Volume 191 — Michigan Reports

Bill by Matilda McCue against William H. McCue for divorce; amended on the hearing to ask for separate maintenance only. From a decree for complainant, defendant appeals.

Bill by Jeannette Serrill and others against James V. Oxtoby and others, trustees under the will of Thomas McGraw, deceased, for a decree construing the will of said Thomas McGraw, for an accounting, and for further relief. From a decree for defendants, complainants appeal.

Bill by Frank E. Miner against Nina Husted, executrix of the last will and testament of N. P. Sylvester Husted, and others, for specific performance of a certain contract, for an accounting, and for other relief. From a decree for defendants, complainant appeals.

Roy Carpenter filed a petition with, the Industrial Accident Board praying that a certain agreement made with the Globe Indemnity Company relative to compensation for injuries received while in the employ of the Detroit Forging Company be set aside, and for further compensation. From an order granting the prayer of said petition the respondent Detroit Forging Company brings certiorari.

<p>Error to Wayne; Murphy, J.</p> <p>. Case by Paul Rohmer against John Labo for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Milton L. Decker against George Pierce and another for specific performance of a certain contract, for an injunction restraining defendants from engaging in certain business, and other relief. From a decree for complainant, defendants appeal.

Assumpsit by Sam Feldman against the Wear-U-Well Shoe Company, a foreign corporation, for damages for breach of contract. Judgment for plaintiff. Defendant brings error.

<p>1. Principal and Asent — Commissions—Sales.</p> <p>Where plaintiff brought an action for commissions that he claimed to have earned in selling stocks and bonds, and the evidence was in conflict relative to the terms of his contract, defendant claiming that he was only to receive pay for such deals as were actually closed by plaintiff, who testified that his agreement provided for commissions on such sales as he caused by introducing prospective buyers, the trial court was correct in leaving the question of liability to the jury.</p> <p>2. Same — Trial—Instructions.</p> <p>There was no ground for reversal because the trial court refused defendant’s requests for instructions that plaintiff could not recover, that he had not shown that either alone, or by the aid of any other person, he had sold any stock; that in order to recover he must establish either that he sold some 'of the capital stock owned by defendant or that he, with others working with him, sold stock belonging to the defendant for which he received no commission, and that plaintiff would not be entitled to any commission for sales made by any other person or persons after he left defendant’s employ..</p> <p>3. Same — Declaration—Bill oe Particulars.</p> <p>Defendant, not having demanded of plaintiff a bill of particulars, could not, on the ground that the special count in the plaintiff’s declaration merely related to bonds, prevent a recovery for stock sold which was open to plaintiff under the count for work and labor of the common counts declared on.</p> <p>4. Same — Contract—Construction.</p> <p>Nor was the defendant entitled to the instruction that plaintiff could not recover for commissions on sales of stock to persons whom he introduced and to whom sales were made after he left defendant’s employ.</p> <p>5. Same — Right to Compensation.</p> <p>And even though stock belonging to individual officers or agents was transferred to the prospective customers, defendant could not evade liability on that basis.</p>

Joseph; Knowlen, J. Bill by Fred L. Friend and another against Charles E. Smith, impleaded with others, for a decree setting aside certain deeds and for other relief. From a decree for complainants, defendant Smith appeals.

Assumpsit by Louis F. Perkett against the Manistee & Northeastern Railroad Company for damages for the deterioration in value of certain fruit in transit. Judgment for plaintiff. Defendant brings error.

, presiding. Case by William A. Paul against Jeffery N. Collins and others for fraud and conspiracy. Judgment for plaintiff. Defendants bring error.

James F. Robbins presented his claim for compensation against the Original Gas Engine Company for injuries received while in respondent’s employ. From an order' awarding compensation respondent and the Zurich General Accident & Liability Insurance Company, its insurer, bring certiorari.

Case by Daniel J. Davis against the Saginaw-Bay City Railway Company for personal injuries. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.

Calista Burgess presented for probate the will of Lewis Ferris, deceased. From an order admitting the same to probate contestants, Clarissa Joy and others, appealed to the circuit court. Judgment for proponent upon a verdict directed by the court. Contestants bring error.

Bill by John Long and others against William Schroeder and others for an injunction restraining defendants from increasing the height of a certain dam. From a decree for complainants, defendants appeal.

Clair; Tappan, J. Bill by Henry McMorran to enforce a lien under the water-craft law against the steamer Millinokett. From a decree for defendant, complainant appeals. The complainant seeks by this proceeding to enforce the lien given by statute (section 10789, 3 Comp. Laws; section 13625, 5 How. Stat. [2d Ed.] ; 3 Comp. Laws 1915, § 14892), the so-called water-craft act.

; Cross, J., Assumpsit in justice’s court by James Kole against Ered Lampen and another on a promissory note. From a judgment for plaintiff defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

Bill by Caroline Boeing Poole against the Union. Trust Company, Frank W. Blair, and Hobart B. Hoyt,, trustees under the will of Marie M. Owsley, deceased,, and another, for a decree construing the will of said deceased, for an accounting, and for other relief. From the decree of the court both parties appeal.

<p>1. Witnesses — Cross-Examination—Evidence.</p> <p>In an action for personal injuries, plaintiff’s counsel did not lo§e the right to cross-examine a witness called as defendant’s agent under 3 Comp. Laws 1915, § 12554, because counsel did not claim the statutory privilege when he placed the witness on the stand.</p> <p>2. Same — Opinion—Qualifications.</p> <p>An eyewitness of the accident, and participant in the collision with defendant’s street car, who was asked whether the car slackened its speed from the time she first saw it, 700 to 800 feet away, until it struck the conveyance, did not have to establish any particular qualifications to enable her to give her opinion; and though defendant claimed she had no opportunity to determine the matter of its speed, her testimony that she observed the approach of the car warranted the court in admitting the proofs.</p> <p>3. Same — Gross Negligence — Last Chance Rule.</p> <p>It is gross negligence where the wrongdoer might, by the exercise of ordinary care, have known of plaintiff’s precedent negligence and discovered his danger, but neglects to take proper measures to avoid an accident; it may be a deliberately wilful act, or an act so reckless as to be akin to wilful, and, hence, presumed by law to have been wilful, or a failure to exercise ordinary care to prevent ■ injury after the peril of the other should have been or actually is discovered, in the exercise of reasonable care.</p> <p>4. Same — Proximate Cause — Trial—Question of Fact.</p> <p>Plaintiff’s horse, frightened by an approaching automobile, turned upon the track of defendant railway, when a car approaching from the opposite direction ran into and overturned the horse and vehicle. Plaintiff claimed the car was 800 or more feet distant and could have been stopped or checked in time to have averted the collision. While his evidence on this issue was disputed by defendant, the motorman gave evidence that the car was 300 to 400 feet away when the horse went upon the track and was going at a speed of 35 to 40 miles an hour. There was testimony tending to show that the motorman made no effort to .check the speed of the car as he approached. The car went about 100 feet after it hit the horse. Held, that the issues of proximate cause and intervening negligence were correctly submitted to the jury.</p> <p>5. Same — Independent Cause.</p> <p>When a particular consequence results from a wrong, it nlay be said that the wrong is the proximate cause of the consequence, unless there intervenes between the wrong and said consequence something which may properly be denominated, a cause. If such cause intervenes, it may be said that the wrong of the defendant is too remote to be made the basis of an action.</p>

Bill by the South Branch Ranch Company against William Emery for an injunction restraining defendant from interfering with certain of complainant’s fences. From a decree for defendant, complainant appeals.

Bill by Frank C. Allen and another against Charles E. Soule and others for a decree directing the order of sale of real estate on foreclosure. From a decree for complainants, defendants appeal.

Case by Elizabeth A. Cone, administratrix of the estate ¿of Moses H. Cone, deceased, against the city of Detroit for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

, presiding. Case by Effie Baker, as administratrix of the estate of John D. Baker, deceased, against Frederick A. Delano and others, receivers of the Wabash . Railroad Company, a foreign railway corporation, for the unlawful death of plaintiffs decedent. Judgment for defendants on a verdict directed by the court. ■ Plaintiff brings error.

Rill by W. Anzetin Mtynarczyk against Constanty Zyskowski and others for a decree setting aside certain deeds, and other relief. From a decree for defendants, complainant appeals.

<p>Error to Oceana; Sullivan, J.</p> <p>Assumpsit by Lewis Jensen against Joseph E. Gamble on a promissory note. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.</p>

Bill by Wesley N. Longcor and another against John Turner and others to quiet title to certain land and for other relief. From a decree for complainants,'defendants appeal.

, presiding. Case by Elizabeth Taylor against James Davarn and the Michigan Bonding & Surety Company and others for unlawful sales of intoxicating liquor, resulting in the death of Benjamin Taylor, plaintiff’s husband. Judgment for plaintiff. Defendants bring error.

Case by Zachariah Bartholomew against S. Francis Walsh and W. B. J. Williams for fraud and deceit in the sale of certain corporate stock. Judgment for plaintiff against defendant Walsh, who brings error.

<p>1. Witnesses — Qualifications—Evidence—Speed, Rate of.</p> <p>A witness who had been in the habit of meeting automobiles and observing their rate of progress, had driven horses all her life, and estimated their speed and that of other moving objects, who had seen the automobile of the defendant approaching ten or more rods away, was rightly allowed to give her opinion as to the rate of speed of the car: its weight was for the jury and the opinion should not be rejected unless clearly of no value.</p> <p>2. Evidence — Pain and Suffering.</p> <p>Plaintiff’s testimony in a personal injury action that she suffered “lots of pain in every way” was not improperly received in evidence.</p>

Bill by Elsie Maher and others against the city of Jackson and others for an injunction restraining defendants from collecting certain taxes. From a decree for defendants, complainants appeal.

Proceedings in eminent domain by the board of education of the city of Hastings for the condemnation of a schoolhouse site. Alexander N. Gilleland and others intervened as respondents and objected to the proceedings. Judgment for petitioners on objections to the petition. Intervening respondents bring certiorari.

Mandamus by Garrett Schouwink against Raymond M. Ferguson, the common council of the city of Grand Rapids, and others, to compel respondents to accept the bond of and issue to relator a license to operate a motor bus in the city of Grand Rapids. An’ order sustaining a demurrer to the petition is reviewed by relator on certiorari.

Mandamus by Charles H. Jasnowski, prosecuting attorney of the county of Wayne, on relation of Julius L. Krimmel against Daniel L. Dilworth and others, constituting the board of assessors of the said county, to compel the respondents to assess motor vehicles in the city of Detroit. An order denying the writ is reviewed by relator bn certiorari.

Mandamus proceedings by Ethan W. Thompson and others against Coleman C. Vaughan, secretary of State, to compel a recanvass of petitions for a referendum filed in the office of the secretary of State, and to secure a lawful submission of the question to the electors. On application to frame issues of fact; ordered that issues be framed as prayed.

Assumpsit by Thomas W. Corby against the city of Detroit and the village of Grosse Pointe Park for the recovery of taxes paid under protest. Judgment for defendants on a verdict directed by the court. Plaintiff brings error.

<p>1. Railroads — Negligence—Evidence—Gross Negiigence.</p> <p>Evidence that plaintiff, in crossing defendant’s double track near the station in a city, as the gates were being lowered, took a position in the space between the rails of the westbound track to wait for a passing train, and was struck by a freight train, held, to show contributory negligence, and not to warrant the submission of the question of gross negligence to the jury.</p> <p>2. Same — Subsequent or Discovered Negiigence.</p> <p>Defendant’s train men were justified in assuming that he had taken the precaution to look before,he went on the west-bound track and would step aside in due time.</p>

Case by Hiram D. Stoddard and another against the Grand Trunk Western Railway Company for negligently setting fire to plaintiff’s store building and contents. Judgment for plaintiffs. Defendant brings error.

Assumpsit by Florence Fox, a minor, by next friend, in justice’s court against Augusta Schumann and Christopher Schumann for breach of contract. From a judgment for plaintiff defendants appealed to the •circuit court. Judgment for plaintiff against defendant Augusta Schumann, who brings error.

Case by Elmer H. Daniels, an infant, by next friend, against the board of education of the city of Grand Rapids as a body and individually for injuries caused by alleged faulty construction of a balustrade in a schopl building. From an order sustaining defendants’ demurrer to the declaration, plaintiff brings error.

<p>Elections — Criminal Law — Purity oe Liquor Election — Local Option — Corporations—Donations.</p> <p>Act No. 109, Pub. Acts 1913 (1 Comp. Laws 1915, § 3841), provides that no sums of money shall be paid and no expense authorized or incurred by or on behalf of any candidate who has received a nomination to any office or position in excess of a stated amount; section 1 of the statute limits the money to be paid or expense incurred by or on behalf of any candidate to be paid by him in order to secure or aid in securing his nomination to office and that no sum of money shall be paid and no expense authorized by or on behalf of any candidate contrary to the provisions of the statute. Section 11 forbids any person not a candidate or treasurer of a political committee to. pay, give, lend or agree to pay, give or lend any money for election expense, unless given to a candidate or to a political committee. Section 14 provides that no officer, director, stockholder, attorney, agent or any other person acting for any corporation under the laws of this or of any other State, or foreign country, except corporations formed for political purposes shall pay money of the corporation to any candidate or political committee for the payment of any election expenses whatsoever. Held, that the statute applies to elections other than those at which candidates only are to be chosen, and applies to the payment of money by the director of a brewing company to a so-called “Personal Liberty League,” in a local-option campaign. Kuhn, Ostrander, Bird, and Brooke, JJ., dissenting.</p>

<p>1. Appeal and Error — Motions—Quashing Writ — Capias—Mandamus — Proper Remedy.</p> <p>Any error of the lower court refusing to quash a writ of capias in trover should be raised by mandamus or habeas corpus before pleading; after final judgment the motion is not subject to review.</p> <p>2. Same — Impeachment—Trial.</p> <p>The objection that no foundation was laid for impeaching questions at the trial could not be considered on error where the only objection made in the lower court was that the testimony was immaterial.</p> <p>3. Trover and Conversion — Wrongful Use.</p> <p>Defendant, who used an automobile that plaintiff left in his possession to sell, and, against the objection of plaintiff, drove the car about, finally meeting with an accident or collision and injuring the automobile, was liable to the owner in trover for the damage so caused, whether or not the collision was accidental.</p> <p>4. Same — Bailments.</p> <p>The general rule is that if a bailee, having authority to use a chattel in a particular way, uses it in a different manner, or to a greater extent than he was authorized to do, such unauthorized use is a conversion of the chattel, for which the bailor may maintain trover.</p> <p>5. Same — Demand—Actions.</p> <p>And, the evidence tending to show that there was a conversion, no demand was required.</p> <p>6. Same — Return»</p> <p>In case the car had been returned or tendered back to plaintiff the fact might have been considered in mitigation of damages, but not as a bar to the right of action.</p> <p>7. Rule of Damages.</p> <p>The court correctly instructed the jury. that the measure of damages should be the value of the car at the time of conversion, with interest.</p>

Case by Hiram J. Miller against Frank A. Du Val for fraud and deceit. The suit was commenced by writ of capias ad respondendum. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by the White Pine Lumber Company, a corporation, against the Manufacturers’ Lumber Company, a corporation, and another, for the price of certain lumber. Judgment for plaintiff. Defendants bring error. In March, 1911, plaintiff made two contracts with the Manufacturers’ Lumber Company, one of the defendants, for the sale and delivery of certain lumber to that company.

Claim by Florence Montgomery, as administratrix of the estate of Robert Montgomery, Jr., deceased, against the estate of Robert Montgomery, Sr., deceased, for services and for labor and money expended in permanent improvements. The claim was disallowed in the probate court and an appeal taken to the circuit court. Judgment for claimant. Defendant brings error.

, presiding. Case by Thomas Gall against the Detroit Journal Company for personal injuries. Judgment for plaintiff. .Defendant brings error. This action was brought against the Detroit Journal Company and one Albert Rebtoy to recover damages for a personal injury to the plaintiff. It was shown upon the trial that Rebtoy, while driving an automobile in the work of delivering newspapers for the company, ran against and upon plaintiff, injuring him severely.

Petition by the Oval Wood Dish Company and Michigan Workmen’s Compensation Mutual Insurance Company to be relieved from further payments to Asaph Hills under an agreement to pay compensation during the period of disability. From an order denying the petition petitioners bring certiorari.

Assumpsit by William H. Stretch, as administrator of the estate of John Stretch, deceased, against Isaac Stretch upon a promissory note. Judgment for plaintiff. Defendant brings error. This is an action of assumpsit brought by plaintiff, as administrator of the estate of John Stretch, his father, against the defendant, who is also a son of John Stretch.

Mary Bayer presented her claim for compensation against Charles F. Bayer for the death of her husband in respondent’s employ. From an order awarding compensation respondent and the Union Casualty Insurance Company, his insurer, bring certiorari. There was testimony to support the finding that claimant’s decedent and husband was employed by respondent Charles F. Bayer and upon his business when he was killed.

Case by the township of Hart against Edwin A. Noret to enforce contribution for the wrongful act of defendant resulting in plaintiff paying a judgment for personal injuries. From an order sustaining the demurrer of the defendant, plaintiff brings error. This action grows out of a suit begun by William R. McRae as plaintiff against the township of Hart, the plaintiff in this action, and others, the owners of a mill.

Case by Mahlon Bray against the Michigan United Traction Company for injuries to plaintiff’s horse. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Appeal from Huron; Beach, J.</p> <p>Bill by Fremont Peterson against Clark J. Bisbee and others for specific performance. From a decree for complainant, defendants appeal.</p>

Charles E. Beaudry presented'his claim for compensation for the death of Gordon Beaudry while in the employ of William H. Watkins and Byron D. Rad-cliff, copartners. From an order awarding compensation, defendants bring certiorari.

Replevin by Charles Kophal against Joseph E. Weisenberger and August Fengler for the possession of an automobile. Judgment for defendants on a verdict directed by the court. Plaintiff brings error.

, presiding. Bill by Anstice Whitman against Miles P. Cook and others for an injunction restraining defendants from opening up a private right of way across complainant’s land. From a decree for defendants, complainant appeals.

Bill by Marietta Ives against George M. Edison and Abraham May to enjoin defendants from interfering with an easement. On petition of A. May & Sons to intervene and for revivor and other relief.

Bill in aid of execution by Esther Chrystal Rand, administratrix of the estate of William F. Chrystal, deceased, against Alexander Rodgers and another. From a decree for complainant, defendants appeal. The bill of complaint in this cause is filed in aid of execution. On May 18, 1914, plaintiff recovered a judgment against defendant Alexander Rodgers in the sum of $3,929.86.

, presiding. Assumpsit in justice’s court by Adolph Sloman and Edmund M. Sloman, copartners as Sloman & Sloman, against Guy B. Cady for legal services. From a judgment for plaintiffs defendant appealed to the circuit court. Judgment for defendant. Plaintiffs bring error.

Bill by Alpha C. Barras against Frances E. Barras and others to establish a deed, for an accounting, and for other relief. From a decree for defendants,- complainant appeals. The plaintiff in this case is the son of defendant Frances E. Barras and a brother of John H. Barras and Sarah J. Barras.

<p>1. Fraud — Charge—Appeal and Error — Harmless Error.</p> <p>On the trial of an action for fraudulent representations made in exchanging certain real property, the trial court did not commit error in charging the jury that there were two remedies for fraud, one hy rescinding the transaction and recovering any consideration received hy the other party, the other by retaining what had been received and suing for the fraud; that it sometimes becomes impossible or impracticable to bring an action to rescind a contract for fraud, because the property has changed hands, etc.; and, while the charge did not state the law in a correct manner, and plaintiff could have brought his action for rescission even though defendant had disposed of the property, the statement did not harm the appellant, and merely amounted to an instruction that the plaintiff was properly in court in a sufficient form of suit or proceeding.</p> <p>2. Same — Charge—Measure of Damages.</p> <p>But the court committed prejudicial error in charging that the measure of damages is the difference between the ' actual value of the land and the value that plaintiff thought it had because of the false representations: the correct measure of damages being the difference between the value as it had been represented and what it was actually worth.1</p> <p>3. Same — Laches—Limitations.</p> <p>No delay within the statute of limitations was sufficient to defeat the plaintiff’s right of action for fraud and deceit.</p> <p>4. Evidence.</p> <p>Evidence tending to vary the terms of a written contract should be excluded.</p>

Joseph; Knowlen, J. Bill by Caroline Thomas and others against George Nicolls and another for the cancellation of certain deeds. From an order overruling a demurrer to the amended answer and cross-bill, complainants appeal. On March 3, 1912, Lydia M. Beard died, leaving as her only heirs at law complainant Caroline Thomas, a sister, Mary J. Robinson, a sister, William H. Nicolls, a brother, George Nicolls, defendant, a brother, and Fred J. Phillips, complainant, a nephew.

Petition by Oramel B. Fuller against Sadie Woodard for the sale of certain lands for taxes thereon. From a decree for defendant, petitioner appeals.

, presiding. William G. Butler presented for probate the last will of Alice T. Rockett, deceased, which was contested by Harvey Rockett. The probate court certified the case to the circuit court pursuant to the provisions of section 14145, 3 Comp. Laws 1915. • Judgment for contestant, Proponent brings error. This proceeding involves a contest over the will of Alice T. Rockett. The will is dated January 16, 1913, and the testatrix died on February 19, 1913.

■Assumpsit on the common counts in justice’s court by the South Branch Cheese Company, a corporation, against the American Butter & Cheese Company, a corporation. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.

Case by Ida Baker against John Mohl and another for damages under the civil-damage act. Judgment for plaintiff. Defendants bring error. Plaintiff in this case brings her action against defendant Mohl, a saloon keeper, and his surety, under the provisions of the so-called civil-damage act (section 5398, 2 Comp. Laws; 2 Comp. Laws 1915, § 7050).

Mandamus by the Maple Press Printing Company and others against George S. Hosmer, one of the circuit judges for the county of Wayne, to compel the respondent to vacate or modify an injunction.

Case by Mortem Freeman against the East Jordan & Southern Railroad Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

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

Case-made from Missaukee; Lamb, J. Assumpsit by James McConnell against the township of Lake, in the county of Missaukee, to recover a tax paid under protest. Judgment for defendant. Plaintiff brings error.

<p>1. Limitation of Actions — Bills and Notes — Guaranty—Instructions.</p> <p>Where a -written guaranty expressly gave authority to take notes for any indebtedness which it covered and to renew or extend the same, there was no such unauthorized extension as to release the guarantor in an action begun April 27, 1911, on a note due May 1, 1905, given for goods purchased on January 14, 1905; and the court below correctly instructed the jury that the suit was not barred by the statute of limitations.</p> <p>2. Guaranty — Revocation—Intent.</p> <p>Where defendant wrote plaintiff in regard to a written' guaranty given by the former guaranteeing payment of goods purchased by one H. from plaintiff,- which was to remain in force until revoked, asking plaintiff to send the guaranty if H. was settled up, and expressing a desire “to have these matters all straightened up,” and where plaintiff replied that H. was buying regularly, giving the amount he owed, and that it assumed defendant did not desire return of the guaranty, and requesting acknowledgment of receipt, which defendant failed to do, there was no revocation of the guaranty, even if defendant so intended.</p> <p>3. Same — Silence—Intent—Estoppel.</p> <p>Defendant, having been advised by plaintiff of its interpretation of the letter, candor and good faith required him to declare himself, and by his silence he tacitly accepted plaintiff’s construction.</p>

<p>Error to the recorder s court of the city of Detroit; Phelan, J.</p> <p>Anton Palasz was convicted of a violation of the general liquor law.</p>

Assumpsit in justice’s court by Richard F. Cook against William Dade for services rendered. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Mandamus by Edward N. Barnard, prosecuting attorney for the county of Kent, against Major L. Dun-ham, judge of the superior court of the city of Grand Rapids, to compel respondent to vacate an order requiring relator to produce certain books or documents and to show cause why he should not be treated as disqualified to sit in the case of the People against Hawkins, then pending in said court.

Bill by Ada E. Fowler and another against Caroline Blount and others to enforce a lien granted in divorce proceedings as against real property of defendants. From a decree for defendant named, complainants appeal.

<p>Exceptions before sentence from Calhoun; North, J.</p> <p>Tom Curran was convicted of a violation of the local-option law.</p>

Clair; Law, J. Assumpsit by the Port Huron Engine & Thresher Company, a corporation, against the township of Port Huron and another, for the recovery of taxes paid under protest. Judgment for plaintiff. Defendants bring error.

<p>1. Contracts — Construction—Evidence.</p> <p>It is the duty of courts, not juries, to construe written contracts and define what is and what is not within their terms.</p> <p>2. Same — Rule of Interpretation.</p> <p>In construing contracts all their terms and provisions and every word and phrase should be given effect if practicable.</p> <p>3. Same — Exchange.</p> <p>Where the parties to a contract had executed a mortgage, a deed and a supplemental agreement on the day after entering into the principal contract, all relating to an exchange of real estate, the trial court did not commit, error in construing the three instruments together as a part of one transaction.</p> <p>4. Same — Joint Plaintiffs.</p> <p>And the trial court did not commit error in holding that, husband and wife that were party to a joint exchange were-properly entitled to recover on a contract for the removal-of part of. a building and for payment of compensation-therefor which, though not signed, was marked approved-, by the wife, in an action against the other person concerned in the exchange.</p> <p>5. Trial — Jury—Misconduct—New Trial.</p> <p>Upon defendant’s motion for a new trial in which he made it appear that one of the jurors laughed aloud while defendant was under cross-examination, where no exception was taken or attempt made to bring it to the attention of the trial court, the appellant was not entitled to reversal on error.</p> <p>6. Contracts — New Trial — Newly Discovered Evidence.</p> <p>An affidavit of the defendant, which set up the facts to which he believed his newly found witness would testify,, was insufficient and was not in compliance with the rule, which requires the witness to make the affidavit.</p> <p>7. Same — Trial—Issues—Consideration.</p> <p>Held, on review of the testimony, that plaintiffs were entitled to recover the agreed sum set up in the contract and that the trial court rightly left to the jury the question, of consideration which was in dispute.</p> <p>8. Same.</p> <p>Where it was stated in the deed that the grantor was to remove certain buildings and by a writing executed later</p> <p>• the parties fixed upon a sum of money to be paid the grantees for removing the buildings, evidence that they carried out the agreement which mentioned a consideration entitled them to recover the amount named.</p> <p>9. Same — Consideration.</p> <p>And under a writing wherein plaintiffs agreed to remove certain buildings on a portion of the land which defendant had sold before he exchanged with plaintiffs, the question of consideration was a proper subject of inquiry in a suit for the price named in the contract .which recited that it was entered into as a part consideration of the deed. It was not inconsistent with the prior conveyance whereby the defendant contracted that he was to remove the buildings.</p>

Bill by Minnie Hall Sellers against Ella Perry for the cancellation of a mortgage and note. From a decree for defendant, complainant appeals.

, presiding. Bill by William A. Comstock against Fred N. Potter and others for contribution. From a decree overruling a demurrer to complainant’s bill, defendants appeal.

, presiding. Bill by William A. Comstock against John A. Corbin and others for exoneration from liability on certain promissory notes made or indorsed by complainant as trustee. From a decree for complainant, defendants appeal.

Bill of interpleader by the New Era Association, a mutual benefit insurance association, against Emma R. Kuyat and Sophia Kenzie to determine the right to the proceeds of a policy of insurance. From a decree for defendant Sophia Kenzie, defendant Emma R. Kuyat appeals.

<p>1. Mortgages — Foreclosure—Parties—Subpcena.</p> <p>In. ejectment for lands claimed by defendants through a foreclosure in chaticery, the objection raised to the jurisdiction of the court that entered the decree that on one of the parties defendant a subprena had been served which named only one of two defendants (having the usual underwriting), was not fatal to the validity of the decree after fifteen years, during which defendants had enjoyed possession without interruption. Cf. former Chancery Rule 4.</p> <p>2. Same — Irregularities—Delay or Laches.</p> <p>The omission to comply with the rule requiring the names of all parties defendant to be inserted in the subprena amounted to no more than an irregularity subject to amendment by the court, and application to take advantage of such technical defect should be made with expedition or at'the first opportunity.</p> <p>3. Same — Statutes.</p> <p>The rule has no greater force than a statute, and the power of the court to remedy or correct failure to comply with statute provisions is undoubted.</p>

, J. Bill by Agnes Robertson against Charles Everts Smith and another for the reformation of a deed. From a decree for complainant, defendants appeal.

<p>1. Evidence — Hypothetical Questions — Street Railways — Personal Injuries.</p> <p>On cross-examination of defendant’s motorman, in a personal injury action for colliding with plaintiff’s vehicle and horse which turned upon the street car track as an automobile in passing at high speed caused the horse to become unmanageable, it was not objectionable to ask in what distance the motorman could have checked a car going at the rate of speed it was under and with similar conditions of weather, track, etc., prevailing. The question was not hypothetical; no facts and circumstances being assumed.</p> <p>2. Same — Knowledge—Opinions.</p> <p>The fact which was developed, that witness did not know the weight of the car, did not deprive his opinion of its value, where he was testifying from actual experience.</p> <p>3. Witnesses — Statutes—Agent of Defendant.</p> <p>To warrant calling a witness as an agent or servant of the defendant under 3 Comp. Laws 1915, § 12554, it was not essential that he should have been directly concerned in the happening or occurrence out of which the alleged injury grew, if he was an employee of the defendant at the date of the accident.</p> <p>4. Same — Conclusion—Expert Testimony.</p> <p>And where there was evidence that tended to identify the street car which caused plaintiff’s injury and also to establish the fact that another witness called by plaintiff as an expert had operated it, the court did not commit error in permitting him to give his opinion as to the distance in which it might be stopped, whether or not he could testify to its weight.</p> <p>5. Street Railways — Trial—Charge.</p> <p>Instructions of the court to the jury that if plaintiff was in a position of danger and the motorman of defendant’s street car realized her danger or had good reason to believe that plaintiff could not extricate herself from the position of peril or reach a place of safety, and if he could thereafter, in the exercise of reasonable diligence, have stopped the car under conditions as they then existed, and he did not immediately apply his brake and stop the car and that in so failing he was guilty of negligence and that plaintiff was free from negligence, the verdict should be for plaintiff: held, proper when considered with the remainder of the charge to the effect that he would not be chargeable with negligence solely because he happened to choose a course that turned out to be wrong or not the best, if he exercised a proper judgment; and for a mere error in such determination the employer would not be liable.</p>

Bill by Malcomson-IIoughten Company, the assignee of a part interest in a second mortgage given by Gregorian Building Company to George B. Wadham, Jr., to foreclose its interest against Gregorian Building Company, George B. Wadham, Jr., and others. George B. Wadham, Jr., filed a cross-bill to foreclose his remaining interest. From the decree entered both cross-complainant and cross-defendant appeal.

Mandamus by Major L. Dunham, judge of the superior court of Grand Rapids, against George P. Til-ma, comptroller of the city of Grand Rapids, to require said respondent to receive and audit relator’s claim for salary.

Edwin Moore and others presented for probate the last will of Huldah M. Armstrong, deceased. From an order admitting the same to' probate, Laura Smith appealed to the circuit court. Judgment for contestant. Proponents bring error.