Volume 183 — Michigan Reports

<p>1. Master and Servant — Infants—Trial — Contributory Negligence.</p> <p>Plaintiff, a minor under the age of 17 years, who was employed in the factory of defendant, was directed to assist the operator at one of the trimming machines of the defendant, and, while working close to the knife, relying on the operator not starting the machinery, was injured. He claimed he was not given proper instructions, although the testimony on this issue was conflicting. He testified that he was not told what to'do except in a general manner and supposed the operator would not start the machine while he was so engaged. Held, that the question of contributory negligence could not be determined as a matter of law, and was correctly left to the jury.</p> <p>2. Same — Instructions—Charge.</p> <p>And the charge of the court instructing the jurors that if he put his hand under the knife without caution and without calling the attention of any one to the act, or without instructions from any person to do so, unless he thought it necessary in the performance of his work, he was negligent, did not set up an improper standard, and, considered with the remainder of the instructions which advised the jury correctly as to the care required of plaintiff, etc., was sufficiently favorable to the defendant.</p> <p>S. Same — Fraud—-Misrepresentation of Minor as to Age.</p> <p>Requests to charge based on alleged misrepresentations of plaintiff that he was more than 17 years of age, and requested instructions that the employer was entitled to rely on his statements, held, inapplicable and properly refused, upon testimony of defendant’s agent that he did not rely upon plaintiff’s representations.</p>

Bill by the Michigan Central Railroad Company and others against the Michigan Railroad Commission to enjoin the enforcement of certain demurrage rules adopted by defendant. From a decree for complainants, defendant appeals.

Bill by Willard H. Face against Eugene H. Hall and others for an order canceling and setting aside an exchange of property. Blanche R. Mott, one of the defendants, filed an answer in the nature of a cross-bill and secured an order for a receiver. From a decree allowing the final account of Frank H. Mott, receiver, defendants Hall appeal.

<p>Attobney and Client — Evidence — Set-Oee and Recoupment — Pleading.</p> <p>In an action upon a guaranty of the payment for attorney’s services to be performed by plaintiff for defendant’s son, evidence that plaintiff disbursed a sum of money which defendant had caused to be delivered to plaintiff in behalf of the son and for what purposes he expended it, was admissible, in contradiction of defendant’s claim that the money had been paid to plaintiff in payment for his services; although the facts were not shown in plaintiff’s bill of particulars.</p>

Bill by Eri G. Hicks against Joseph Smith and Fidus E. Fish for specific performance of a land contract, and to enjoin summary proceedings for possession of the premises. From a decree for defendants, but awarding costs to complainant, both.parties appeal.

Ejectment by the Huron Land Company, Limited, against the Lobdell-Churchill Manufacturing Co. Judgment for defendant on a directed verdict. Plaintiff brings error.

Charles Hartlerode presented for probate an instrument purporting to be the last will of Elizabeth Hartlerode, deceased, and it was admitted to probate in the probate court. Winifred Thomas appealed to the circuit court. Judgment for proponent on a directed verdict. Contestant brings error.

Summary proceedings by Frederick A. Delano and others, as receivers of the Wabash Railroad Company, against the Malcolmson-Houghten Co. for the possession of premises occupied by defendant. From a judgment of ouster defendant appealed to the circuit court. Judgment for complainants. Defendant brings error.

Clayton H. Hoffman, trustee of the estate of Israel O. Hoffman, deceased, filed his final account which was allowed in probate court. The Michigan Trust Company, administrator of the estate of Roscoe C. Hoffman, one of the persons interested in said estate of Israel O. Hoffman, appealed from the final order: Bessie Hoffman, personally and as guardian of Mabel G. Hoffman, an infant, joined in the appeal.

Exceptions before sentence from, the recorder’s court of the city of Detroit; Connolly, J. Gordon W. Quider was convicted of violating Act No. 105, Pub. Acts 1911, prohibiting usury.

Assumpsit by Thomas C. O’Brien, guardian of the estate of James O’Brien, an infant, against the Brotherhood of American Yeomen, a foreign corporation, upon a benefit certificate. Judgment for plaintiff. Defendant brings error.

<p>Error to Calhoun; North, J.</p> <p>Assumpsit by Frank L. Irwin, as receiver of the Albion National Bank, against L. J. Wolcott upon two promissory notes. Judgment for plaintiff. Defendant brings error.</p>

<p>Case-made from Kent; Brown, J.</p> <p>Ejectment by Irene Lulu Broffee, by next friend, against Anna Le Fils and others. Judgment for defendants. Plaintiff brings error.</p>

Quo warranto by Collie Johnson against John Jordan to test the title of respondent to the office of sheriff of Iosco county. Judgment for relator. Respondent brings error.

Assumpsit by Laura J. Moden against the Superintendents of the Poor of Van Buren county for care and support rendered to a pauper under a special contract: Judgment for plaintiff. Defendants bring error.

Action by the people of the State of Michigan against Frank W. Blair and others as receivers of the Pere Marquette Railroad Company for a statutory penalty. Judgment for defendants on a directed verdict. Plaintiff brings error.

<p>Exceptions before sentence from Kent; Perkins, J.</p> <p>Richard E. Blumrich was convicted of selling cigarettes to a minor, contrary to statute.</p>

Bill by James P. Carey against the Gleason Exploration & Mining.Company and another for specific performance of a royalty contract. From a decree for defendants, complainant appeals.

Assumpsit in justice’s court by William Christian against Isaac Branstrom for the price of goods sold and delivered. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.

Mandamus by the B. Siegel Company against George P. Codd, one of the circuit judges for the county of Wayne, to compel respondent to vacate an order granting a preliminary injunction in a suit instituted against relator as defendant.

Assumpsit by Walter Reynolds against the GarberBuick Company for the recovery back of money paid to the defendant. Judgment for plaintiff. Defendant brings error.

Assumpsit by the Waterman-Waterbury Company against school district number 4 of Cato township, Montcalm county, for the contract price of a heating system. Judgment' for defendant on a directed verdict. Plaintiif brings error.

Assumpsit by the Port Huron Engine & Thresher Company against Melvin Bloom and others for the amount of two negotiable instruments. Judgment for defendants. Plaintiff brings error.

Bill by Supreme Court, of the Independent Order of Foresters against Olivia Frise and others for a decree of interpleader. From a decree for the defendant named, Paulina V. Frise and Albert H. Frise, administrator of the estate of Olivia Frise, deceased, appeal.

<p>Error to the recorder’s court of the city of Detroit; Phelan, J.</p> <p>Eminent domain proceedings by the city of Detroit against Arabella Gray and others. Judgment for petitioner. Respondent Gray brings error.</p>

Bill by Charles F. Zoller and others against Samuel Goldberg and another to enforce certain building restrictions. From a decree for complainants, defendants appeal.

Mandamus by Milo O. Bennett against the circuit judge of the county of Kalamazoo to compel respondent to grant a motion of the relator to strike from the files of the court a report of the grand jury.

Case by Elgin Turnbull and another, copartners under the firm name of the Turnbull Elevator Company, against the Michigan Central Railroad Com-, pany for the misdelivery of freight consigned with draft annexed to the bill of lading. Judgment for plaintiffs. Defendant brings error.

Mandamus by William H. Osborne and others against the township board of Richland township and others to require respondents to reject an application for retail liquor license. Respondents review the order granting the writ of certiorari.

<p>Error to Genesee; Wisner, J.</p> <p>Assumpsit by Frederick B. Stevens against George Forrest for the purchase price of some coke. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the Witteman Company against the Beck Malting & Brewing Company for the price of machinery sold and delivered. Judgment for defendant. Plaintiff brings error.

Case by William M. Levyn and anothér, as executors of the estate of Jacob Levyn, deceased, against Henry S. Koppin and William E. Kludt for negligently killing said testator. Judgment for defendant Kludt on .a directed verdict and for defendant Koppin on the finding of the jury. Plaintiffs bring error.

<p>Divorce — Ahmost—Reasonableness.</p> <p>An award of alimony of $1,500 from property of complainant valued at $12,000, which was, however, incumbered for about $2,300, held, not inadequate, where complainant was granted a decree against 'his wife and she had not assisted in accumulating any of it.</p>

Bill by William J. Conner, trustee under the will of R. H. Conner, deceased, against Detroit Terminal Railroad Company, et al., to quiet title to real property. From a decree for the defendants complainant appeals.

<p>1. Physicians and Surgeons — Amputation — Malpractice—Negligence — Method oe Treatment.</p> <p>Plaintiff was injured in falling from a scaffold. After being treated for a sprain by another physician and after consulting two me.dical practitioners who tried various methods of treatment, plaintiff’s attending physician called in the defendant to obtain his advice whether amputation would be necessary. It was determined in consultation to attempt to save the limb by means of hypodermic injections, known as the Murphy treatment. The method of treatment was not generally accepted by physicians but was undertaken as a last resort to save the foot. The remedy was one which had in certain instances produced good results. Held, that defendant’s inability to save the limb and the fact that subsequent amputation became necessary did not render the defendant responsible for alleged negligence or malpractice.</p> <p>2. Same — Skill Required.</p> <p>In the treatment of a broken or diseased limb the contract implied between surgeon and patient is not to restore it to its natural condition, but to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the,profession in similar localities, having consideration for the state of medical art at the time and place.1</p> <p>3. Same — Expert or Opinion Evidence.</p> <p>The failure of plaintiff to produce any expert or lay witness who could testify that the course pursued by defendant was improper, or that it in any way contributed to the loss of plaintiff’s foot, the evidence tending further to prove that the effect or injury complained of might have resulted from an exploratory operation, which it was contended that defendant undertook to perform, justified the trial court in directing a verdict against the plaintiff and in refusing to permit the jury to draw any inference of negligent conduct.</p>

Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J. Le Roy Brazee was convicted of violating the statute regulating employment agencies.

<p>1. Seduction — Promise to Marry — Evidence.</p> <p>As a foundation for a criminal prosecution for seduetion, under a promise of marriage, it is essential to prove an unconditional promise: a statement that the accused would marry complaining witness if pregnancy resulted does not sustain the charge, as such a promise has no tendency to overcome the natural sentiment of chastity.1</p> <p>2. Same — Trial—Cross-Examination—Evidence.</p> <p>Where the complaining witness testified in justice’s court that the accused agreed to marry her if she should become pregnant, and later, in circuit court, testified that he promised unconditionally to marry her, the attorney for the respondent should have been allowed considerable latitude in the cross-examination of such witness, and the trial court committed prejudicial error in refusing to permit him to ask the witness whether the promise was or was not based on the said condition, although he had already examined the witness along the same line, and the question was objected to on the ground that she had been fully questioned as to the point.</p> <p>3. Same — Requests to Charge — Trial.</p> <p>The accused was also entitled to have the jury instructed, as requested by him, that if the promise made was, in fact, as she had testified in the preliminary examination, upon the condition that if anything happened, respondent would marry her, the verdict should be for acquittal.</p>

<p>Contracts — Modification—Evidence.</p> <p>Evidence considered in an action for 'breach of a contract to buy apple waste, being a series of letters between the parties, and held, not to establish an agreement to modify the original contract of sale.</p>

<p>Exceptions before sentence from Gogebic; Cooper, J.</p> <p>Matthew A. Fitzsimmons was convicted of embezzlement.</p>

<p>Error to Berrien; Bridgman, J.</p> <p>Case by Luther E. Cole against the Mamer Brick Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Bills and Notes — Place of Presentment — Banks and Banking— Presumption.</p> <p>Since a promissory note is presumed to be payable at ..the place where it is made and dated, a note dated at Hornell, N. Y., payable at “First National Bank,” was subject to presentment and payment at the First National Bank of Hornell, and a presentment there was sufficient under section 133 of the negotiable instruments law óf New York.</p>

Case by Frank Winckowski, by next friend, against John F. Dodge and another, copartners under the name of Dodge Brothers, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

Mina Tolsma presented a claim against the estate of Henry Tolsma, deceased, for services performed. From a finding of the commissioners on claims allowing the claim in part, claimant appealed to the circuit court. Verdict for claimant. Defendant brings error.

D. Beckwith, a corporation, and Fidelity & Casualty Company of New York petitioned the Industrial Accident Board for an order terminating the right to compensation of Alden Spooner, under an agreement with the petitioner, and from an order denying the petition they appeal.

Bill by the Lansing Company against Eria A. Rogers and Pearl Rogers for specific performance of a contract. From a decree for complainant, defendants appeal.

Case by Matilda L. Schnell against the Michigan Bonding & Surety Company and others for unlawfully selling intoxicating liquors to plaintiff’s husband. Plaintiff reviews an order sustaining demurrers to • plaintiff’s declaration by writ of error.

<p>Error to Kent; Brown, J.</p> <p>Case by Samuel Irwin against the township of Byron for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case by John Daly against Frank Blair and others, as receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

. Bill by George E. Hutton and another against Charlotte Berry Sherrard and others for specific performanee of a contract. From a decree for defendants, complainants appeal.

<p>Error to Saginaw; Kendrick, J.</p> <p>Case by Robert Hazzard against the Consolidated Coal Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Sales — Contracts — Meeting of Minds — Offer and Acceptance.</p> <p>In an action for breach of a contract to take a quantity of ice, a series of letters in which the defendant asked for rates on ice, saying it could probably store 10 cars at a time, to which communication defendant replied, receiving another tentative note and following with an interview, whereupon defendant wrote that it had determined to handle the ice provided it cost not to exceed 90 cents a ton, and would “be willing to enter into a contract to take a minimum of 2,000 tons with the privilege of 5,000 tons,” advising plaintiff that it would be difficult to estimate how much the defendant would need, but to put himself in position to furnish the maximum, was a valid offer, and being answered by a letter of plaintiff that he would accept the proposition of 90 cents per ton and would order lumber at once to put up the icehouse, suggesting that the contract be put in written form, where plaintiff afterwards delivered about 100 tons of ice on the contract, sustained a judgment for its breach.</p> <p>2. Same — Intent.</p> <p>Whether the correspondence constituted a completed contract or were steps in negotiations leading up to one, was a question of the intention of the parties.</p> <p>3. Same.</p> <p>Although the suggestion made by plaintiff that the contract be put in written form tended to impair his claim that the agreement was complete, the suggestion on his part could be construed into a mere desire to have the terms put in a more formal shape and did not prove that a further agreement in writing was necessary to bind the parties.</p> <p>4. Same — Damages—New Trial.</p> <p>Held, also, that the verdict was excessive and did not allow a sufficient sum for shrinkage and should be reduced from $3,100 to $2,500.</p>

<p>Appeal from Ionia; Davis, J.</p> <p>Bill by Florence E. Peabody against John W. Peabody for divorce. From a decree for defendant, complainant appeals.</p>

<p>1. Contracts — Automobiles—Repairs.</p> <p>Where defendants sold an automobile to plaintiff, who returned it several times to be put in running order, without avail, in conformity with a warranty accompanying the purchase, and finally sent it back to give defendants a final opportunity to adjust it, when it was partly destroyed by fire in the garage of the defendants; and where the purchaser advised them that he would not pay for repairs, no contract would be implied to pay for repairs made on the machine to put it in order and repair the damage; and plaintiff could recover possession of the car in an action of replevin.</p> <p>2. Principal and Agent — Sales—Evidence oe Authority.</p> <p>Upon the statement of plaintiff’s father, through whom he had negotiated with defendants in purchasing the automobile, that the son would not pay for repair bills, the son being present at the time and concurring or acquiescing in the warning, the authority of the father to make the declaration sufficiently appeared to entitle the testimony to be considered in evidence.</p> <p>3. Same.</p> <p>Authority to negotiate for the purchase of the automobile would carry with it the authority to see that the buyer got what he contracted for.</p>

Bill by the Grand Rapids & Indiana Railway Company against the Michigan Railroad Commission for an injunction and other relief. From a decree for defendant, complainant appeals.

Bill by the city of Lansing against the Michigan Power Company for an injunction and other relief. From a decree for defendant, complainant appeals.

<p>1. Insurance — Policy—Vendor and Purchaser — Fraud.</p> <p>Where at the time of issuing an insurance policy the insured stated to defendant’s agent that the property was owned by B., with a contract interest in S. and H., and the loss was made payable to B. as owner and to S. and H. as their interests might appear, and the evidence disclosed that the wife of B. was the owner and vendor, but had no substantial interest and knew nothing about the execution of the policy of insurance, the sole heir of H. who paid the premiums was entitled to sue on the policy as the assignee of all the real parties interested, and the policy was not void for fraud. It was unimportant whose name was inserted as the nominal party to the contract, having no beneficial interest in the insurance and having no knowledge about the insurance.</p> <p>2. Same — Vendor and Purchaser — Payment.</p> <p>The purchasers under land contract who paid up their contract simply increased their interest, and although they had obtained a warranty deed of-the premises after the issuance of the policy there was no such change of interest as to avoid the policy.</p> <p>3. Sams.</p> <p>Held, also, by an evenly divided court, that the fact that the deed was taken in the name of IT.’s heir and devisee to secure an indebtedness arising out of the construction of a house on the real property and as security for other indebtedness due from S., did not so increase the risk that the policy was avoided as to the executors of the estate of H., who claimed and were found by the verdict not to have known of the execution of the deed.</p> <p>Stone, Ostrander, Bird, and Steers, JJ., dissenting.</p>

Mandamus by the Board of Education of the Public Schools of the City of Muskegon against Frank Hubbard Smith to compel the respondent to sign and issue certain school bonds. An order was entered granting the writ. Respondent brings certiorari.

Case by Catherine M. Murphy, administratrix of the estate of Alexander Murphy, deceased, against the Pere Marquette Railroad Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.

Bill by James S. Crosby against the city of Green-ville to quiet title to real property. From a decree for defendants, complainant appeals.

<p>Error to Wayne; Hosmer, J.</p> <p>Case by Harry E. Crawley against the Studebaker Corporation for personal injuries. Judgment for defendant on a directed verdict; plaintiff brings error.</p>

Summary proceedings by Emma F. Patterson and another against William F. Hogstein for the possession of real property. Judgment for complainants in both courts. Defendant brings error.

<p>1. Brokers — Services Rendered — Commissions — Value — Damages.</p> <p>Under a contract to pay a farmer well If he sold the farm belonging to defendants, his neighbors, for whom the plaintiff later found a purchaser, the measure of his compensation was the fair value of plaintiff’s services, not the customary commission of a broker for obtaining a buyer of the farm; although the testimony showing the usual rates of brokers was competent as evidence of value and might properly be considered by the jury, in determining what his services were worth.</p> <p>2. Same — Evidence.</p> <p>Where the jury, in an action of assumpsit for services rendered by a farmer in selling a farm, returned a verdict for less than the amount of commission claimed by the plaintiff, but defendants did not offer to prove that the services performed were worth a less amount than the plaintiff recovered, judgment should not -be reversed, although the court had, at the trial, indicated that the measure of damages that plaintiff urged was the correct measure.</p>

Mandamus by the John D. Gruber Company against Frank D. M. Davis, judge of the Ionia circuit court, to require the respondent to vacate an order quashing an attachment levy.

Forcible detainer proceedings by Josephine R. Kennedy against James H. Ford for the possession of farm lands. Judgment for complainant, who appealed to the circuit court and recovered unconditional judgment of restitution. Defendant brings error.

<p>1. Evidence — Similar Acts — Intent—Harmless Error.</p> <p>Whether or not evidence was competent that defendant two days prior to turning his horse at and upon plaintiff forcing him out of the highway and into a ditch, had conducted himself in a hostile and malicious manner towards the plaintiff; also that he had nearly a year previously run into plaintiff and forced plaintiff into a water hole, exclusion of this proof was not prejudicial to the plaintiff, where the record showed that the evidence was later admitted.</p> <p>2. Same — General Issue — Notice—Affirmative Defense- — Trespass on the Case.</p> <p>Defendant’s claim that his horse shied at some hay that lay in the road and ran upon or at plaintiff was not an affirmative defense under a count in trespass, and the testimony was admissible to show that the defendant did not intend the act, under the plea of the general issue.</p> <p>3. Trial — Misconduct on Counsel — Witnesses.</p> <p>There was no such prejudicial misconduct on the part of defendant’s counsel as to call for a reversal of the judgment for defendant in an action for negligently driving at and upon plaintiff, forcing him into a ditch along the highway, where the attorney for defendant asked of plaintiff, whose attorney had been a witness in his behalf, whether the case was not in his hands under an agreement to pay him half of the proceeds, where the court sustained the objection made and would not permit the witness to answer.</p> <p>4. Highways and Streets — Negligence — Contributory Negligence.</p> <p>Where the court charged the jury in substance that the plaintiff had a perfect right to walk in the part of the highway on either side of the beaten track, and if defendant, seeing him, turned his horse upon him, intending to compel plaintiff to step aside, and if plaintiff did step to one side and in doing so fell and received injuries, he would be entitled to recover, the instructions sufficiently covered plaintiff’s requests to charge that if the jury found the defendant guilty of wilful and reckless conduct, the action would lie irrespective of his contributory negligence.</p> <p>5. Same — Trial—Instructions.</p> <p>Where the court in his charge employed substantially the same language that plaintiff’s requests to charge contained in relation to the issue of contributory negligence, any confusion that may have resulted in relation to the degrees of negligence was chargeable to plaintiff, who could not complain.</p> <p>6. New Trial — Impeachment—Motions—Evidence.</p> <p>Upon motion for a new trial newly discovered evidence that only tends to impeach is not a. sufficient ground to set aside the verdict and judgment.</p> <p>7. Same — Discretion.</p> <p>The granting of such motion is largely a matter for discretion of the court.</p> <p>8. Same.</p> <p>And where plaintiff filed three affidavits tending to impeach the testimony of one of the witnesses of the defendant, who procured the affidavits of eleven persons contradicting the three affiants and when the newly discovered evidence would not probably bring about a different result on the trial the lower court was right in declining to grant a new trial.</p>

<p>Error to Kalamazoo; Stewart, J.</p> <p>Assumpsit by William O. Harlow against Edwin Jaseph on a covenant to assume a lease. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

<p>1. Insurance — Fraud—Partnership—Members of Firm.</p> <p>In -writing a policy of fire insurance, the insurer has the right to know who compose a copartnership which claims to he the owner of the insured property. The utmost good faith is required of the insured in answering inquiries concerning the ownership of the goods. The moral hazard involved in the contract is one of the essential elements of the risk and under a policy stipulating that it should be void if the insured concealed or misrepresented any material fact or circumstance, such as the name of one of the copartners, the concealment of the name of one of the members of the firm amounted to fraud and avoided the policy.</p> <p>2. Same — Principal and Agent — Notice.</p> <p>One who has power to solicit insurance, receive applications, fix premiums and .accept risks, issue, countersign and renew policies of insurance, is such a general agent that his knowledge of facts concerning the membership of an insured firm will be imputed to his employer or principal.</p> <p>3. Same — Waiver of Defenses — Notice.</p> <p>From evidence which failed to establish the essential fact that defendant’s local agents at the time of filing its plea and notice had knowledge that plaintiff firm or copartnership had a member who was not named in the application for insurance, no waiver of the defense that plaintiffs misrepresented the facts concerning their members could be held established, as matter of law, although in the proofs of loss the name of a third partner was stated: the fact might have been consistent with a change of firm subsequent to the issuance of the insurance.</p> <p>4. Same — Evidence—Similar Transactions — Fraud.</p> <p>It was competent on the trial to show that plaintiffs had made representations of a like nature relative to the membership of the firm to other persons about the same time that the policy was applied for, to show the intent and nature of such misrepresentations.</p> <p>5. Same — Estoppel—Knowledge.</p> <p>Knowledge of all the material circumstances is essential to waiver or estoppel arising from the attempt to advise the policy holder of defendant’s reasons for refusing payment, or from the filing of a notice of the specific defenses in one action that later was discontinued by plaintiffs who thereupon instituted a secofid suit upon the policy.</p> <p>6. Same.</p> <p>The disputed claim of defendant that false representations were made ought to have been submitted to the jury, together with special interrogatories upon the issues of notice and fraud, to wit: (1) whether defendant’s agents knew that there was a third member of the firm; (2) whether any of the firm advised defendant of the true state of facts; and (3) who were declared by plaintiffs at the time of issuing the policy to be members of the copartnership.</p>

Bill by Alice Walsh, executrix of the estate of Christopher Glenn, deceased, against Dwight Backus, administrator of the estate of Sarah Glenn, deceased, and the Loan & Deposit Bank of Grand Ledge. From a decree for complainant, defendant Backus, administrator, appeals.

<p>Divorce — Suit Pending — Equitt—Motions—Dismissal of Bill.</p> <p>Complainant’s wife filed a bill for divorce wbicb be answered, charging her with fraud, in that she falsely represented that she was divorced from her former husband and praying for relief. The cross-bill was not verified as required by rule. Subsequently complainant filed a bill in another county praying for a divorce on the same grounds of fraud charged in his answer and cross-bill. A motion to dismiss the second suit was filed by defendant wife on the ground that the same issues were involved in the case instituted by her. Held, that the second proceeding was barred by the former suit pending and that the defect in the cross-bill could be remedied by application to the court.1</p>

Case by Richard J. Matthews, as administrator of the estate of Robert Matthews, deceased, against the Montreal Mining Company for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Case by Mary Walters against the Detroit United Railway for personal injuries. Judgment for plaintiff for less than her claim. Plaintiff brings error.

<p>1. Criminal Law — Statutes—Intoxicating Liquors — Intent.</p> <p>It is a general rule of criminal law that crime involves intent.</p> <p>2. Intoxicating Liquors — Sales — Master and Servant — Principal and Agent — Minors'—Students.</p> <p>Proof of sales of intoxicating liquors to minors, intoxicated persons, etc., under 2 Comp. Laws, § 5391 (2 How. Stat. [2d Ed.] § 5067), is prima facie evidence of an intent to violate the statute. But sales of druggists are governed by a different rule (2 Comp. Laws,. § 5381, 2 How. Stat. [2d Ed.] § 5057), intent is not a necessary element of the offense. The requirement of law that the retail liquor dealer keep his bar closed on Sunday is in the same class of offenses. And section 5392 was intended to forbid the sale of liquor to students at any public or private institution of learning without reference to the intent of the seller. Under this section the dealer is punishable for the act of his servant in making an illegal sale. 1</p> <p>3. Same — Criminal Law.</p> <p>A retail liquor dealer whose bartender sold liquor to a minor to be drunk on the premises was guilty of the offense prohibited by section 5392, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5068), and absence of any intention to commit a crime did not relieve him of the consequences of the criminal act of his servant.</p> <p>4. Same — Constitutional Law — Class Legislation.</p> <p>The provisions of 2 Comp. Laws, § 5392, are not invalid on the ground that the. statute deprives the accused qf privileges and immunities or is class legislation within the 14th amendment to the Federal Constitution.</p> <p>5. Constitutional Law — Intoxicating Liquors.</p> <p>It is not unconstitutional to forbid sales of intoxicating liquor to students at public or private institutions of learning, though the effect of the statute (2 Comp. Laws, § 5392) is to deprive others than minors of the right to purchase intoxicants.</p> <p>6. Same.</p> <p>The exercise of the police power of the States is not affected by the 14th amendment.</p>

, presiding. Junius Elliott presented for probate an instrument claimed to be the will of Huida Elliott, deceased. From a finding and order admitting the will, Clarence G. Cheney, contestant, appealed. Judgment for contestant. Proponent brings error. Affirmed.

<p>1. Criminal Law — Witnesses—Conflicting Statements.</p> <p>Evidence tending to show that the complaining witness in bastardy proceedings had made conflicting statements charging an unknown or fictitious person with the crime, bore upon her credibility but would not justify the court in taking the case from the jury.</p> <p>2. Same — Bastardy.</p> <p>The defense was not prejudiced by the court charging the jury that the parties admitted it was doubtful whether any such person existed as claimed by complainant to be the putative father of her infant, where the record did not show that respondent claimed that there was such a person, and he had stated his opinion that a third party was the guilty one. If any error was made it should have been called to the attention of the court at the time it was made.</p> <p>3. Same — Character and Reputation.</p> <p>Instructions of the court that the jury might consider the standing of the respondent in the neighborhood for honesty, integrity, and truthfulness, stated in connection with caution of a general nature as to certain testimony-given by respondent’s character witnesses relating to his conduct with women, and his general reputation, were not erroneous.</p>

, presiding. Case by John M. Braun against the Grand Rapids, Grand Haven & Muskegon Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by Albert S. Harris against the village of Highland Park for an injunction to restrain the levy of a special assessment. From a decree for complainant, defendant appeals.

<p>1. Carriers — Negiigenoe—Aughting from: Train.</p> <p>In an action for personal injuries sustained by plaintiff in alighting from a train, bis vague and equivocal testimony that be was thrown off by the jerking of the train, contradicted by bis admissions made to seven different persons after the accident to the effect that be tried to board the train again after it started up, held, to require the court to set aside the verdict as contrary to the great weight of the evidence.</p> <p>2. Same — Release of Damages — Tendee.</p> <p>Where defendant’s claim agent effects a settlement with plaintiff stating that there was no liability and whatever he received was a gratuity and- the testimony for the plaintiff showed that he had not knowingly executed a release and did not authorize any one else to sign the instrument, a return of the money which plaintiff received was not essential to enable him to bring suit, nor could it be held as matter of law that the release was conclusive or binding between the parties.</p> <p>3. Evidence — Medical Testimony — Expert Evidence — Hypothetical Question.</p> <p>On the trial of a personal injury action, the court should have refused to admit in evidence the testimony of plaintiff’s medical expert, in answer to a hypothetical question relating to the condition of plaintiff after he had been given certain opiates, and had his arm cut off, what would be plaintiff’s condition after having his arm removed and taking 1½ ounces of chloroform, 1/30 grain of strychnine, ¼ grain of morphine and on the next day ⅛ grain of morphine by hypodermic injection, and some ⅛ grain tablets of morphine, and on the following day Vs grain of morphine and more tablets, on the next day three ⅛ grains by hypodermic injection and’more tablets given internally, and on Thursday, the next day, one hypodermic injection and more tablets,' and whether he would be able to comprehend what he was doing on Friday morning, following; the number of morphine tablets should have been stated in the question: the witness could not intelligently pass on the effect of an unknown quantity of drugs given at uncertain intervals.'</p>

Bill by the Michigan Sugar Company against Edmond Moffett and Luke B. Sawyer for an injunction and other equitable relief. From an order sustaining a demurrer to the bill of complaint, complainant appeals.

<p>Appeal from Tuscola; Beach, J.</p> <p>Bill by Thomas Agar and Jonathan Agar against Daniel W. Streeter and Annie E. Streeter for specific performance. Decree for complainants. Defendants appeal.</p>

Bill by Alton J. Hagar against Frank C. Schliess and George J. Bachman, copartners, doing business as Schliess & Bachman, and others. Defendants filed a plea which was overruled with leave to answer. From a decree pro confesso for complainant, defendants appeal. On motion to reinstate the appeal after dismissal.

Elmer F. Birdsall presented Ms account as administrator de bonis non of the estate of Edward C. Thompson, deceased. It was allowed in the probate court, and was affirmed in part and modified as to the matter of compensation by the circuit court on appeal. Blanche Cox and certain other heirs bring error.

Katharyn Redfield presented her claim for compensation for the death of her husband, William Red-field, while employed by the Dr. Denton Sleeping Garment Mills. Contestant, the Michigan Workmen’s Compensation Mutual Insurance Company, bring certiorari from an order awarding compensation.

Assumpsit by Joseph S. McDowell, assignee of Alfred Wallerstein, against Otis Fuller, warden of the Michigan Reformatory at Ionia, for breach of a contract for convict labor. Judgment for plaintiff. Defendant brings error.

Bill by Charles Wright and others against Arthur M. Knapp, administrator of the estate of Elizabeth. Wright, deceased, and others, to set aside a deed from William Wright to Elizabeth Wright, purporting to convey an estate by the entireties, and to remove a cloud from the title of complainants in and to said real property. From á decree for the complainants, defendants appeal.

Bill by Gladys I. Fisher, by her next friend, against Frank Gardnier and others for a decree quieting title to certain real property. From a decree for complainant, defendants appeal.

, presiding. Bill by William H. Loomis against Eugene Mack, trustee, and others, for the construction of a will. From a decree sustaining the trust created by the instrument, complainant and certain defendants appeal.

Assumpsit by the city of Owosso in justice’s court against the Michigan Central Railroad Company for a penalty. Defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Assumpsit in justice’s court by the Bamlet Realty Company against Louis Doff for rent and damages under a lease. From a judgment in plaintiff’s favor defendant removed the cause to the circuit court. Judgment for defendant. Plaintiff brings error.