to belittle the defense, to instruct the jury, after the case had once been submitted, and they had returned for additional information, that if they found for plaintiff they should deduct from the verdict 55 cents which had been paid out by defendant who, however, made no claim for this amount and had introduced no testimony in support of the deduction.</p>

<p>Error to Shiawassee; Miner, J.</p> <p>Case by Ira Schock against Thomas Cooling for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Edward W. Heth against Charles W. Smith and Wansey Farm Realty Company for specific enforcement of a lease. From an order overruling a demurrer to complainant’s bill, defendants appeal.

, presiding. Bill by Samuel Brockway and others against the Hydraulic Power & Light Company to restrain defendant from flooding lands of complainants. From a decree for complainants, defendant appeals.

, presiding. Assumpsit in justice’s court by the J. B. Millet Company against Willis W. Andrews on a contract in writing, specially declared upon.. Judgment for defendant. Plaintiff brings error.

Joseph Fournier was convicted of violating an ordinance of the city of Saginaw providing for the licensing of stationary engineers.

<p>Error to Oakland; Smith, J.</p> <p>Assumpsit by John L. Smith against the Chase & Baker Piano Manufacturing Company on a contract of hiring. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by Richard I. Lawson, corporation counsel of the city of Detroit, against William F. Connolly, judge of the recorder’s court of said city, to compel respondent to vacate an order dismissing certain proceedings for the violation of á municipal ordinance. Writ granted May 28, 1913.

Case by Boaz Canfield against the township of Gun Plains for injuries to plaintiffs threshing outfit occurring on the highway. Judgment for plaintiff. Defendant brings error.

<p>Brokers — Commissioners—Contracts.</p> <p>In assumpsit by a broker for commissions on the sale of real property that he knew was in the hands of other agents at the time he showed the same to a prospective buyer, who closed the deal through the other firm on terms lower than plaintiff was authorized to propose, the burden of showing that his services were the efficient procuring cause, rests upon plaintiff, and evidence that he merely brought the real estate to the purchaser’s attention is insufficient.1</p>

Assumpsit by Sarah J. Smith against Thomas J. Sheridan and Nicholas B. Crevling, copartners as the Harbor Springs Woodenware Company, for money had and received. Judgment for defendants. Plaintiff brings error.

<p>Error to Wayne; Codd, J.</p> <p>Case by Frank Le Fleur against the Michigan Alkali Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Deeds — Description—Evidence.</p> <p>A deed of real property described as the “west half of the northeast quarter, also the east half of the northwest quarter, except 18 acres off the southwest corner; also the northwest corner of the west half of the southeast quarter lying north of property of Michigan Central Railroad Company,” was defective for omitting the section, town and range, although it mentioned the name of the township in which the land was situated; evidence that the railroad company owned a right of way in several sections in the township named left the last portion of the description ambiguous.</p> <p>2. Same — Equity—Reformation of Instruments.</p> <p>Equity will not correct the deed of a deceased grantor who received no consideration for the conveyance.</p> <p>3. Same — Delivery—Escrow.</p> <p>Testimony that decedent instructed her attorney in fact that if a settlement of certain business transactions on the part of the husband of one of her heirs should be made with her, she wished nothing to come of a voluntary deed placed in escrow with him, that the directions were given an hour after the execution of the instrument, held, to show a single transaction and to render the. delivery incomplete or insufficient to pass title after the death of the grantor.</p>

Assumpsit by the Mackinac Transportation Company against the township of Mackinaw for taxes paid under protest. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Exemptions — Actions—Title—Replevin.</p> <p>Replevin lies in favor of a bona fide purchaser of exempt fixtures and stock of merchandise against an officer in possession under a subsequent execution levy, in an action against the vendor, although the sale whereby plaintiff got title did not conform to the requirements of the bulk-sales act (Act No. 223, Pub. Acts 1905 [2 How. Stat. (2d Ed.) §2612 et seq.]).</p> <p>2. Same — Fraudulent Conveyances — Bulk-Sales Act — Sales.</p> <p>Said act placing restrictions on sales of merchandise in bulk does not invalidate a sale of property and fixtures worth less than the amount of the seller’s exemptions, although the requirements of the act were not observed, upon the motion of objecting creditors of the vendor. (Distinguishing cases involving sales of stock worth more than $250.) J. L. Hudson Co. v. No-Name Hat Co., 174 Mich. 109 (140 N. W. 507).</p>

<p>Error to Kent; Brown, J.</p> <p>Assumpsit by Harry Thomasma against Richard E. Carpenter for services performed. .Judgment for plaintiif. Defendant brings error.</p>

<p>Schools and School Disteicts — Board on Education — Powers—</p> <p>Purchase and Sale on School Books.</p> <p>Under the local act creating the hoard of education of the city of Detroit, granting power to make hy-laws and ordinances relative to regulation of the schools and hooks to be used therein and relative to anything whatever that may advance the interests of education, the good government and prosperity of the free schools in said city and the welfare of the public concerning the same (Laws 1869, Act No. 233), and conferring power to sell and convey real and personal property, the board of education is not empowered to buy school books for the students of the' Detroit high schools and sell them at cost.</p>

<p>Appeal from Huron; Beach, J.</p> <p>Bill by Addie F. Brown as administratrix of the estate of Walter Brown, deceased, against Albert Brown and Frank Brown for an accounting. From a decree for defendants, complainant appeals.</p>

<p>Appeal from Huron; Beach, J.</p> <p>Bill by Addie F. Brown as administratrix of the estate of Walter Brown, deceased, against Albert Brown, Levi Brown, Frank Brown, and George Brown, for an accounting. From a decree for defendants, complainant appeals.</p>

Assumpsit by Emery Brown against Squire Scott in justice’s court. From a judgment for plaintiff, defendant removed the case to circuit court by certiorari. Judgment for appellee. Defendant brings error.

<p>1. Fraud — Equity Jurisdiction — Adequate Remedy at Law.</p> <p>The concurrent jurisdiction that is exercised in chancery in cases of fraud does not extend to the granting of relief for fraudulent representations for which an action at law affords an adequate remedy.</p> <p>2. Same — Contracts—Saues—Equity.</p> <p>Accordingly, the buyer under a conditional contract of sale of personal property connected with a rooming house, concerning which it is alleged the seller made false representations, is not entitled to a money judgment in equity where the purchaser remains in possession of the property and may set up the defense of fraud in any proceedings at law brought for the enforcement of the contract; nor will equity make a new contract for the parties by entering a decree that the seller accept the money paid, in full satisfaction of the price, and execute a bill of sale to complainant, as prayed in the bill.</p>

<p>Error to Macomb; Smith, J., presiding.</p> <p>Case by Thomas Barry against the Metzger Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Oceana; Sessions, J., presiding.</p> <p>Bill by the L. Starks Company against Clark O. Bigler for an accounting. From a decree for complainant, denying part of the relief claimed, complainant appeals.</p>

<p>Error to Bay; Collins, J.</p> <p>Assumpsit by John Leder against the National Union Fire Insurance Company upon a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Gifts — Inter Vivos.</p> <p>A gift made -with, the intent that it shall take effect immediately and irrevocably, and fully executed by a complete and unconditional delivery, is good and valid as a gift inter vivos, although at the time the donor is in ex-tremis and dies soon after; it is a gift causa mortis if the donor makes the same conditional upon his death.</p> <p>2. Same — Undue Influence — Competency.</p> <p>Evidence in a suit to set aside transfers made by decedent to his brother considered and held not to establish undue influence or incompetency of the donor.</p> <p>3. Same.</p> <p>A delivery actual, constructive, or symbolical, is essential to the validity of either kind of gift.1</p> <p>4. Same — Conditions—Trusts.</p> <p>Where decedent transferred all his property to his brother in anticipation of death, and either at the time of executing the conveyances or at a later date, made a written request to his brother to pay certain sums and transfer certain property to other relatives, expressing his desire by saying “it is my wish, when things are straightened out, and you are to take your own time about it, that you make these gifts,” etc., the request was of an optional character and not being a clearly expressed condition it did not have the effect of creating a trust.</p> <p>5. Mortgages — Assignment—Personal Property — Deed Given as Security.</p> <p>In a transaction involving a loan of money by decedent who took a deed of real property as security, and gave a land contract back to the grantors, decedent’s right or interest was in the nature of personal property, transferable by assignment.</p> <p>6. Giets — Evidence—Admissions.</p> <p>Declarations of a donor, constituting admissions against interest made subsequent to tbe gift, are admissible against bis estate as tending to show that be bad given tbe property to tbe donee.</p> <p>7. Same.</p> <p>It will not nullify a gift of property that tbe donor so disposed of it as to work an apparent injustice to some of bis relatives; courts are not permitted to make equitable distribution of estates.</p>

Assumpsit by Abraham Preger and another against Jacob Barnett for goods sold and delivered. Judgment for defendant. Plaintiffs bring error.

<p>Error to Alcona; Connine, J.</p> <p>Case by Samuel Holcomb against the Alpena Power Company, Limited, for flooding plaintiff’s land. Judgment for plaintiff. Defendant brings error.</p>

Bill by John E. Bird, attorney general, on the relation of the township of Wyoming, Nichol D. Emmons and others, against the city of Grand Rapids and others, for an injunction prohibiting defendant from casting sewage into Grand river. From a decree for defendants, complainants appeal.

James A. Connery presented for probate the last will of Christina Sutherland Connery, deceased, which was admitted to probate. Contestant, William S. Connery, appealed to the circuit court. Judgment for proponent. Contestant brings error.

, presiding. Trespass vi et armis by Lillian Burgard against Henry Burgard for assault. Defendant suffered default. Judgment for plaintiff. Defendant .moved to vacate the default, and reviews an order denying the motion on writ of error.

Assumpsit by the Westinghouse Electric & Manufacturing Company, a foreign corporation, against Louis M. Hubert, Charles S. Kressler, and Herbert E. Congdon, copartners as the Celery City Electric Company, for goods sold and delivered. Judgment for defendant Congdon and in favor of plaintiffs as to other defendants. Plaintiff brings error.

<p>Error to Muskegon; Sullivan, J.</p> <p>Case by Steve Kovacs against Peter Mayoras for libel. Judgment for plaintiff. Defendant brings, error.</p>

<p>Exceptions before sentence from Bay;. Collins, J.</p> <p>Bert Davis and Mary Chevalier were convicted of adultery.</p>

Mandamus by Archibald H. Hooper against Patrick J. M. Hally, one of the circuit judges of the county of Wayne, to compel respondent to vacate an order in a personal injury case requiring relator to submit to an examination.

<p>1. Brokers — Principal and Agent — Fraud—Scope of Authority —Master and Servant.</p> <p>The sales agent of real estate brokers having authority to sell its property, acts within the scope of his authority in exhibiting a parcel of land to a prospective purchaser and calling attention to its iocation, desirability and attractive features; fraudulent representations made in so doing concerning the location, size, or dimensions of the lot resulting in a sale render the principal liable to a purchaser deceived by the agent.</p> <p>2. Fraud — False Representations — Vendor and Purchaser.</p> <p>The purchaser of a lot which defendant’s sales agent described to her as the parcel adjoining, that was owned by another person and of greater value, need not show valid contract to convey the adjoining lot, in order to entitle her to bring an action for deceit.</p> <p>3. Same — Sale of Real Estate — Rescission.</p> <p>Such purchaser might disaffirm the sale, tender back a conveyance of the realty and on refusal to repay the purchase price bring an action therefor, or might at his or her option affirm the contract and bring an action for the damages.</p> <p>4. Damages — Deceit—Value.</p> <p>In an action for misrepresentations as to the location of a lot purchased of defendant, plaintiff is entitled to recover the difference between the value of what she would have received if the representations had been true and the value of what she actually received.</p>

Bill by Frank S. Southwick against William D. Southwick for divorce. Complainant later filed a bill to set aside certain conveyances and the cases were consolidated. From a decree for complainant, defendant appeals.

Mandamus by George Dennis against Archibald Wrigley and other members of the school board of district No. 11, Caledonia and Shiawassee townships, Shiawassee county, to compel respondents to provide transportation for relator’s children, under Act No. 83, Pub. Acts 1909. An order was entered granting the writ; respondents bring certiorari.

Bill by Walter W. Gibb against Fred A. Mintline and others for specific performance. From an order overruling a demurrer to complainant’s bill, defendants appeal.

Exceptions before sentence from the superior court of Grand Rapids; Stuart, J. John Dupree was convicted of taking indecent liberties with a female under 14 years of age.

Case by Ida S. Blick as administratrix of the estate of Charles Fishback, deceased, against the Olds Motor Works for personal injuries. Judgment for defendant. Plaintiff brings error.

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by Mary J. Hotchkiss against the WeinmannMatthews Company for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Constitutional Law — Master and Servant — Statutes—Fellow-Servants — Liability of Railroad fob Negligence.</p> <p>Act No. 104, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §§ 4110-4116), abolishing the fellow-servant rule as to common carrier railroads, is constitutional. Sonsmifh v. Railroad Co., 173 Mich. 57 (138 N. W. 347).</p> <p>2. Railroads — Stations—Signal Tower.</p> <p>Within the meaning of a rule of defendant railroad company requiring a train stopping between stations to send back a flagman with signals, and of rules providing that extra or delayed freight trains must approach side tracks, water tanks, and fuel stations with train under control, and that inside yard limits at stations where yard-limit posts are erected and between switches at other stations, signals need not be sent, out except under special circumstances, a place known as “Hoyt” designated as a station on defendant’s time card, at which point a telegraph operator was maintained and trains were required to register, situated near the crossing of two roads, near a target and to which running orders were issued from other points, was a station, so that the engineer of a train governed by the rules was required to have his train under control and to take precautions to avoid a collision in approaching .the station.</p> <p>3. Same.</p> <p>And the rules must be so construed as to include within the term “station” so much of the track as trains would commonly be compelled to occupy if the crossing signal was set against them.</p> <p>4. Same — Yard Dimits.</p> <p>Held, also, that defendant’s train, on the occasion of the collision in question, was within the “yard limits.”</p> <p>5. Same — Evidence.</p> <p>It is the duty of the court, so far as possible, to construe and apply published rules of a railway corporation.</p> <p>6. Same — Contributory Negligence — Violation of Rules.</p> <p>If the servant violates a rule of his master and such violation is the proximate cause of his injury, he is guilty, as matter of law, of contributory negligence.</p> <p>7. - Same — Railroads—Operation of Trains.</p> <p>Under regulations promulgated by defendant railroad company, advising its employees that no signal need be sent out by a train inside the yard limits unless curves or foggy or stormy weather caused the view of an approaching train to be obstructed, it was a question of fact whether plaintiff, whose train was standing near a curve, at a time when snow was falling, should have signaled another freight train that he knew might be sent out behind him.</p> <p>8. Same.</p> <p>And although the rule absolutely required that signals should be sent out if storm, darkness, or the location of plaintiff’s train demanded, it was not error prejudicial to defendant to permit the jury to consider the matter of notice to him that a special train might follow as tending to add to plaintiff’s obligation.</p> <p>9. Master and Servant — Negligence—Degrees.</p> <p>Where the injury occurred, either because of the negligence of plaintiff or because of negligence of a fellow-servant, and the jury were instructed that if both were guilty of negligence, in that each neglected some duty imposed by the rules, which, if performed would have prevented the accident, their verdict should be for defendant, and it appeared that the jury must have found that plaintiff was not chargeable with negligence, no prejudice to defendant was made out even if no question or .issue relating to the degrees of negligence should have been submitted.</p> <p>10. Constitutional Law — Master and Servant — Fellow-Servant.</p> <p>Nor is Act No. 104, Pub. Acts 1909, unconstitutional on the ground that a greater measure of damages obtains under the statute as to railroad corporations in case of the death of an employee than if he survives: the intent of the legislature was to compensate the persons in whose interest the action was instituted as in other cases; and no double liability is created so as to permit suits to be brought by the administrator successively in behalf of decedent and in behalf of the class mentioned by the statute.</p> <p>on rehearing.</p> <p>1. Carriers — Master and Servant — Federal Employers’ Liability Act — Statutes—Amendment.</p> <p>While plaintiff’s remedy, under uncontradicted testimony. in behalf of defendant showing that the train which he was engaged in operating contained cars that were billed to points outside the State of Michigan, must be held to have been under the Federal liability statute (35 U. S. Stat. 65, chap. 149), rather than under the State law (Act No. 104, Pub. Acts 1909), nevertheless, the court, on error, will treat the declaration as amended, so as to permit recovery under the act of Congress, where the pleading sets out sufficient facts to charge defendant with liability if the facts relating to interstate commerce had been averred.</p> <p>2. Same — Statutes—Damages.</p> <p>The damages of a plaintiff who survived his injuries are the same under State and Federal statutes.</p>

<p>Case by George Sonsmith against the Pere Marquette Railroad Company for personal injuries. On defendant’s motion for rehearing.</p>

<p>1. Constitutional Law — Master and Servant — Fellow-Servants — Statutes—Railroads.</p> <p>Act No. 104, Pub. Acts 1909, changing .the rules affecting fellow-servants, assumed risks and contributory negligence as to common carrier railroad companies, is constitutional; and it is as much within the power of the legislature to alter the common-law rules concerning the risks the servant assumes and his contributory negligence as to abolish the fellow-servant rule.1</p> <p>2. Master and Servant — Assumed Risks — Fellow-Servants.</p> <p>It was the apparent intention of the legislature, in declaring the fellow-servant rule abrogated in actions against railroads, to modify the doctrine of assumed risk by eliminating the risk of negligence of fellow-servants, and also the risk of injury arising from violation of any statutory duty aud from defective cars, appliances, machinery, roadbed, etc.; it is not in harmony with the first section or with the purpose of the statute to hold that the injured servant assumes the risk of the negligence of a co-employee.</p>

<p>Error to Wayne; Murphy, J.</p> <p>Assumpsit by Julius Kolosinski against the Modern Brotherhood of America upon a benefit certificate issued to Mary Kolosinski. Judgment for plaintiff. Defendant brings error.</p>

Case by Charles Erdman against the Detroit United Railway Company for personal injuries. Judgment for defendant upon a directed verdict; plaintiff brings error.

<p>1. Municipal Corporations — Notice op Claim — Waiver.</p> <p>Where plaintiff presented to the city council, within sixty days after suffering injuries on a defective sidewalk, a written request for assistance, setting up the fact and manner of his injury; and the claim was referred to a committee, one of the members of which made an investigation and reported his conclusions to the common council, by which it was referred to the city attorney and he examined plaintiff under oath, the defendant city waived the objection that the notice of claim was defective.1</p> <p>2. Same.</p> <p>In a personal injury case brought for injuries sustained in a fall on a sidewalk where a step of five and a half to seven and a half inches occurred between two portions of the walk, it was not error to exclude testimony that a witness for defendant had never had any difficulty in passing over the place in question and that the portion of the walk last built was constructed after the adjacent pavement was laid.</p>

, presiding. Claim by Horace A. Steuard as administrator of the estate of Emily Coe, deceased, against the estate of Betsey Sellman, decedent, for money had and received. From the allowance of part of the claim, claimant appealed and obtained judgment in circuit court. Defendant estate brings error.

Bill by Martin E. Wiles against Daniel P. Shaffer and others for an injunction, to set aside a deed, and other relief. From a decree granting partial relief, complainant appeals.

Bill by Ira Chadderdon and another against Jonathan D. Maxwell to foreclose a mechanics’ lien. Defendant claimed recoupment for defective work and filed a cross-bill. From a decree for complainants, defendant appeals.

Assumpsit by Ella Foiles against the Detroit Fire & Marine Insurance Company on a policy of fire insurance. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.

Assumpsit by Ella Foiles against the Dixie Fire Insurance Company upon a policy of insurance. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

<p>Appeal from Kalamazoo; Knappen, J.</p> <p>Bill by Anna E. J. J. S. Dienst against Andrew Dienst for divorce. From an order sustaining a demurrer to defendant’s cross-bill, defendant appeals.</p>