Volume 192 — Michigan Reports

<p>1. Usury — Rent-^Landlord and Tenant — Lease—Interest—Distinctions.</p> <p>Under Consolidated Laws New York (1909), Vol. 2, § 370 et seq., the rate of interest is limited to 6 per cent. By statutes of Texas interest is defined as the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money. Interest rates in Texas are limited to 10 per cent., in New York to 6 per cent. In a suit to recover an installment of rent on a lease of certain real estate located in Texas, brought in Michigan by the lessors, who were residents of New York, providing for the payment by lessees of twenty per.cent, of the amount invested in the Texas property, and a 10 per cent, fee for services in clearing the land and preparing for the first crop by lessors to be paid at Buffalo, N. Y., in semi-annual installments, where no proofs tending to show any intent to evade the statute were offered, held, that the rental was recoverable as such and no usurious conditions had been shown. Cf. 2 Comp. Laws 1915, § 5998.</p> <p>2. Same — Interest.</p> <p>Interest is a charge for the loan or forbearance of money. In order to bring a contract within the theory of the statute, the use of money, or a debt, must be the basis of the transaction.</p> <p>3. Appeal and Error — Harmless Error.</p> <p>A correct result reached by the trial court will be affirmed on error, even if a wrong reason therefor be given.</p> <p>4. Frauds, Statute of — Sufficiency of Writing.</p> <p>In a lease for more than one year, in which the rental was fixed at twenty per. cent, of the amount invested, which was made certain by other provisions, and though no amount was named the terms were not left in uncertainty, no further or more explicit provisions as to rental were demanded to bring it within the requirements of the statute of frauds.</p>

, presiding. Bill by Lottie E. McDaniels against Fannie Whitaker Crosby and others to have certain property or its value restored to complainant. From a decree for defendants, complainant appeals.

<p>1. Res Judicata — Judgment—Appeal and' Error — Pleading.</p> <p>A decision on appeal in a former suit between the same parties, that a count stated a cause of action, became and is the law of the case.</p> <p>2. Appeal and Error — Trial—Instructions.</p> <p>Where a question was raised by plaintiff’s counsel in his opening statement, and the court, before any evidence was submitted, declined to instruct the jury on the question, saying it was dependent upon the proof that might be put in, and later, when evidence was offered, no objection was made by defendant, the latter was not prejudiced by the ruling of the court.</p> <p>3. Evidence — Res Gestae — Compromise—Admissions.</p> <p>In an action for personal injuries caused by defendant’s automobile colliding with a buggy in which plaintiff was seated, evidence by plaintiff’s husband that immediately after the accident defendant offered to pay for having “the rig” repaired was admissible as res gestas.</p> <p>4. Appeal and Error — Lights—Evidence.</p> <p>In such action, where the court ruled .out questions permitting defendant to explain why he did not have his “big lights” on, and later withdrew from the jury the question as to lights entirely, instructing them that defendant's car was lighted in conformity with law, the rulings were either favorable to defendant or were correctly made.</p> <p>5. Negligence — Automobiles—Lights.</p> <p>Where defendant, who was a witness in his own hehalf, claimed he could not see because of the intense lights of an approaching automobile, that he was driving at a speed of but four or five miles an hour, and did not see the buggy until he was within a few feet of it, when he thought he could pass it, it was a question for the jury, whether, under all the facts, defendant was negligent.</p> <p>6. Evidence — Secondary Evidence — X-Ray Picture — Expert Witnesses.</p> <p>The court was not in error in rejecting testimony by a medical expert as to what an X-ray picture showed, where the absence of the picture itself was unaccounted for.</p> <p>7. Trial — Instructions—Negligence.</p> <p>It was not error for the court to instruct the jury that the evidence was given to place them in the situation of the parties, and enable them to say whether, under all the circumstances, defendant was guilty of negligence.</p>

James Bruce presented his claim for compensation against Taylor & Maliskey for injury to claimant's right ankle. From an order awarding compensation for total disability, respondent and the Fidelity & Deposit Company of Maryland bring certiorari.

Dennis Breen and Robert McKnight were convicted of breaking and entering an office in the nighttime with intent to commit larceny.

Bill by William E. Higginbotham and another against Richard Phillips to restrain the removal of a building from complainant’s land. From a decree for complainants, defendant appeals.

Summary proceedings by M. A. Drouillard against Ira Huiet for the possession of certain real estate. From a judgment for complainant defendant appealed to the circuit court. Judgment for complainant. Defendant brings error.

, presiding. Bill by Hernán B. Sturtevant and others against the city of Owosso and another to restrain the removal of gravel from certain premises. From a decree for defendants, complainants appeal.

Assumpsit by the Detroit Trust Company, trustee in bankruptcy of the Michigan Buggy Company, against George Engel for goods sold and delivered. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.

, presiding. Assumpsit by the city of Sault Ste. Marie against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for a special sewer tax. Judgment for plaintiff. Defendant brings error.

Bill by Edward F. Halpin against Emery L. Gar-man and another to enforce a mechanic’s lien. From a decree for complainant, defendants appeal.

Assumpsit by George W. Lardie and another, co-partners as George W. Lardie & Son, against the Manistee & Northeastern Railroad Company for breach of a contract to deliver certain goods. Judgment for plaintiffs on a verdict directed by the court. Defendant brings error.

Case by John H. Schneider against Hugh Shepherd, John Gillespie, and Frank A. Heig for illegal arrest. Verdict directed by the court in favor of defendants Gillespie and Heig. Judgment against defendant Shepherd who brings error.

Josiah V. Bell presented his claim for compensation against the Hayes-Ionia Company and the Michigan Workmen’s Mutual Insurance Company for injuries received while in first defendant’s employ. From an order awarding compensation, defendants bring certiorari.

<p>Error to Wayne; Lamb, J., presiding.</p> <p>Assumpsit by James E. McGavock against George A. Ducharme for broker’s commissions. Judgment for plaintiff. Defendant brings error.</p>

Mandaums by Paul Schook against Richard C. Flannigan, circuit judge of Iron county to require respondent to enter an order granting relator’s application to transfer an equity suit to the law side of the court, made after final decree in the case of Schook v. Zimmerman, 188 Mich. 617 (155 N. W. 526).

Mandamus by Alice B. Craig and another as executors of the estate of Cornelia H. Blodgett, deceased, against Joseph Barton, acting circuit judge of Wayne county, to compel respondent to vacate an order restraining petitioners from paying to Ralph C. Blodgett any money due him from said estate and ordering him to pay amounts due under decree of divorce.

<p>Error, to Benzie; Lamb, J.</p> <p>Assumpsit by Oscar H. Brooks against Edwin H. Bellows for work and labor. Judgment for plaintiff. Defendant brings error.</p>

Case by Arthur H. Gillette against the Grand 'J'runk Western Railway Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

, presiding. Case by William P. Lobenstein, as administrator of the estate of George Stierle, deceased, against Whitehead & Kales Iron Works, a corporation, for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by the city of Owosso, a municipal corporation, against the Barber Asphalt Paving Company, a corporation, and another, for the recovery of costs paid by plaintiff in a suit in which defendants indemnified plaintiff against loss. Judgment for plaintiff on a verdict directed by the court. Defendants bring error.

Supplemental proceedings in the nature of a judgment creditor’s suit by Alvina La Branch against Henry Herbst for a disclosure and other relief. On application of plaintiff for an order of appearance, etc., an order was issued as prayed. Defendant brings certiorari.

Minnie Roberts, insane wife, Gladys Roberts, a minor child, by W. Henderson, her guardian, Clara Fackler, and Murna Roberts and Ellis Roberts, illegitimate minor children, by Carl H. Reynolds, their guardian, presented their claims for compensation against William H. Whaley and George W. Edwards, copartners as Whaley & Edwards, for the death of N. H. Roberts while in defendants’ employ.

Mandamus by Charles H. Jasnowski, prosecuting attorney of Wayne county, against William F. Connolly, recorder of the city of Detroit, requiring respondent to set aside an order quashing an information.

<p>1. Insurance — Evidence—Coroner’s Verdict — Death—Agency.</p> <p>A certified copy of the coroner’s certificate of death obtained by decedent’s brother, who testified that he was acting for his father, the beneficiary, and forwarded by him to defendant insurance company, was competent as an admission, notwithstanding the denial of the beneficiary that he hnew of or authorized the act.</p> <p>2. Same — Hearsay—Certificate of Death.</p> <p>Under 2 Comp. Laws 1915, § 5607, requiring the coroner to insert the cause of death in his certificate that he files with the board of health, and that a copy thereof shall be prima facie evidence in all courts and for all purposes of the facts recorded therein, the court was not in error in admitting in evidence the copy, which was, however, subject to contradiction.</p> <p>3. Same — Evidence—Suicide.</p> <p>That deceased died from a gunshot wound in the head, was not feeling well, a revolver being found in his hand, and no appearance of any struggle discoverable, that no one had access to his rooms, save his own family, considered with proofs of death and public record of the coroner’s verdict attributing the cause to suicide, was sufficient to support the verdict of the jury for defendant insurer.</p>

Bill by Frank Tuffelmire against Nellie Tuffelmire for a decree of divorce. Defendant filed an answer in the nature of a cross-bill asking for a decree of divorce. From a decree for defendant, complainant appeals.

<p>Appeal from Van Buren; Des Voignes, J.</p> <p>Bill by Cora M. Morrill against Frank E. Morrill for a divorce. From a decree for complainant, defendant appeals.</p>

<p>Certiorari to Oakland; Smith, J.</p> <p>Fannie F. Rodgers, executrix of the last will and testament of Daniel S. Rodgers, deceased, petitioned the probate court for license to sell certain real estate. From an order granting the petition, the Kalamazoo College, a beneficiary, appealed to the circuit court. Judgment diminishing the petition. Petitioner brings certiorari.</p>

<p>Criminal Law — Information—Complaint.</p> <p>Intent to sell fruit, or to offer for sale, or to possess the same, in packages that show better quality on the surface than the remainder of the package contains, in violation of the prohibition of Act No. 207, Pub. Acts 1913 (3 Comp. Laws 1915, § 15370), is an essential ingredient of the statutory offense, and a complaint that failed to charge knowledge or intent was insufficient to sustain a conviction.</p>

Case by Mary Bancroft against the board of regents of the University of Michigan and another for personal injuries. Judgment for defendants sustaining separate demurrers. Plaintiff brings error.

Frances Schrewe presented her claim against the New York Central Railroad Company for compensation for the death of her husband. From an award of an arbitration committee, respondent brings certiorari. On motion to dismiss the writ.

<p>Error to Muskegon; Sullivan, J.</p> <p>Assumpsit by William Burke, William ED Smith, and Neis P. Nelson, copartners as Burke, Smith & Nelson, against the Maryland Casualty Company on a policy of insurance. Judgment for plaintiffs on a verdict directed by the court. Defendant brings error.</p>

<p>1. Constitutional Law — Physicians and Surgeons — Criminal Law.</p> <p>Respondent, a duly licensed physician and surgeon, caused to be inserted in the Jackson Patriot, a newspaper of the city of Jackson, an advertisement that he would be in the city on certain days and would extract teeth for a consideration. It was stipulated on the trial of a prosecution against him that the pulling of teeth was the practice of dentistry and minor surgery. Upon the objection that the amendment of Act No. 183, Pub. Acts 1913, to Act No. 338, Pub. Acts 1907, under which he was prosecuted, was not covered by the original' title, held, that the title of the statute which prohibited any qualified physician or surgeon not registered thereunder from extracting teeth except where the patient had been previously under treatment for some other ailment except, etc., was within the title of the original enactment, which reads as follows: “An act to provide for the examination, regulation, licensing, and registration of persons engaged in the practice' of dentistry, and for the punishment of offenders against this act.”1</p> <p>2 Same — Regulation—Police Power.</p> <p>It was within the province of the legislature to regulate the practice of medicine and dentistry, as questions affecting the public health are subject to the police power of the State.</p> <p>3. Same — Surgery.</p> <p>Held, also, that respondent had no right to advertise the dental practice and was not protected by his profession from the penal provisions; nor was the right inferable because the medical statute was passed after the dental regulation.</p>

Bill by Henry Woodard against Thomas Walker for the specific performance of a land contract and to enjoin the prosecution of a suit at law. From a decree dismissing the bill, complainant appeals.

<p>Error to Wayne; Van Zile, J.</p> <p>Case by Emma Prince against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by George H. Judd against Peternella Judd and another for the cancellation of certain conveyances, for an accounting, and for other relief. From' a decree for complainant, both parties appeal.

Mandamus by the Chesbrough Lumber Company against Patrick H. O’Brien, presiding circuit judge of Chippewa county, to compel respondent to vacate an order of retaxation of costs.

<p>1. Divorce — Alimony—Property Settlement.</p> <p>In divorce proceedings, the decree of the court below awarding the home to complainant and attaching a lien on other property owned by, defendant for the purpose of paying incumbrances against the home, which largely exhausts his property, will not be set aside, on appeal, where the evidence shows that he was a confirmed drunkard and had largely dissipated his property, and little was to be expected from him in the future for the maintenance of complainant and for the education and maintenance of the three minor children, whom it was his duty to support.1</p> <p>2. Same — Order — Modification of Decree — Appeal Pending — Jurisdiction.</p> <p>The court below had jurisdiction, after defendant had filed his claim of appeal, to order him to surrender to complainant the possession of a note awarded to her by the general decree, and said order did not amount to a modification of the general decree while an appeal was pending.</p>

Replevin by Detroit Safe Company against Frank J. Myer for possession of a safe sold on contract. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Assumpsit by William H. Kinsey and another in justice’s court against Jacob Barth. Judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

Case by Elizabeth Hume against the Grand Trunk Western Railway Company for damages for flooding plaintiffs land. Judgment for defendant. Plaintiff brings error.

, presiding. Assumpsit by Moses Leonard and another against the Farmers’ Mutual Fire Insurance Company of Monroe and Wayne Counties, on a fire insurance policy. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by Andrew Popa against the Northern Insurance Company of New York in justice’s court on a fire insurance policy. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>Error to Sanilac; Beach, J.</p> <p>Assumpsit by Charles Fisk against the Fire Association of Philadelphia, a foreign corporation, on a fire insurance policy. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Master and Servant — Personal Injuries — Promise to Repair Defect.-</p> <p>An assurance to plaintiff that the length of wire he had been using for the purpose of dynamiting stumps was safe and to use it until a longer one should be furnished was not such an assurance as would relieve the plaintiff of assuming the risk of his injury from the known danger.1</p> <p>2. Same — Assumed Risks.</p> <p>When, plaintiff undertook the work of blasting he knew he was engaging in an employment that involved the use of a dangerous agency and voluntarily assumed not only the generally known and ordinary perils of such service, but such other risks as became apparent to him from observation and experience.</p> <p>3. Same — Evidence—Contributory Negugence.</p> <p>Testimony that plaintiff knew the wires with which he was dynamiting stumps were short and that he complained to his superior and asked for longer wires but was assured the wires were safe, and to use them until longer ones were furnished, that plaintiff used more dynamite in blasting than was required or safe, and was injured as a result, and that he had been properly warned, held, to be insufficient to relieve plaintiff of the charge of contributory negligence and that the court should have directed a verdict for the defendant.</p>

Assumpsit in justice’s court by Harriet Hines against the Pictorial Review Company for the value of goods returned to defendant. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by Ludwicka Sowiczki and a separate action by Anthony Sowiczki against the Modern Woodmen of America on a policy of insurance. Judgment for defendant on a verdict directed by the court. Plaintiffs, bring error.

Certiorari by James S. Hawkins against the common council of the city of Grand Rapids to review its proceedings removing him from the office of city treasurer.

, presiding. Bill by Joseph J. Burman and another, copartners as Burman Brothers, against Frank Ewald, Mathilda Ewald and the Detroit Savings Bank to enforce a mechanic’s lien. From a decree for complainants, defendants Ewald appeal.

Rrror to Berrien; Bridgman, J. Case by Delia L. Beach, administratrix of the estate of Lucy Mae Beach, deceased, against the city of St. Joseph for the alleged negligent killing of plaintiff’s intestate. Judgment for plaintiff. Both parties bring error.

<p>Error to Monroe; Gilday, J.</p> <p>Assumpsit by the Monroe Lumber Company against Emma M. Bezeau for goods sold and delivered. Judgment for plaintiff. Defendant brings error.</p>

<p>Mandamus by John O. Plank to compel Orámel B. Fuller, auditor general, to vacate and set aside a certificate of error.</p>

<p>Error to Kent; Perkins, J.</p> <p>Trespass quare clausum fregit by Alfred Giddings against Theodore Rogalewski. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

Assumpsit by the Holland City State Bank against John Meeuwsen and others on- a promissory note. Judgment for plaintiff on a verdict directed by the court. Defendants bring error.

<p>1. Criminal Law — Cross-Examination—Evidence—Seduction.</p> <p>Chastity of the complaining witness in a seduction case must be shown to have existed at the time of the alleged offense. And a full cross-examination and searching inquiry into any matters which might directly, or indirectly, throw any light upon these questions and to tend to test the integrity of evidence offered by the prosecutrix, as to her reasons for yielding, frame of mind and mental processes, was a substantial right of the accused.1</p> <p>2. Same — Witnesses.</p> <p>Where the prosecutrix is a young, inexperienced girl, the courts very. rightly hold that promises and means are sufficient which would not move one of mature years.</p> <p>3. Same — Pregnancy—Evidence.</p> <p>The reception of testimony that the prosecutrix was pregnant in March was incompetent in the light of other proofs of a medical expert that she was then not more than a month advanced and that it would be impossible that she could have been in such condition as a result of Intercourse at the time laid in the information, and its admission in connection with a charge submitting to the jury the question as an issue of fact, constituted prejudicial error.</p>

Mandamus by Frank F. Ford, prosecuting attorney for Kalamazoo county, against Walter H. North, presiding as judge in the Kalamazoo circuit, requiring respondent to vacate and set aside an order quashing an indictment against M. Henry Lane, Frank B. Lay, Sr., and Victor L. Palmer, jointly charging said respondents with the offense of fraudulently issuing stock of a Michigan corporation, under section 14872, 5 How. Stat. (2d Ed.).

Case by James W. Malloy against the Grand Trunk Railway Company of Canada, a foreign corporation, for the negligent burning of plaintiffs barn. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by Matthew A. Young against George J. Hilsendegen in justice’s court for goods sold and delivered. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>Exceptions before sentence from Charlevoix; Mayne, J.</p> <p>Glenn Smith was convicted of statutory rape.</p>

<p>Appeal from Monroe; Gilday, J.</p> <p>Bill by Aaron Engler against John F. Engler and Anna E. Engler for the foreclosure of a mortgage. From a decree for complainant, defendant Anna E. Engler appeals.</p>

Case by Peter Jolman against Frank Alberts for personal injuries to plaintiff’s wife and damage to his buggy. Judgment for plaintiff. Defendant brings error.

Garnishment proceedings in justice’s court by John K. Burch against Benjamin F. Barendsen. Amanda Barendsen intervened as third party claimant. Judgment for intervening claimant on a verdict directed by the court. Plaintiff brings error.

, presiding. Assumpsit by Sarah E. Lovett and another against the Bermingham-Seaman-Patrick Company, a corporation, for rent. Defendant presented a notice of set-off and recoupment. Judgment for defendant. Plaintiffs bring error.

, presiding. Bill by Grand Court of Michigan, Foresters of America, a mutual benefit insurance association, against Court Germania No. 1, German-American Foresters, and others for an accounting and other relief. From a decree for defendants, complainant appeals.

Sarah Tuttle presented her claim for compensation against the Embury-Martin Lumber Company and the Lumbermen’s Mutual Casualty Company for the death of her husband in defendant lumber company’s employ. From an order awarding compensation, respondents bring certiorari.

Sid Dyer presented his claim for compensation against the James Black Masonry & Contracting Company for personal injuries while in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

<p>1. Appeal and Error — New Trial — Exception—Saving Questions for Review — Weight of Evidence.</p> <p>An exception is necessary to review on error the denial of defendant’s motion for a new trial in a negligence action.</p> <p>2. Same — Contributory Negligence.</p> <p>Held, on reviewing the testimony in a case arising out of the collision of plaintiff’s motorcycle with defendant's truck, conflicting contentions of the plaintiff and defendant were properly submitted to the jury, that the question of contributory negligence was one of fact for their consideration.</p> <p>3. Same — Assignment of Error — Evidence.</p> <p>One assignment of error is insufficient for the review of a number of exceptions to the admission of evidence relating to distinct subjects.</p> <p>4. Same — Conduct of Counsel — Argument—Trial.</p> <p>Failure to challenge remarks of counsel so as to secure a ruling or correction of the objectionable language prevents a review of the point and the judgment cannot be reversed for such reason.</p>

Andrews, J. Petition by Ernest E. Broughton against Mark S, Andrews, probate judge of Branch county, to review proceedings in the juvenile division of said court in which Ernest Broughton was found to be a delinquent child of the age of fourteen years and committed to the Industrial School for Boys.

Mandamus by the Michigan Railroad Commission against the Detroit & Mackinac Railway Company to compel respondent to comply with an order of said commission: On petition of respondent to vacate and recall an order granting said writ.

Augusta Kunze presented her claim against the Detroit Shade Tree Company for compensation for the death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Replevin in justice’s court by Richard Ueck against Rudolph Meatz for a motorcycle. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Case-made from Kent; Perkins, J. Case by Leonard Reed against Nick Overlie for damages to plaintiff’s sheep caused by defendant’s dogs. Judgment for plaintiff. Defendant appeals.

Case by Belle Fuller against the Wurzburg Dry Goods Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

, presiding. Assumpsit by the United States Radiator Corporation against the county of Wayne for taxes paid under protest. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.

, presiding. Bill by A. E. Wood & Company against the Standard Drug Store to reform a lease on the ground of mistake or fraud. From a decree dismissing the bill of complaint, complainant appeals.

Bill by Sam Rosenbaum and another against Kornelia Tyszka for the specific performance of an alleged land contract. From a decree overruling a demurrer, defendant appeals.

Mandamus by Chester P. O’Hara, Prosecuting Attorney of Berrien county, to compel George W. Bridgman, circuit judge of said county, to issue a certificate for services performed under section 11433, 3 Comp. Laws 1915.

Case by Albert Lahnala, by his next friend, against the Mineral Range Railway Company for personal injuries. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

<p>Constitutional Law — Interstate Commerce — Municipal Corporations — License—Peddlers.</p> <p>Sales of toilet cream from a stock that had been left over from previously ordered goods, the body of the articles sold coming from a foreign State, New York, did not bring a solicitor within the rule of interstate commerce; he was guilty of violating a local ordinance against peddling without a license, though but two articles, worth 25 cents each, were supplied out of the goods on hand.</p>

Bill by Elizabeth Lamb against Edward R. Lamb, executor of the last will and testament of John Lamb, deceased, and others, to be allowed to file her election, as widow, to take under the statute rather than under the terms of said will. From a decree dismissing the bill, complainant appeals.

Case-made from Wexford; Lamb, J. William H. Faunce presented two claims for salary as commissioner of schools of Wexford county to the board of supervisors of said county. The claims were disallowed by said board, and claimant appealed to the circuit court, where the appeals were tried in one case without a jury. Judgment for defendant. Plaintiff brings case-made.

Arthur Porter, as executor, presented for probate the last will and testament of Addie Porter Brower, deceased. The will was allowed in the probate court, and Thomas E. La Rue appealed to the circuit court. Judgment for proponent. Contestant brings error.

Assumpsit by Samuel Mahder against Joachim Wax for an amount due on the sale of certain land. Judgment for plaintiff. Defendant brings error.

Debt by the Grand Rapids Law Library, a .corporation, against Eugene Carpenter and another, in justice’s court, upon a certain bond. From a judgment for plaintiff defendants appealed to the circuit court. Judgment for plaintiff by the court sitting without a jury. Defendants bring error.

Assumpsit by John H. Bloomshield against the city of Bay City for services rendered. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Matilda Maynard presented her claim for services rendered against the estate of Caroline Schrumpf, 'deceased. It was disallowed in part by the probate court. Claimant appealed to circuit court. From a judgment for a larger amount, defendant brings error.

<p>1. Insurance — Vendor and Purchaser — Insurable Interest — Intoxicating Liquors — Land Contracts.</p> <p>Where plaintiff, who was interested in a brewery, furnished the money for the purchase of a saloon and personal property connected therewith, and took the title to the property in his name, selling the saloon and equipment by land, contract to the liquor dealer, who agreed to sell no beer except that manufactured by the brewing company with which plaintiff was associated, held, in an action on a policy of insurance covering the property, that under the statute (Act No. 313, Pub. Acts 1887; 2 Comp. Laws 1915, § 7032) forbidding any wholesaler from entering into any contract or agreement with a retail liquor dealer to handle exclusively the brand of liquors manufactured by the wholesale dealer, the transaction between plaintiff and the saloon keeper was not void; that the latter had an insurable interest in the premises and the policy was valid and enforceable.</p> <p>2. Vendor and Purchaser — Contracts—Illegality—Partial Invalidity. .</p> <p>A land contract that by express provisions was to be invalidated if the vendee sold other beer than a certain product described in the writing was not avoided by a breach of the condition if the agreement was severable and if, after eliminating the illegal portions, the remainder of the contract was lawful and supported by sufficient consideration.</p> <p>3. Same — Severable Agreement — Conditions.</p> <p>A contract for the sale of land which involved the purchase of the property by plaintiff, by whom the necessary funds were advanced, and the realty resold on instalment payments to the liquor dealer, was based on severable conditions and, hence, not rendered void by the breach of one of1 the conditions, where the same did not necessarily influence the plaintiff to make the agreement and was not the essential part of the land contract.</p> <p>4. Same — Waiver—Explosives—Illuminating Gas.</p> <p>Where the agent who secured the policy knew of the use of illuminating gas on the property, and that the gas was generated thereon, a change made in the manner of generating the gas, after the insurance was taken out, so as to produce the gas at a generator instead of at the burner, did not breach the condition of the agreement; the effect of such notice or knowledge imputed to the insurer was to waive the condition and to authorize the insured to make the change without invalidating the insurance.</p> <p>5. Same — False Report — Origin of Fire — Proof of Loss.</p> <p>Where the insured stated in his proofs of loss that the cause of the fire was unknown, but, in fact, he had lighted a match from which a species of explosion followed, that might or might not have been caused by the fault of the gas generating plant, he was not chargeable with such deception or false representation as to forfeit his rights, and especially where defendant was not misled or injured and was not deprived of essential information to which it was entitled.</p>

Myrtle Ramlow presented her claim for compensation against the Moon Lake Ice Company for the death of her husband in respondent’s employ. From an award granting compensation respondent ice company and the Ocean Accident & Guaranty Corporation, Ltd., its insurer, bring certiorari.

<p>1. Arrest — Capias—Sufficiency of Affidavit — Conversion.</p> <p>An affidavit, in an action for conversion, that the deponent rented to the defendant a horse for the purpose of driving to a place named and back, and the bailee did not return the animal as agreed, and failed to deliver it to the affiant when requested so to do, sufficiently stated a prima facie case in trover.</p> <p>2. Same — Demand—Prima Facie Case.</p> <p>While a demand and refusal are not in themselves a conversion, they are evidence of one and usually make a prima facie case, and on making proof thereof, the writ of capias will lie.</p> <p>3. Same — Bail—Circuit Judge.</p> <p>It was not a sufficient jurisdictional objection that the judge was not present in the county in which the writ issued when he fixed the bail and indorsed it on the writ, being in another county of the circuit to which he was officially assigned.</p> <p>4. Notary Public — Attorneys—Husband and Wiee.</p> <p>The statute prohibiting attorneys from acting as notary in any cause in which they are professionally interested, does not prevent the wife of such an attorney from certifying the jurat as notary. 1 Comp. Laws, § 2640; 3 Comp. Laws 1915, § 12082.</p>

Mandamus 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.

<p>Error to Bay; Collins, J.</p> <p>Case by Cecelia Maciejewski against Emily Rychart for slander. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the Detroit, Grand Haven & Milwaukee Eailway Company against the Owosso Sugar Company for certain demurrage charges. Defendant pleaded the general issue with notice of set-off. Judgment for defendant. Plaintiff brings error.

Clair; Tappan, J. Bill by Murray W. Sales & Company against the German-American Savings Bank to have certain shares of stock in defendant bank transferred to complainant. From a decree dismissing the bill, complainant appeals.

Bill by Eugene Carpenter against John W. Land-man, the Commercial Service Truck Company, and others, for an accounting and the appointment of a receiver for defendant company. From the decree renered, complainant appeals.

<p>1. Carriers — Railways—Freight—Delay—Act oe God.</p> <p>Where the plaintiff shipped five car loads of hogs, cattle, and sheep over defendant railway to he transported from Plainwell, Michigan, to Cleveland, Ohio, which did not arrive at their destination until after the expiration of four and five days, and the testimony tended to show an unexplained delay at four different points, resulting in killing a part of the stock and in shrinkage of the rest, the defense that a severe snow storm caused delay at one of the points did not relieve defendant railway of liability on the theory that it was an act of God.1</p> <p>2. Same — Definition.</p> <p>An act of God is an inevitable accident without intervention of man or a public enemy.</p> <p>3. Same — Defenses—Waiver—Limitation by Contract.</p> <p>Failure to present plaintiff’s claim for the loss within five days, as required by the contract of carriage, was a defense that the carrier ought to have pleaded, and the omission' to do so amounted to a waiver of the claimed requirement.</p> <p>4. Same — Expenses—Feeding Stock.</p> <p>An expense that the plaintiff would not have been required to pay but for the alleged delay in shipment, as for feeding the cattle in transit, was- a proper element of the shipper’s damage for negligence in transporting the shipment with reasonable promptness.</p>

, presiding. Bill by the Woodmere Cemetery Association against the city of Detroit to set aside certain pavement assessments and to cancel the sale of complainant’s property for said special assessments. From a decree for complainant, defendant appeals.

, presiding. Case by Grace Smith against Mary Smith and another for the alienation of her husband’s affections. Judgment for plaintiff. Defendants bring error.

Hugh Shafer presented his claim for compensation under the workmen’s compensation act against Parke, Davis & Company for personal injuries. From the award entered, contestant brings certiorari.

<p>1. Evidence — Correspondence—Delivery oe Deed — Betters.</p> <p>*n an action of ejectment, in which the delivery of a ¡leed from a father, since deceased, to his daughter came into controversy, letters written by decedent regarding the land after he had executed and delivered the deed, containing references to the land as his and giving directions about the management of the real property in question, were properly admitted in evidence in conjunction with proofs that the daughter*had general knowledge about her father’s correspondence; also, mere delay on the part of the court in receiving the evidence was not prejudicial to the appellant heir.-at-law of the grantor.</p> <p>2. Same — Declarations—Husband and Wife — Confidential Communications.</p> <p>It was not erroneous to receive the widow’s testimony as to statements made hy her husband when he delivered the deed to her for the benefit of the daughter, since the statute excluding confidential communications between husband and wife during the marriage relates to communications not intended to be disclosed (3 Comp. Laws 1915, § 12555). And the fact that decedent directed her not to mention the transfer to certain interested parties did not bring the testimony within the statute, when he desired that the wife mention the subject to the daughter.</p> <p>3. Same — Evidence—Trial—Instructions.</p> <p>An instruction to the jury by the court, that the burden was on plaintiff to show by the preponderance of the evidence that the deed from the father to the defendant had not been delivered, was erroneous, in an action against the grantee in the deed of plaintiff’s ancestor, recorded after the ancestor’s death, for, though the possession of the deed by a grantee unexplained does in many cases give rise to the presumption that it was duly delivered, the presumption may be rebutted by evidence and is not conclusive. The burden of proving its delivery by a preponderance of evidence, like proving any other act necessary to the effectiveness of the deed, is ordinarily upon the party who relies on it.</p> <p>4. Same — Nonprejudicial Error — Judicature Act — Miscarriage of Justice.</p> <p>Held, however, that the error was not sufficiently serious to authorize a reversal, and as the plaintiff should on the record presented have been subjected to a new trial if he had obtained a favorable judgment, he could not complain of the alleged misdirection, which, therefore, did not appear to have resulted in a miscarriage of justice as defined by the new practice act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 13763).</p>

Wilhelmina De Mann presented her claim against the Hydraulic Engineering Company for compensation for the death of her husband in defendant’s employ. From an order awarding compensation, respondent brings certiorari.

Garnishment proceedings by Michael N. Kennedy, trustee in bankruptcy for the Hickory Grove Distilling Company, a corporation, against William A. Stimming, and the Tivoli Brewing Company, garnishee defendant. Judgment for garnishee defendant. Plaintiff brings error.

Bill by the Board of Water Commissioners of the city of Detroit against the village of Highland Park for an injunction restraining defendant from interfering with the water supply system of complainant. From a decree for defendant, complainant appeals.

<p>Trusts — Reimbursement of Trustee — Expenses—Advancement.</p> <p>The intestate left a small estate and $7,000 in life insurance which was payable to his widow who became and acted as administratrix of the estate. Pursuant to the oral request of decedent, his widow put aside $1,000 for a home for the son-in-law, which sum she was obliged to make up out of the insurance, in order to carry out the said desire expressed by the intestate, taking title in her name under her agreement in writing to manage the property for the benefit of the grandchildren, to whom she was to deliver one-fourth of the property each, on their attaining their majorities; $200 was advanced by the son-in-law. Held, that the entire amount so invested was impressed with the trust and she was not entitled to be reimbursed for the amount of her advancement, but only for her proper expenses of administration, though the estate never produced any money and said investment ultimately was derived from her interest in the life insurance.</p>

Case in justice’s court by Frank E. Brinkman against Leo Zuckerman for damages to plaintiff’s property. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

A. C. Watters and others presented to the highway commissioner of the township of Grant, in Newaygo county, a petition to remove certain stump fences along a highway, under authority of Act No. 125,. Pub. Acts 1913, 1 Comp. Laws 1915, § 4412. Peter Larsen and two other respondents appealed to the township board and from its judgment to the circuit court. Judgment for appellants. The township of Grant brings error.

<p>1. Contracts — Offer and Acceptance — Reservation of Right to Withdraw.</p> <p>Plaintiff silo manufacturing company secured from defendant a written order for a silo to be delivered f. o. b. at Saginaw and consigned to defendant at Traverse City. On the bottom was written that the purchaser reserved until the following August to reconsider. Plaintiff claimed and offered testimony to prove that it shipped the parts of the silo in due time, except a piece of felt which it was unable to get from the manufacturer, worth 94. cents, and that it forwarded the felt by express about two weeks later. Defendant rejected the silo, claiming he had notified -defendant of rescission by letter within the time reserved. -Defendant denied receiving the letter. Held, that the reservation only gave defendant - the right to withdraw within the specified time and that no confirmation was necessary, but notice of intention to cancel the order must be shown to have reached the other party in order to effect a rescission.</p> <p>2. Same — Presumptions—Evidence.</p> <p>Proof that- the notice of rescission was placed in the mails properly addressed and with postage prepaid undoubtedly created a presumption that it was duly received, but its receipt being denied, a question of fact was raised to be determined by the jury.</p> <p>3. Same — Condition Precedent — Notice—Performance.</p> <p>Plaintiff substantially complied with its part of the agreement, and in view of an admission by defendant that he did not reject the silo because the felt did not accompany the other parts and under express provision in the order that if any parts were found lacking he would notify plaintiff and allow a reasonable time to replace the same, plaintiff was entitled to an instruction that the contract had been performed.</p> <p>4. Same — Sale—Contracts—Acceptance.</p> <p>The exercise of any act of ownership of the silo after it had arrived at its destination amounted to an acceptance, and made defendant liable for the price; hence, to order it forwarded to another station was an aet that fixed the buyer’s liability and he was rightly held bound by the contract, and that, too, even if he had served notice of rescission as he attempted to show.</p>

Quo warranto proceedings by Grant Fellows, Attorney General, on the relation of the Union Trust Company and others, against the First National Bank of Bay City, questioning the right of respondent to act as trustee, executor, administrator, or registrar of stocks and bonds under the Federal reserve act.

Case by Albert H. Chapman against the United States Express Company for personal injuries. Upon the death of plaintiff the suit was revived in the name of Mabel D. Chapman, administratrix of decedent’s estate. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.'

Assumpsit by Edward A. Garlock against the Motz Tire & Rubber Company for damages for breach of a contract of agency. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Assumpsit by Loveland & Hinyan Company, a corporation, against Dudley E. Waters and another, receivers of the Pere Marquette Railroad Company, , for damages for delay in transit of two carloads of potatoes. Judgment for plaintiff. Defendants bring error.

, presiding. Bill by May H. Carey against Cornelius Carey for a divorce. Defendant filed an answer in the nature of a cross-bill asking for a divorce. Complainant withdrew the original bill of complaint. From a decree dismissing the cross-bill, defendant appeals.

Peter Kricinovich presented his claim against the American Car & Foundry Company for compensation for a broken leg while in defendant’s employ. Defendant petitioned for relief from further payments unless claimant should submit to a minor surgical operation. From an order denying the petition, defendant brings certiorari.

Bill by the American Fidelity Company against R. L. Ginsburg Sons’ Company to set aside a judgment, to restrain an execution, and for an accounting. From a decree dismissing the bill, complainant appeals.

The Michigan Trust Company presented for probate the last will and testament of Charles Fox, deceased. The will was allowed in the probate court, and Corinne H. Fox appealed to the circuit court. The Masonic Temple Association intervened claiming interests. Judgment for contestant as to portion of said will. Intervener brings error.