Volume 188 — Michigan Reports

, presiding. Case by William Moss, an infant, by next friend, against the Detroit & Mackinac Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>1. Witnesses — Re-examination—Discretion of Court.</p> <p>After a witness has been examined, he may be subjected to further interrogation by the party by whom he is called; the extent of such re-examination resting largely within the discretion of the trial court.</p> <p>2. Same — Abuse of Discretion.</p> <p>Where, while plaintiff was upon the witness stand, at the close of a redirect examination, and before recross-examination began, the court asked that each counsel finish with the witness, and no further questions were asked by plaintiff’s counsel, and, after a short recross-examination, plaintiff’s counsel asked the privilege of asking a few more questions, the refusal of such request was not an abuse of discretion by the court.</p> <p>S. Fraud — Evidence—Corporations.</p> <p>In an action upon promissory notes given in payment of stock in a cement corporation, which defendant claims he was induced to purchase by means of false and fraudulent representations as to the financial condition and property of said company, the articles of association, and the annual reports of the company to the secretary of State were properly admissible in evidence.</p> <p>4. Evidence — Depositions—Stock and Stockholders — Value of Stock.</p> <p>A deposition of a mining engineer, offered in evidence for the purpose of showing that other plants in the immediate vicinity, started on the same plan as the corporation in which defendant purchased stock, were being successfully operated, to substantiate the representations that there was no water in the stock, that the company was well financed, and that the value of the land made the stock worth $3.50 a share, the purchase price, was inadmissible, where it does not appear from the deposition that any Questions were asked as to the manner of financing the neighboring companies, the valuation which they placed upon the land taken, or the scheme of their stock issues generally, so as to show that the stock issues of those companies were not watered.</p> <p>5. Corporations — Stock—“Watered Stock.”</p> <p>“Watered” or fictitious stock is stock that is issued as fully paid up when, in fact, the whole amount of the par value thereof has not been paid in, or which purports to represent, hut does not represent, in good faith, money paid into the treasury of the company, or money’s worth actually contributed to the working capital of the concern.</p> <p>6. Evidence — Corporations—Fraud—Fully Financed.</p> <p>Where defendant claimed that it had been falsely and fraudulently represented to him, in the sale of stock, that the company had been fully financed, it was not error for the court to exclude a question as to whether the company, with $3,500 in cash available, and its 400 acres of land paid for, could be made a practical or feasible scheme by the sale of stock as the plant progressed, as it could not be said that the answer would show that the company had been fully financed, where its success depended upon the uncertainty of stock sales.</p> <p>7. Trial — Instructions—Fraud—Appeal and Error.</p> <p>Where the court charged the jury that it was undisputed that plaintiff’s agent made substantially the same representations to defendant that plaintiff made, and the agent testified that he attempted to sell stock to defendant, at plaintiff’s request, that he received his information concerning the financial condition of the company from plaintiff, and that he made the representations claimed by defendant, and plaintiff admitted that the agent assisted in the sale of the stock, while it is doubtful whether the instruction was warranted, yet, in view of the entire charge, and the almost conclusive evidence in support of these facts, it cannot be said that the jury were misled.</p>

Assumpsit by Thad G. Baldwin against the Village of Chesaning for money paid to defendant under an invalid ordinance. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Fraud — Peeading—Proof of Misrepresentations.</p> <p>In an action to recover for alleged fraudulent representations in tlie sale of land, plaintiff is entitled to recover upon proof of any material fraudulent representations charged, although he may have charged other acts which were not proven.</p> <p>2. Same — Material Facts — Seller’s Talk.</p> <p>Representations falsely made by defendant that the land was high and dry and good agricultural land, without mire, swamp, or boggy portions, were material facts and not mere seller’s talk, which, relied upon by plaintiff and becoming an inducing cause of the sale, render defendant liable.</p> <p>3. Same — Question for Jury.</p> <p>As to whether such representations were made as charged, held, to be for the jury.</p> <p>4. Same — Principal and Agent.</p> <p>An action will lie against defendant for a fraud knowingly committed whether he acted as principal or as agent of another.</p> <p>5. Damages — Fraud—Rescission oe Contract — Instructions— Measure oe Damages.</p> <p>In an action to recover for alleged fraudulent representations in the sale of land, it was error for the court to charge the jury that the measure of damages was the amount of money paid by the plaintiff, with interest, where there was no evidence that the contract was ever rescinded by the plaintiff and tendered back to defendant; under the pleading and evidence the measure of damages was the difference' between the value of the land as represented and what it was actually worth.</p>

<p>Exceptions before sentence from Ottawa; Cross, J.</p> <p>Morris Atwood was convicted of using an instrument with intent to procure a miscarriage.</p>

Assumpsit by the John S. Noel Company against Sol B. Newcomb for the price of goods sold and delivered and work done. Judgment for plaintiff. Defendant brings error.

, presiding. Bill by the Lafayette Benevolent Society, a corporation, against James W. Richardson and'another for the cancellation óf a sheriff’s deed and other relief. From a decree for defendants, complainant appeals.

<p>Error to Wayne; Gage, J., presiding.</p> <p>Case by Andrew J. Rogers against Edward Ford for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Ejectment by the Wolverine Land Company against Edwin Jerome for the possession of land purchased by tax deed. Judgment for. defendant on directed verdict. •Plaintiff brings error.

Bill by Dollie B. Parent and others against George S. Hodges and others, under section 11965, 4 How. Stat. (2d Ed.) to establish a boundary line and quiet title to- land. From a decree for complainants, defendants appeal.

, presiding. Esther Greenman presented a claim against the estate of August Gillerman, deceased, for the support of an adopted child. From an allowance of the claim in the sum of $266.75, the administrator appealed to the circuit court. Judgment for defendant on a directed verdict. Claimant brings error.

Assumpsit by thé Rockford Malleable Iron Works, a foreign corporation, against B. E. Tilden for a balance claimed to be due for goods sold and delivered. Judgment for plaintiff. Defendant brings error.

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

Bill by George E. Williams and others against George A. Lawson and another for an injunction restraining defendants from erecting an apartment house in an alleged restricted residence district. From a decree for defendants, complainants appeal.

Bill by the city of North Muskegon against Lincoln Rodgers for the purpose of confirming in complainant title to land purchased at tax sale. From a decree for complainant, defendant appeals.

Trover by Joseph H. Austin and another, copartners as the Austin-Olson Company, against William F. Knell and William F. Adams, copartners as Knell and Adams, and the Michigan Central Railroad Company, for the conversion of a carload of hair. From a judgment for plaintiffs against defendants Knell and Adams they bring error.

<p>Eviden ce — Contracts—Parol Evidence — Warranty—Fraud.</p> <p>In an action to recover damages for alleged fraud in the sale of a gasoline engine to plaintiff, parol evidence of conversations be'tween plaintiff and the agent of defendant prior to and at the time the order was signed is inadmissible to vary the terms of a written contract of sale containing a warranty limiting the seller’s liability to return of the purchase price in case the engine proved defective, and defendant was properly notified and given opportunity to put in good order.1</p>

Bill by the Grand Rapids & Indiana Railway Company against the Michigan Railroad Commission for the vacating of an order issued by said defendant, and other relief. Dudley E. Waters and Paul H. King, as receivers of the Pere Marquette Railroad Company, filed petition for leave to intervene as defendants. From a .decree for defendants, complainant appeals.

Assumpsit in justice’s court by Moses Solomon against Norman Weiner, doing business as the Albion Iron & Metal Company, for goods sold and delivered. From a judgment for defendant in justice’s court,’ plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

<p>1. Master and Servant — Personal Injuries — Evidence—Negugence — Directed Verdict.</p> <p>In an action by an employee to recover for tbe loss of an arm in defendant’s factory by a machine consisting of a swinging table with a circular saw working through a slit in the back and bottom which was put in operation by a lever, evidence that during the six months plaintiff had used the machine the lever had never failed to work, that a few moments before the accident the machine was performing its proper function, that no part of the apparatus had been constructed to support a person falling or slipping on the floor, and that at the time the accident happened plaintiff was not operating the machine, but was returning from carrying away some poles he had cut, when- he slipped and fell against the table, disengaging the lever, and was injured, did not show any negligent conduct of defendant, and its motion for a peremptory verdict should have been granted.</p> <p>2. Trial — Negligence—Instructions—Master and Servant.</p> <p>Where there was no evidence from which the jury could determine that the force applied by plaintiff in falling against the table was a greater strain than the device would receive in the ordinary conduct of the business, it was error for the trial court to submit that question to the jury.</p> <p>3. Master and Servant — Trial—Instructions—Duty of Master.</p> <p>The trial court was in error, in submitting the question of defendant’s liability to the jury, in limiting the question to the condition of the machine on the day in question and to the strain put upon it by plaintiff when he slipped and fell, as the true rule should be measured by the probability, and not the possibility, of an accident, and should be applicable in like circumstances if the device had been in use a day or a month, where an employee stumbled or fell, and, to save himself, grasped at, or fell against, machinery not up to some standard of efficiency.1</p>

Assumpsit in justice’s court by the Acorn Refining Company against Abram B. Knowlson for goods sold and delivered. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Clair; Tucker, J. Bill by William C. Bottomley and Henry E. Dryer, copartners as Bottomley & Dryer, against Allen Brown for an injunction restraining defendant from engaging in the grain and elevator business at Berville, Michigan. From a decree for defendant, complainants appeal.

Bill by Elizabeth. La Tour against William H. Hibbler and another. William R. Greig intervened as assignee of defendants. Complainant died and suit was revived in the name of Lenore La Tour as administratrix. From a decree for defendant intervener, complainant appeals.

Assumpsit by Grover Kimmerle and another, co-partners, doing business as Kimmerle & Sears, against J. Gordon Bonine for goods sold and delivered. Judgment for defendant upon a directed verdict. Plaintiff brings error.

Bill by Charles F. Hynes against James Barrett and others, as drain commissioners, for an injunction to restrain defendants from assessing complainant’s lands for a proposed drain improvement. From a decree for defendants, complainant appeals.

Bill by Charles A. Gogarn and another against Thomas Connors for an accounting and to redeem from a deed absolute on its face, but alleged to have been given as security only. From a decree for defendant, complainants appeal. Complainant Gogarn in 1908 was in debt to defendant and wanted an advancement of money. Complainant owned 40 acres of land, described in the pleadings. Defendant furnished the money asked for, and complainant deeded him the land by warranty deed.

, presiding. Case by Winifred Robbins, administratrix of the estate of William Robbins, deceased, against William Trebilcock and another, copartners, doing business under the name of Trebilcock Brothers, for the wrongful death of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.

Bill by George F. McRae and another against Albert E. Sleeper and others for the purpose of setting aside an execution levy on certain lands. From a decree for defendants, complainants appeal. Creditors of one Edward D. Pendock, defendants and cross-complainants in this action, attached certain lands. Complainants, claiming to be purchasers of some of the lands attached, filed their bill of complaint for the purpose of setting aside the attachment levy.

Bill by the School of Applied Art, a corporation, against Claude W. Buckley for an accounting and for other relief. From a decree for defendant, complainant appeals.

, presiding. Bill by Albert S. Cornell against Denis J. Norton to redeem from the attempted forfeiture of a land contract and to enjoin the prosecution of an action of ejectment. From a decree for complainant, defendant appeals.

Mandamus by Arthur M. Mesler against James A. Parkinson, circuit judge of Jackson county, to compel respondent to vacate an order adjudging that relator pay certain sums as alimony, solicitor’s, fee, and costs, awarded in the divorce proceedings of his wife, Maud Z. Mesler, and that in default an order of contempt be entered in said court.

<p>Error to Wayne; Hosmer, J.</p> <p>Case by Agnes F. Dyer against the People’s Ice Company, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by Charles L. Morgan against G. W. Zanger for commissions for procuring a tenant. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Master and Servant — Negligence—Fellow Servant — Delegable Duty — Instructions.</p> <p>In an action for personal injuries caused by a fall of rock on plaintiff in defendant’s mine, while plaintiff and another miner were engaged in timbering a passageway, the duty to warn plaintiff of the danger being a delegable one, which duty defendant fully performed when it selected a competent fellow-workman, it was not liable for the fellow servant’s negligence, and the court was in error in refusing to charge, as requested by defendant, that plaintiff’s co-worker was a fellow servant, and that defendant would not be responsible for his negligence, and instead charged that if the defendant knew of the dangerous condition there, either because of the experience of said co-worker and another in working there before plaintiff came, or had learned it in any other way, or could have learned it by the exercise of reasonable care, and if plaintiff was unaware of the dangerous condition, if it existed, then as the undisputed evidence showed that the shift boss did not warn, it was the duty of the co-worker to do so, and if he failed his failure was the failure of defendant and the verdict should be for plaintiff; the court practically directed a verdict for plaintiff.</p>

Bill by the First State Bank of Decatur against James Ingersoll Day and Benjamin F. J. O’Dell for the foreclosure of certain mortgages; also injunction bill by said O’Dell and Day against the First State Bank of Decatur to restrain foreclosure by advertisement of a third mortgage. The causes were consolidated. From a decree for complainant bank, said O’Dell and Day appeal.

Case-made from Kent; Brown, J. Replevin by the Mishawaka Woolen Manufacturing Company, an Indiana corporation, against Henry T. Stanton, trustee for creditors of Joseph D. Van Sickle, for certain merchandise. Judgment for plaintiff. Defendant brings case-made.

<p>Error to Chippewa; Fead, J.</p> <p>Assumpsit by the First National Bank of Sault Ste. Marie against the ¿Etna Insurance Company of Hartford, Connecticut, on a policy of fire insurance. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the First National Bank of Sault Ste. Marie, against the Caledonian Insurance Company, a foreign corporation, upon a policy of fire insurance. Judgment for plaintiff. Defendant brings error.

<p>1. Master and Servant — Mines—Timbering—Feelow Servants.</p> <p>Evidence tending to establish that plaintiff, an experienced miner in defendant’s employ, was injured by a fall of rock from an old stope below which his work was carried on, that the day shift which preceded him was charged with the duty of timbering the roof from which the fall took place, and that they omitted to block up the opening into the old stope, as they should have done, justified the trial court in directing the jury to return a verdict for defendant under the fellow-servant doctrine, since the failure of the men charged with the duty of putting in the sets so as to block up the alleged opening was the work of fellow servants of plaintiff whose duties in the night shift included the work of removing timbers from the drift and replacing them with new timbers.1</p> <p>2. Same — Con-Association Rule.</p> <p>The so-called con-association rule, applied in Illinois and other States, that the employees must co-operate in the business in hand in the same line of employment, or that their duties should bring them into habitual association so that they might exercise a mutual influence on each other promotive of caution, etc., in order to make them fellow servants, has not been adopted in Michigan, and, hence, it is not the rule in this State that the employees must be engaged in common employment at the same time.</p> <p>3. Same — Fellow-Servant Rule.</p> <p>Those who serve the same master, work under the same control, derive authority and compensation from the same common source and are engaged in the same general business, though in different grades or departments of it, are fellow servants. ,</p> <p>4. Same — Non-Delegable Duties — Warning.</p> <p>Defendant mining company was not liable to plaintiff for breach of the nondelegable duty to warn him of the danger from falling rocks, etc., where plaintiff was familiar with the work of retimbering, which it was usual for miners to do, and the men selected to perform the -labor were competent and plaintiff was engaged with them in the work of making the place safe.</p>

Edson Thayer presented for probate the will of John Thayer, deceased. It was admitted in probate court and John Arthur Thayer appealed to circuit court. Judgment for contestant. Proponent brings error.

Mandamus by Felix J. Pryzbylowski against the Board of Commissioners of the Poor of the city of Detroit and others, to require the respondent to reinstate relator as city physician and for other relief. From an order granting the writ, respondents bring certiorari.

Bill by George W. Akers and others against Eva J. Mead to set aside a certain deed. From a decree for defendant, complainants appeal.

Mandamus by Dusanka Jankovich against George L. Hosmer, one of the circuit judges for the county of Wayne, to require respondent to grant leave to relator to amend an order of the court.

Case by Edith English, as administratrix of the estate of Alyn J. English, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error. Defendant company maintains in the cii^y of South .Haven, Mich., a large icehouse. This it fills with ice in the winter, and in the summer uses it for the purposes of refrigeration. A side track runs alongside of the icehouse.

<p>Appeal from Montcalm; Davis, J.</p> <p>Bill by Seymour J. Case and others against Estella Bogart to set aside a deed. From a decree for defendant, complainants appeal.</p>

Assumpsit in justice’s court by David A. Taylor against Arthur J. Belton and another for the return of the price paid for a horse. From a judgment for plaintiff, defendants appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendants bring error.

<p>Exceptions before sentence from Ionia; Davis, J.</p> <p>Charles Dixon was convicted of operating a moving picture theatre on Sunday in violation of statute.</p>

Case, by Harry H. Hoover, as administrator of the estate of George L. Hoover, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.

, presiding. Bill by Della Weissert against Roy C. Fuller and Didama Fuller to quiet title to certain real property. From a decreé for defendants, complainant appeals.

Bill by Walter J. Casterton and others against Samuel Plotkin to enforce certain building restrictions. From a decree for complainants, defendant appeals.

Assumpsit by the People of the State of Michigan for the use of H. Houghton & Sons, a corporation, against William H. Través and the Fidelity & Deposit Company of Maryland, a foreign corporation, upon a construction bond. Judgment for plaintiff. Defendants bring error.

, presiding. Case by Guiseppe Guido against the Detroit Stove Works for personal injuries. Judgment for plaintiff. The court on defendant’s motion for a new trial after-wards set the judgment aside, granting a new trial. Plaintiff brings error.

Bill by Robert L. Hendershott against William Moore and others to enjoin a trespass. From a decree for complainant, defendants appeal. The bill of complaint in this cáse sets out that in the year 1887 the complainant and one William E. Powers purchased from one John H. Williams, a small island known as “Williams Island,” containing about two acres and located in Gunn Lake, on the southeast quarter of section 32 in the township of Yankee Springs, Barry county.

<p>Error to Wayne; Hally, J.</p> <p>Case by Orilia Barger, by next friend, against Edward W. Bissell for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case by George H. Churchill against the Grand Trunk Western Railway Company for the wrongful delivery of certain grain. Judgment for plaintiff. Defendant brings error.

<p>1. Fraudulent Conveyances — Deeds — Delivery — Husband and Wife.</p> <p>In proceedings to have a deed from defendant wife to her husband decreed to be void and invalid as in fraud of creditors, alleging that said deed was never delivered, evidence of the due execution and delivery of the deed which was not directly refuted, is held, sufficient to establish the validity of the deed.</p> <p>2. Same — Exemptions—Homesteads—Consideration.</p> <p>Where defendant’s equity in the property conveyed was less than the homestead exemption, the question of consideration is of no importance.</p>

Bill by Joseph P. Lavigne against John Coyne to cancel a written agreement of partnership alleged to have been obtained by fraud, misrepresentation and deceit, and for other relief. From a decree for defendant, complainant appeals.

Assumpsit by John Salmer against George J. Hicks in justice’s court for an amount claimed to be due plaintiff for wages. From a judgment'for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Bill by Frances V. Brin against Dominik Michalski and another, for the specific performance of a land contract. From a decree for complainant, defendants appeal.

<p>Error to Houghton; O’Brien, J.</p> <p>Case by Steve Vrelenich against the Calumet & Hecla Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the New Jersey Terra Cotta Company, in the name of the people of the State of Michigan, against William H. Través, principal, and the Fidelity & Deposit Company of Maryland, surety, on the bond of Través as. contractor for the construction of a school house. Judgment for plaintiff. Defendants bring error.

Matthew G. Vandecar presented a claim against the estate of Moses R. Nowland, deceased, for services and for money loaned to deceased. The claim was disallowed and claimant appealed to the circuit court. Judgment for defendant on a directed verdict. Claimant brings error.

Case by Rose Mortensen against Hugh Bradshaw for assault with intent to commit rape. Judgment for plaintiff. Defendant brings error. In this action plaintiff sued to recover damages for several alleged assaults with intent to commit rape. The declaration consists of four counts.

Assumpsit in justice’s court by Melville H. Zacharias against Lavina B. Donaldson for the amount of an insurance premium. From a judgment in favor of plaintiff, defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

Bill by Alice L. Pike against Theodore D. Halpin, administrator of the estate of Oliver H. Wattles, deceased, and another, to have a sheriff’s deed to defendant decreed to be null and void. From a decree for defendants, complainant appeals.

Bill by Catheririe B. Weir against the Union Trust Company and others for the enforcement of a trust. From a decree for complainant, both parties appeal.

Assumpsit by William H. Gilchrist against the Mystic Workers of the World upon a benefit certificate. Judgment for plaintiff, on a directed verdict. Defendant brings error.

<p>Error to Muskegon; Sullivan, J.</p> <p>Case by Edward Wilk against Benjamin F. Black for malpractice. Judgment for plaintiff. Defendant brings error.</p>

Debt by Herbert L. Parsille, for the benefit of David Brown, against Hugh Brown and others on a judicial bond. Judgment for plaintiff. Defendants bring error.

Bill by Charles W. Bretz against Roxanna G. Hitchcock and others to quiet title to real property. Defendants filed a cross-bill for an accounting. From a decree dismissing both bill and cross-bill both parties appeal.

<p>1. Criminal Law — Commitment—Life Term — Statutes — Judgment — Indeterminate Sentence.</p> <p>Under a sentence that the accused be confined in prison for a period of not less than ten years, the court recommending imprisonment for life, the order should be construed as fixing a maximum term of ten years, and the minimum be held to be fixed by statute at five years, the court clearly intending that his sentence should not be conclusive on the governor or pardon board: hence-the accused was not entitled to his discharge because of the irregularity of the sentence or commitment. Act No. 184, Pub. Acts 1905, § 3.</p> <p>2. Same — Indeterminate Sentence.</p> <p>As it is impossible to fix a minimum sentence, in the case of life imprisonment, that would equal one-half of the maximum term, there can be no minimum sentence as to life prisoners, to comply with the proviso in section 3 of the statute.</p>

<p>Certiorari to Jackson; Parkinson, J.</p> <p>Case by Charles N. Bernard against the Michigan United Traction Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Muskegon; Sullivan, J.</p> <p>Assumpsit by Frank M. Smith, against Louis P. Haight for use and occupation. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

Bill by Austin L. Rogers against Robert A. Davison to remove a cloud from complainant’s title, and to restrain an action at law. From a decree for plaintiff, defendant appeals.

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

<p>1. Divorce — Dismissing Bill — Equity—Decrees and Orders.</p> <p>Leave of the court must ordinarily be obtained to dismiss a proceeding in equity, and in divorce proceedings, particularly, in which the public frequently is concerned, the rule should not he relaxed.</p> <p>2. Same — Consent—Alimony—Motion.</p> <p>Prom the fact that a motion for temporary alimony was denied it could not he implied that the court consented to the dismissal.</p> <p>3. Same — Domicile.</p> <p>Upon reviewing the testimony, the finding of the trial court that complainant had retained his domicile in Michigan, during his sojourn in Alaska, is affirmed.</p> <p>4. Same — Courts.</p> <p>Where complainant filed a hill for divorce in Genesee county, to which defendant filed her cross-hill, and complainant later went to Alaska, and secured a decree of divorce there, the Genesee circuit court which first obtained jurisdiction retained the same and could enter a valid decree for defendant under her cross-hill.</p> <p>5. Same — Extreme Cruelty.</p> <p>And the complainant’s failure to deny his wife’s charges of extreme cruelty, although the court gave him an opportunity to take the stand and rehut her testimony, tended to corroborate her claims, though otherwise unsupported.</p> <p>6. Same — Alimony.</p> <p>An award of $3,000 alimony and $400 solicitor’s fees, and $3.00 a week for the support of the infant until it should become 14 years of age, out of property worth $5,500 which defendant did not help to accumulate, held, excessive and reduced to $1,000 permanent alimony, $200 solicitor’s fees and $3 per week for the child until it should become 14 years old.</p>

Case by Sherman T. Barnhart against the Pere Marquette Railroad Company and Michigan Central Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Master and Servant — Mines—Contract.</p> <p>Though one mining corporation owned a majority of the stock and controlled the business and policy of another, for which plaintiff worked, the dominant company was not responsible for injuries sustained by the plaintiff, who was informed by his time check, whenever he had occasion to sign it, who was the real employer, and had notice by the name on his brass pay check that he was employed by the subservient corporation.</p> <p>2. Same — Admissions—Attorney and Client — Evidence—Appeal and Error — Harmless Error.</p> <p>Though letters exchanged between plaintiff’s attorney and the attorney for defendant mining company who had authority to advise persons relative to the management of the mine, the correspondence containing his admission that defendant was operating the mine in which plaintiff was employed, later retracted by a second letter which advised plaintiff that another corporation was operating the mine, were admissible as evidence of the ownership and control of the property, the court did not, in rejecting the proofs, prejudice plaintiff, who was not misled, since suit had already been commenced when he received the letters.</p>

Mary Wood presented her claim for compensation for the death of Henry H. Davenport while in the employ of the Public Lighting Commission of the city of Detroit. An order was entered awarding compensation. The city of Detroit brings certiorari.

<p>Error to Berrien; Barton, J., presiding.</p> <p>Ejectment by Ida Newland Tyler against Addie Wright, Louis Pector, and Jacob Goodman. Judgment for plaintiff. Defendants bring error.</p>

<p>1. Sales — Evidence—Inspection—Official Acts.</p> <p>In an action for the conversion of a quantity of pork which defendant claimed had soured or spoiled and consequently deteriorated in value, evidence that the municipal inspector had inspected it three days after the delivery and condemned a portion was inadmissible, though the court properly allowed testimony to be received that it smelled bad and was in poor condition.</p> <p>2.. Trial — Appeal and Error — Jury—Argument.</p> <p>Counsel’s statement, in the course of arguing the cause to the jury, in an action for the conversion of certain meat, that in the sale of an article of food, a warranty was implied by the law that the article was ñt for the purpose for which it was sold, was inapplicable, and where the court so advised the jury, the appellant was not prejudiced by the ruling, on the ground that he should have been permitted to state his theory to the jury, the rule of law having no proper application to the issues unless it related to defendant’s contention that he had purchased the pork of a wholesale dealer in meat, in which event the rule of caveat emptor would apply as the testimony was undisputed that he was not a consumer but a retail dealer, and had an opportunity to inspect.</p> <p>'3.- Same — Caveat Emptor — Sales—Warranty.</p> <p>Upon the sale of food by one dealer to another with full opportunity to make an inspection, the law does not imply a warranty of fitness or quality.</p>

William Purdy presented his claim for compensation under the workmen’s compensation act for injuries sustained as an employee of the city of Sault St. Marie. An order was entered awarding compensation. The award is reviewed by the said city on certiorari.

Bill by Conrad Stroh against Joseph Bauman and others to be subrogated to the rights of mortgagee on property of the estate of Dominic O’Hearn. From a decree for complainant defendant Bauman appeals.

Fred Burns presented his claim against the estate of Harvey J. Reading, deceased, for personal injuries. From the disallowance of the claim in probate court claimant appealed to the circuit court. Judgment for defendant upon a directed verdict. Claimant brings error.

<p>Error to Kent; McDonald, J.</p> <p>Case by Carl O. Holmberg against the Lake Shore & Michigan Southern Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Paul Schook against Eugene Zimmerman and others for specific performance. From a decree for complainant granting part relief both parties appeal.

<p>Exceptions before sentence from Cass; Des Voignes, J.</p> <p>Ira B. Gage was convicted of embezzlement and conspiracy to defraud.</p>

Bill by Edgar A. Parks and others against Eugene Brooks and others to set aside a deed. From a decree for complainants defendant Brooks appeals.

<p>Error to Delta; Flannigan, J.</p> <p>Ejectment by John Darrow and others against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for defendant upon a directed verdict. Plaintiffs bring error.</p>

Case by Ada E. Risbridger, administratrix of the estate of Chauncy E. Risbridger, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s decedent. Judgment for defendant upon a directed verdict. Plaintiff .brings error.

<p>1. Insurance — Mutual Benefit Poucy — Fire Insurance — Breach.</p> <p>Act No. 128, Pub. Acts 1911, limiting tbe effect of tbe breach of any condition in a fire insurance policy to instances where the insurer has suffered prejudice from the breach or where the loss took place because thereof, protected plaintiff, who procured additional insurance in violation of the stipulations of his mutual fire policy and he was entitled to recover the loss sustained in the destruction of his farm buildings, although the by-laws of the insurer provided that a member should forfeit his policy if he procured additional insurance in another company, without defendant’s written consent.</p> <p>2. Same — Statutes—Forfeiture.</p> <p>The contention of the defense that, the fire occurring while the violation was in effect, barred plaintiff’s recovery, was not sufficient, it appearing from the title of the statute that the purpose was to prevent the forfeiture of policies unless the violation of some condition actually prejudiced the insurer.</p> <p>3. Same — Evidence—Burden of Proof.</p> <p>Under the statute the burden was on the insurer to show that it had suffered prejudice therefrom.</p> <p>4. Same — Appeal and Error.</p> <p>Held, on rehearing, that defendant could not avail itself of the point, not made in its briefs or on the former argument, that the statute as amended did not affect a policy in force at the time it was enacted.</p> <p>Stone, Ostraítder, and Steere, JJ., dissenting.</p>

Assumpsit by the Stearns Salt & Lumber Company against the Dennis Lumber Company, a corporation, in justice’s court, for goods sold and delivered. From a judgment for defendant plaintiff appealed to the circuit court. Judgment for defendant on directed verdict. Plaintiff brings error.