Volume 182 — Michigan Reports

<p>Appeal from Leelanau; Mayne, J.</p> <p>Bill by Theodore G. Warden against Charles E. Linebarger for an injunction. From a decree for defendant, complainant appeals.</p>

Bill by Celestino Pastorino against the city of Detroit and others for an injunction and other relief. From an order sustaining a demurrer to the bill of complaint, complainant appeals.

Leone H. Hills applied for an award of compensation for the injury and death of her husband, Irwin E. Hills, an employee of Frank W. Blair and others as receivers of the Pere Marquette Railroad Company. From the award granted, defendants bring certiorari.

Bill by Rae Levitan against the Houghton National Bank, for an accounting. From an order overruling a demurrer to the bill of complaint, defendant appeals.

Bill by William H. Strong against E. Hall Chaney for the surrender of certain shares of stock. From a decree for complainant, defendant appeals.

Case by Pearl Moss, by next friend, against the Detroit & Mackinac Railway Company for failure to carry plaintiff to destination, etc. Judgment for plaintiff. Defendant brings error.

<p>1. Contempts — Punishment—Criminal Nature.</p> <p>It is not an open question in this State that the court may punish an offender as for criminal contempt: the power is conferred by 1 Comp. Laws, § 1098 (5 How. Stat. [2d Ed.] § 12589), andexists independently of the statute.</p> <p>2. Same — Trial—Jury.</p> <p>The issue in cases of crimina] contempt is not for a jury but for the court.</p> <p>3. Same — Publication—Criticism oe Court — Newspapers.</p> <p>The publication in a newspaper of an article charging the judge, who was presiding over a grand jury, with being the author of an attack upon the prosecuting attorney purporting to issue from the jury, that he used the grand jury for a club to get even with certain citizens of the county, and otherwise criticising his conduct, was a contempt of court, unless the truth of the article could be established.</p> <p>4. ‘ Same — Practice—Judge—Dis qualification.</p> <p>While the judge who was criticised was not thereby disqualified from sitting in the contempt proceeding, the better practice is to call in another judge.1</p> <p>5. Same — Time.</p> <p>Held, also, that it was improper to proceed with undue haste so as to deprive the offender of a fair opportunity to prepare his case; and that the issuance of an order to show cause dated February 9, 1914, returnable on the 16th of February, on which date the court proceeded to impose punishment, against the protest and objection of his counsel, who asked for more time, did not afford a reasonable opportunity for the respondent to defend himself.</p>

Assumpsit by Edward N. Kraus against John Hansen for breach of a contract for the sale of three carloads of potatoes. Judgment for plaintiff. Defendant brings error.

<p>Error to Calhoun; North, J.</p> <p>Charles Macomber was convicted of violating the liquor law.</p>

Mandamus by Charles S. Abbott against Henry A. Mandell, one of the circuit judges for the county of Wayne, to require respondent to set aside an order striking from the files of the court a bill of complaint filed by said Abbott as complainant against H. W. Noble & Company and a number of other defendants.

. Assumpsit by Warren Smith against the City National Bank of Lansing for money received to plaintiff’s use. Judgment for plaintiff. Defendant brings error.

<p>1. Criminal Law — Evidence — Confession — Voluntary Character.</p> <p>The question, whether a confession was voluntary or involuntary is for the court, if the matter is clear and the testimony is undisputed; if there is ground for doubt, the court may leave it to the jury to determine whether or not the confession should be considered.1</p> <p>2. Same — Involuntary Confession — Rape.</p> <p>Where the respondent was taken into custody without being informed concerning the charge, was taken to the prosecuting attorney's private office, where he was first advised of the fact that he was charged with statutory-rape; and wheré he was advised hy' the officers that he had better tell the truth, and was questioned closely for two or three hours, and where his wife was brought into an adjoining room and underwent an attack of hysteria, respondent hearing the moans and afterwards admitting that he wished he had told her the truth, etc., the alleged confession of the accused should have been rejected by the court.</p>

Quo warranto by Grant Fellows, attorney general of the State of Michigan, on the relation of John C. Lodge, against Edward C. Bryan, Theodore Megges, George McTaggert and Louis Pernot, to determine the title of respondents to the office of supervisors of the county of Wayne.

Mandamus by Theodore Garneau to compel the commission of the city of Cadillac, being the board of election canvassers of the city, to reconvene and declare him elected to the office of constable. From an order denying the writ relator brings certiorari.

<p>Error to Chippewa; Hudson, J.</p> <p>Case by Matt Pesóla against Victor Forsten for negligent injuries to plaintiff’s mare. Judgment for plaintiff. Defendant brings error.</p>

Information in the nature of quo warranto by John E. Bird, Attorney General of the State of Michigan, on the relation of Henry F. James, against the National Cash Register Company, a foreign corporation, to terminate the right of respondent to engage in business in the State of Michigan on the ground that it is exercising a monopoly.

<p>1. Reformation of Instruments — Mistake—Mutuality.</p> <p>Only in case of a mutual mistake will equity reform a written lease of real property.</p> <p>2. Same — Estates of Decedents — Landlord and Tenant.</p> <p>Held, that no mistake was established by the evidence, showing that complainant’s written lease was executed by the widow of the deceased owner, in her name, and not as or for the heirs or in behalf of the estate of decedent, as averred in complainant’s bill to reform the writing.</p> <p>3. Same — Life Tenant — Lease—Agency.</p> <p>Where, after the discharge of the administrators of an estate, the widow of decedent assumed to administer the property, claiming a life interest in the real estate under the will, and in her own name executed a lease of certain business property for ten years, the heirs having a remainder interest could not be held to have bound themselves, and the lease terminated at her death.</p> <p>4. Same — Evidence—Contracts.</p> <p>Evidence considered, and held, not to show that the heirs entered into an arrangement to pool their interests with that of the widow, or that the heirs ratified or confirmed the lease ás affecting their remainder.</p> <p>5. Same — Estoppel—Estates of Decedents.</p> <p>Such remaindermen and heirs were not estopped to treat said lease as at an end, upon the death of the life tenant who executed it, where they never did anything to induce the lessee to believe that they were parties to the agreement, or were bound by it.</p> <p>6. Same — Ratification of Lease.</p> <p>In the absence of testimony that the heirs intended to confirm the execution of a lease by the widow of deceased, or that she claimed to be acting for them, the doctrine of ratification could not apply.</p> <p>7. Same — Equity—Merger.</p> <p>Equity will not enforce strictly the legal rule of merger, but will prevent or permit a merger of estates according to the actual or just intent of the parties, as it may be expressed or implied.</p> <p>8. Same — Purchaser in Good Faith — Deeds—Incumbrances.</p> <p>Whether or not the purchaser of the premises took title in good faith without notice of defendants’ lease, he obtained all the title which the remaindermen were entitled to claim by force of their deed of the premises executed immediately after the widow’s death, and he could enforce any' rights which they had.</p>

Summary proceedings by Samuel Mintz against John C. Hartz, the Hartz Clothing Company, Helen Duncan, and John Doe for the possession of certain real property. From a judgment for defendants, complainant appealed to the circuit court. Judgment for complainant. Defendants bring error.

Bill by Dina Lewis against Edward M. Doyle for the cancellation of certain instruments of conveyance. From a decree for complainant, defendant appeals.

<p>1. Accident- — Definition—Master and Servant — Workmen’s Compensation Act — Poisoning.</p> <p>An accident is an unforeseen event, occurring without the design or will of the person whose act causes it; it partakes of the nature of an unexpected or unusual occurrence, brought about by some unknown cause, and involving something fortuitous or unexpected; or, if the cause is known, having an unprecedented consequence.</p> <p>2. Master and Servant — Accident—Personae Injuries.</p> <p>Under the provisions of the workmen’s compensation act, no recovery may be allowed for occupational diseases such as lead poisoning, which, being gradually acquired, is outside the scope of the requirement that notice is to be given within ten days after an accident, and of the title and terms of the statute as to compensating accidental injuries. Act No. 10, Pub. Acts Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.).</p> <p>3. Same — -Constitutional Law — Titee of Statute.</p> <p>If the act was intended to include such occupational diseases, the title was not broad enough to express that object within Art. 5, § 21, of the Constitution.</p>

<p>1. Negligence — Signs — Streets—Falling Sign — Sidewalks—Injury to Pedestrian.</p> <p>In an action for personal injuries resulting from a sign falling upon the sidewalk in a city street, and striking plaintiff, it was error to direct a verdict for the defendant, owner of the sign, on the ground that he employed an independent contractor, who was reputable and competent, to suspend the sign.</p> <p>2. Same.</p> <p>Pedestrians upon the street have the right to absolute safety while exercising ordinary care and prudence: sign boards or other projections or encroachments so situated that if they fall they may do injury to travelers are nuisances unless so secured as to be perfectly safe; the person maintaining them is liable for all injuries arising from the falling of such obstruction except in cases of inevitable accident.1</p> <p>S. Same — Nuisance—Highways and Streets.</p> <p>It has frequently been held that any encroachment upon a street, either on or above the surface, of a permanent nature, which endangers or interferes with its use, is a public nuisance.</p> <p>4. Same — Personal Injuries.</p> <p>Where plaintiff’s attorney did not contend that the owner of the sign must maintain it at his peril in an absolutely safe condition, but took the ground that he was chargeable with a very high degree of care, the court should have submitted the question to the jury on that theory of negligence.</p> <p>5. Same — Municipal Corporations.</p> <p>The,duty of the defendant was not lessened by the alleged fact that he had secured the right to maintain the structure in or above the street for advertising purposes from the city council, or by the possibility that the municipality through failure to cause the removal of the nuisance might be held liable.</p> <p>6. Same — Evidence — Certificate of Pubiic Inspector — Res Ipsa Loquitur.</p> <p>The certificate of the inspector from the department of building that the sign had been inspected, unsupported by proof that the inspection was adequately or carefully made, or that the defect in the sign was latent, did not establish a defense to the action; plaintiff’s evidence tending to show that seven months had elapséd and no one had inspected the sign, presented an issue of fact for the jury.</p>

<p>1. Criminal Law — Evidence — Speed — Automobiles — Expert or Opinion Evidence — Judgment as to Speed.</p> <p>Upon the trial of a respondent charged with negligently killing a young girl by colliding with her in operating an automobile on a public highway at an excessive rate of speed, the trial court erred in admitting the testimony of an eyewitness that the average speed before reaching a point 50 or 60 feet behind the decedent from a place about a mile distant was 30 miles an hour; the court taking judicial notice of the fact that a competent chauffeur, as the respondent was shown to- be, would be able to change the speed at different points.1</p> <p>2. Same — Homicide — Criminal Negligence — Manslaughter — Motor Vehicle Law — Evidence.</p> <p>It was also incompetent to introduce testimony showing the .rate of speed of an automobile that was like the car which respondent was driving, more than a mile and a half away from the place of accident, the identification by such witness being incomplete; as the point at which the observation was made was too remote from the place of accident.</p> <p>3. Same — Trial—Charge.</p> <p>The trial court in its charge to the jury should not have eliminated the questions of proximate cause and the negligence of decedent by instructing the jury that if at the time the accused ran upon the deceased he was operating his car in excess of ten miles an hour he was guilty of manslaughter: respondent was, also, entitled to have the jury consider the question whether he was aware that he was doing the alleged unlawful act, as bearing upon the charge of gross negligence.</p> <p>4. Same — Motor Vehicle Law.</p> <p>Although a wilful violation of the statute might constitute negligence, it does not follow that such negligence would, under the circumstances of each case, amount to manslaughter.</p> <p>5. Same — Proximate Cause — Contributory Negligence.</p> <p>The questions for the jury to determine were whether the act of the respondent in driving at an excessive rate of speed was the proximate cause of the death of decedent: and whether respondent was responsible under the law whether her failure to use due care contributed or not to • her injury.</p> <p>6. Same — Excessive Speed.</p> <p>It must be made to appear in such a proceeding that the homicide was the natural and necessary result of the unlawful act; that death ensued because of, and as a direct and natural result of, the recklessness or gross negligence of the respondent.</p> <p>7. Same — Negligence—Manslaughter.</p> <p>Not every degree of carelessness or negligence renders a party guilty of manslaughter; the case may be one of mere misadventure; to warrant a conviction, there must have been gross negligence, which is criminal and, within certain limits, supplies the place of affirmative criminal intent.1</p>

Assumpsit by John G. Emery and John L. Bailey, copartners as the Wolverine Farms Company, against Cornelius De Young for broker’s commissions. Judgment for defendant on a directed verdict. Plaintiff brings error.

Case by Wallace B. Richardson, as administrator of the estate of Edith I. Barhite, deceased, against the Detroit & Mackinac Railway Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.

Mandamus by Raymond A. Price against the township board of Oakfield township to compel respondent to approve the retail liquor bond of the relator. An order was entered granting the writ: respondent brings certiorari.

<p>Error to Oakland; Smith, J.</p> <p>Ejectment by Adolph Kushler and another against John H. Weber and another. Judgment for plaintiffs : defendants bring error.</p>

Bill by Peter Jeup and others against John T. Win-ship, State fire marshal, and others, for an injunction. From an order overruling a demurrer to the bill of complaint, defendants appeal.

Mandamus by the Michigan railroad commission and others against the Detroit & Mackinac Railway Company to compel the respondent to comply with a finding and order of the commission.

<p>1. Rape — Statutory Offense — Minors.</p> <p>The essential facts necessary to convict a respondent of statutory rape are that he had sexual intercourse with the female mentioned in the information and that she was then under the age of 16 years.</p> <p>2. Same — Evidence—Criminal Haw — Subsequent Offense.</p> <p>It was prejudicial error to permit the prosecution to show that the accused committed an offense of the same nature which the information charged, at a subsequent date; having identified a particular transaction shown by the testimony, the prosecution was not entitled to offer proof of a similar act occurring at a later time.</p> <p>3. Same — Appeal and Error — Curing Error.</p> <p>The court did not cure such error by instructing the jury that respondent could not be convicted of the later offense shown by such incompetent testimony, although if, as requested by respondent’s counsel, he had charged that the acts, if any, could not be considered for any purpose; the error might have been cured.</p> <p>4. Same — Venue.</p> <p>In criminal trials the venue must be proved by competent evidence, beyond a reasonable doubt, and judgment cannot be sustained in a cause in which the record contains no proof of the township or county wherein the alleged crime occurred.</p> <p>5. Same — Evidence—Judicial Notice.</p> <p>Although the court may take judicial notice of the extent and boundaries of political subdivisions such as counties, townships, cities and villages, the rule cannot be extended to include a farm or other locality designated by the name of its present or former owner.</p>

<p>1. Mortgages — Deed Given as Security — Husband and Wife.</p> <p>A deed given by a married woman to enable ber husband to borrow money, conveying the homestead occupied by both, was valid and enforceable, as a mortgage between the parties to the- instrument, although the acknowledgment of the wife was irregularly taken by a justice of the peace, who testified that he signed the acknowledgment on the strength of a note, received from the wife, requesting him to acknowledge it as her free act and deed.1</p> <p>2. Same — Consideration—Estoppel.</p> <p>As to a grantee who has loaned money to the husband, relying upon the deed, the wife was estopped to deny the validity of the execution and delivery of the conveyance, which she testified that she signed without knowing what the paper was, and, also, that it had been her habit to sign papers which her husband presented to her to sign.</p> <p>S. Same — Equity—Agency.</p> <p>Where one of two innocent parties must suffer by reason of the acts of a third, the loss must be borne by the one Who enables the third person to cause the loss or damage.</p> <p>4. Husband and Wife — Estate by Entireties — Consideration.</p> <p>A wife’s conveyance of real property owned by herself and husband by the entirety, to secure or to pay an indebtedness of the husband, is supported by a sufficient consideration and is valid.</p> <p>5. Same — Deeds.</p> <p>And the instrument was a mortgage as to both defendants, not a deed as to one of them, and mortgage as to the other.</p>

Assumpsit by Emily C. Weaver against George A. Collins for breach of a contract in writing. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

<p>Appeal from St. Joseph; Yaple, J.</p> <p>Bill by William W. Slote against the Constantine Hydraulic Company for an injunction. From a decree awarding damages, defendant appeals.</p>

<p>1. Evidence — Hearsay — Saees — Machinery — Breach ox Warranty — Contracts.</p> <p>In. an action for breach of warranty of a number of threshing machines furnished by the manufacturer to its sales agent, it was not erroneous to receive in evidence the testimony of employees and officers of the agent who had examined several of the machines returned as defective at the shops of the sales agent, and who testified that the condition of the machines indicated defects and breakages as claimed and shown by certain of the purchasers that had used the threshing machines; the testimony tending to show similar conditions in other machines manufactured by defendant and returned as defective to the vendee.</p> <p>2. Same — Presumptions—Cause.</p> <p>Proof that machines manufactured by the defendant and returned to the sales agent on the ground that they were defective, had similar breakages and defects as machines which the purchasers testified, from use and observation, were so defective, raised a rebuttable inference or presumption that the common results were produced by a common cause.</p> <p>S. Appeal and Error — Record—Exhibits—Index.</p> <p>Failure to properly index a number of exhibits relied upon by defendant in its assignments of error as erroneously admitted in evidence, the index not stating in brief form the substance of each exhibit, as required by Supreme Court Rule 36, justifies the court in declining to pass on the questions raised by the assignments in a lengthy case involving 126 assignments of error and in which the exhibits were not printed in the record, but produced as part of the bill of exceptions at the argument.</p> <p>4. Evidence — Customs—Books—Trade Usage.</p> <p>Evidence offered by the defendant from the books of the agency for the purpose of showing that it was customary in that business to take back machinery and charge it to a certain account, was rightly excluded as immaterial.</p> <p>5. Same — Loss—Defective Condition.</p> <p>The testimony relating to the condition of machines returned to the selling agency was competent to show plaintiff’s damages and was correctly received in evidence.</p> <p>6. Same — Expense of Repairs.</p> <p>Evidence based on the books of the defendant showing an itemized statement of expenditures for repairing breakages and rebuilding defective machines, corroborated by testimony of officers, employees, and shop men, showing items of expense for repairs and rebuilding of machines was also sufficiently definite and relevant to sustain plaintiff’s claim.</p> <p>7. Appeal and Error — Excessive Verdict — New Trial.</p> <p>The proper practice to review an excessive or insufficient verdict is to move to set aside the verdict; the amount of damages will not be considered on appeal unless the point is presented on a motion for a new trial.</p>

<p>1. Infants — Rescission of Contract — Fraud.</p> <p>Before reaching majority, for fraud in the inception of the contract, a minor may rescind the purchase of a horse which proved to he vicious:</p> <p>2. Same — Fraud—Assumpsit.</p> <p>Notwithstanding that defendant was likewise an infant and his tort may have arisen out of a contract that he has fraudulently induced the plaintiff to enter into, an action might he maintained in assumpsit to recover back the price paid for a horse, plaintiff having elected to rescind and return the animal-to the vendor.1</p> <p>3. Sanes — Actions—Fraud—Contract.</p> <p>Assumpsit does not, however, lie against a defendant who participated in fraudulent misrepresentations upon the sale of a horse, but who received none of the proceeds of the sale that were paid to the codefendant and by him retained.</p>

Bill by Isaac N. Williams against M. Grace Hammond and another to cancel a mortgage as satisfied and paid. From a decree for complainant, defendant Hammond appeals.

Assumpsit in justice’s court by Thomas Conroy against George Haffner for money had and received. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Summary proceedings by Mary E. Balch and others against George W. Radford for possession of premises occupied by respondent. Judgment for complainant in both commissioner’s court and circuit court.

Anna. Andrejwski presented her claim for compensation for the death of her husband, Joseph Andrejwski, against the Wolverine Coal Company. From the order entered awarding compensation, contestant brings, certiorari.

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by Frank W: Garlinghouse against the Michigan Central Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Bill by Thomas Early and William Fitzpatrick against Daniel W. Tussing to review and set abide an award made by arbitrators. From a decree for defendant, complainants appeal.

Van Auken, administrator of the estate of Anson Maurer, deceased, against the Michigan Central Railroad Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error. In July, 1910, defendant maintained in connection with its Mackinaw Division what is called in the record its “Haakwood Branch.” This was a logging branch about 22 miles long, connecting with the main line at Wolverine.

<p>Error to Genesee; Wisner, J.</p> <p>Case by Edward McGary against the Buick Motor Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Cheboygan; Sharpe, J.</p> <p>Case by Don C. Stetson against the Mackinac Transportation Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Amendments — Pleading—Trial.</p> <p>Under the statute of amendments, it was not error to permit plaintiff, in an action for breach of warranty, to amend his declaration on the day of trial by making the averments more specific. 3 Comp. Laws, §10268 (5 How. Stat. [2d Ed.] § 12969).</p> <p>•2. Appeal and Error — Exceptions—Saving Questions.</p> <p>Objections and exceptions are essential to review, on appeal, the admissibility of ‘evidence received at the trial of an action at law.</p> <p>3. Sales — Breach oe Warranty — Express Warranty — Excluding Implied — Fitness- oe Merchandise.</p> <p>An express warranty as to quality and method of packing preserved fruit did not exclude an implied warranty of fitness for use and consumption.1</p> <p>4. Same — Actions—Delay.</p> <p>Delay in commencing an action for breach of the implied warranty of fitness might be excused by testimony tbat tbe defect claimed to exist was not obvious and it required time to discover tbe existence of sucb unfitness.</p>

Clair; Tappan, J. Assumpsit by Emma De Graw against the supreme court of the Independent Order of Foresters upon a benefit certificate for a balance claimed to be due. Judgment for defendant. Plaintiff brings error.

Case by John F. Waidelich against Alex Andros for negligently flooding plaintiff’s premises. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Evidence — Fraud—Trial—Issues.</p> <p>Although broad latitude may he permitted in the introduction of evidence in support of the charge of fraud, relating to matters that may throw light upon the question at issue, and an elastic discretion must necessarily he granted to the trial court in ruling upon the testimony offered, clearly incompetent or prejudicial testimony is no more permissible in this class of cases than in any other.</p> <p>2. Trial — Marriage—Argument—Conduct oe Counsel.</p> <p>In an action brought by a married woman for fraudulent . representations which induced her to purchase a hotel, counsel for plaintiff did not commit reversible misconduct in referring to the fact that her husband had children by a former marriage, during his opening of the case to the jury.</p> <p>3. Same — Incompetent Evidence — Witnesses.</p> <p>Nor did the trial court err in declining to strike out testimony of the defendant, volunteered during his cross-examination, that he had run a “blind pig” in the hotel about 18 years before the trial, as too remote and irrelevant and immaterial; the witness proving to he unruly and evasive and the court ruling that the testimony could only be considered as affecting the credibility of the witness.</p> <p>4. Same.</p> <p>It is the duty of the court to interfere, either upon objection being made or without waiting for objections, to. prevent counsel from browbeating, intimidating, or insulting any witness.</p> <p>5. Same — Witnesses—Privilege.</p> <p>Where a witness has declined to answer a question on the ground of privilege, the jury may well he cautioned that' they should not infer misconduct or criminality from the refusal, but should regard the same as failure of proof; counsel who argues to the jurors that the effect of such failure to answer amounts to an admission of guilt, commits reversible error.</p>

Bill by George Somers against Elbert C. Ferris and others for the cancellation of certain deeds. From a decree for complainant, defendants appeal.

Bill by William P. Longton and others against Henry H. Stedman and others for an injunction and other relief. From an order sustaining a demurrer to the bill of complaint, complainants appeal.

<p>1. Damages.' — Banks — Certified Check — Wrongful Detention —Interest.</p> <p>Where plaintiff sent to defendant a certified check for the purchase of defendant’s claims against an insolvent lumber corporation, and stated in writing that it was given on condition that a receiver’s sale of assets of the insolvent to plaintiff should be confirmed, plaintiff was entitled to the return of the check when the condition was not fulfilled, and, being required by the drawee to borrow enough money to cover the check, which defendant required to be paid, and being forced to pay interest on the loan during the time that the defendant wrongfully withheld the paper, the plaintiff should have been awarded a judgment for the loss so occasioned.</p> <p>2. Same — Good Paith — Evidence.</p> <p>Testimony of the plaintiff that the State banking commissioner directed the drawee bank to charge the certified check to the account of the plaintiff, and that he borrowed sufficient funds to cover the check, and was obliged to pay interest on the loan for nearly two years, after he demanded the return thereof, sufficiently proved the payment in good faith of the money, and warranted a judgment for plaintiff of that amount.</p>

<p>Contempts — Violating Injunction — Equity — Executors — Estates oe Decedents.</p> <p>Where a daughter of one of the heirs of a decedent attempted to interfere with the control of real property of the estate in the possession of the administrator, a trust company, which filed an injunction bill and secured a restraining order prohibiting respondent from trespassing upon the land or interfering with the tenants who leased the property from such administrator, and respondent thereafter claimed the right to ignore the injunction and tried to eject the persons occupying a portion of the land, of which the respondent claimed to have been in possession as agent of her father during a short period of time, the conviction of respondent for contempt of court was warranted, and a fine properly imposed, as the administrator claimed to have no knowledge of such alleged possession by respondent and she refused to recognize its authority or the jurisdiction of the court.</p>

Bill by Samuel D. Brown as administrator of the estate of William Reiser, deceased, against William F. Reiser and Jane S. Reiser to set aside a deed as a fraudulent conveyance. From a decree for complainant, defendants appeal.

Trover by Julian W- Bullock against Alphonsus E. Ward and others for the conversion of certain intoxicating liquors. Judgment for plaintiff for less than his claim and he brings error.

<p>1. Master and Servant — Declaration—Pleading—Explosions —Boilers—Safe Place.</p> <p>Plaintiff’s declaration, alleging that he was injured, while he was in the employ of defendant, from an explosion of its boiler; that for a period of ten years the boiler had not been properly inspected; that excessive heat had been applied to the plates of the boiler, causing them to bulge and strain; that the boiler had become unsafe from use and overheating; that it was defendant’s duty not to subject the boilers in its factory to excessive heat; and that the duty rested on defendant to ‘ inspect, etc., was not demurrable for the reason that the declaration did not allege that the boiler was imperfectly constructed or of improper material.</p> <p>2. Same — Inspection—Nondelegable Duties.</p> <p>The duty to inspect a boiler or other machinery cannot be delegated by the master so as to escape liability by virtue of the fellow-servant rule.</p> <p>3. Same — Contributory Negligence — Declaration.</p> <p>Where the declaration averred that the defects in the boiler were unknown to plaintiff, and that he exercised due care and caution, the demurrer of defendant, which set up the objection that the plaintiff was shown to be chargeable with contributory negligence, was properly overruled.</p> <p>4. Jury — Challenge to Array — Jury Commission.</p> <p>Under Act No. 367, Local Acts 1895, creating a board of jury commissioners for' the county of Macomb, providing for an annual meeting on the first Monday of May in each year, and that the panel for the jury shall be selected from the assessment roll of the preceding year, the trial court was right in overruling a challenge to the array of jurors, charging that the commissioners used the assessment rolls for another year, and did not select the names from the roll of the preceding year, when the evidence showed that the assessment rolls for the year in question were not completed, and the jury commissioners had the rolls of the preceding year, as required by the statute.</p> <p>5. Same.</p> <p>No sufficient ground of challenge was proved, because defendant charged that the commissioners drew only nine names of jurors from one township instead of ten from each,, as provided by the local act affecting Macomb county, where its attorneys did not exercise any of its peremptory challenges and from the township which defendant referred to only two jurors were drawn on the panel.</p> <p>6. Master and Servant — Safe P^ace — Boilers—Inspection.</p> <p>And evidence supporting the averments of plaintiff’s declaration as to overheating the rear stay plates and lessening the bolts, also, as to failure to inspect the boiler, presented an issue for the jury.</p> <p>7. Trial — Argument of Counsel.</p> <p>Unfair comments of plaintiff's attorney, in the argument of a personal injury case, to the effect that defendant’s witnesses had never seen a boiler, etc., were cured by the statement of the court that the jury would remember the evidence, and by his instructions that it would be their duty to recall and be governed by the evidence.</p> <p>8. Appeal and Error — Review—Exceptions.</p> <p>In order to review, on error, prejudicial statements or argument of attorneys, it is essential to secure a ruling of the court hy bringing'the matter to the attention of the court, not simply by taking exceptions.</p> <p>9. Master and Servant — Trial—Instructions.</p> <p>Nor did the trial court err in charging the jury that the plaintiff’s right to recover depended largely on two essential facts: (1) Had the stay sheet and connecting stay bolts of the boiler become so defective as to make the boiler more dangerous than one in reasonably good repair? (2) If so, did the servant in charge have actual or constructive notice of the condition?</p> <p>10. Same — Evidence—Permanency oe Injuries.</p> <p>Also, it was v proper to charge that if the jury found plaintiff’s injuries to be permanent, they should award to him a sufficient sum of money to compensate him for loss of the ability to earn a livelihood, not exceeding the period of his expectancy; plaintiff’s proofs tending to show that his injuries were of a permanent character.</p> <p>11. Trial — Special Questions — Conclusiveness.</p> <p>There was no reversible error, on the trial of a case arising out of the explosion of defendant’s boiler, in declining to submit to the jury defendant’s fourth special question whether the first break in the boiler occurred at a point identified in defendant’s exhibit, i. e., in the combustion chamber of the boiler, where it was very doubtful if the affirmative answer to' the question would have been conclusive.</p> <p>12. Appeal and Error — Assignment op Error — General Nature —Saving Questions for Review — New Trial.</p> <p>An assignment of error that the court erred in denying defendant’s motion for a new trial, which contained the objction that the court erred in failing to charge as requested in defendant’s requests, was too general, where the requested instructions covered six pages of the record.</p> <p>13. Same — Weight oe Evidence.</p> <p>An assignment of error that the verdict was contrary to the evidence did not raise the point that the verdict was contrary to the overwhelming weight of the evidence.</p> <p>14. Same — Evidence. • .</p> <p>Held, that the testimony warranted a verdict for plaintiff.</p> <p>15. Evidence — Former Verdict.</p> <p>No error was presented by an assignment that the court erred in ruling out the records in a previous action for personal injuries in which plaintiff had recovered a judgment for injuries received in a railway accident, in no way connected, so far as the evidence disclosed, with the injuries for which he claimed damages.</p>

Case and trover by the city of Kalamazoo against the Standard Paper Company for the conversion of water from the pipes of plaintiff. Judgment for plaintiff. Defendant brings error.

<p>Error to Iosco; Connine, J.</p> <p>Case by Crosby Brown against George H. Hadwin for false imprisonment. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Assumpsit by the Waterman-Waterbury Company against School District No. 2 of the, township of Wyoming for the price of a furnace. Judgment for defendant. Plaintiff brings error.

Case by George Jackson against Schillinger Bros. Company for personal injuries. Judgment for plaintiff. Defendant brings error. The defendant is an erecting company, and in August, 1911, was engaged in erecting a building for a brewery in the city of Menominee, Mich.

Case by Samuel Scott, as administrator of the estate of Frank Gibbs, deceased, against the Boyne City, Gaylord & Alpena Railroad Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.

<p>1. Railroads — Negligence—Trespassers—Personal Injuries.</p> <p>Where the evidence, in an action for personal injuries to an infant under three years of age, tended to show that if either engineer or fireman had maintained a lookout along the track they must have seen plaintiff and another child on the track and discovered their size and helpless position in ample time to have stopped the train, and where the engine was running through a populous section of a city,' across numerous street intersections and along a portion of the track which the public had used extensively as a way and traversed continually, and there was evidence of an eyewitness that those in charge of the engine were not looking ahead along the track, the trial court erred in directing a verdict for the defendant, on the ground that no actionable negligence was established.</p> <p>2. Same — Infants.</p> <p>While children non sui juris who invade private property are technically trespassers, they are not wilful trespassers, knowingly doing a wrong or incurring risk, in a sense which would legally charge them with negligence or personal responsibility as in the case of older persons who are not under disability.</p> <p>3. Same — Station and Grounds.,</p> <p>Although the infant was injured on defendant’s station grounds, and defendant had posted warning signs forbid- ■ ding trespassing, where the public, nevertheless, made frequent use of the right of way to pass between the street and defendant’s station, and the child was too young to comprehend the warning or the danger, the employees of the defendant railroad corporation were required to exercise care and prudence to prevent an injury to the child on a clear stretch of track away from the confusion of yard work and freight cars, at a point where the public were accustomed to frequent the tracks as a way of travel.1</p> <p>4. Same.</p> <p>Accordingly, the questions as to the extent to which defendant’s track was traveled at the place of the accident, defendant’s knowledge of the use, and the degree of care required in operating trains in that locality, should have been left to the jury.</p>

<p>1. Total — Directed Verdict — Evidence.</p> <p>In considering the contention that a verdict *should have been directed for a defendant, the testimony for the opposite party must be taken as true and regarded in its most favorable light. '</p> <p>2. Master and Servant — Fellow-Servants—Safe Place.</p> <p>Employees of a lumbering corporation who were engaged in preparing the roads and keeping them in proper condition, sanding the track on the declivities and shoveling off snow when it was necessary, were not fellow-servants with teamsters who drove logs over the roads.</p> <p>3. Same — Logs and Logging.</p> <p>Employees whose duty it is to prepare and keep a safe place for other servants perform an unassignable duty of the master.1</p> <p>4. Same — Safe Place.</p> <p>And where the lumbering company employed special servants to prepare the logging roads, and assumed the obligation of keeping the roads in safe condition, the teamsters not being required to leave their teams and precede the loads over hills and steep places to ascertain if conditions were safe for passage, but where the road men were expected to call to teamsters and notify them whether they could safely pass over the way prepared and sanded for their use, the teamsters were entitled to rely on the presumption that the master had performed its duty , of keeping the place safe for use.</p> <p>5. Same — Competency.</p> <p>The competency or incompetency of such road men was not material except as it might throw light on the issue whether they had properly performed their duty.</p> <p>6. Same — Assumed Risk.</p> <p>Plaintiff did not assume the risks of driving logs down an incline covered with snow, which both master and servant knew must be prepared by shoveling and sanding to make it reasonably safe: having received the customary notice that the work had been done upon calling to the road man, he did not assume the risk of the master’s failure to properly sand the track.</p> <p>7. Same — Assumption oe Risk, — Contributory Negiigence.</p> <p>Evidence tending to show that plaintiff was injured because 'one of the hills on the logging road had not been sufficiently sanded, and that a team could not guide a load of the size which plaintiff was driving down a hill as steep as this one if the sand had been freshly covered with snow, with evidence pro and con upon the claim of defendant that plaintiff was driving at an excessive rate of speed and the accident was due to plaintiff’s negligence, held, to present issues for the jury as to' his alleged contributory negligence and assumption of risk.</p>

<p>Error to Genesee; Wisner, J.</p> <p>Case by George Webb against the Buick Motor Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Samuel Mintz against Elmer F. Soule and another for the foreclosure of a land contract. From a decree for complainant, defendants appeal.

<p>1. Brokers — Commissions—Contracts.</p> <p>The owner of real property, who, after giving to a broker the agency to sell his land on commission, interferes with a prospective buyer, cancels the broker’s authority, and, knowing that negotiations for a sale are under way, effects the sale of his property by abating his price, is liable to the broker for the agreed commission or compensation.1</p> <p>2. Same — Vendor and Purchaser — Minimum Price.</p> <p>Where the owner of a house listed.it with plaintiff, a broker firm, and, meeting a prospective buyer to whom plaintiff had shown the realty on the previous day, informed the buyer that the firm had no authority to sell it and named a price which was less than plaintiff claimed he had fixed in his conversation with the firm, when it was claimed he had stated that he would allow plaintiff all it could obtain over $2,800 as its commission, a verdict for the commissions of the broker was warranted by the testimony.</p> <p>Ostrander and Bird, JJ., dissenting.</p>

Bill by Joseph Reis and others against Isaac Applebaum and others for fraudulent misrepresentations. From an order sustaining a demurrer to the bill of complaint, complainants appeal.

Case by Edward Koskell against the Newport Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Bill by Charles N. Rolph and others against William C. Rood and others for partition. From a decree for defendants, complainants appeal.

<p>1. Taxation — Notice oe Redemption — Subsequent Assessment —Amount to Redeem.</p> <p>In giving notice to the owner of lands that have been sold for unpaid taxes, the purchaser may properly include in the amount required to redeem the taxes for previous years which remain unpaid, and which the tax purchaser was required to pay in order to obtain title.</p> <p>2. Same — Description.</p> <p>The tax title was not void because in giving such notice he grouped in one parcel the N. W. % of the N. W. U, and the N. E. % of the N. W. or the N. Vz of the N. W. Vé, as it appeared in his tax deed, although the assessments for previous years were levied and returned against the separate parcels.</p> <p>3. Same — Amount Required to Redeem.</p> <p>But the notice should disclose the exact and correct amount which may be required for redemption, or it will be invalid.</p> <p>4. Same.</p> <p>Hence a notice which included in the total named as the sum required to redeem from the tax title, the tax of a year following that for which the property was sold, including penalties based on the additional tax, was invalid, since the notice demanded an excessive amount.</p> <p>5. Same — Trespass.</p> <p>The tax notice being void, defendant became a trespasser in entering into possession and retaining possession of the real property.</p> <p>6. Same — Deeds—Right oe Redemption.</p> <p>A purchaser by getting a quitclaim deed from the holder of the record title from the government secured the right to redeem from the holder of a tax deed who had failed to serve a valid notice.</p> <p>7. Same — Right oe Redemption.</p> <p>Having deposited. with, the register in chancery the sum. required to redeem the lands, plaintiff was entitled to maintain ejectment without securing a reconveyance of the property. Act No. 229, Pub. Acts 1897, § 141 (1 How. Stat. [2d Ed.] §1912).</p> <p>8. Same — Ejectment—Improvements.</p> <p>Nor was the occupier entitled to recover for improvements under 1 Comp. Laws, § 3927 or § 10995 (1 How. Stat. [2d Ed.] §1875, 5 How. Stat. [2d Ed.] § 13195).1</p>

Case by Lillie Hayden, as administratrix of the estate of Andrew Hayden, deceased, against the township of Bangor for the unlawful killing of decedent. Judgment for defendant. Plaintiff brings error. On August 8, 1912, a very heavy rainfall occurred in Van Burén county. As a result several bridges and culverts were washed out in the township of Bangor.

Bill by John E. Morse and others against Deborah Lowe for the construction of a will. From a decree for complainants defendants appeal.

Bill by Harry E. Barr against* the Packard Motor Car Company for a decree vacating a judgment in justice’s court. From a decree for defendant, complainant appeals.

<p>Error to Bay; Collins, J.</p> <p>Eminent domain proceedings by Carl Erickson, highway commissioner of the township of Greenfield, Bay county, against Nelson Letourneau and others for the taking of private property for a public highway. From a determination of the commissioner laying out the highway and assessing damages, the respondent named appealed to the township board and later to the circuit court. Judgment establishing the highway; respondent brings error.</p>

Assumpsit in justice’s court by John A. Cunningham against Alphonso J. Irwin upon five promissory notes. From'a judgment for plaintiff, defendant appealed to the circuit court. • Judgment for plaintiff. Defendant brings error.

Replevin by Henry K. Gustin against Thomas Fitzpatrick and Henry Fitzpatrick for a quantity of ties and posts. Judgment for defendants upon a directed verdict. Plaintiff brings error.

Louis Grimm was convicted of larceny and removed the cause to circuit court by certiorari. The conviction was affirmed. Respondent brings error.

<p>Telegraphs and Telephones — Highways—Shade Trees.</p> <p>Shade trees in the highway adjacent to a farm belong to the owner of the land and may not be destroyed or injuriously trimmed by a telephone company in violation of 2 Comp. Laws, § 6691 (3 How. Stat. [2d Ed.] §7214), Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 234?).1</p>

Assumpsit in justice’s court by the Lake-Ulricksen Company against the Grand Lodge of Independent Order of Odd Fellows for coal sold and delivered. From a judgment for plaintiff defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.

Mandamus by David F. Gable to compel the township board of Three Oaks to réconvene and approve his application for a retail liquor dealer’s license and to approve his bond. Relator reviews on certiorari an order denying the writ.

Mandamus by the board of education of the city of Traverse City against John G. Straub, mayor of the said city, to compel respondent to sign a series of bonds. Writ denied: relator brings certiorari.

Garnishment proceedings by Nathaniel Robbins against Henry J. W. Campman in which the Grand Haven Cement Company was interpleaded, to establish its claim to the fund or indebtedness which was shown by the disclosure. Judgment for plaintiff. Defendant garnishee brings error.

<p>Error to Chippewa; Fead, J.</p> <p>Case by Napoleon Poirier against the Bartlett Lumber Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Case by Harriet Nay against George Dickinson for false imprisonment and assault and battery. Judgment for defendant on a directed verdict. Plaintiff brings error.

Case by Nellie C. Chatfield against the Sintz-Wallin Company and others for the recovery back of money paid for stock of said corporation. Judgment for plaintiff. Defendants bring error.

The probate court for the county of Kent having entered an order assigning the residue of the estate of Marietta Ives, deceased, Helen Ives Johnson, claiming one-third of. such residue, appealed to the circuit court. Judgment was entered in her favor reversing the decree of the probate court and Mary Skinner, as executrix of said estate, and Dwight Skinner bring error.

Frederick P. Hinckley presented a claim against the estate of Miar McLaughlin, deceased, which was contested by Emma McLaughlin, administratrix, and disallowed by the commissioners on claims. On appeal by claimant to the circuit court, a verdict was directed for defendant. Claimant brings error.