Volume 194 — Michigan Reports

Bill by Ted B. Anstays and another against William H. Anderson and others to restrain the commission of waste and for an accounting. From a decree dismissing the bill, complainants appeal.

<p>Exceptions before sentence from Ingham; Collingwood, J.</p> <p>James A. Humphrey was convicted of violating the local option law.</p>

<p>Error to Ingham; Collingwood^ J.</p> <p>Theodore De Meaux was convicted of resisting an officer.</p>

Bill by Clinton Nelson against Louis F. Breitenwischer and another for the foreclosure of a land contract. From an order overruling a motion to dismiss the bill, defendants appeal.

Albert Simmer presented a claim against the estate of Charles Cutter, deceased, for the amount of a promissory note. The claim was allowed in the probate court, and Linnie Cutter, executrix, appealed to the circuit court. Judgment for defendant. Claimant brings error.

<p>Mandamus by William H. Klug against Oramel B. Fuller, auditor general, to require respondent to approve a plat under sections 3350, 3351, 1 Comp. Laws 1915.</p>

Mandamus by Nellie Weatherby against Willis B. Perkins, circuit judge of Kent county, to require respondent to vacate an order allowing an intervention in an action under the civil-damage act.

• Error to Wayne; Codd, J. Assumpsit by the Detroit, Grand Haven & Milwaukee Railway Company against Isaac Boomer for the amount of a judgment and costs. Judgment for defendant on a directed verdict. Plaintiff brings error. This suit was brought against the defendant to recover the amount of a judgment, costs, and interest, amounting to the sum of $1,717.46, paid by the plaintiff as the result of a suit brought by one Casimir Glappa against it.

<p>1. Homesteads — Valuation—Leasing Without Consent of Wife.</p> <p>Where the husband, without- the consent of the wife, changed a barn into a dwelling on the back 42 feet of a city lot, used as a homestead, and rented it, the total value of the premises being less than ?1,500, such action did not change the character of the whole lot as a homestead. Constitution, Art. xiv, § 2.</p> <p>2. Same — Fraudulent Conveyances — Exemptions.</p> <p>The whole lot being exempt as a homestead, a subsequent conveyance of the 42 feet was not void as to creditors.</p>

Assumpsit by the Holmes Realty Company against C. H. Silcox and another for a commission on the sale of real estate. Judgment for defendants. Plaintiff brings error.

, presiding. Case by George D. Bement, under the Federal employers’ liability act (35 U. S. Stat. 65), against the Grand Rapids & Indiana Railway Company for personal injuries. Judgment of nonsuit. Plaintiff brings error.

Case by Alexander Ramonas against the Grand Rapids Railway Company and Robert A. Best for personal injuries. A verdict was directed in favor of defendant railway company, and plaintiff had judgment against defendant Best. Plaintiff and defendant Best bring error.

Bill by David B. Newcomb against Eunice K. Montague and others to set aside a certain deed, for an accounting, and for other relief. From an order overruling the demurrer of above named defendant, she appeals.

Bill by Malvina A. Palmer against Mark Palmer and Stanton E. Clark for a decree extending the time of redemption from foreclosure of a mortgage. Defendant Palmer died before the trial. From a decree for plaintiff, defendant Clark appeals.

A petition was filed by Henry W. Wolf and others, directors of the American Air Compressor Company, for the dissolution of the corporation. A subsequent petition for cancellation of a contract to issue stock of the company for certain patents to be transferred to the company was presented by B. J. Sturn, A. J. Wood, and D. H. Barnett. From a decree for petitioners, certain stockholders appeal.

• Error to Cheboygan; Shepherd, J. Case by Ellen Snowden, as administratrix of the estate of John Snowden, deceased, against the Detroit & Mackinac Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Assumpsit by George Forrester against Norman B. Lawson and another for work and labor done. Judgment for plaintiff on a directed verdict. Defendant Lawson brings error.

Bill by Frank R. Kelly against Flora T. Kelly for a divorce: On petition of complainant for a modification of the decree respecting alimony. From an order granting temporary relief without amending the decree, petitioner appeals.

Clarence C. Purchase presented a claim against the Grand Rapids Refrigerator Company for partial incapacity resulting from the loss of an eye. From an order awarding compensation, respondent brings certiorari. As the result of an accidental injury to claimant’s right eye, it was removed. Compensation was- allowed as for the loss of an eye. The eye had previously been injured.

Case by John Rabior against Charles A. Kelley for slander. Judgment for plaintiff. Defendant brings error.

Garnishment proceedings by Edward D. Lyon and another against the State Bank of Carson City, as garnishee defendant of Harriet A. Baldwin and another. From an order denying a motion to set aside a default judgment for want of proper service of the writ, said garnishee defendant brings eiror.

Clair; Tappan, J. Bill of interpleader by the Modern Brotherhood of America against Fred Hudson and Guy Hudson to determine the right of the proceeds of a benefit certificate. From a decree for defendant Fred Hudson defendant Guy Hudson appeals.

Assumpsit by Serroll Powers against Will Dodgson for breach of a contract for the sale of wool. Judgment for plaintiff. Defendant brings error. There was conflicting testimony concerning the precise terms of the parol contract which the parties made, a conflict which the jury has apparently resolved in favor of the plaintiff, appellee, and appellant, in presenting his points, assumes the contract to be as plaintiff claims it is.

Case by the Eberle Brewing Company against the Briscoe Motor Company for the killing of plaintiffs horse. Judgment for plaintiff. Defendant brings error.

Mandamus by the American Boat Company against .Harvey Tappan, circuit judge of St. Clair county, to compel respondent to vacate an order dismissing ah appeal from justice’s court.

, presiding. Bill of interpleader by the Wayne County & Home Savings Bank against Kenzie G. Smith, administrator of the estate of Samida M. Lake, deceased, and Georgiana W. Coyle, executrix of the estate of Eliza Lake, deceased, to determine the title to a certain fund on deposit in plaintiff bank. From a decree for defendant Coyle, defendant Smith appeals.

, presiding. Assumpsit in justice’s court by Charles C. Hunter against Dura A. Blosser for broker’s commissions. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

, presiding. Bill by Thomas A. Conlon and another against William H. Irvine and the Union Trust Company for an injunction restraining defendants from incumbering or disposing of certain real estate, and for other relief. From a decree for defendants, complainants appeal.

Exceptions before sentence from Grand Traverse; Mayne, J. James S. White was convicted of having taken indecent liberties with the person of a girl under the age of fourteen years.

Bill by Robert Napper against John E. Fitzpatrick for a decree declaring a repurchase to be a redemption of certain premises, and other relief. From a decree for defendant, complainant appeals.

Mandamus by Catherine Clark and others to compel George W. Bridgman, circuit judge of Berrien county, to vacate a certain order and to enter an order granting petitioners leave to appeal from the findings of the commissioners on claims in a certain estate.

, presiding. Bill by Joseph O. Parkyn and others against Julius C. Ford for the rescission of an exchange of real estate on the ground of fraud. From a decree for complainants, defendant appeals.

Exceptions before sentence from recorder’s court of the city of Detroit; Connolly, J. Vladimirus Maczulski was convicted of unlawfully* procuring himself to be registered as a physician.

Assumpsit by Henry N. Backus and others against the Trumbull Motor Car Company for breach of contract. A plea in abatement was ordered stricken from the files. Defendent brings error.

Petition by W. B. Smith against William C. Mosier, receiver of J. L. Welch & Company, for an accounting, the cancellation of certain notes, and other relief. From a decree for defendant, petitioner appeals.

Assumpsit by Samuel P. Cox against the Railway Conductors’ Co-operative Protective Association for the amount of a judgment rendered in a Missouri court-judgment for defendant on a directed verdict. Plaintiff brings error.

Assumpsit by Joseph Bayer against the Winton Motor Car Company for breach of a contract of warranty for the sale of an automobile. Judgment for plaintiff. Defendant brings error.

Bill by the Berkey & Gay Furniture Company and others against the .Valley City Milling Company to establish complainants’ right to use a certain alley or way, and to restrain defendant from obstructing same. From a decree for complainants, defendant appeals.

, presiding. Leland F. Bean, administrator de bonis non, filed a petition in the probate court for an order of partial distribution of the estate of Nathan Shumway, deceased. From an order awarding distribution to thd heirs of Nathan Shumway alone, Ida A. Aleock and another, heirs of Marietta Shumway, deceased, widow of Nathan, appealed to the circuit court. From a judgment awarding distribution to the heirs of Marietta as well as of Nathan, the heirs of Nathan appeal.

John N. Curtis presented his claim against the Slater Construction Company for compensation for injuries while in respondent’s employ. On the death of claimant, the claim was revived in the name of Jessie Curtis, administratrix de bonis non. From an order awarding compensation, respondent brings certiorari.

Assumpsit by Harry R. Solomon against the Alpena Cedar Company and others for profits and commissions due upon a lumbering contract. Judgment for plaintiff on a directed verdict. Defendants bring error.

, presiding. Trover in justice’s court by Anna Jaddatz against the Grace Harbor Lumber Company and another. There was judgment for defendants and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

Assumpsit in justice’s court by Clayton Hoffman and others against John C. Willits for use and occupation. There was judgment for plaintiffs and defendant appealed to the circuit court*. From a judgment for an insufficient amount, plaintiffs bring error.

, presiding. Assumpsit in justice’s court by Loren Jackson, an infant, by his next friend, against the Haverford Cycle Company for money had and received. There was judgment for plaintiff and defendant appealed to the circuit court. ‘ Judgment for plaintiff. Defendant brings error.

Assumpsit by P. Albín Johnson and Leo L. Wood, copartners as Johnson & Wood, assignees of the Title Guaranty & Surety Company, against the Federal Union Surety Company for contribution. Judgment for plaintiffs. Defendant brings error.

Jacob Poniatowski presented his claim against Stickley Bros. Company for compensation for injuries while in respondent’s employ. From an order awarding compensation, respondent brings certiorari.

<p>Equity — Pleading—Trust—Accounting.</p> <p>Averments in a bill of complaint against a bank and its president alleging that they were complainant’s agents and trustees, that the facts are peculiarly within the knowledge of defendants, that discovery is necessary to complainant, that defendants were guilty of positive fraud, and that the interests and liabilities of defendants are so identical as to be inseparable, state a case cognizable by a court of equity.</p>

Quo warranto proceedings by Thomas H. Coxe and another against Benjamin F. Carson to determine the title to the office of police marshal of the city of Traverse City. Judgment dismissing the information. Relators bring error.

<p>Error to Houghton; O’Brien, J.</p> <p>Case by John Drajicevic against the Champion Copper Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal and Error — Extension op Time — Statutes.</p> <p>Where a writ of error was sued out more than ten days after the hill of exceptions was signed, and the showing made on motion to dismiss indicates very clearly that appellant was not in fault, this court, in construing section 6 of the judicature act (Act No. 314, Pub. Acts 1915) authorizing this court to extend the time beyond ten days, will allow said writ to stand as if showing had been made before the writ was taken out, and the motion to dismiss is therefore denied.</p>

Summary proceedings by Elizabeth Tuller against the Michigan Central Railroad Company for the possession of land. From an order of restitution, defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

Assumpsit in justice’s court by Leonard Vincent against Martin J. Heenan for rent. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Clair; Tappan, J. Assumpsit by Thomas J. Cullen against Andrew Bammel, principal, and Edward Sadler, surety, on a contract of guaranty. Judgment for plaintiff on a directed verdict. Defendants bring error. .

Case by Ralph Mink against the Grand Rapids, Grand Haven & Muskegon Railway Company for the negligent setting of fires which spread upon plaintiff’s land. Judgment for plaintiff. Defendant brings error.

Clair; Tappan, J. Bill by Donald MacQueen against the city commission of the city of Port Huron and others to restrain the issuance of bonds for school purposes. From a decree dismissing the bill, complainant appeals.

Case by A. Barrett Vought against the Michigan United Traction Company for damages to a traction engine. Judgment for defendant on a directed verdict. Plaintiff brings error.

Attachment proceedings by Sam Feldman against Thad B. Preston, individually and ap trustee. From an order denying a motion to quash, defendants bring certiorari.

James Harrison was convicted of violating the local-option law and sentenced to pay a fine of $200 and to be confined for 30 days in the county .jail.

, presiding. Assumpsit in justice’s court by the Northern Assurance Company against John George Meyer and Rudolph Kraenzlein for' the amount of premiums on certain policies of life insurance. From judgments for plaintiff, defendants appealed to the circuit court where both were tried as one suit. Judgment for plaintiff on a directed verdict. Defendants bring error.

Antonio Guastelo presented his. claim against the Michigan Central Railroad Company for compensation for injuries while in defendant’s employ. From an award of compensation, defendant brings certiorari.

Bill by Symons Brothers & Company and others against Rolla W. Brink and Marius Hanson for an injunction, a receiver, and other equitable remedies. From a decree dismissing the bill, complainants appeal.

Case-made after judgment from Huron; Beach, J. Quo warranto proceedings by Albert Sawyer against George Hart to try the title to the office of treasurer of Chandler township, Huron county. Judgment for defendant. Plaintiff appeals.

Mandamus by Lewis Jensen against James E. Sullivan, circuit judge of Oceana county, to compel the vacation of an order for security for costs in an action at law.

Albert Buhse presented his claim against the Whitehead & Kales Iron Works for compensation for the death of his son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Assumpsit in justice’s court by Samuel Tacoma .•against James Nyenhuis for goods sold and delivered: Prom a default judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings certiorari.

<p>Error to Lapeer; George W. Smith, J., presiding.</p> <p>Case by John Seabury against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by Albert G. Kyselka against the Northern Assurance Company of Michigan for breach of an agency contract. Judgment for plaintiff on a direeted verdict. Defendant brings error.

Case by Frank Stone against C. Y. Bennett for personal injuries. Judgment for plaintiff. Defendant brings error. .The plaintiff, a practical woodsman of six years’ experience, was employed by the defendant with others to cut down and get out tamarack piling. On the 29th day of March, 1912, the plaintiff and one Lefevre were told by the defendant to work together in the cutting operation.

Walter M. Nelson presented his claim for professional services against the estate of Walter Sackett to the commissioners on claims. Upon the disallowance of his claim he appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

Replevin in justice’s court by William Wendt against Leo McGuire for the possession of certain blacksmith supplies. From a judgment for plaintiff defendant appealed to the circuit court where the case was heard before the court without a jury. Judgment for defendant. Plaintiff brings error. On September 19, 1914, plaintiff, a blacksmith, purchased from defendant, also a blacksmith, certain blacksmith supplies of the value of between $80 and $90.

Case by Joseph Salabrin against the Ann Arbor Railroad Company for personal injuries. Judgment •for plaintiff. Defendant brings error. On October 7, 1914, the plaintiff was a member of a repair gang in the employ of the defendant railroad company. This gang was on that day engaged in resurfacing track between Dundee and Lulu, two stations on the defendant’s railroad, lying south of Ann Arbor.

Proceedings by the Enterprise Bed Company to enforce a lien under the water-craft law against the steamer South American, the Chicago, Duluth & Georgian Bay Transit Company and the Great Lakes Engineering Works. From a decree for complainant, defendants appeal. This action was brought under chapter 298, 3 Comp. Laws (3 Comp.

Case by David O. Pool against the township of Montague for personal injuries. Judgment for plaintiff. Defendant brings error. On May 14, 1914, plaintiff, who lived in the village of Fruitvale, went to Montague, a distance of about seven miles, for the purpose of securing a load of lumber. His road led him. over Carleton Creek bridge, distant about a mile and a half from his home at Fruitvale.

Assumpsit by the city of Kalamazoo against George W. Perrin for the amount of a paving tax, before the court without a jury. Judgment for plaintiff. Defendant brings error.

, presiding. Bill by Theodore C. Downing against Myron B. Brooks, Edward A. Fiebach, Farmers’ & Merchants’ Bank of Nashville, William L. Chase, executor of the last will of Ida A. Brooks, deceased, James E. Birney, and others, in aid of execution. From a decree dismissing the bill, complainant appeals.

Assumpsit by Matthew B. Whittlesey against J. Henry Smith and Peter Smith & Sons Company, a corporation, for services rendered. Judgment for defendants on a directed verdict. Plaintiff brings error. Plaintiff is an attorney at law. Defendant J. Henry Smith is president and principal stockholder of the other defendant, Peter Smith & Sons Company. The corporation was capitalized for the sum of $500,000 $250,000 common and $250,000 preferred.

<p>Error to Emmet; Shepherd, J.</p> <p>Case by John J. Reycraft against Dudley McDonald for slander. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Bill by George C. Paynton against Anna Bertha Paynton for a divorce. From an order denying defendant’s motion to set aside a decree entered on default, she appeals.

<p>1. Assault and Battery — Trespass Vi et Armis.</p> <p>In trespass vi et armis to recover damages for assault and battery, where, after blows were struck, hostilities ceased,, and plaintiff started to walk away, when he was struck' by a stone thrown by defendant, the latter was guilty' of assault and battery, although plaintiff struck the first blow in the original altercation.</p> <p>2. Same — Question for Jury.</p> <p>Where the testimony was conflicting, the question as to whether the plaintiff was leaving the place when hit with the stone, or whether he had renewed the attack upon defendant, was a question for the jury.</p> <p>3. Same — Trial—Instructions.</p> <p>Instructions by the trial judge that the vital point was as to what happened immediately before the stone was thrown; that the striking of defendant by plaintiff was an assault and would not be justified because defendant used some words that he ought not to have used; that the jury had a right to take into consideration all that took place; that after the first altercation ceased the question was as to who then became the aggressor; that if plaintiff was retreating when defendant threw the stone and struck him, then defendant was guilty of assault, and plaintiff would be entitled to recover damages, were not erroneous and did not take from the jury the right to consider all of the facts connected with the occurrence.</p> <p>4. Same — Cross-Examination — Evidence — Character — Disposition.</p> <p>Where defendant had taken the stand as a witness, and had testified that he picked up the stone because he was afraid of plaintiff, it was within the discretion of the court to allow plaintiff’s counsel to ask him, for the purpose of showing his character and disposition, if he had not thrown a club at a certain man, and at another time if he had not carried a piece of iron in his pocket and boasted that he would get a certain man.</p> <p>5. Same — Witnesses—Credibility—Impeachment.</p> <p>Where defendant’s father had testified that defendant had thrown the stone in self-defense, it was proper, for the purpose of affecting his credibility, to ask him, on cross-examination, if he had not stated that the trouble was the work of his son, and, on his denial, to allow a witness to testify that he had so stated.</p> <p>6. Same — Overwhelming Weight of Evidence — Appeal and Error.</p> <p>Where there was substantial evidence supporting the plaintiff’s theory, and the trial judge denied defendant’s motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence, this court will not reverse the judgment on that ground.</p> <p>7. Trial — Reopening Case — Discretion of Court.</p> <p>The reopening of the case after the close of the arguments of defendant’s counsel, and allowing plaintiff to offer further testimony, was within the discretion of the court, and no error was committed where no undue limitations were placed upon the examination of witnesses.</p>

<p>1. Negligence — Pleading—Variance—Gross Negligence.</p> <p>In an action for personal injuries, where plaintiff was knocked down and run over by defendant’s horse and fish wagon, plaintiff’s characterization of the negligence as “wilful” and “wanton” in her declaration does not prevent a recovery for ordinary negligence.</p> <p>2. Trial — Directed Verdict — Appeal and Error.</p> <p>In reviewing in this court the refusal of the court below to direct a verdict for defendant, the testimony should be construed as favorably to plaintiff as is reasonably possible.</p> <p>3. Negligence — Contributory Negligence — Question por Jury.</p> <p>In such action, where plaintiff’s testimony was to the effect that the driver of the horse carelessly pulled the line and the horse swung around the corner and injured plaintiff, while defendant claimed that plaintiff suddenly stepped in front of the horse, the questions of defendant’s negligence and plaintiff’s contributory negligence were properly for the jury.</p>

, presiding. Assumpsit in justice’s court by John D. Oudersluys and Hugh T. Rathbun, copartners, doing business as the Crestón Electric Company, against Rudolph D. Carstens and the Gilligham & Smith Enterprises, a corporation, for work done and materials furnished. From a judgment for plaintiffs against defendant Gilligham & Smith Enterprises, said defendant appealed to the circuit court, where the case was heard before the court without a jury. Judgment for plaintiffs.

<p>Error to Benzie; Gage, J., presiding.</p> <p>Elmer Andre was convicted of assault and battery.</p>

Mandamus by the people of the State of Michigan against Charles A. Withey, circuit judge, to compel respondent to set aside an order refusing to grant an extension of time for settling a bill of exceptions.

Mary Lobuzek presented her claim for compensation against the American Car <& Foundry Company for the death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Mandamus by Orlando F. Barnes, George B. Horton and Thomas D. Kearney, Board of State Tax Commissioners, and another, against the Board of 'Supervisors of Wayne County to compel said respondent to convene and apportion the State and county taxes in accordance with an order of said Board of State Tax Commissioners.

Mandamus by Anthony J. Kopczynski against James Schriver, city clerk, to compel respondent to accept and file a certain nominating petition. From an order denying the writ relator brings certiorari.

, presiding. Mandamus by Walter H. North against Willis A. Cady, county clerk of Calhoun county, to compel respondent to certify the name and address of relator as a candidate for nomination to the office of circuit judge in said county. From an order denying the writ, relator brings certiorari.

Mandamus by Charles A. Withey against the board of State canvassers to compel said board to recall a certificate issued by it showing the nomination of Hal L. Cutler as a candidate for the office of circuit judge of the nineteenth judicial circuit.

, presiding. Bill by Edward Frolich against William Aikman, Jr., to have a deed declared a mortgage, for an accounting and other relief. Upon the death of said defendant the cause was revived against Henry I. Armstrong and Aikman Armstrong, executors and trustees under the will of said deceased. From a decree for complainant, defendants appeal.

Assumpsit by David Brown against Hugh Brown and others upon an appeal bond. Judgment for plaintiff on a directed verdict. Defendants bring error.

Assumpsit by Thaddeus Slider against the Pere Marquette Railroad Company and Dudley E. Waters and Paul H. King, receivers thereof, for damages to live stock in transit. Judgment for plaintiff. Defendants bring error.

Bill by Frank Flammer and another against James Cullen, special administrator of the estate of George Flammer, deceased, and Samuel J. Hunter and Frank Flammer, executors of the will of Kresenz Flammer, deceased, for specific performance of a land contract, for an accounting and other relief. From a decree for complainants, defendants Hunter and Flammer appeal.

<p>Error to Sanilac; Beach, J.</p> <p>Assumpsit by Ira Blake against the Farmers’ Mutual Lightning Protected Fire Insurance Company of Michigan, Ltd., upon a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Carriers — Negligence—Riding on Running Board — Personal Injuries.</p> <p>In an action for personal injuries received by plaintiff by coming in contact with a pole in close proximity to tbe track, while riding upon tbe running board of defendant’s street car, with defendant’s consent, because of tbe crowded condition of tbe car, defendant was under tbe legal duty of operating its car with a high degree of care to avoid injuring plaintiff while in that position.1</p> <p>2. Same — Warning—Evidence—Question for Jury.</p> <p>So where plaintiff was struck and injured by a pole in close proximity to the track, caused, as he alleged, by tbe swaying motion of tbe car, induced by tbe bigb speed at which it was run, tbe question as to whether defendant was negligent in operating its car at tbe speed at which it was run, without at least warning plaintiff of tbe danger, was a question for tbe jury.</p> <p>3. Same — Contributory Negligence — Notice.</p> <p>Where defendant contended that plaintiff bad ridden over tbe line many times during tbe summer, and bad bad an opportunity to observe tbe proximity of tbe poles to tbe track, and bad be been exercising due care be would not have been injured, tbe question of his contributory negligence was a question of fact for the jury.</p> <p>4. Appeal and Error — Evidence—Admissibility.</p> <p>Where testimony is generally inadmissible, but may be admissible for a particular purpose, which counsel failed to state to the court, he cannot complain to this court because of its rejection.</p> <p>5. Trial — Evidence—Cross-Examination.</p> <p>Where defendant’s manager had testified on bis direct examination that changes bad been made in tbe running boards, that they had been removed from one side of the cars, it was not error to permit him, on cross-examination, to answer why they were removed.</p> <p>6. Appeal and Error — Motion—Evidence.</p> <p>Where a question was answered before objection, and nu motion to strike was made, it was not error to permit it to remain in the case.</p> <p>7. Trial — Conduct oe Court.</p> <p>Where no injury to defendant is apparent from collisions between court and counsel, over what the court termed wasting time on trivial matters, showing some slight irritation, held, not to be error.</p> <p>8. Same — Argument oe Counsel.</p> <p>Where counsel, in his argument to the jury, said: “This jury can do something to help this boy bear his infirmities,” under plaintiff’s theory that defendant was responsible for plaintiff’s condition, the appeal was one for compensation, and was not objectionable as an appeal for charity.</p> <p>9. Appeal and Error — Saving Question eor Review.</p> <p>Where no objection or ruling was made to argument of counsel, the question is not open to review in this court.</p> <p>10. Trial — Special Questions.</p> <p>Refusal to submit special questions which are ambiguous and not single, or which, if answered favorably, would not have been controlling of the general verdict, was not error.</p> <p>Per Stone, Moore, and Bird, JJ. Kuhn, C. J., and Ostrander, Steere, and Brooke, JJ., concurred in the result.</p>

Bill by Louis Draft against Francis Hesselsweet. ' administrator of the estate of Oscar Klotter, and others, to foreclose a mortgage. Defendants filed an an.'swer in the nature of a cross-bill asking for rescission of the contract. From a decree for defendants canceling the mortgage, plaintiff appeals.

<p>1. Brokers — Commissions—Frauds, Statute of — New Trial,</p> <p>In a suit for broker’s commission under an oral contract for the sale of a farm, valid if made before Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), which made such contracts void unless in writing, took effect, where plaintiff made a case which entitled him to recover, the statute not having been interposed on the trial, a verdict in his favor was properly directed, and it was too late to raise it on motion for new trial.1</p> <p>2. Appeal and Error — Frauds, Statute of — Defenses.</p> <p>The defense of the statute of frauds cannot be first raised in this court.</p> <p>3. Trial — Adjournment—Parties, Absence of — Discretion.</p> <p>Where both defendant and his counsel knew that the case was coming on, and counsel entered on the trial without objection, knowing that their client was absent from the city, it was not an abuse of the discretion of the trial court to refuse an adjournment to the following morning, in the absence of positive assurance from counsel that defendant would arrive at a definite time.</p> <p>4. Appeal and Error — New Trial — Review.</p> <p>Assignments of error based upon refusal to grant a new trial cannot be considered where the reasons for the court’s ■ refusal do not appear in the record, and it does not appear that a timely request -was made therefor.</p>

Ernest Ludwig, attorney in fact of Saveta Stojkovich, presented her claim for compensation against the American Car & Foundry Company for the death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Bill by George Swartz against Adelbert D. Swartz and another for the discharge of certain mortgages. From a decree for plaintiff, defendant Swartz appeals.

Assumpsit by the Alpena Power Company, Ltd., against the township of Caledonia for the recovery of taxes paid under protest. Judgment for defendant on a directed verdict. Plaintiff brings error.

Frieda Opitz, Frances May, Theodore Blaszak, Theresa Richter, Vernon Griffin, and Mrs. Charles Lynd presented their claims for compensation against Charles Hoertz and William C. Hoertz, copartners as Charles Hoertz & Son, and the Southwestern Surety Insurance Company, insurer, and Brown & Sehler Company for the death of certain workmen in the employ of defendants. By stipulation the claims were heard as one.

<p>1. Negligence — Collision—Question eor Jury — Directed Verdict.</p> <p>In an action for damages to plaintiff, caused by a collision with defendant’s wagon in a public street, the disputed question as to whether defendant’s horse suddenly turned toward the curb, and thus caused the accident, should have been submitted to the jury, and the court below was in error in directing a verdict for defendant.</p> <p>2. Contributory Negligence — Collision—Highways and Streets.</p> <p>Ordinarily one would not be guilty of contributory negligence, as a matter of law, in driving between another wagon and the curb, where he was three or four feet from the wagon and eight or ten feet from the curb.</p> <p>3. Same — Notice.</p> <p>Nor could he be charged, under ordinary circumstances, with knowledge that the horse was likely to make a sharp turn toward the curb before the wagons had cleared, because that does not usually happen.</p> <p>4. Same — Collision—Reasonable Care — Question eor Jury.</p> <p>Where defendant’s horse was apparently unattended, the questions as to whether plaintiff should have exercised greater care and driven closer to the curb, or watched the .final clearance of the wagons more closely, being ones about which reasonable minds might differ, the question whether plaintiff exercised such .care as he should, under all the circumstances of the case, was one for the jury.</p>

■Petition in probate court by Maria Ann Stroebel praying to be relieved of guardianship. From an order granting the prayer of the petition Josephine Runge, daughter of petitioner, appealed to the circuit court. Judgment for petitioner on a directed verdict. Contestant brings error.

Assumpsit by Shirley D. Raymond against James Green and another for money had and received, under section 7795, 2 Comp. Laws 1915. Judgment for plaintiff. Defendants bring error.

Bill by the Muskegon, Grand Rapids & Indiana Railroad Company against the city of Muskegon Heights and others for an injunction restraining defendants from interfering with the construction by plaintiff of a spur track on a certain street in said city, and other relief. From a decree for defendants, plaintiff appeals.

Assumpsit by William Wilms against the New Hampshire Fire Insurance Company upon three policies of insurance. Judgment for plaintiff on a directed verdict. Defendánt brings error.

, presiding. Bill by Charles H. Colvin, and George H. Crane and Charles Fox, administrators of the estate of Arthur P. Crane, deceased, in the State of Ohio, against George N. Jones, administrator of said estate in the State of Michigan, and others, for a decree ordering said defendant to turn over certain funds in his hands belonging to said estate to said plaintiff administrators for distribution,, and other relief.

Assumpsit by Benjamin G. Appleby, doing business as B. G. Appleby Company, against Ferdinand Sperling and another for broker’s commissions. Judgment for defendants. Plaintiff brings error.

<p>Appeal from Muskegon; Sullivan, J.</p> <p>Bill by Jacob E. Heethuis against William F. Kerr, Charles W. Kerr and others to quiet title to certain real property. Glenn M. Porter and William A. Wyman were later substituted for defendants Kerr and allowed to file an answer and cross-bill. From a decree for plaintiff, defendants bring case-made.</p>