Volume 179 — Michigan Reports

<p>Error to Bay; Collins, J.</p> <p>Case by Judson S. Charters against the Industrial Works, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Automobiles — Negligence—Personal Injuries — Evidence.</p> <p>While it was material, in a personal injury action, brought for injuries caused by a motor car owned by defendant running into an automobile in which plaintiff was riding, to show the condition of the car owned by defendant after the occurrence, the trial court committed error by receiving in evidence repair tickets from the records of the defendant showing that no such repairs had been afterwards made to the automobile, as plaintiff’s evidence tended to show would have been required. The evidence was self-serving in its nature and was incompetent as hearsay.</p> <p>2. Evidence.</p> <p>In order that hearsay evidence may be admitted, showing declarations made by a party not against his interest, they must have been made before suit was commenced, and before a controversy originated between the parties.</p> <p>3. Same — Memoranda—Correspondence.</p> <p>.Such cards and a letter which the defendant wrote to a third person regarding repairs, all offered to show that no such repairs as claimed were made on defendant’s automobile after the alleged collision, should have been excluded as self-serving.</p> <p>4. Same — Trial—Charge—Negligence.</p> <p>Where plaintiff’s evidence tended to show that the defendant’s car approached the one in which plaintiff was riding, from the rear, without warning, and passed at an unlawful rate of speed, turning so close to the front of the other car as to strike and force the automobile over an embankment, injuring the plaintiff, it was error to charge the jury that if defendant’s car hit the other but did not send it over the embankment the alleged negligence would not be the proximate cause of the injury. Plaintiff was entitled to recover if the defendant drove his car so near that in which the plaintiff was that it caused the driver to swerve too near the edge of the embankment, even though the force of the alleged collision was not sufficient to throw the automobile out of its course.</p> <p>■5. Same — Evidence—Negugence.</p> <p>Whether plaintiff’s driver was guilty of contributory negligence in not stopping or controlling the car, was a proper issue for the jury.</p> <p>6. Same — Contributory Negugence — Imputing Negugence.</p> <p>And plaintiff could not recover if the driver of the car in which she was riding by invitation as a guest was guilty of negligence.1</p>

, presiding. Bill by the German Lutheran Dreieinigkeit Church Society and others against the city of Mt. .Clemens to vacate a special improvement tax. From a decree for the defendant, complainants appeal.

(Final decree entered by Flannigan, J.) Bill by Amelia A. Sant and Ralph Sant as administrators of the estate of Abraham Sant, deceased, against the Perronville Shingle Company and Manizeppe Perron, for an accounting and to wind up the corporation. From a decree for complainants, both parties appeal.

, presiding. George E. Pardee presented a petition to the probate court for the county of Shiawassee asking for the allowance out of the estate of Bridget Quinn, deceased, of the fees of several attorneys employed to sustain and to contest the probate of decedent’s will.

Berry Brothers, Limited, a copartnership association, presented a claim against the estate of Alfred Hooper, deceased, which was disallowed by commissioners on claims. On appeal to the circuit court the claim was allowed by direction of the trial judge. Defendant brings error. Prior to the year 1893, Joseph H. Berry and Thomas Berry were engaged as partners, under the firm name of Berry Bros., in the manufacture and sale of varnishes and kindred products.

Case by Casimir Glappa against the Detroit, Grand Haven & Milwaukee Railroad Company and another for personal injuries. Judgment for plaintiff against said corporation which brings error. Defendant Boomer, a dealer in sand, lime, cement, gravel, and like products, maintains a yard east of and adjoining the defendant railway company’s right of way, between Forest and Garfield avenues, in the city of Detroit.

Assumpsit by F. Wayland Ayer and others against George Devlin for advertising commissions under a special contract. Judgment for plaintiffs. Defendant brings error. Plaintiffs are in the business of placing advertising matter in newspapers and other periodicals.

, presiding. Case by Daniel Cusiek against the Tamarack Mining Company for personal injuries. Held: in my opinion, to assume the risk of its falling when he was upon the stand. “Now it is not a case where a man is sent up who is not acquainted with the nature of the work or the danger's. Mr. Cusick was not an ordinary workman; he was a man in charge of this crew of men there, and in the absence of Capt. Martin he would have been…

Case by George W. Smith against the Mt. Clemens Sugar Company for personal injuries. Judgment for plaintiff, and defendant brings error. Plaintiff, a man 63 years of age, was employed by defendant company during the campaign of 1911 to look after the juice pumps at its factory. These pumps, four in number, were located upon the ground floor of the factory in a room 20x70 feet. Each pump was connected with a tank 8 feet high, situated on the same floor.

Bill by Alonzo Griffin, as administrator of the estate of Henry 0. Hovey, deceased, against Hiram E. Hovey and Chloe M. Durham for the annulment of certain deeds. From a decree for defendants, complainant appeals.

Bill by Oliver Beemer against Ellis Hughes and others for specific performance and an accounting. From a decree for complainant, defendants appeal.

Bill by Nettie Johnson against Wallace P. Cook and others in aid of an execution at law. From a decree for complainant, denying part of the relief prayed, both parties appeal.

, presiding. Assumpsit by Fred A. Clark against the North American Union upon a benefit certificate. Judg-. ment for defendant, upon a directed verdict. .Plaintiff brings error.

Bill by Rae H. Brooks and Helen II. Brooks against Edward C. Hargrave, executor of the estate of Edward J. Hargrave, deceased, and others, for an injunction, accounting and other relief. From a decree for complainants, defendant Hargrave appeals.

<p>Divorce — Husband and Wife — Estates by Entireties — Alimony.</p> <p>A decree of divorce in favor of complainant husband, giv- . ing to bis wife one-half interest in certain real estate held by the entirety and worth about $1,200 over and above a mortgage thereon, held, to be equitable.</p>

Mandamus by George G. Covell, prosecuting attorney of Grand Traverse county, against the common council of the village of Fife Lake, to require defendant to convene and vacate its action approving a liquor bond. An order granting the writ is reviewed by defendants on certiorari.

Mandamus by James Vernor and another against Frederick C. Martindale, secretary of State, to compel the respondent to accept the license fee for motor vehicles required before the enactment of Act No. 181, Pub. Acts 1913.

Mandamus by Lake Farm, a corporation, against the district board of school district No. 2, township of Kalamazoo, to require respondent to admit to the public schools two boys, inmates of the relator’s institution. Writ granted and defendant brings certiorari.

Case by Susan Congdon against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for plaintiff upon a verdict -directed by the court. Defendant brings error.

Exceptions before sentence from the superior court of Grand Rapids; Stuart, J. Charles Frost was convicted of violating the liquor law.

Bill by Frederick P. Berger against Jennie Roe and John Torrent for cancellation of a land contract and to quiet title. From an order sustaining a demurrer to the bill of complaint, complainant appeals.

Case by Lansing E. Lincoln, as administrator of the estate of Ion Lincoln, deceased, against the Detroit & Mackinac Railway Company for the wrongful death of decedent. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Case by Edward Morrison, by his next friend, against. Charles J. Carpenter and Louis W. Anderson for personal injuries. Judgment for plaintiff, and defendants bring error.

<p>1. Criminal Law — Minors—Sale of Intoxicants — Intoxicating Liquors — Statutes—Good Faith as Defense.</p> <p>Act No. 160, Pub. Acts 1909 (2 How. Stat. [24 Ed.] § 5095), making it unlawful for any person to sell intoxicating liquors to a minor, was intended, particularly, to prohibit sales'made by persons not engaged in the liquor trade, who were not affected by the prior law (2 Comp. Laws, § 5391), under the holdings of this court, and the statute was not intended to repeal the prior act in so far as it gave the respondent the right to show that he sold the intoxicating liquors in good faith, believing the minor to be of full age.</p> <p>2. Same — Good Faith.</p> <p>It was erroneous, in a prosecution against a saloonkeeper for selling to a minor, to exclude by tbe charge to tbe jury respondent’s defense, as claimed in bis testimony, that be believed tbe minor was over 21 years of age and made tbe sale in good faith, relying on tbe representation of tbe young man that be was of age.</p>

Assumpsit in justice’s court by the Prest-O-Lite Company against Arthur S. Widrig and others for fraudulent representations. Defendants appealed to the circuit court from a judgment for plaintiff. Judgment for plaintiff. Defendants bring error.

' Appeal to circuit court by the trustees of Elmwood cemetery from an order of the probate court holding st certain legacy of the will of Huldah More, deceased, invalid. From an order sustaining the validity of the bequest, Thomas Hislop, executor, and Adelia Clark, residuary legatee under the will, bring error.

Clair; Law,' J. Assumpsit by the city of Yale against the Michigan Farmers’ Mutual Fire Insurance Company of St. Clair and Sanilac counties for personal taxes. Judgment for plaintiff, and defendant brings error.

<p>1. Novation — Assignment—Saces.</p> <p>Upon testimony, not in dispute, that the defendants contracted to grant to an individual an exclusive selling agency for its stamp-vending machines in his city, that he assigned his rights to a corporation afterwards formed, and that one of the defendant firm suggested to him the arrangement which he thus made to finance the enterprise and that the assignee proceeded to attempt performance of the contract, sending its checks signed by the original licensee as president, and defendant was not shown to have consented to release the original party to thé contract, the trial court correctly held there was no evidence of a novation and no consent could be implied as against the defendants.</p> <p>2. Same — Mutuality—Contracts.</p> <p>And there was no mutuality of obligation between the parties.</p> <p>3. Same — Assignability of Contract — Agency.</p> <p>Such a contract was unassignable, being of a personal nature and creating a relation of confidence.</p> <p>4. Same — Construction—-Exchange.</p> <p>Where it was provided in the agreement that the agent might exchange the machines purchased for a new type of vending machine, and receive credit for the price paid, on paying the difference in price in cash, an attempted exchange without payment of the cash difference was insufficient to support an action on the contract.</p>

Case by Henry W. Wallace, administrator of the estate of Ella D. Cole, deceased, against the Grand Trunk Western Railway Company for the negligent killing and wrongful death of decedent. Judgment for plaintiff. Defendant brings error.

Case by William Lobenstein as administrator of the estate of George Stierle, deceased, against the Whitehead & Kales Iron Company for the negligent killing of decedent. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Trover by Herman Heilwig against Erickson Nybeck for the conversion of a crop of potatoes. Judgment for defendant, and plaintiff brings error.

Case by Marie L. Kethledge, by her next friend, against the city of Petoskey for personal injuries. Judgment for plaintiff, and defendant brings error.

Bill.by Walter S. Powers against Frank Halladay and Blanch H. Lyle for an injunction and other relief. From a decree for defendants, complainant appeals.

Case by William R. McRae against the township of Hart and T. S. Gurney and Carrie M. Gurney for personal injuries. Judgment for plaintiff, and defendants bring error.

, presiding. Assumpsit by Edward Emert against Henry J. Nib-blink for fraud. Judgment for defendant upon a directed verdict. Plaintiff brings error.

<p>Brokers — Contracts—Commissions.</p> <p>Where plaintiff, a real estate broker, took from defendant corporation various options to procure a purchaser for a large tract of timber belonging to the defendant, at a specified price per acre and for a time stated, and after interesting a person who did not, however, agree to buy, allowed his option to lapse and the prospective purchaser thereafter bought the property through another, he was not entitled to recover his commissions, the intent of the parties appearing to have been that the broker should have a commission only if he effected a sale.1</p>

Assumpsit by Ernest A. Stowe against the United States Express Company for failure to deliver a consignment of peaches. Judgment for defendant. Plaintiff brings error. In this action the plaintiff seeks to recover against defendant a judgment for $1, the value of a basket of peaches. Defendant undertook to transport the peaches, and is said to have incurred liability because of its failure to deliver them to plaintiff, the consignee.

<p>1. Landlord and Tenant — Intoxicating Liquors — Illegality of Lease — Rent.</p> <p>Under a lease of a building to a brewing company which made a practice of subleasing to various tenants for saloon purposes, providing as a part of the contract that the brewing company might surrender the lease if it should be prevented by any statute or law or authoritative order from using the premises for saloon purposes, it was insufficient to authorize the lessee to terminate such contract that its sublessee was refused a license to engage in the retail liquor business on the premises by the city council. The risk of. being able to procure a proper sublessee whs on the tenant.</p> <p>2. Same — Statutes—Brewing Companies.</p> <p>Act No. 1, Second Extra Session 1912 (2 How. Stat. £2d Ed.] § 5056), prohibiting brewing companies and other wholesale dealers from owning the license of retail dealers or controlling their business did not render illegal such lease, which was executed prior to the enactment of the statute.</p>

Case by Wilhelmina Schwager, as administratrix of the estate of Henry R. Schwager, deceased, against the Saginaw Plate Glass Co. for the unlawful killing of decedent. Judgment for plaintiff, and defendant brings error.

<p>Criminal Law — Advertisement—Principal and Agent — Physicians and Surgeons.</p> <p>Where the respondent, a physician, was charged with publishing, contrary to the provisions of Act No. 164, Pub. Acts 1907 (2 How. Stat. [2d Ed.] §5110), an unlawful advertisement in a newspaper, and her defense was that her husband had prepared and carried it to the newspaper and had paid for it without her knowledge or authority by a check Signed in blank by respondent and filled in by him, the trial court did not err in charging the jury that it was not necessary to find that the respondent personally directed the insertion of the offensive matter: if she did it through another she was responsible, but the jury must find that she knew it was going to be published and was responsible for it and paid for it with knowledge of what she was doing.</p>

Assumpsit by the people of the State of Michigan against the American Central Insurance Company for unpaid .taxes. Judgment for defendant, and plaintiff brings error.

Bill by Robert D. Graham and others against the city of Grand Rapids for an injunction against a special assessment. From a decree for defendant, complainants appeal.

Case by Winfield S. Teachout as administrator of the estate of James R. Teachout, deceased, against the Grand Rapids, Grand Haven & Muskegon Railway Company and the Grand Rapids-Muskegon Power Company for the negligent killing of decedent. Judgment for plaintiff. Defendants bring error.

<p>Error to Wayne; Van Zile, J.</p> <p>Case by Rose E. A. Brown against the Detroit United Railway for personal injuries. Judgment for plaintiff of $7,500. Defendant brings error.</p>

Assumpsit by Oscar H. Brooks against Edwin H. Bellows for work and labor performed under a special contract and for damages for its breach. Judgment for plaintiff. Defendant brings error.

<p>1. Negligence — Personal Injuries — Railroads — Burden of Proof.</p> <p>In actions for negligent injuries, the burden of proving defendant’s negligence and plaintiff’s reasonable care is on the plaintiff.</p> <p>2. Same — Fellow-Servants—Master and Servant.</p> <p>Where plaintiff received personal injuries from the giving way of a chain and hook, used in moving a heavy steel truss, and it appeared that the chain was sufficiently heavy and did not break, that if the loosening of the appliance was not due to plaintiff’s act, it might properly be attributed to the negligence of the workman employed by the consignees to unload the truss, plaintiff, being a teamster for independent contractors, was not a fellow-servant of the unloading crew.</p> <p>3. Same — Volunteer—Contributory Negligence.</p> <p>In volunteering to assist the work of unloading and taking a crow bar to push the truss onto the wagon without the request of those in charge for assistance and before they could give him warning, plaintiff, who placed himself under the load as it was being swung by a derrick, was guilty of negligence contributing to his injury.1</p> <p>4. Same — Master and Servant — Proximate Cause.</p> <p>Any negligence of which the defendant railway company may have been guilty in furnishing an unsuitable chain for the purpose of unloading, as a loan to the consignee, whose employees knew of its unfit condition and could have used it safely, was not the proximate cause of plaintiff’s injury.</p>

<p>Error to Ottawa; Cross, J.</p> <p>Assumpsit by the Macatawa Transportation Company against the Firemen’s Fund Insurance Company on a policy, of marine insurance. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Injunction — Equity—Restraining Action at Law.</p> <p>Since equity will not enjoin the enforcement of a judgment if there is an adequate remedy at law, the remedy is not usually available against a sale of real or personal property on execution: the jurisdiction is very limited, and attaches only in exceptional cases.</p> <p>2. Same — Execution—Irreparable Injury.</p> <p>A sale under execution at law will not be restrained by the court of equity if the property subject to levy is not in use or has no peculiar or special value to the proprietor because of association, antiquity, or rarity; the remedy by an action for damages will be presumed to be adequate.</p> <p>3. Chattel Mortgages — Notice—Bona Pide Purchasers — Creditors Having Knowledge — Record.</p> <p>An unrecorded chattel mortgage, not accompanied by an immediate delivery and followed by an actual change of possession, is void as against a creditor of the mortgagor who has actual notice'of its existence; although notice is equivalent to filing in the case of subsequent purchasers and mortgagees. 3 Comp. Laws, § 9526; Act No. 258, Pub. Acts 1905. See 4 How. Stat. [2d Ed.] §§ 11407 and 11410.</p> <p>4. Amendment — Equity—Pleading.</p> <p>Where it was shown at the hearing that a complainant was entitled to a credit of which it had no previous tnowledge, it should have been permitted to amend the bill of complaint for an injunction. Amendments as to matters germane to the case can be allowed at any time in chancery suits, to conform with the proofs, protect the substantial, equitable rights of the parties and secure the ends of justice even in the appellate court.</p>

Bill by the Presque Isle Sash & Door Company against George Reichel and others for the enforcement of a mechanics’ lien. From a decree for a lien upon property claimed by intervening defendants, Theodore A. Schneider and Frank C. Brown, they appeal.

Exceptions before sentence from Van Burén; Bridgman, J. John L. Howard was convicted of assault with intent to do great bodily harm less than murder.

<p>Bills and Notes — Evidence — Parol Evidence — Fraud — Negotiable Instruments.</p> <p>It is competent, in an action between the original parties to a note, to offer testimony to show that the maker signed, the instrument without examining it, in reliance on the representation of the payee that it was for an amount agreed upon between them, and it was in fact for a larger sum. The testimony is not subject to the objection that it contradicts a written instrument.</p>

Bill by William M. Kirchberg against the Union Trust Company, as special administrator of the estate of Christian Kirchberg, deceased, to secure the delivery of an insurance policy, pursuant to an assignment of decedent. From a decree for complainant, defendant appeals.

Bill by Irene Berry against Allen H. Ferrell and Floyd Ferrell to set aside adoption proceedings and an order of the probate court of Lenawee county confirming the adoption of Wylan A. Ferrell. From an order sustaining a demurrer to the bill of complaint, complainant appeals.

Assumpsit in justice’s court by the Farmers’ Supply Company against William H. Inglewright. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for defendant and plaintiff brings error.

, presiding. Case by Henry Brush against the Grand Trunk Railway Company of Canada for personal injuries. Judgment for plaintiff, and defendant brings error.

Assumpsit by Isadore N. McConnell against the United States Express Company for breach of a contract of carriage. Judgment for plaintiff, and defendant brings error.

<p>1. Saees — Deiiyery—Payment—Selmr’s Lien.</p> <p>If the seller lies by, making no complaint in a reasonable time after delivery of goods sold, he consents to the absolute transfer of the property and waives any right to retake the subject-matter for failure to make payment on the part of the buyer.</p> <p>2. Same.</p> <p>Held, that the seller could not reclaim property a year after delivery and after having refused to permit rejection of the goods, although the purchaser became insolvent.</p>

Assumpsit by William Axe and another, doing business as William Axe & Son, against Catherine Tolbert and Dorr McGlocklin, for brokers’ commissions. Judgment for defendant on a directed verdict. Plaintiffs bring error.

Petition by Carl Maser and another in probate court for the appointment of a trustee of the estate of Charles Erdman, deceased. Emma Erdman filed a petition for leave to file her bond and qualify as trustee after defaulting in necessary steps to be taken. From the order entered petitioners appealed to the circuit court which affirmed the decree. Petitioners bring error.

Joseph; Knowlen, J. Assumpsit in justice’s court by Amel Stoll, by next friend, against Arland Hawks for the recovery of money paid for a horse. From a judgment for plaintiff, defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.

<p>Appeal from Kalamazoo; Knappen, J.</p> <p>Bill by Lillie Belle Bowen ¿gainst George M. Bowen for divorce. From a decree for defendant, complainant appeals.</p>

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by George Sick against John B. Schug for recovery upon a lost note. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by Charles H. Tidey against John S. McDonald, one of the circuit judges of the county of Kent, to require respondent to grant relator’s motion to quash a writ of capias.

<p>Error to Arenac; Sharpe, J.</p> <p>Case by David Foley against the Detroit & Mackinac Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

J. Herbert Cole, executor of the estate of John Mc-Lennan, deceased, presented his final account for allowance. From an order of the probate court allowing such account, and ordering one-half of the estate to be paid to said Cole as legatee, Mary McRae appealed to the circuit court. Order affirmed, and appellant brings error.

Assumpsit by the Talge Mahogany Company against the Lindner Interior Manufacturing Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.

<p>Contracts — Construction—Offer and Acceptance — Recoupment —Breach of Warranty.</p> <p>In an action on a contract to install a banana dryer, defendant claiming recoupment for failure of the conveying machinery to conform to plaintiff’s warranty, held, that the correspondence should be construed to warrant the capacity of the conveyor as finally included in the agreement, although it was not included in the original warranty.</p>

Assumpsit by Charles A. Sauer and others against the McClintic-Marshall Construction Company for breach of a contract of sale. Judgment for plaintiffs, and defendant brings error.

<p>1. Appeal and Error — New Trial — Exceptions—Necessity.</p> <p>Exceptions are requisite to the review, on error, of the refusal of the trial court to grant a motion for new trial, as well as to the refusal to direct a verdict.</p> <p>2. Corporations — Evidence—Record op Proceedings.</p> <p>It is competent to show by parol any action of the board of directors of a corporation which has not been properly entered of record in its minutes.</p> <p>3. Master and Servant — Hiring—Term.</p> <p>Held, that plaintiff’s evidence sufficiently tended to establish the disputed fact that defendant’s directors had assented to his employment by the year.</p> <p>4. Frauds, Statute op — Contracts.</p> <p>Having made a contract to enter'the employ of defendant for a year, and after performing sérvices for that period, and continuing over without objection, plaintiff was entitled to go to the jury under a presumption that both parties consented to the continuance of the contract for another year; the contract was not within the statute of frauds.</p> <p>5. Corporations — Officers—Good Faith.</p> <p>Officers of a corporation may deal with, it in good faith if their acts are fair, open, and known to directors and stockholders.</p>

<p>Samis — Evidence—Warranty.</p> <p>In an action for the price of a horse which plaintiff warranted to be of excellent stock, sound, etc., as set forth in a written instrument, evidence that plaintiff also orally represented that the horse was a registered animal, while competent and properly receivable in evidence in support of the defense of breach of warranty that the animal was of excellent stock, could not be treated as a ground of defense or submitted to the jury as an issue of fact on the theory of breach of a distinct warranty.</p>

<p>1. Principal and Surety — Contracts—Agency—Fraud.</p> <p>Evidence that plaintiff’s salesman was required by it to obtain a guaranty signed by two sureties before it would ship goods to him, that in procuring two guarantors he made fraudulent representations as to the effect of the paper, which the defendant sureties claimed they did not examine, that the principal procured his goods of the plaintiff and acted as salesman on his own behalf, not as agent of the plaintiff, although the instrument recited that plaintiff paid the sum of one dollar as consideration for the execution of the guaranty, held, not sufficient to establish, an agency such as to charge the company for his frand.1</p> <p>2. Same — Fraud.</p> <p>Even though sureties have been misled by the principal at whose request a bond or guaranty was executed, as to the character and extent of the obligation, the fact is not a defense to an action on the instrument unless it is made to appear that the plaintiff was a party to the fraud practiced upon defendants.</p> <p>3. Same — Guaranty.</p> <p>It is not the duty of the obligee to seek out the sureties and explain to them the nature of their undertaking; it is for them to ascertain for themselves.</p> <p>4. Same — Acceptance—Notice.</p> <p>Where plaintifE sent a letter to each of the guarantors stating that it had accepted the contract in which their names appeared as guarantors, the defense that they were misled as to the character of the guaranty and paid no attention to the letters, was insufficient as matter of law.</p>

<p>1. Landlord and Tenant — Lease—Nature.</p> <p>An Instrument designated in its body as a lease, demising and leasing tbe realty described in tbe writing for a stated period and rental, with covenants for quiet enjoyment and peaceable surrender of tbe property leased, at tbe end of tbe term, constitutes a valid letting or demise of tbe premises.</p> <p>2. Same — Lease—Definition.</p> <p>A lease is an agreement transferring tbe right to the possession and proceeds of lands and tenements on tbe one side for a recompense of rent or other consideration from tbe tenant. •</p> <p>3. Frauds, Statute of — Lease—Landlord and Tenant.</p> <p>Under tbe provisions of tbe statute of frauds requiring tbe lease of real property for more than the period of a year to be in writing, parol evidence that a lessee orally consented to pay an increased rental is insufficient to modify the terms of a written, lease of premises for a five-year term.</p> <p>4. Reformation of Instruments — Evidence Required.</p> <p>It is elementary that the burden of proof is strongly upon the person asking for reformation of a writing on the ground of mistake and it must be proved clearly and convincingly.</p> <p>5. Mistake — Reformation—Rescission.</p> <p>Reformation on the ground of mistake must be based on a mutual error.</p> <p>6. Same — Fraud—Statute of Frauds.</p> <p>In a suit to reform a written lease, which plaintiff claimed did not contain all the provisions intended, and that a building to be built by complainant on the property leased should not cost, as fixed by the negotiations, to exceed $3,500, and the scrivener omitted to include the clause in the instrument, the complainant was not entitled to relief on the theory that defendant orally consented to an increase in rent because- of the increase in cost of construction.</p> <p>7. Same.</p> <p>Evidence considered, and held, not to sustain the complainant’s contention that a mutual mistake occurred.</p>

<p>1. Pleading — Fraud—Conspiracy.</p> <p>Plaintiffs declaration for fraud and conspiracy averring that the defendants conspired together to cheat and defraud the general public by obtaining credit for one of them on consignments of eggs, which the principal wrongdoer paid for by checks, without sufficient funds, and that he had no intention to pay for the goods when he bought them, and that defendant bank and its officials aided and abetted him in his unlawful scheme, sufficiently set forth a cause of action for fraud and conspiracy without describing in detail the means employed to effect the illegal purpose intended.</p> <p>Ostrander and Stone, JJ., dissenting.</p> <p>2. Same — Surplusage.</p> <p>In case of failure to establish a concerted design, plaintiff could recover against defendants shown to have been guilty of the fraud without such agreement or scheme.</p> <p>3. Same.</p> <p>Conspiracy may be pleaded and proved as aggravating the wrong of which the plaintiff complains, and to enable him to recover against all the defendants as joint tort feasors; the party wronged- may look beyond the actual participants.</p> <p>Per McAlvay, C. X, and Bird and Mooee, JX</p> <p>4. Fraud — Sales.</p> <p>Evidence that one Andre, who had been for a considerable period a business man in the city of Grand Ledge, conceived a fraudulent design of defrauding his creditors by establishing his credit at a local bank and buying produce on bills of lading of the goods, to 75 per cent, of their value, paying for the same- in cheeks, part of which finally proved to be worthless, that tHe local bank mailed circular letters to answer numerous inquiries as to Andre’s credit, in a more or less favorable way, that Andre owed one of the defendants a long overdue account which could not be collected and the bank had knowledge of the fact, that the officers of the bank knew Andre overvalued a cold storage plant which he owned upon a land contract and concealed the nature of his holding, and were informed that Andre offered slightly more than market prices for butter and eggs, but not establishing knowledge of his guilty intent to defraud persons dealing with him, although its cashier was shown to have had knowledge and to have made a profit out of the transaction, held, insufficient to prove fraud' and conspiracy of the bank and its officials with defendant Andre.</p> <p>McAlvay, C. J., and Bird and Moore, JJ., dissenting.</p> <p>5. Same — Trial—Record.</p> <p>The fact that the appearance of defendant Andre was entered by the same attorneys as appeared for other defendants was not evidence of a guilty conspiracy and should not have been commented on by plaintiff’s attorney in arguing the case.</p> <p>McAlvay, C. J., and Bird and Moore, JJ., dissenting.</p>