Volume 186 — Michigan Reports

Case by Andrew Baucino against James R. Fitzpatrick for personal injuries. Judgment for defendant, upon a directed verdict. Plaintiff brings error. This is a personal injury case, arising out of injuries to the plaintiff caused by the caving in of a trench which was being prepared for the reception of a water main then being laid by the defendant, who was a contractor in the city of Grand Rapids.

, presiding. Case by Andrew J. Weitzel, as administrator of the estate of Stanley G*. Weitzel, deceased, against the Detroit United Railway for the unlawful killing of decedent. Judgment for defendant upon a directed verdict. Plaintiff brings error.

<p>1. Master and Servant — Mines and Mining^-Feixow-Servants —Lighting.</p> <p>Negligence of defendant’s employee, in charge of a tram car operated along a crosscut that the miners traversed in going to and from work, in neglecting or omitting to place a light at the head of the car, as required by the employer, for the safety of employees, for the alleged reason that his headlight became broken or out of order at the beginning of the trip, was an act. of a..fellow-servant of another employee engaged as a miner, for which no right of action arose in favor of the injured servant.</p> <p>2. Same — Safe Place.</p> <p>Where the master has provided a safe place to work and suitable tools, add appliances with which to perform the same, the negligent use of such instrumentalities by a fellow-employee is not chargeable to the master as the negligence of an alter ego.</p> <p>3. Same.</p> <p>Nor was defendant liable on the theory that it had not provided a reasonably sufficient lighting system so as to make the operation of its mine safe, where the conductor had been duly furnished with. lamps and instructed to place a lighted lamp upon the front of every moving train.</p> <p>Kuhn, Bird, and Moore, JJ., dissenting.</p>

<p>Appeal from Kalamazoo; Weimer, J.</p> <p>Bill by Amy H. Heaton against Ryan Heaton for divorce. From a decree for defendant, complainant appeals.</p>

<p>1. Appeal and Error — Evidence — Former Testimony — Leading Questions. • „</p> <p>The objection by defendant’s counsel that testimony offered on plaintiff’s direct examination relative to former statements made upon a previous trial was incompetent, was not a sufficient ground for reversing the case upon appeal where the real nature of the objection was that plaintiff’s counsel elicited the testimony by leading questions and the ground of the objection was not stated at that time.</p> <p>2. Carriers — Negligence — Contracts — Carrying Passenger by Destinatión.</p> <p>Where defendant’s conductor carried plaintiff and her three children past the station at which she intended to alight, and the conductor suggested that he would give her a ticket to return to the point where she should have alighted, and plaintiff replied that she would prefer to return home because there would be no one to meet her and night was coming on, but finally consented to accept the ticket, and the conductor of the returning train assured her that he would hold the train until she could inquire whether any one was there to meet her or take-such other steps as might be desired, the failure of defendant’s servant to hold the train amounted to negligence, entitling the plaintiff to damages for being compelled to remain all night in the open air.</p> <p>3. Same — Principal and Agent — Authority of Conductor.</p> <p>It was within the authority of defendant’s conductor to make the arrangement claimed by plaintiff to have been made, and defendant was charged with the exercise of reasonable care to perform it.</p> <p>4. Pleading — Carriers—Counts—Cause of Action.</p> <p>Plaintiff alleged in her declaration that defendant had negligently carried her past her station and caused her damage, and in another count averred that it had violated its statutory duty and claimed the penalty under section 5254, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6699). The trial court submitted both claims to the jury who returned a verdict of $500. On motion for a new trial counsel for defendant objected to the submission of both questions to the jury, and the court being of the opinion that both issues should not have been submitted, ordered that $100 be remitted from the judgment or a'new trial be granted. Held, that after the deduction of $100 from the amount of the judgment defendant had no ground to complain of the action of the court; also that it was not ground for reversal to misstate in the pleading the section of the statute, referring to a repealed statute instead of the one that applied to plaintiff’s claim.</p>

<p>1. Garnishment — Assignment—-Abuse oe Process — Validity.</p> <p>The owner of a right of action against a foreign corporation is entitled to assign his claim to a person within • the State and thereafter the assignee becomes the legal owner and entitled to bring suit and to garnishee the assignor or any one else whom he believes- to be indebted to the principal defendant. It was not an abuse of process to cause the writ of garnishment to issue against plaintiff’s assignor where neither the defendant nor his property was inveigled into the State by fraud, or attached under process of the court issued for one purpose but used for another. 3 Comp. Laws, §§ 10054, 10600 (5 How. Stát. [2d Ed.] §§ 12704, 13436).</p> <p>2. Pleading — Variance—Contracts—Instruction.</p> <p>Proof that defendant agreed to do everything possible to take certain steel within a reasonable time was not such a variance from the declaration which alleged that the defendant contracted to accept the steel within a reasonable time, as to require the court to direct a verdict on that ground upon the objection of the defendant; and, in any event, where the defendant claimed it refused to accept the steel because of its -inferior quality, the objection was without force.</p> <p>3. Sales — Contracts—Breach—Reasonable Time.</p> <p>Where the defendant entered into a contract to purchase 25 tons of “high speed” steel at a stated price, and to do everything possible to take it within a reasonable time, and, during a period of a year and eight months, only a small amount of steel was used, much less than the amount contracted for, the defendant assigning as a reason that the steel was not up to standard and the evidence tending to show that the capacity of defendant’s mill and the volume of business was such that the entire amount of steel for which defendant had contracted might have been used, also that in the course of the correspondence the defendant gave as a reason for failing to buy the steel that plaintiff had refused to pay for drills received from the defendant; held, to present issues for the jury upon the question, of reasonable time and of the good faith of defendant in rejecting the material.</p> <p>4. Same — Breach—Evidence.</p> <p>Where defendant refused to. accept any further steel because it was inferior in grade and in fact, it had bought less steel than the contract called for, the question .whether a reasonable time had elapsed within which to comply with the contract was' immaterial to plaintiff’s right to recover.</p> <p>. 5. Same — New Trial.</p> <p>Held, that the verdict was not against the weight of the evidence.</p>

Assumpsit in justice’s court by the Saginaw Milling Company against John Schram for breach of a contract of sale. Judgment for defendant for an alleged recoupment. Plaintiff appealed to the circuit court which directed a verdict in its favor. Defendant brings error.

<p>1. Parties — Joint Defendants — Service of Process — Statutes.</p> <p>Under 3 Comp. Laws, §§ 10373-10375 (5, How. Stat. [2d Ed.] §§ 13087-13089), authorizing the commencement -of suit against joint promissors and authorizing plaintiff to proceed against the defendant upon whom service could he obtained, it is not necessary to show that plaintiff was unable to obtain service upon the codefendant.</p> <p>2. Guaranty — Sales—Delay—Time.</p> <p>Mere delay in the shipping of goods beyond the date fixed in the order did not operate to relieve the guarantors of the payment of the purchase price where defendants signed the guaranty with full knowledge that the plaintiff required the same before the order would be filled, and any delay caused in filling the order was attributable to neglect to furnish such guaranty.</p>

Bill by James Fleming against Catherine Fleming for divorce. From a decree for defendant, awarding a divorce upon her cross-bill, defendant appeals, claiming the alimony awarded to be inadequate.

, presiding. Bill by Gertrude Mudge Edwards against Royal Mudge, Jr., and others, for partition and other equitable relief. From a decree for complainant, defendant Royal Mudge, Jr., appeals.

<p>1. Pleading — Declaration ■ — ■ Counts — Election—Inconsistent Claims.</p> <p>On tlie trial of an action of assumpsit based upon tbe claim that plaintiff’s assignor bad a special contract with defendant for a percentage of sucb business as he might procure from the sale of musical instruments, where plaintiff included a count in her declaration upon a special contract and joined therewith the common counts in assumpsit, the court did not err in refusing to require plaintiff to elect upon which theory she would go to the jury.</p> <p>2. Contracts — Commissions •— Express Contract — Quantum Meruit.</p> <p>Plaintiff was entitled to have the case submitted to the jury upon evidence tending to show that he was a musical instrument dealer in the section in which he resided; that defendant secured information from him which led to the sale of certain musical instruments to persons known to the plaintiff, and although the jury found against plaintiff’s claim that an express contract of agency for the exclusive handling of defendant’s goods was in existence between the parties, evidence that plaintiff was the procuring cause of the sale and defendant knowingly accepted and availed itself of his services sufficiently sustained the verdict of the jury.</p> <p>3. Same — Implied Contracts — Compensation.</p> <p>The law will ordinarily imply a contract to pay a full and reasonable compensation to one who was the procuring cause of a sale and of whose services the vendor knowingly availed himself.</p> <p>4. Trial — Argument—Opening oe Counsel.</p> <p>Although plaintiff’s counsel was not justified in his opening statement to the jury in making an argument that he was not asking a verdict because his client was a woman and the defendant a corporation, and though in arguing his case to the jury he improperly referred to an assignment or writing made by an alleged agent to plaintiff in which it was stated that the commission due him was $1,000, the alleged errors were not so prejudicial as to require the reversal of the judgment in plaintiff’s favor..</p> <p>5. Evidence — Contracts—Secondary Evidence.</p> <p>Objections on the part of defendant that preliminary negotiations and correspondence were offered by plaintiff and. received in evidence tending to show the execution of a contract and that the court erred in allowing secondary evidence of the contents of the alleged special agreement between the parties because of insufficiency of the proofs of its loss, were not fatal when the finding of the jury awarded the sum plaintiff was entitled to recover under the common counts, instead of under his claim of a special contract, thereby rendering the objections untenable and the error, if any, harmless.</p>

Case in justice’s court by George Huff against the Michigan United Traction Company for damages to plaintiff’s automobile. Defendant appealed to the circuit court from a judgment against it. Judgment for plaintiff. Defendant brings error.

Bill by Hiram G. Beach against Hugh H. Rice and another for an injunction and further relief. From a decree denying complainant a part of the relief prayed for, he appeals.

Case-made from Delta; Flannigan, J. Assumpsit by Eva Rousseau against the Brotherhood of American Yeomen upon a fraternal benefit certificate. Judgment for plaintiff. Defendant brings error.

Case by Charles L. Churchill against George Howe for conversion of funds belonging to plaintiff. An order was entered overruling a demurrer to plaintiff’s declaration. Defendant brings error.

<p>Error to Kent; Brown, J.</p> <p>Assumpsit by Lydia Rathman against the New Amsterdam Casualty Company on a policy of accident insurance. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Municipal Corporations — Auctioneers—Power to Regulate.</p> <p>The city of Detroit had authority, under its charter, to enact an ordinance to license and regulate auctioneers and auctions held within its limits, and may prescribe such regulations as are necessary and appropriate in that connection to eliminate fraud and protect the public from annoyance ,and imposition.</p> <p>2. Same — Reasonableness—Validity.</p> <p>Whether- an ordinance intended for such purpose is reasonable and within the range of discretionary power conferred is a question for judicial construction.</p> <p>3. Same — Police Power.</p> <p>Ordinances enacted in pursuance of this police power are primarily presumed to be valid, unless the contrary appears from their provisions.</p> <p>4. Same — Constitutional Law — Ordinances—Reasonableness— Auctioneers.</p> <p>To justify the State in interposing its authority in behalf of the public, it must be made to appear that the interests of the public generally, as distinguished from those of a particular class, require such interference and that the means are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive upon individuals. Arbitrary interference with private business is not permissible; nor may unusual or unnecessary restrictions be imposed upon lawful occupations.</p> <p>5. Same — Motives.</p> <p>But the motive of the legislature in enacting police regulations is not a proper subject of inquiry.</p> <p>6. Same — Hours—Time—Closing Hours.</p> <p>An ordinance of the city of Detroit, regulating the business of auctioneering, prohibiting fraud or improper methods of selling and prohibiting the holding of such sales after the hour of six p. m., or before eight a. m., is invalid as an unreasonable restraint upon a legitimate trade or occupation.</p> <p>7. Same — Evidence—Competency.</p> <p>Evidence is admissible to show the reasonable nature of an ordinance regulating a business or trade, and to show local conditions that render its enactment- necessary or proper.</p>

, presiding. Bill by Henry Bacon and others against Samuel D. Walden for an injunction. From a decree for defendant, both parties appeal.

<p>1. Trusts — Deeds—Purchaser ■ in Good Faith — Consideration—• Agency.</p> <p>One who in good faith and for a valuable consideration purchases lands from an agent or trustee, in whose name title vested, in ignorance of any trust or obligation resting upon the grantor, as for example not to make a conveyance until he paid the' principal in the transaction an agreed consideration, will be protected in his purchase. He is entitled to rely on the apparent authority with which the agent is vested.</p> <p>2. Principal and Agent — Authority—Trustee. ■</p> <p>Third parties are entitled to deal with an agent in pursuance of the apparent authority with which he is vested by his principal, irrespective of any secret limitations and restrictions of which they may be ignorant; the mutual rights and liabilities depend upon' the apparent scope of the agent’s authority. '</p> <p>3. Trusts — Constructive Trust — Agency.</p> <p>Upon testimony tending to show that defendant undertook to organize a ‘lumber corporation which would erect a mill and lumber plant on certain lands, which complainant had conveyed by absolute deed to his agent, a third party, though upon express restrictions as to payment of the price to the owner; that having found a buyer defendant secured a conveyance from the agent to buyer purporting to be a gift from complainant, who, in fact, had not so authorized; that defendant secured the payment of $9,000 from the last grantee to himself, held, in a suit to impress a trust upon the proceeds of the property, that complainant’s action in placing the title in his agent’s name, giving the latter apparent authority to convey the lands, estopped him from questioning the right of defendant to the fund: evidence also held, to show want of notice to defendant or his customer of a land contract existing between the principal and agent whereby the sum of $10,000 was to be paid to the complainant before transferring title to a third party.</p> <p>4. Same — Following Trust Fund.</p> <p>A tona fide purchaser of land from a trustee or agent without notice of any trust or restrictions upon the agent’s authority takes the property free from any obligation to account to the principal or beneficiary.</p> <p>5. Same — Consideration.</p> <p>A valuable consideration, in a legal sense, may consist in some right, interest, profit or benefit accruing to one party or some forbearance, loss, or responsibility given, suffered or undertaken by the other: it may be other than the actual payment of money and may consist of acts to be done after the conveyance.</p> <p>6. Evidence — Parol Evidence Rule — Consideration.</p> <p>Parol evidence is admissible to show the actual consideration of a deed which contained a recital that it was for one dollar.1</p>

Petition by the village of Highland Park against the city of Detroit in a suit pending in which the city of Detroit was complainant and the said village of Highland Park defendant for an order of the court requiring the enlargement of certain connecting sewers and drains jointly used by petitioner and respondent. From a decree granting the prayer of the petition respondent appeals.

Bill by John H. Hummell against Winifred C. Smale and others to set aside an attachment levy. From a decree for complainant, defendants appeal.

Case by Anna Yonkus, by next friend, against Archibald B. McKay and others for injuries to plaintiff's person caused by and during the' intoxication of her father. Judgment for defendants. Plaintiff brings error.

Bill by Ida C. Carlson and others against the Wisconsin Land & Lumber Company to quiet title to certain lands. From a decree for complainants, defendant appeals.

Bill by Almond B. Myers and another against Dan-forth Myers and others to set aside a tax deed.'' From a decree for defendants', complainants appeal. The bill of complaint in this cause is filed for the purpose of setting aside a tax deed dated June 15, 1894, by the terms of which the defendant Charlotte Myers secured title to 100 acres of land described therein.

<p>1. Contracts — Waiver oe Terms — Breach — Building Contracts —Construction.</p> <p>A construction contract provided that plaintiffs should complete their work on or before a stated date, and that the payments should be made upon the certificates of the architect acting in defendant’s behalf. There was a further provision for liquidated damages of $10 per day in case of failure to complete the building in time. Plaintiffs obtained payments upon the contract, from time to time, as the work progressed without presenting the certificates of the architect to defendant. The building was completed after 6 months’ delay, which plaintiffs claimed was due to the act of the defendant and its architect in calling for extra work without due notice under the provisions of the contract. Belli, that since the architect had no authority under the agreement to refuse a certificate for the reason given by him, i. e., that there-was--a,'dispute as 'to, ,the: .amojmt of liquidated damages due under it which had nqt been adjusted, defendant had waived the provisions of the contract in relation to the requirement of a certificate from '.the architect and plaintiffs were entitled to a judgment:"</p> <p>2'. Same — Delay—Breach of Contract^-Recoupment.</p> <p>Where the defendant school district caused a delay in the construction of the school building, in that the defendant had to drain an "excavation upon the lot to be used, and its architect made serious errors in the plans, necessitating a reconstruction of a part of the building, and where the defendant delayed to notify plaintiffs of its election to have the defendant construct the second story of the building as agreed upon in the written contract, all of which tended to cause delay in completing the structure, it was not a defense of plaintiffs’ action for the contract price, and defendant must be held to have abandoned the time limit provided for; the trial court should have directed a verdict in plaintiffs’ favor upon the question of liquidated damages.</p> <p>3. Same — Arbitration—Construction of Contract — Damages.</p> <p>A clause in the contract providing for arbitration of damages in case of defendant’s delay in providing materials, did not apply where no materials were furnished by defendant, and the only question in dispute was one of liquidated damages for alleged delay in construction.</p> <p>4. Same — Conditions Precedent — Affidavit.</p> <p>Failure to comply with the statute provision calling for an affidavit of the contractor to show the sums due to material-men in case a bond was not given, it appearing that such bond was provided and there were no unpaid claims for materials, did not defeat the right of plaintiffs to recover the balance due as the contract price.</p> <p>5. Pleading — Declaration—Building Contracts — Waiver.</p> <p>Although plaintiffs’ declaration setting forth a written contract of construction, attached to the common counts in assumpsit, did not state the claim that defendant had waived the clause or provision for completion within a fixed time limit, it sufficiently authorized the recovery of plaintiffs for the balance due for constructing the building.</p>

Assumpsit in justice’s court by Jean Murdock against Clara Roe for breach of contract of leasing. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Mandamus by James Holt and another against the board of supervisors of Ogemaw county. An order denying the writ is reviewed by relators on certiorari.

Assumpsit in justice’s court by the Michigan Hardware Company against Edwin J. Merrifield for goods sold and delivered. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff, defendant brings error. Plaintiff declared upon the common counts claiming a balance due of $52.40, with interest.

, presiding. Bill by George Hodges against the township of Bloomfield and others to quiet title to real property. From a decree for complainant, defendants appeal. The complainant is one of two heirs of Mariva Hodges, and as grantee of his coheir was at the time the bill of complaint was filed in this cause sole owner of a farm in Oakland county bordering upon the north shore of Pine lake.

Assumpsit by Samuel Crawford against Edward A. Cicotte and another for breach of a contract in the nature of an option. Judgment for defendant on a directed verdict. Plaintiff brings error.

Clair; Law, J. Bill by Security Trust Company, as receiver of a partnership, against Paul R. Dinsmore and another, to obtain a decree restoring certain property to the estate of the insolvent copartnership. From a decree for complainant, defendants appeal.

Mandamus by James W. McDermott against Leonard Alger, drain commissioner of the county of Saginaw, to compel the respondent to reassess a drain tax. From an order denying the writ relator brings certiorari.

<p>Appeal from Wayne; Hosmer, J.</p> <p>Bill by Knights of the Maccabees of the World against Gitty Brown and others for an order of inter-pleader. From a decree for defendant Elizabeth Brown, Gitty Brown appeals.</p>

<p>1. Appeal and Error — Motion for New Trial — Exceptions — Saving Questions for Review.</p> <p>In a cause heard upon stipulation of facts by the trial court sitting without a jury, and to whose rulings no exceptions were taken nor points of law presented in pursuance of the practice required under Circuit Court Rule 26, nothing was gained for the purpose of review hy the presentation and denial of a motion for a new trial.</p> <p>2. Same — Assignment of Error — Stipulation—Judgment.</p> <p>Under a stipulation of the facts hy the parties, the question whether they support the judgment is open to the appellant if he properly assigns error: and in an action on the money counts, the assignment of error to the effect that the court erred in finding from the stipulated facts that the defendants undertook in manner and form as the plaintiff in his declaration charged, sufficiently presented the question for review upon error.</p> <p>3. Vendor and Purchaser — Land Contracts — Option—Breach— Brokers — Agency—Failure of Authority.</p> <p>An option or contract purporting to he executed hy defendants, the widow and former administrator of the estate, as agents of and for the estate, when in fact the estate had been closed, the property assigned and the administrator discharged so that neither defendant could or did have authority to make the conveyance, and in fact had no authorization from any of the other heirs to sell or contract for the sale of the property, and not purporting to he executed by the defendants as the sole owners of the property, hut as such agents for the heirs, was not binding upon the principals for whom and in whose behalf it purported to he executed and was not a defense to an action hy the purchaser for the return of the amount paid to secure the option.</p>

, presiding. Sarah P. Clark brings error from an order of the circuit court affirming a probate decree requiring her to repay the State for care of a feeble minded pauper.

, presiding. Assumpsit by Niagara Sprayer Company against Susie M. Wood upon a promissory note. There was a claim of recoupment. Judgment for defendant. Plaintiff brings error.

, presiding. Assumpsit by the Pennsylvania Rubber Company against the Detroit Shipbuilding Company for a balance due for work, labor and materials. Judgment for plaintiff. Defendant brings error.

Bill by Rose E. Van Slyke against William M. Van Slyke for divorce from the bonds of matrimony. From a decree for complainant, defendant appeals.

<p>Error to Wayne; Donovan, J.</p> <p>Case by Mary Cichon against Samuel Wolff and another for personal injuries. Judgment for plaintiff. Defendants bring error.</p>

<p>Appeal from Wayne; Collingwood, J., presiding.</p> <p>Bill by Allie M. Broadwell against John F. Field and others for an accounting. From a decree for complainant, defendants appeal.</p>

Bill by Angeline, Kelly and another against Lincoln Cass and others to set aside a certain conveyance. From a decree for defendants, complainants appeal.

<p>Error to Berrien; Bridgman, J.</p> <p>Replevin by Robert C. Atkinson against Benjamin Japink for a motor car. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to recorder’s court of the city of Detroit; Connolly, J.</p> <p>Tony Frontera was convicted of manslaughter.</p>

Garnishment proceedings by the Youghiogheny & Ohio Coal Company, a foreign corporation, against Samuel B. Kahn, garnishee of Joseph Anderson, principal defendant. Judgment for defendant garnishee. Plaintiff brings error.

Mandamus proceedings by Thomas A. Conlon against George P. Codd, one of the circuit judges for the county of Wayne to compel respondent to vacate an order denying relator an attorney’s lien upon funds in the hands of the court.

Clair; Law, J. Bill by Faye L. Porter against the- Marine Savings Bank and others to require defendant bank to transfer certain stock to complainant’s name. From a decree for complainant, defendants appeal.

<p>Exceptions before sentence from Cass; Des Voignes, J.</p> <p>Oliver Ayers was convicted of rape.</p>

<p>Error to Wayne; Codd, J.</p> <p>Case by Frederick Grogitzki against the Detroit Ambulance Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by Frederick Boos against the township of Northfield for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

Case by Louisa Lesh, as administratrix of the estate of George Maresich, deceased, against the Tamarack Mining Company for the negligent killing of decedent. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

<p>1. Street Railways — Contributory Negligence — Unlawful Speed — Personal Injuries — Highways and Streets.</p> <p>Where plaintiff was driving alongside defendant’s track in a public street, and, because of certain piles of bricks placed beside and near the tracks and of other vehicles standing in the street, was compelled to turn his horses upon the track and drive along the same partly between the rails, and where plaintiff claimed that he looked and saw no street car behind him, and it appeared that the track was straight, the view of the motorman unobstructed and that the motorman knew the conditions existing at the place of the collision, and there was testimony tending to show excessive speed, the court did not err in submitting to the jury the question of contributory negligence.</p> <p>2. Same — Due Care — Operation of Car.</p> <p>The question of whether defendant’s motorman exercised ordinary care in observing the conditions and in main-' taming control of his car, became a question of fact under the evidence and the trial court did not err in submitting the issue as to the motorman’s negligence to the jury.</p> <p>Brooke, C. J., dissenting.</p>

Bill by Joseph H. Cobb against Newton D. Backus and others to quiet title to real property. Defendants filed a cross-bill making Philip Curran and another parties defendant. From a decree allowing defendants to redeem upon the payment of an amount found to be due by the court, both defendants and cross defendants appeal.

, presiding. Petition by Cora F. Sloman and others in the probate court for the county of Wayne against Samuel A. Sloman and another as executors of the will of Mark Sloman, deceased, to remove the said executors and to appoint an administrator for the purpose of commencing suit against respondents. From an order granting the prayer of the petition the executors aforesaid appealed to the circuit court, which affirmed the same, and respondents appeal.

, presiding. Petition by Cora F. Sloman and others for an order of the probate court for the county of Wayne to permit petitioners to start a suit for accounting in the name of the executor of the estate of Mark Sloman, deceased, and for the appointment of an administrator for the purpose of defense. From an order granting the prayer of the petition, defendant estate appealed to the circuit court. The order was affirmed. Defendants appeal.

Assumpsit in justice’s court by the Toledo Scale Company against John E. Gogo upon a negotiable instrument. From a judgment for defendant there was an appeal to the circuit court. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.

, presiding. Assumpsit by Joseph F. Weber against the Van Blerck Motor Company for use and occupation. Judgment for plaintiff on a verdict directed by the court. Defendant brings error. The plaintiff was the owner of certain property situated on the Detroit river,, in the city of .Detroit, and on this land was a machine shop and a few outbuildings. Prior to the 15th of January, 1910, -'Joseph Van Blerck had leased the property under an oral agreement with the plaintiff.

Assumpsit by the E. A. Lange Medical Company against E. J. Brace and others upon a guaranty or indemnity contract. Judgment for defendants upon a verdict directed by the court.

Mandamus by Louis Smilansky against Alfred J. Murphy, one of the circuit judges for the county of Wayne, to require the respondent to vacate an order extending the time for the preparation of a record on appeal.

<p>1. Appeal and Error — Exceptions — Saving Questions por Review — Practice.</p> <p>In, an action for breach of contract to furnish gravel where the contract provided the price of gravel should not exceed the price required or received by another competing company, and where the defendant moved to strike out the testimony relating to the market price on the ground that the contract stated the price received by the gravel concern should govern, the motion being denied by the court, there was no ground for the consideration and review of the contention that the contract was in restraint of trade and therefore illegal. In order that the point may be reviewed on error it is necessary to raise the same in the lower court and except to the adverse ruling.</p> <p>2. Sales — Contracts—Trial—Question for Jury.</p> <p>Where a contract for the sale of a quantity of gravel to be delivered to the defendant provided that the price should not exceed that charged by a competing company and the court submitted the case to the jury upon the theory that if the contract remained in force throughout the season and the parties did not mutually abandon its provisions, plaintiff was entitled to recover and that if the other dealer lessened the price the verdict should be correspondingly diminished, the construction of the contract was not thereby submitted to the jury so as to constitute reversible error.</p>

Case-made from Kent; Brown, J. Certiorari by William T. McGurrin against the township board of Grand Rapids township, in the county of Kent, to review the action of the board granting a retail liquor license. Judgment for plaintiff; defendant board brings case-made.

<p>Exceptions before sentence from Houghton: O’Brien, J.</p> <p>Robert E. Harrington was convicted of assault with intent to ravish.</p>

<p>1. Criminal Law — Appeal and Error — Cross-Examination — Trial.</p> <p>In a prosecution under the liquor law it was within the discretion of the trial court whether the prosecutor should he allowed to ask leading questions of a witness who appeared to he ignorant.</p> <p>2. Same — Intoxicating Liquors — Saus—Evidence.</p> <p>Proof that respondent, who was charged with keeping a place where intoxicating liquors were sold contrary to law in a county which had adopted prohibition, made sales at the time fixed in the information and on one other earlier date not definitely established by the testimony, tended to show a violation of the statute and warranted the court in submitting to the jury the issues whether the defendant kept a place where such liquors were sold.</p>

Mandamus by the Citizens’ Bank of Rudyard against Louis H. Fead, circuit judge for the county of Chippewa, to vacate a stay of proceedings in an action in which the Minneapolis, St. Paul & Sault Ste. Marie Railway Company was defendant.

<p>Error to Manistee; Withey, J.</p> <p>Case by Peter Revolinski against the Manistee & Northeastern Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Criminal Law — Peremptory Challenges' — Trial—Jury.</p> <p>In criminal proceedings a respondent is entitled to peremptory challenges without assigning any reason for his action.</p> <p>2. Same — Burglary—Intent—Intoxication.</p> <p>If a person charged with burglary was so affected by the use of intoxicating liquors that at the time of committing the act he was unconscious of what he was doing, he did not have sufficient capacity to entertain a criminal intent, but if he knew why he was doing the aGt the jury might infer the intent as if he was sober. It was erroneous for the trial court to instruct the jury that the law holds the accused responsible because he should not have gotten intoxicated but should have restrained himself from indulging in such drugs or liquors.</p> <p>3. Same — Charge.</p> <p>No error was committed on the trial of a prosecution for burglary in charging that if the respondent broke and entered a dwelling house in the manner described by the only witnesses who gave evidence touching upon the commission of the offense, he should be convicted.</p> <p>4. Same — Insanity.</p> <p>The defense of insanity, as soon as evidence is introduced tending to show such condition of mind, does not require the respondent to establish his unsound condition of mind by a preponderance of the evidence; the burden of proof rests with the people to convince the jury beyond a reasonable doubt that he was sane when he committed the offense.1</p> <p>5. Same — Evidence—Presumptions—Burden of Peoof.</p> <p>Where respondent claimed that he had a joint interest in the house and premises which he was charged with entering unlawfully, the trial court should have instructed the jury, as requested by the accused, that if he thought this ownership or interest gave him a right to enter the house, he would not be guilty of a felonious intent.</p>

<p>Exceptions before sentence from Houghton; O’Brien, J.</p> <p>James Johnson was convicted of manslaughter.</p>

<p>Error to Bay; Collins, J.</p> <p>Case by Amy L. Vultee against the Saginaw-Bay City Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Mandamus by Thomas W. Corby against Henry A. Mandell, one of the circuit judges for the county of Wayne, to compel respondent to settle a bill of exceptions proposed by relator.

<p>Exceptions before sentence from Baraga; O’Brien, J.</p> <p>Antoine Meloche was convicted of unlawfully selling intoxicating liquors to a person of Indian descent.</p>

, presiding. Mandamus by George W. Barrus, one of the civil service commissioners of the city of Detroit, against George Engel, city controller of the city of Detroit, to compel respondent to pay salary under an amendment to the charter of said city. An order denying the writ is reviewed by relator on certiorari.

Case by Clara Holmes against the United Theatres Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Bill by Silas H. Sprague and others against the trustees of the Protestant Episcopal church of the diocese of Michigan for an accounting and to construe a will. From a decree for defendants, complainants appeal.

Case by Emry J. Lewis against the Wolverine Coal Company and another for personal injuries. Judgment for plaintiff against the defendant named, which brings error. On November 22» 1911, plaintiff was crushed between the rear end of a coal car and one of the posts which supported a coal “tipple.” He brought suit against the Pere Marquette Railroad Company and the appellant, as joint tort-feasors.

Industrial Accident Board. A. Harry Gignac presented his claim for compensation against the Studebaker Corporation and an award was made in claimant’s favor by the Industrial Accident Board. Contestant brings certiorari.

<p>Contracts — Compensation—Actions — Evidence — Work, Labor ' and Services.</p> <p>In an action brought by an accountant for auditing the books of a corporation wherein certain directors of the company, who authorized the performance of the work, were made defendants, upon conflicting evidence tending to establish plaintiff’s claim that the individual defendants were the proper contracting parties, the trial court correctly submitted the question to the jury, and a judgment in plaintiff’s favor determining that the defendants were individually liable was sustained by the evidence.</p>

, presiding. Assumpsit in justice’s court by Alfred Debo against James Gamble for a broker’s commission. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Charles Weaver presented a claim against the Maxwell Motor Company for total incapacity resulting from the loss of both eyes. An award granting compensation as for total incapacity to work is reviewed by the contestant on certiorari.

Assumpsit by Thomas W. Snook against the Mt. Clemens Sugar Company for breach of contract. Judgment for plaintiff, which the trial court required to be reduced upon penalty of a new trial. • Plaintiff remitted and defendant brings error.

Thomas Vernakes was convicted in justice’s court of Selling pop corn in the city of South Haven without a hawker’s license and removed the proceedings to the circuit court by writ of certiorari; conviction affirmed, and respondent brings error.

<p>Error to Clinton; Searle, J.</p> <p>Assumpsit by Roy Hulse against the Michigan Sugar Company for breach of a special contract. Judgment for plaintiff. Defendant brings error.</p>

Wayne; Codd, J. Case by Henry M. Weil against the Detroit United Railway for damages done to an automobile. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Bill by C. J. Huebel Company against Donald L. MacKinnon and another for an accounting, an injunction and further equitable relief. From an order overruling the demurrer of defendants to said bill of complaint, defendants appeal.

Assumpsit by the Sunday Lake Iron Company against the township of Wakefield to recover back taxes paid under protest. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

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

Case by Robert Lund and another against Albert Lough and another for negligence in failing to properly secure and anchor a boat. Judgment for plaintiffs. Defendants bring error.

<p>1. Automobiles — Negligence — Pleading — Declaration—Allegation of Duty.</p> <p>Plaintiff’s declaration charging defendant with negligently colliding with a vehicle in which the plaintiff was sitting, alleging that the defendant was riding in an automobile along the street and negligently and carelessly drove and guided said automobile so that it ran into the buggy which was standing on the west 'side of the street by the curb occupied by the plaintiff, and other persons, etc., was not fatally defective for failure to set forth the duty owed- by defendant to plaintiff, and an objection to the pleading on the trial, for failure to'allege a duty violated by the defendant was not ground for directing a verdict.</p> <p>2. Same — Trial—Misconduct of Counsel — Closing Argument.</p> <p>It was reversible error, in closing plaintiff’s argument, to argue to the jury that no one of the jury would be willing to take $5,000 for the injuries sustained by plaintiff and, although counsel withdrew the argument, but further stated that no person would for one moment consider going through life in that condition for any sum of money, the trial court should have interposed and advised the jury that the argument was improper, and the failure of the court to take proper action to correct the harmful impression upon the jury constituted reversible error.</p>

Mandamus by Delbert H. Power against Earl Gray, treasurer of Almira township, Benzie county, to compel respondent to recognize and pay an order of the township board. An order was entered denying the writ; relator brings certiorari.'

Mandamus by Delbert Power against Fred Balitz, treasurer of the township of Platte, Benzie county, to require respondent to pay an order. From an order denying relief relator brings certiorari.

Bill by Edward Rousseau against Arvi Riihiniemi and others to redeem from a tax purchase. From a decree for complainant, defendant Riihiniemi appeals. Referring only to facts material to the discussion and decision of the questions raised by this appeal, they may be stated as follows: The east half of the west half of a section of land in Ontonagon county had been sold for taxes and bid in by the State.

Bill by the James E. Scripps Corporation against Norman Parkinson and Edward A. Parkinson for an injunction and other relief. From a decree sustaining the demurrer, of said defendants, complainant appeals.

Case by William A. Robbins, as administrator of the estate of William J. Robbins, deceased, against the Magoon & Kimball Company, a corporation, for the unlawful killing of plaintiff’s intestate. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.

The will of Lydia Bailey, deceased, was admitted to probate and Stephen Bailey, contestant, appealed to circuit court. Judgment for contestant; proponent brings error.

Bill by Henry W. Leach and another against John Dolese, Jr., and others to redeem from a mortgage. From a decree for complainants, defendant Dolese appealed. The issues involved in this controversy are thus clearly stated in the opinion filed by the learned chancellor who heard the case: “The complainants filed the bill herein to redeem from a claimed usurious mortgage given to the defendant Dolese, as mortgagee, for the sum of $5,230.