Volume 185 — Michigan Reports

Bill by the village of Sand Lake and others against Frank Allen and Emma Allen to enjoin an obstruction of the natural flow of a watercourse. From a decree for complainants, defendants appeal.

<p>1. Master and Servant — Safe Place — Mines — Non-Delegable Duty.</p> <p>Several miners in defendant’s employ were engaged in work upon a platform which had been constructed in a new shaft in which plaintiff claimed to have been injured, while he was employed at his work as a pumpman, by the fall of certain rock upon him. He produced evidence tending to show that he heard sounds indicating the descent or settling of part of the shaft, and that the men gave signals but could not get a response from the hoisting bucket, and that he tried to climb out by going up on a number of projecting bolts, and was hurt by a fall of material upon him, also that there was no bell or ladder in the shaft, and plaintiff claimed that it was the duty of the defendant to construct a safe platform upon which the men might work. Held, that defendant was not relieved of its duty to render the place safe because of the rule that while a new shaft is being constructed the doctrine of safe place does not apply to employees who are working together to prepare the place of work.</p> <p>2. Same — Negligence.</p> <p>The trial court did not err in instructing the jury that defendant would be guilty of negligence for failure to provide a suitable ladder whereby plaintiff and defendant’s other employees might leave the shaft, or that if they found there was negligence in the failure to provide a suitable signaling system, so that a bucket might be lowered to hoist men out of the mine promptly and safely, plaintiff could recover.</p> <p>3. Same — Assumption of Risk.</p> <p>Held, also, that the court erred in instructing the jury that plaintiff did not assume the risk of the danger unless he knew or ought to have known of the precise physical conditions from which the resulting injury might be expected to occur.</p> <p>4. Same — Contributory Negligence.</p> <p>Where defendant claimed that the plaintiff should have gone to the surface in a bucket instead of climbing the shaft, and that he was guilty of contributory negligence for adopting the method which he used in leaving the shaft, and the testimony relating to what was said between plaintiff and his fellow workman was in conflict, the trial court did not commit reversible error in leaving to the jury the issue of contributory negligence.</p> <p>5. Same.</p> <p>Plaintiff ought not to have been permitted to recover for an injury which he sustained before he attempted to climb out of the shaft by the falling of a piece of rock that struck him between the shoulders, causing an injury which was not the proximate result of the negligence relied upon in failing to provide a safe platform and proper signaling system.</p>

Case by Alice Kopicka against Anthony Truszkowski for seduction. Upon the decease of the plaintiff her administratrix, Florence K. Sullivan, was substituted as party plaintiff. Judgment for plaintiff. Defendant brings error.

A. K. Edgar filed a petition for a right to participate in the distribution of the dividends of the E. Jossman State Bank which was being wound up upon the petition of the State banking commissioner. From a decree denying the prayer of the petition petitioner appeals.

Assumpsit by the township of Hampton against Ida Wespinter for the collection of a personal property tax. Judgment for defendant. Plaintiff brings error.

Gertrude L„ Blynn presented her petition against the city of Pontiac for compensation for the death of her husband. From an order awarding compensation, defendant brings certiorari.

Case by Nellie Whitmore against the Detroit United Railway for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.

<p>Criminal Law — Bigamy—International Law — Polygamy—Marriage — Information.</p> <p>3 Comp. Laws, §11691 (5 How. Stat. [2d Ed.] § 14776), provides that if any person who has a former husband or wife living shall marry another person or shall continue to cohabit with such second husband or wife in the State, he shall be deemed guilty of polygamy, etc. The information averred that the respondent entered into a second marriage in the State of Ohio, having a wife living in the State of Michigan. It contained no averment that the respondent had lived or cohabited with the second wife -in the State of Michigan. Held, that the accused should have been discharged upon his plea of abatement based upon the ground that the information failed to set up an offense.</p>

, presiding. George Hall reviews an order of the circuit court committing him to the State asylum as insane upon writ of error.

<p>Embezzlement — Executobs and Administrators — Criminal Law —Information.</p> <p>An information charging the respondent with embezzlement under 3 Comp. Laws, § 11591 (5 How. Stat. [2d Ed.] § 14646), which relates to the conversion by an agent or clerk of money intrusted to him, was improperly filed against an executor of decedent’s estate for embezzling funds which came into his hands by virtue of his office: if any offense was committed it should have been prosecuted under 3 Comp. Laws, § 11610 (5 How. Stat. [2d Ed.] § 14663), relating to embezzlement by executors and administrators.</p>

Bill by Samuel M. Felton and others, as receivers of the Pere Marquette Railway Company, against George ■E. Wedthoff and others, to restrain the prosecution of actions at law commenced against the Pere Marquette Railway Company and to quiet title. From a decree for complainants, defendants appeal.

<p>1. Intoxicating Liquors — Civil-Damage Action — Damages — ■ Husband and Wife — Services for Nursing — Recovery.</p> <p>In an action by a wife against retail liquor dealers for injury to person, property, means of support, or otherwise (2 Comp. Laws, § 5398; 2 How. Stat. [2d Ed.] § 5074), the wife is entitled to recover the value of her services in nursing her husband who suffered injuries during a fit of intoxication.</p> <p>2. New Trial — Jury—Separation of Jury — Motions.</p> <p>As ground for a motion for a new trial, affidavits showing that, after the jury had retired in the evening to consider their verdict, one of the members of the panel became seriously ill and by order of the court was removed from the jury room to the room of the circuit judge, where there was a couch and where he was attended by a physician in the presence of the judge, being returned to the jury room for a short period thereafter, and being taken again to the judge’s room, apart from the remainder of the jury, for a short time the next day, in the absence of any claim that any of the jury were subjected to improper influence, did not establish any prejudicial error and warranted the circuit judge in denying a new trial. ° The mere fact of separation from the jury for a short period of time without evidence of some abuse or misconduct is not ordinarily, in civil cases, sufficient reason for setting aside a verdict, and judgment.</p> <p>3. Same — Trial.</p> <p>While the defendant was entitled to the participation of all of the members of the jury in the deliberations, and it is proper and advisable, when necessary to withdraw one of the jurors, because of his disability or indisposition, to instruct the remaining jurors to avoid further discussion of the case during his absence, failure to so instruct was not as matter of law sufficient ground to require the granting of a new trial.</p> <p>4. Trial Argument — Conduct of Attorney.</p> <p>Upon the trial of a civil-damage action, brought by a wife against a number of retail liquor dealers for inducing the intoxication of her husband, during which an accident occurred and an injury was received, argument of plaintiff’s counsel that the defendants who were in this kind of business unfurled a black flag, saying: “We prefer the dollar to the life of the human being; we prefer the dollar to the feelings of the wife and mother; we prefer the dollar to the poverty and penury it causes; ” while intemperate, was sufficiently corrected by the court’s interposing and advising the jury that the statement should not be considered; and a new trial was not rendered necessary by reason of the misconduct of counsel.</p> <p>5. Appeal and Ebbok — Exceptions—Argument.</p> <p>Unless a ruling upon an improper remark of plaintiff’s counsel is requested by defendants’ attorney, and an exception taken to the ruling, the alleged misconduct will not be reviewed upon error.</p> <p>6. Same.</p> <p>Nor was prejudicial error committed by plaintiff’s counsel in referring to the suffering which her husband endured as a result of his accident when it appeared from the record that the court again interposed and instructed the jury not to consider any suffering which he underwent.</p>

<p>Partnership — Accounting—Salary of One Partner — Appeal and Error.</p> <p>Evidence considered, in a suit between members of a partnership, to determine the right of one to compensation for his services, and held, to sustain the conclusion of the circuit judge awarding in the decree a salary of a stated amount; the case being held to belong to that class of disputed questions of fact as to which the conclusion of the circuit judge who heard and saw the witnesses is entitled to especial weight and is therefore controlling.</p>

James E. Jones presented for probate the last will of Julien Williams, deceased. From an order admitting the same to probate Mary F. McKeand appealed to the circuit court. Judgment for appellee. Said appellant brings error.

<p>1. Master and Servant — -Personal Injuries — Loas and Logging— Insufficient Tools.</p> <p>Where plaintiff, who was engaged in work of a teamster, was sent hy defendant’s son and superior agent to get a load of lumber, and upon examining the chain which was provided for the purpose of loading the materials the plaintiff discovered that there was no grab hook attached to the chain and complained about it to the son, who ordered him to use the chain which was so provided, and where the load shifted by reason of being insufficiently secured, throwing plaintiff to the ground and seriously injuring him, plaintiff, who knew what kind of tools and implements were required for the purpose in question, was charged with the assumption of the risk arising from the fact that the chain was not suitable.</p> <p>2. Same — Appeal and Error — Directed Verdict.</p> <p>The direction of a verdict for the defendant on the ground, that plaintiff had failed to show any negligence on his part, while not justified upon such ground, was a proper disposition of the case ’and must be affirmed if a sufficient reason existed for directing a verdict in defendant’s favor.</p>

<p>1. Master and Servant — Personal Injuries — Negligence — Defective Appliances.</p> <p>Act No. 10, Pub. Acts 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.), abolishing the fellow-servant rule deprives the employer who has not elected to be governed by the provisions of the law, of the defenses of contributory negligence (unless wilful), assumption of the risk of the fellow-servant’s negligence and assumption of the risk from failure to provide safe premises, safe appliances, or risks inherent in or incidental to the nature of the employment, but in order that plaintiff may recover it is necessary to show that the defendant is chargeable with negligence.</p> <p>2. Same — Personal Injuries — Evidence of Negligence.</p> <p>Plaintiff operated a lath machine which the evidence tended to show frequently got out of alignment and required to be rebabbitted. On the day of the injury plaintiff’s evidence showed the machine had been repaired more than once. It is claimed that one of the bolts which plaintiff passed through the machine broke by reason of improper action of the machinery and stuck in front of the saws. The declaration charged that because of the improperly constructed chute below the saws broken pieces of material lodged and it became necessary to remove them in order to permit the further operation of the machine, that in so doing his hand came in contact with the saws and was injured. The testimony showed that the saws were properly guarded. The testimony failed to show that the accident was due to the defective chute; plaintiff relying upon the theory that the saws had become out of alignment and caused the bolt to break. There was no evidence that tended to show defective coiidition of the saws or want of alignment as charged by the plaintiff, whose testimony supported defendant’s contention that sufficient repairs had been made shortly before the accident. Held, that the trial court should have directed a verdict for the defendant on the ground that there was insufficient proof of defendant’s negligence.</p> <p>3. Same — Proximate Cause — Contributory Negligence.</p> <p>Defendant’s contention that plaintiff’s contributory negligence was the proximate cause of the injury, was not sustainable under the above mentioned act, unless such negligence was the sole cause of the accident, and defendant was guilty of no failure to perform his duty. A negligent act of plaintiff, contributing to his injury, could not be considered to be an independent intervening cause.</p> <p>4. Same — Inspections — Failure to Stop Machinery — Contributory Negligence.</p> <p>The court was in error in submitting to the jury the issue whether as matter of custom plaintiff was not required occasionally to reach in between the saws in order to remove pieces of bolt or lath, in the absence of evidence that he had been so instructed, and upon a record which tended to establish that he might have caused the machinery to be stopped, before removing the pieces of material.</p>

<p>1. Pleading — Plea in Abatement — Motions—Service of Process —Foreign Corporations — Want of Jurisdiction.</p> <p>The issue of want of jurisdiction of the defendant foreign corporation on the alleged ground that there was not valid service of process should be raised by a plea and the framing of an issue of fact; the question will not ordinarily be determined upon affidavits; but where the record showed there was no issue of fact and that the affidavits presented simply a question of law for the court as to want of jurisdiction the court may be warranted in determining the questions raised upon the record.</p> <p>2. Process — Foreign Corporations — Local Business — Venue— Judgments — Jurisdiction.</p> <p>An action commenced in the county of plaintiff’s residence against the defendant which is engaged in business in the State of Michigan, though a foreign corporation, having a factory and resident manager in this State and having complied with Act No. 266, Pub. Acts 1911, authorizing the secretary of State to issue a certificate to foreign corporations carrying on business in this State and conferring all powers and privileges given to corporations organized under the statutes of this State, was improperly brought in a county other than that in which defendant’s business was conducted and in which service of process was obtained. 3 Comp. Laws, § 10442 as amended (5 How. Stat. [2d Ed.] §13521).</p>

Assumpsit by Harry Edgerly against the Ladies of the Modern Maccabees upon a certificate of insurance. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Exceptions before sentence from Hillsdale; Chester, J.</p> <p>Carl Wheeler' was convicted of violation of the liquor law.</p>

Case by Grace Smith against Mary E. Smith for assault and battery and resulting injuries to plaintiffs person. Judgment for plaintiff. Defendant brings error.

Case by Ruth C. Walsh, as administratrix of the estate of Edward M. Walsh, deceased, against the Lake Shore & Michigan Southern Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

<p>1. Libel and Slander — Trial—Failure to Instruct — Pleading.</p> <p>Where the slanderous words charged in plaintiff’s declaration were not shown to have been uttered as averred, and the language proved to have been used differed materially from the statements set forth in the declaration, the defendant was entitled to have his requests for instructions to the jury given covering the point that there was no evidence in support of certain of the allegations of plaintiff.</p> <p>2. Same — Evidence—Witnesses—Bias—Interest.</p> <p>Plaintiff’s attorneys, who went upon the stand as witnesses to meet the testimony of one of defendant’s witnesses who claimed to have been offered money to testify in favor of plaintiff, were improperly excused by the trial court from answering interrogatories as to their interest in the action and the amount of their fees, and whether they had the case on a contingent basis: bias or interest of the witness is always a proper subject of inquiry.</p> <p>3. Same — Evidence — Reputation as to Wealth — Financial Standing.</p> <p>The actual wealth of the defendant in a slander case is not competent as the subject of testimony, although his reputed, financial standing may be material; and where the court failed to exclude from the consideration of the jury evidence offered tending to show the actual wealth or financial ability of the defendant, in so clear a manner that the jury would understand the instructions, it was reversible error to refuse defendant’s requests to the effect that there was no testimony in the case as to his reputed financial standing.</p> <p>4. Same — Repetition of Slander — Evidence.</p> <p>It was not necessary for plaintiff to prove that a repetition of the slander claimed to have taken place was in the exact words of the original charge: proof of the repetition is intended to bear upon the question of malice in uttering slanderous language. If the statements are substantially similar, calculated to produce the same impression, evidence of such repetition is admissible.</p>

, presiding. Bill by Willis J. Perkins against the boat Golden Girl and other defendants to enforce a statutory lien. From a decree for defendants, complainant appeals.

<p>Appeal from Wayne; Hally, J.</p> <p>Bill by Anton Antoszewski against the City- Plumbing Company and others to cancel certain conveyances made to the defendants. From a decree for complainant, defendants appeal.</p>

Missaukee; Lamb, J. Bill by the L. Starks Company, a foreign corporation, against Tannette Eppink and Sena Taylor in aid of execution. From a judgment for defendants, complainant appeals.

Bill for injunction by Matthias Lehnen and others against Otis H. Ryan to restrain a foreclosure and sale of personal property and assets of complainants. From a decree in favor of complainants, defendant appeals.

<p>1. Street Railroads — Negligence — Personal Injuries — Pavements — Excavation in Street — Lights—Crossings.</p> <p>On the trial of a personal injury action brought against a defendant street railroad company for injuries sustained by falling into an excavation made in the street which plaintiff claimed was not lighted, defendant’s contention being that it had furnished sufficient lights which had been extinguished by a heavy wind and rain storm immediately before the accident, the question whether or not the storm was such that it might reasonably be expected during the month of June, when the injury occurred, was a proper question for the jury upon conflicting testimony; the court was not required to withdraw from the jury the question of fact upon the theory of the defendant that the storm was, as matter of law, extraordinary.1</p> <p>2. Same — Instructions—Trial.</p> <p>It was the duty of the court, however, to instruct the jury that if they should find the storm was an unusual one such as defendant would not be required to anticipate in' the exercise of ordinary care, that it was for the jury to determine whether defendant had had a reasonable time in which to restore the lights before the occurrence of plaintiff’s injury, and if such reasonable time had not elapsed, then plaintiff could not recover.</p> <p>3. Evidence — Expert Testimony — Hearsay—Pain and Suffering.</p> <p>Testimony of defendant’s physician, on cross-examination, who examined her ankle, that in making the examination plaintiff flinched, was hearsay testimony and should have been excluded from the evidence.</p>

<p>1. Guaranty — Principal and Surety — Acceptance — Bond — Notice.</p> <p>There was a sufficient notice of acceptance by plaintiff bank of defendant’s bond, guaranteeing the obligations of a third party, in order to render the bond valid as between the bank and defendant guarantor, who was shown by the testimony to have written suggesting to the principal debtor that such bond be executed, where the bank forwarded to the defendant a bond in the form of a guaranty containing the terms suggested by him.1</p> <p>2. Same — Evidence — Parol Evidence Rule — Contracts — Ambiguity.</p> <p>Under a simple contract of guaranty that the principal debtor would punctually pay any and all indebtedness to the plaintiff bank up to a stated amount, it was reversible error to permit the defendant to testify that his understanding when he signed the guaranty was that the obligation should extend to future indebtedness only.</p> <p>3. Same — Consideration—Suretyship—Banks and Banking.</p> <p>Although the evidence established the fact that the plaintiff bank made advances to the principal debtor a number of days before the defendant executed the guaranty, which was forwarded to him pursuant to his suggestion, the plaintiff was entitled to recover notwithstanding that no additional consideration passed after the guaranty was received by it.</p> <p>4. Same — Fraud—Concealment.</p> <p>No such fraud as would vitiate an agreement was disclosed hy evidence that the plaintiff did not state to the guarantor that the principal debtor was indebted to it at the time of the execution of the instrument: unless the concealment was such as to amount to fraud the surety would not he released and failure to advise the guarantor was not fraudulent.</p> <p>5. Same — Subjects Included — Construction of Contract.</p> <p>Where plaintiff bank held notes of one of the officers of the debtor corporation to the extent of over five hundred dollars and the corporation indorsed such obligation, although there was no consideration for doing so, the notes which had been executed prior to its organization were not obligations secured hy the guaranty; also, the guarantor was under no legal obligation to pay the amount of $350 which was advanced to the company after he withdrew the guaranty.</p> <p>■Kuhn, Stone, and Ostrander, JJ., dissenting.</p>

Bill by Vic N. Mercer against Thomas S. Stephens to redeem from a purchase ■ of lands for delinquent taxes. From a decree for complainant, defendant appeals.

Bill by Gilbert Olson against Charles B. Williams to restrain an action of ejectment and to- quiet title. From a decree for complainant, defendant appeals

<p>Error to Manistee; Withey, J.</p> <p>Assumpsit by Manistee Navigation . Company against E. Golden Filer and others for breach of a special contract; Judgment for plaintiff. Defendants bring error.</p>

<p>Error to Oakland; Smith, J.</p> <p>Assumpsit by Joseph C. Smith, as administrator of the estate of John L. Smith, deceased, against the Chase & Baker Piano Manufacturing Company for services performed. Judgment for plaintiff, on a directed verdict, for an insufficient amount, and he brings error.</p>

Bill by C. H. Little Co. against L. P. Hazen Co., John F. Dodge, Horace E. Dodge and others to foreclose a mechanic’s lien. Defendants Dodge filed a cross-bill making the Massachusetts Bonding & Insurance Company a party and asking for affirmative relief against such surety. From a decree on demurrer to the cross-bill sustaining the demurrer to the relief asked, defendants and cross-complainants Dodge appeal.

, presiding. Case by Barbara Paskvan, as . administratrix of the estate of Nick Paskvan, deceased, against the Allouez Mining Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

<p>1. Contracts — Patents—License—Interpretation.</p> <p>Where defendant had been granted an exclusive license to operate under a patent of certain electrical welding machines used in welding rims, its provisions granting to defendant the right to terminate the agreement but not granting such right to the plaintiff, the latter was not entitled to execute a further contract of license to other parties prior to such termination by the defendant.</p> <p>2. Same — Waiver—Question oe Pact — Intent.</p> <p>Plaintiff, who claimed that the defendant had waived his right to rescind or terminate the contract, was entitled to have the question presented to the jury by a charge of the court as to defendant’s failure to complain and as to evidence that upon failure to pay royalties plaintiff made a demand and defendant’s secretary stated they had not been verified and that it at no time claimed that the contract was terminated; the question of waiver is usually a mixed issue of fact and law where there is any evidence tending to show an intent of the party to waive a right.</p> <p>3. Same — Patents—Royalty Agreement — Breach of Contract— Assignment.</p> <p>Nor was defendant entitled to a peremptory instruction as against the plaintiff upon the ground that the plaintiff had failed to inform him that his application for a patent had been rejected, it appearing a patent had been granted in Canada and that proceedings were pending in the United States patent office for the perfection of such claim to a patent as plaintiff claimed he was entitled to; defendant not having elected to put an end to the agreement.</p> <p>4. Same — Breach—Assignment—Lease.</p> <p>Nor was the contract breached by the assignment by the plaintiff of his rights subject to the defendant’s license, which contained no prohibition or restriction against the transfer of the interest retained by plaintiff and where the rights of defendant company were sufficiently protected.</p>

Bill by the city of Owosso against the Union Telephone Company for an injunction and other relief. From an order overruling its demurrer defendant appeals.

Mandamus by Robert Oakman against the board of supervisors of the county of Wayne to require the respondent to submit to a vote of the electorate the question of annexation of certain territory to the city of Detroit. An order denying the writ is reviewed by relator on certiorari.

Assumpsit by Emil Willebrandt and another against the Sisters of Mercy, a corporation, for goods sold and delivered. Judgment for defendant upon directed verdict. Plaintiffs bring error.

Assumpsit by Ernest A. Remer against John E. Goul and another for a shortage in weight of grain received by plaintiff from defendants. Judgment for plaintiff. Defendants bring error.

<p>Appeal from Oceana; Sullivan, J.</p> <p>Bill by Mabel M. Gellatly against Roy K. Gellatly for divorce. From a decree for defendant, complainant appeals.</p>

<p>Divorce — Evidence—Extreme Cruelty — Marriage—Support.</p> <p>Evidence that defendant husband owned between $3,500 and $4,000 in property and that before marriage he had been thrifty, that the complainant wife was receiving a widow’s pension of $12 a month, and that the husband insisted upon using her money instead of supplying her with what she wanted after they were married, that complainant knew before she married defendant that he was frugal and knew his habits of living; held, to be insufficient to make out a case of extreme cruelty or such gross, wanton or cruel neglect to support as to justify a decree of divorce.</p>

Replevin by Walter W. Lang against Edwin T. .Lundy to recover certain timber and property seized upon an execution. Judgment for defendant on a directed verdict. Plaintiff brings error.

Case by Eli D. Labadie and another against the village of Ford and others for damages because of the change in the grade of a sidewalk. Judgment for defendants. Plaintiffs bring error.

<p>1. Master and Servant — Salary—Recovery.</p> <p>In an action by plaintiff for salary which he claimed the defendant copartners agreed to pay and which the defendants contended was to be paid by the corporation which succeeded to the business of the copartnership, the testimony being in conflict, presented an issue of fact which the court properly submitted to the jury.</p> <p>2. Trial — Special Questions — Jury—Issues oe Fact — Charge.</p> <p>On the trial of an action for salary claimed to be due to the plaintiff the trial court did not commit reversible error in refusing to submit to the jury several special questions presented by defendant’s attorney after the close of the charge to the jury: as matter of right defendant was not entitled to have such special questions presented at that stage of the proceedings.</p> <p>3. Same — Jury Trial — Verdict—Issues.</p> <p>Unless special questions are controlling of the issues in a case they should not be submitted to the jury.</p>

Bill by William Lachelt against John F. Mclnerney and others to quiet title to certain real property. From a decree for defendants, complainant appeals.

<p>1. Damages — Freight—Delay—Carriers.</p> <p>The damages recoverable against a carrier for unreasonable delay in transporting freight resulting in the deterioration of the goods are the difference between the value of the goods as delivered and the value of the shipment when it ought to have been delivered by the carrier to the consignee.</p> <p>2. Carriers — Abnormal Condition — Moisture — Evidence—Negligence — Unreasonable Time — Notice.</p> <p>Where the railroad company claimed that a consignment of beans contained an abnormal quantity of moisture, and that it had no notice of the condition of the freight and should not be charged with its deterioration during delay in transit, and where it appeared from the testimony that the freight could not be classed as perishable, and beans with the alleged amount of moisture would not ordinarily become damaged under four or five days, that the time required to transport freight between the point of shipment and the destination was about two days, and an unreasonable time had elapsed in making delivery, that plaintiff had no reason to think that the beans would spoil, the record sustained a judgment against the carrier for the price of the beans.</p> <p>3. Same — Measure oe Damages — Market Price — Evidence.</p> <p>Where the only evidence of market price at the place of delivery was the price at which the goods were sold under plaintiff’s contract, and defendant railroad company sold the beans and retained the amount received for them, the measure of damages was properly held, by the trial court, to be the contract price at destination at time delivery should have been made.</p>

Case by Lindsay P. Thomas and others against Frank W. Blair and others as receivers of the Pere Marquette Railroad Company for the wrongful delivery of a car of beans. Judgment for plaintiffs. Defendants bring error.

<p>1. Frauds, Statute oe — Priority—Sale—Redemption.</p> <p>The purchaser of land which is subject to a mortgage who assumes payment of the mortgage debt may agree not only to relieve the grantor of the incumbrance but also charge himself as against the mortgagee with personal responsibility; the agreement may rest in parol and be valid under the statute of frauds.</p> <p>2. Evidence — Parol Evidence Rule — Assumption oe Mortoaoe Dert.</p> <p>Testimony in a suit to foreclose a mortgage that as a part of the consideration for the purchase of lands the grantee in the deed assumed and agreed to pay two outstanding mortgages was not improperly received and considered, although the deed did not purport to contain the agreement and merely excepted from the covenants the incumbrances in question.</p> <p>3. Mortgages — Contracts — Promise to Pay — When Tithe Does Not Inure to Mortgagee.</p> <p>Defendant purchased certain lands by a deed of conveyance which excepted two mortgages from the covenants. He permitted the senior mortgage to be foreclosed and purchased the interest after the expiration of the period of redemption. Complainant commenced to foreclose the second mortgage, claiming that the purchase should inure to her benefit, because defendant had agreed as part of the price paid for the real estate to satisfy both incumbrances. Held, that the interest obtained did not inure to her benefit.</p>

Case by Susan Miller, as administratrix of the. estate of Andrew Miller, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

, presiding. Bill by Minnie Loranger against the city of Flint to restrain defendant from diverting water from complainant’s mill pond. From a decree for complainant, both parties appeal.

Assumpsit by Berwick Store Company, Ltd., a co-partnership, against Leonard Starks for an alleged loss upon a carload of potatoes. Judgment for plaintiff. Defendant brings error.

<p>1. Carriers — Storage of Baggage — -Liability for Loss — Fire, Destruction BY.</p> <p>The question of the reasonableness of time within which to claim baggage in possession of a carrier is ordinarily a question for the jury upon disputed facts: the facts being admitted or not disputed the question is one for the court.</p> <p>2. Same — Custom—Evidence—Baggage—Liability.</p> <p>Where a traveling salesman left his baggage and sample cases in the depot of defendant railway company overnight after his arrival at his destination, and there was evidence that it was customary for the carrier to close its depot very soon after the arrival of the evening train, upon which plaintiff’s salesman arrived, so that there was no opportunity to procure the baggage until the next morning, the failure of the passenger to apply for his baggage until the next day was not a defense to an action for its loss by fire during the night.</p> <p>3. Same — Trial—Charge—Custom.</p> <p>Although the court submitted to the jury the question whether or not such custom existed, the evidence, being uncontradicted, warranted an instruction to the jury that a reasonable time had not elapsed; and where the jury found under the charge that a reasonable time had not elapsed so that defendant was chargeable as a common carrier, or that a reasonable time had elapsed, and defendant was guilty of negligence, there was no reversible error of which defendant could complain.</p> <p>4. Pleading — Defense — Affirmative Defense — Limitation of Liability — Carriers.</p> <p>Circuit Court Rule 76, providing that any affirmative defense, such as payment, release, discharge, etc., must be pleaded, authorized the trial court in rejecting from the evidence an exhibit offered by defendant to show that its liability had been limited by a published schedule of rates on file in its office; the general issue is not sufficient to justify the admission of testimony to show a limitation of the carrier’s liability. 3 Comp. Laws, §§ 10073, 10074 (5 How. Stat. [2d Ed.] §§12723, 12724).</p> <p>5. Carriers — Baggage—Notice.</p> <p>Where the plaintiff’s traveling salesman in good faith checked his sample cases without declaring their actual value and obtained a lower rate than he was entitled to for the baggage, and where the tariff schedules on file in the carrier’s office provided for a limitation of liability unless a greater sum was stated and extra charges paid, but the rates were not brought to the passenger’s attention and were not known to him, the carrier was liable for the full value upon their destruction by fire in its depot within a reasonable time after arrival under Act No. 300, Pub. Acts 1909, § 40.</p> <p>6. Carriers — Liability — Baggage — Negligence—Damages—Loss by Fire.</p> <p>Act No. 300, Pub. Acts 1909, which expressly preserves the common law liability of carriers, does not relieve a carrier of its liability to one whose baggage was, without fraud or deceit, checked under a lower rate than that kind of goods should have paid if their value and nature had been declared.</p>

<p>1. Compromise and Settlement — Evidence—Ratification.</p> <p>Evidence tending to show that the complainant and defendant, who had been jointly engaged in investments in Nevada property, undertook to market certain property of the complainant in Michigan and to divide the same between them, that they later made and agreed upon terms adjusting all differences between them, that upon a subsequent date a further settlement of the affairs was made and that complainant signed a receipt for a part payment upon such settlement: held, sufficient to establish the existence of a compromise agreement between the parties.</p> <p>2. Same — Fraud—Interest.</p> <p>It was not such fraud as to invalidate an alleged compromise of conflicting claims between the parties that defendant had sold certain lots upon contract from property that was jointly owned by the parties, but that he did not disclose that such contracts bore interest and he had been collecting the same, where complainant was a shrewd business man and a trained lawyer and had had considerable experience in realty matters.</p> <p>3. Usury — Trusts-—Situs—Intent.</p> <p>The place where the terms of the contract are agreed upon determines the place whose laws shall control in interpreting them; so that where complainant, a resident of Michigan, was temporarily residing in Nevada and proposed to a resident of Michigan to execute to the latter a trust deed to secure such advancements as might be made, and the defendant prepared a deed of trust relating to property that was situated in the State of Michigan and forwarded it to Nevada to be executed in conformity with the request of the other party, the contract must be held to have been executed in Michigan and subject to the rules of the law of this State.</p> <p>4. Same — Conflict of Laws — Presumptions.</p> <p>If a contract is made in one State or country to be performed in another it will be presumed to have been entered into -with reference to the laws of the State in which it is to be performed and they will be resorted to in determining the validity, obligation and effect of the agreement.</p> <p>5. Usury — Interest—Payment—Services.</p> <p>Where complainant proposed to execute a trust deed to defendant to secure advances which the latter might make to redeem certain lands from a foreclosure sale and to secure such other expenditures as might be made in selling the property, and where an important part of the consideration was services to be performed by the trustee in effecting a redemption and securing a clear title and paying taxes and in performing other functions connected with the development of the property, a provision that the trustee should have one-half ef the interest of the complainant, in addition to interest on the investment, was not usurious but amounted to a valid payment for services to be rendered.</p> <p>6. Same.</p> <p>Only when services are employed as a cloak to conceal intended usury will the relative value of services, compensation, etc., be inquired into.</p> <p>7. Equity — Cross-Bill—Pleading—Affirmative Relief.</p> <p>Unless a defendant asks affirmative relief by his pleading, in the form of a cross-bill or answer in the nature of a cross-bill, the court will refuse to grant any equitable remedy in his favor.</p> <p>8. Trusts — Compensation of Trustee — Expenses.</p> <p>The provision of a trust deed that “all expenses and incidental charges of the trustee, incurred by the trustee in discharge of the trust hereby created, shall be deducted from the income,” etc., clearly refers to necessary disbursements, and not to compensation for services rendered by the trustee; no part of the funds in his hands could be retained pursuant to such language as compensation for work done by him.</p>

Bill by Louise De Grasse and others against the Verona Mining Company, Herbert M. Pelham, and others, for forfeiture and cancellation of a lease. From a decree for defendants, complainants appeal.

Debt by the board of supervisors of the county of Chippewa against James T. Bennett and others upon defendant’s official bond. Judgment for plaintiff. Defendant brings error.

<p>1. Fbattd — Negotiable Instruments — Bills and Notes — Misrepresentations.</p> <p>Where defendant notified a firm of brokers to purchase certain stock which he did not pay for at the time, and where an officer of the brokerage firm later advised the defendant that they had purchased the stock and he thereupon paid a portion of the price by check, the false representation, in advising defendant that the stock had been purchased, amounted to fraud in procuring the check, under the negotiable instruments law, Act No. 265, Pub. Acts 1905, §57 (2 How. Stat. [2d Ed.] § 2728), and gave rise to a defense in defendant’s favor against the paper in the hands of a third party.</p> <p>2. Same — Check — Fraudulent Representations — Burden oe Prooe.</p> <p>■ - Upon proof of a fraud of the brokerage firm in procuring defendant’s check, the burden of proof rested upon the plaintiff to prove that it acquired title in due course for a valuable consideration and in good faith. Sections 54-61, Act No. 265, Pub. Acts 1905.</p> <p>3. Bills and Notes — Checks—Principal and Agent — Evidence.</p> <p>Where the plaintiff bank had printed upon its pass book a notice to customers that in receiving checks and drafts, etc., for deposit, it acted as agent only and assumed no responsibility beyond carefulness in selecting its agents, that the amount of dishonored checks or drafts would be charged to the customer, plaintiff bank was not a holder in good faith but was agent for the collection; title to the paper remained in the depositor.1</p> <p>4. Same — Banks and Banking — Negotiable Instruments.</p> <p>The fact that plaintiff permitted its patrons to check against the credit allowed upon paper deposited for collection did not preclude the bank from charging back the amount of the dishonored chsck; the title vested and remained in the depositor.</p> <p>5. Banks and Banking — Bona Fide Purchaser — Bills and Notes.</p> <p>Where there was evidence that defendant’s brokerage firm engaged in extensive “kiting” operations with the plaintiff bank, that its officials were familiar with the methods employed by the firm and permitted the same, having notice of its insolvency, and there was evidence that a large amount of paper deposited to the credit of the brokers was for the purpose of procuring a fictitious credit, evidence tending to show the real nature of the transactions was properly received as a defense to the action of plaintiff bank as holder in due course of a check deposited by the brokers who had obtained the paper by misrepresentation.</p> <p>6. Same — Negotiable Instruments — Bona Fide Holder.</p> <p>Where the plaintiff bank, through its assistant cashier, assented to the action of the brokerage firm in kiting checks and otherwise procuring fictitious credit upon its books, the contention that because plaintiff bank had made advances on the faith of the check received as a deposit for collection from the brokers, who had fraudulently procured the same from defendant, would not sustain an action in plaintiff’s favor as a holder in due course.</p>

Case by Louis Groesbeck against Henry D. Shelden and others for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

Assumpsit by Walter H. North, as executor of the estate of Duane C. Salisbury, deceased, against the city of Battle Creek for salary of decedent as city attorney. Judgment for plaintiff. Defendant brings error.

Clair; Tappan, J. Bill by Thomas H. George, prosecuting attorney for the county of St. Clair, on the relation of George N. Jones and others, against Warren S. Travis for an injunction and other relief. From a decree for complainant, defendant appeals.

Case by Elmer M. Braley, as administrator of the estate of William R. Wood, against the Grand Trunk Railway Company of Canada for the unlawful killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.

Bill by Harry R. Solomon against Jacob Shewitz and others to quiet title to real property. From a decree for complainant, defendant Shewitz appeals.

Case by Elmer E. Rouse against Frank W. Blair and others as receivers of the Pere Marquette Railroad Company, for personal injuries to himself, his wife, and child. Judgment for defendants upon a directed verdict. Plaintiff brings error.

Katherine M. Klawinski presented a claim against the Lake Shore & Michigan Southern Railway Company for the death of her husband in defendant’s employ. From an .order awarding compensation respondent brings certiorari.

Contempt proceedings by the Michigan railroad commission against the Detroit & Mackinac Railway Company and another to adjudge respondents in contempt of court; also, motion by said respondents to amend and modify the opinion of the court in the case of Michigan Railroad Commission v. Detroit & Mackinac Railway Company, 184 Mich. 342.

Mandamus by George E. Nichols, special prosecuting attorney for the county of .Houghton, • against Eichard C. Flannigan, circuit judge, presiding in the county of Houghton, to compel the respondent to set aside an order granting a new trial in a prosecution for murder.

Assumpsit by Newport Mining Company against the city of Ironwood for the recovery back of taxes paid under protest. Judgment for defendant on a directed verdict. Plaintiff brings error.

Assumpsit by Hart Milling & Power Company against A. B. McCrillis & Son, Inc., a foreign corporation, for the breach of a contract of sale. Judgment for plaintiff. Defendant brings error.