Volume 199 — Michigan Reports

Assumpsit by the Maryland Casualty Company against Ernest W. Scheurman and others for the amount of a judgment. Judgment for plaintiff on a directed verdict. Defendants bring error. On July 12, 1909, the four defendants organized a partnership association, limited, under the provisions of Act No. 191 of the Public Acts of 1877 and amendatory acts (2 Comp.

Assumpsit by the Bates Tractor Company against Amos Gregory and others on certain promissory notes. Judgment for defendants. Plaintiff brings error. This action is brought to recover on two promissory notes, being part of the purchase price of one 25 horse power tractor, with one four-bottom gang plow equipment.

Case by Anna Burtis against Mathew Davison for personal injuries. Judgment for plaintiff. Defendant brings error. Defendant is the owner of the Davison Block, situate in the city of Flint. This block is a three-story brick building facing South Saginaw street. The ground floor is divided into three stores. The second and third floors are used for flats or living rooms.

Bill by Perry Schurtz against the city of Grand Rapids and Sheridan F. Master to enjoin the payment of a bill for legal services by defendant Master. From a decree dismissing the bill, plaintiff appeals.

Assumpsit by the people of the State of Michigan, for the use and benefit of James Mol, against the Southern Surety Company and another on a bond. Judgment for plaintiff. Defendant surety company brings error. On April 13, 1916, and June 5, 1916, defendant Jansma entered into two contracts with the city of Grand Rapids by the terms of which, for a stated price, he was to improve two short streets in said city.

Ejectment by William Otto Bell and others against Henry A. Reed and another. Judgment for defendants. Plaintiffs bring error. Held: “The boathouse is about 12 feet wide, which is less than one-sixteenth of the water frontage. Defendants have in no manner denied the plaintiffs the right to use the balance of the water frontage not inclosed by the boathouse of defendants. Spring Lake is a summer resort with numerous cottages, boathouses, etc., along its shores.

Bill by Henry H. Flint against Edward J. Le Heup, the Bar Point Land Company, Limited, and others, to rescind the sale of corporate stock and real estate, on the ground of fraud, and for an accounting. From the decree rendered, plaintiff and defendant company appeal.

Assumpsit in justice’s court by Claus Katt against Nicholas Swartz for work and labor. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Assumpsit by Mary E. Sheahan, administratrix of the estate of James F. Sheahan, deceased, against William McClure for money had and received. Judgment for defendant non obstante veredicto. Plaintiff brings error.

<p>1. Master and Servant — Safe Place to Work — Personal Injuries.</p> <p>It is incumbent upon the owner of a manicuring and. hairdressing establishment operated in the basement and first floor of a building to furnish a person customarily employed as scrubwoman a safe place to work, and he must keep a flight of stairs connecting the two floors adequately lighted and in good condition for easy and safe passage.</p> <p>2. Same — Safe Place to Work — Negligence—Question for Jury.</p> <p>The negligence of an employer due to the inadequate lighting of premises is usually a question for the jury.</p> <p>S. Same — Workmen’s Compensation Act — Defenses.</p> <p>The defense of contributory negligence, assumption of risk and negligence of a fellow employee are not available to an employer who has not elected to come under the workmen’s compensation act.</p> <p>4. Judgments — Directed Verdict — Statutes.</p> <p>Under the Empson act (Act No. 217, Pub. Acts 1915, § 1, 3 Comp. Laws 1915, § 14568), providing that should the trial court see fit to reserve a decision upon a request which, if granted, would dispose of the case as a matter of law, but submit the claimed issue of fact to the jury for a verdict to rest contingent on the disposition made of the reserved question of law, then, “after the case is thus submitted to the jury, or after receiving and. recording the verdict of the jury and before judgment is entered * * * the court may hear arguments of counsel for and against said request, but in all cases shall receive and record the verdict of the jury as rendered,” a judgment granting a motion to set aside the verdict for plaintiff and of no cause of action is improper where the court “clinched” the verdict by an immediate judgment, and the motion was not considered until about three weeks after rendition of the judgment ' and no order was at that time made directly disposing of the original official record of a judgment on the verdict as rendered.</p>

' Certiorari to Industrial Accident Board. George G„ Wilcox presented his claim for compensation against the Clarage Foundry & Manufacturing Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurers, bring certiorari.

<p>1. Trusts — Development Expense — Liability op Trustee — Accounting.</p> <p>Where a trust estate has among its assets an indebtedness from a mining company in which the beneficiaries are interested, and all of them consent in advance to the expenditure of money in developing the mine, they cannot hold the trustee liable to an accounting for the money so expended.</p> <p>2. Same — Expenses—Liability op Estate.</p> <p>A trust estate is chargeable with the expense of administering the trust, where the contract with a trustee does not provide that he shall bear them, and with the pro rata share of expenses in investigating and looking after property held in common with others after creation of the trust.</p> <p>3. Same.</p> <p>A trustee is entitled, on an accounting, to credit for money paid in satisfaction of a claim of a purchaser of land from the trust estate, due to failure of title.</p> <p>4. Same — Accounting—Surcharging Trustee.</p> <p>Where the beneficiaries of a trust estate join in a writing authorizing the trustee to sell their interest in land at a certain price, and it is the best price attainable, the trustee cannot be surcharged, on an accounting, with the difference between the price obtained and a price nearly double, because of the mere fact that a single tract of land in a better location sold for the latter price.</p> <p>5. Same — General Objection — Appeal and Error.</p> <p>A general objection to a trustee’s account will not be considered on appeal.</p> <p>6. Same — Accounting—Expenses.</p> <p>On an accounting by a trustee, the beneficiaries of the trust estate cannot complain of the purchase by the trustee of claims of squatters to land of the trust estate without litigation where a report as to any money used for such purpose was made to the beneficiaries and with their acquiescence deducted from their share on the distributions that were had.</p> <p>7. Same.</p> <p>A trustee should not be penalized for settling a claim, which, in the exercise of good business judgment, he deemed it wise to settle, as the law abhors litigation and trust funds may be conserved by judicious settlements.</p> <p>8. Same — Counsel Fees.</p> <p>The trustee, as such, is entitled to services of counsel in handling the estate, and the reasonable value of such services should be allowed in a suit against him for an accounting.</p> <p>9. Same — Accounting—Costs.</p> <p>The costs of beneficiaries of a trust fund in procuring a proper handling of the estate and an accounting by the trustee should be paid out of the trust fund, where the method of rendering accounts was irregular but was acquiesced in by all of the beneficiaries.</p>

Assumpsit by Elmer R. Webster, receiver of the E. Jossman State Bank, against Ralph E. Jossman, principal, and Harrison Walter and Joseph A. Jossman, sureties, on a statutory bond. Judgment for plaintiff on a directed verdict. Defendants bring error. On November 18, 1902, the E. Jossman State Bank was organized under the bahking laws of this State at Clarkston, in Oakland county.

' Roy Pitcher presented a claim against the estate of John Rogers, deceased, for a sum held in trust. The claim was allowed by the commissioners, and the Grand Rapids Trust Company, administrator, appealed to the circuit, court. Judgment for claimant. Contestant brings error.

Bill by the Kerwin Machine Company against Herbert L. Baker for the specific performance of a land contract. From a decree for plaintiff, defendant appeals.

Bill by the Grand Rapids Trust Company, trustee in bankruptcy of the Grand Rapids Motor Truck Company, against Fred I. Nichols and others for a discovery and an accounting. From an order denying motions to dismiss, defendants appeal. In March, 1912, the Grand Rapids Motor Truck Company was organized under the laws of this State with $350,000 common stock and $250,000 preferred. It took over the assets of the Decatur Motor Truck Company, an Indiana concern.

Louise E. Meyers presented her claim for compensation against the Michigan Central Railroad Company for the accidental death of her husband in defendants’ employ. From an order awarding compensation, defendant brings certiorari.

<p>1. Appeal and Error — Scope of Review — Defenses not Raised on Trial.</p> <p>The fact that a contract involved in an action is invalid on one ground cannot affect the Supreme Court’s decision on writ of error where such ground was in no way made a matter of defense in the trial court.</p> <p>2. Same — Court Rules — Plea of General Issue — Notice.</p> <p>Circuit Court Rule No. 23, §§ 2, 3, fixes the matters of affirmative defense which do not appear from the declaration, which are not available under a plea of the general issue, and which must be set up in the notice, in order to mate them available as a defense upon the trial.</p> <p>3. Same — Jurisdiction—Scope of Review.</p> <p>The Supreme Court, on writ of error, exercises appellate jurisdiction and must dispose'of the case on the record as made.</p> <p>4. Contracts — Principal and Agent — Authority of Agent — Question for Jury.</p> <p>Where a corporation was a family affair and the daughter of the president and general manager was employed by it and did considerable of the office work, the question of her authority to sign the order or contract involved in the action was one for the jury.</p> <p>5. Fraud — Liabiiity of Person Charged — Rum.</p> <p>The rule that one charged with fraud cannot escape liability because the party with whom he is dealing has confidence in him, relies upon him, and by reason of such confidence is not more vigilant, applies where a contract is signed without reading it.</p> <p>6. Same.</p> <p>One charged with fraud cannot escape liability because the party with whom he is dealing has confidence in him, relies upon him, and by reason of such confidence is not more vigilant.1</p> <p>7. Contracts — Varying Terms of Written Contract — Evidence.</p> <p>Negotiations preliminary to the execution of a written instrument may not be received to change or vary its terms.2</p> <p>8. Same.</p> <p>Preliminary negotiations are merged in a written contract.</p> <p>9. Fraud — Promises—Misrepresentation.</p> <p>A promise of something to be done in the future is not a misrepresentation of an existing fact.</p> <p>10. Same.</p> <p>Calling a promise a misrepresentation does not make it such.</p> <p>11. Contracts — Evidence.</p> <p>When parties put their contract in writing, the writing is the evidence of what such contract is.</p> <p>12. Fraud — Contracts—Promises—Bona Fides.</p> <p>In an action on a contract, in which the defense of fraud is interposed, it will be error to admit defendant’s evidence of promises made to induce the contract when there is no claim that such promises were made in bad faith, with no intent to perform them and as part of a scheme to defraud, and it appears that the contract was dis-affirmed before the time for the fulfillment of the promise arrived.</p> <p>13. Same — Contracts — Evidence — Varying Terms of Written Contract — Misrepresentation.</p> <p>Regardless of the rule that evidence of negotiations preliminary to the execution of a written contract may not be received to change or vary its terms, if misrepresentations of material facts are made to" induce the contract, and do induce it, evidence of such misrepresentations may be given for the purpose of establishing fraud. ■</p> <p>14. Same — Promises—Contracts.</p> <p>Statements promissory in their character that one will do a particular' thing in the future are not misrepresentations, but are contractual in their nature, and do not constitute fraud.</p> <p>■ 15. Same — Pleadings—Amendments.</p> <p>On writ of error by the plaintiff in an action on a contract, held, that the questions of fraud involved were not such as went only to formalities in pleading which might be saved in the Supreme Court by the statute of amendments, but that they went to the very heart of the case.</p>

Elizabeth J. Carleton presented her claim for compensation against the Foundry & Machine Products Company for the accidental death of her husband in defendants’ employ. From an order awarding compensation, defendant and the Michigan Workmen’s Compensation Mutual Insurance Company, insurer, bring certiorari.

, presiding. Bill by Ray H. McDonald against Charles B. Andrews and another for the specific performance of a land contract. From a decree for plaintiff, defendants .appeal.

, presiding. Case by Samuel Weinberg against Frank G. Ladd and another for fraud and deceit. Judgment for plaintiff. Defendants bring error.

Assumpsit in justice’s court by Theodore Hauser against the Goebel Brewing Company for money had and received. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

■Error to Delta; Flannigan, J. Assumpsit by John A. Semer against John J. Cleary and another for the price of certain corporate stock. Judgment for plaintiff. Defendants bring error.

<p>Appeal from Wayne; Sullivan, J., presiding.</p> <p>Bill by Lillian Van Horn against Levi Van Horn for a divorce. From a decree for plaintiff, defendant appeals.</p>

Mary Galloway presented a claim against the estate of Owen Scully, deceased, for services rendered. The claim was allowed in part by the commissioners, and James Scully and others appealed to the circuit court. Judgment for claimant. Contestants bring error.

<p>Error to Wayne; Wiest, J., presiding.</p> <p>Case by Ulous A. Johnson against Duncan A. Campbell for fraud and deceit. Judgment for plaintiff. Defendant brings error.</p>

Grace A. Signs presented a claim against the estate of Charles W. Bush, deceased, for an amount agreed by testator and another should be devised to claimant by will. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Judgment for contestants on a directed verdict, claimant brings error.

Ethel Porritt presented her claim for compensation against the Detroit United Railway for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

<p>1. Bills and Notes — Lost Instruments — Negotiable Instruments — Indemnity Bonds — Statutes.</p> <p>Before an indemnifying bond is required under 3 Comp. Laws 1915, § 12544, it must affirmatively appear that the note was negotiable, because by section 12543, relating to suits on lost notes, the filing of a bond for indemnity is confined to negotiable instruments.</p> <p>2. Appeal and Error — Weight op Evidence — Necessity por Exceptions — Assignments op Error — Statutes.</p> <p>Under Act No. 314, Pub. Acts 1915, chap. 18, § 15 (3 Comp. Laws 1915, § 12587), providing that exceptions may be filed to findings of fact, that such facts are against the clear weight of evidence, and error may bé assigned upon such exceptions, and, if an appeal is taken, the same shall be reviewed by the Supreme Court, where no exceptions are filed alleging that the findings of a trial court are against the clear weight of evidence and no error is assigned upon any such exception, the evidence will not be weighed, and, if there is any evidence to sustain the findings of the trial court, they will be deemed to be conclusive.</p> <p>3. Limitation of Actions — Part Payment — Operation and Effect.</p> <p>The statute of limitations does enter into the case in an action on a note, where such note is dated April 21, 1897, is drawn without interest, and no payments are due thereon until 1903, when a sum sufficient to cover payments due for six years is paid, and in 1909 the payment due in such year is paid and an action is .commenced on such note within the statutory period after the first unpaid payment falls due in 1910.</p> <p>4. Appeal and Error — Evidence—Depositions—Harmless Error.</p> <p>Where the evidence was sufficient to support the court’s findings that a note was not outlawed and no exception was filed alleging that the findings of the court were against the clear weight of the evidence and no error was assigned upon any such exception, the court will not weigh the evidence, and it is consequently immaterial whether a deposition was improperly admitted. ,</p> <p>5. Same — Pleadings—Variance—Amendments.</p> <p>Any variance between the declaration and proof in an action on a promissory note cannot be availed of where the attention of the trial court was not called to such variance at any time during the trial or thereafter, as, if the objection was timely made, an amendment of the declaration might have been permitted.</p>

Assumpsit in justice’s court by the Plankinton Packing Company against Alice Berry for goods sold and delivered. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error. It is sought to recover the price of two shipments of meat, consigned by plaintiff to defendant upon the order of one Roy Berry. The goods were invoiced at .$193.13.

Annie Johnson presented her claim for compensation against the Mary Charlotte Mining Company for the accidental death of her husband jn defendant’s employ. From an order awarding compensation, defendant brings certiorari. The husband of the claimant, Carl O. Johnson, met his death March 30, 1916, at the mine of the respondent, where he had been employed as a surface laborer.

Bill by D. Lloyd Johnson, trustee in bankruptcy of the St. Louis Chemical Company, against David E. Harrison and others to recover preferential payments. From an order denying a motion to dismiss, defendants appeal.

Mandamus by Edward N. Barnard, prosecuting attorney of Kent county, to compel Major L. Dunham, judge of the superior court of Grand Rapids, to vacate an order dismissing certain criminal proceedings.

William Riley presented his claim for compensation against the Mason Motor Company fop injuries received in defendant’s employ. From an order awarding compensation, defendant and the Zurich General Accident & Liability Insurance Company, insurer, bring certiorari.

Ella J, Anderson presented for probate the alleged last will and testament of Rose Hewitt, deceased. The will was contested by Sarah Kendrick and others on the ground of undue influence and fraud. The will was disallowed in the probate court and proponent appealed to the circuit court. Judgment for contestants. Proponent brings error.

Cross-appeals from Wayne; Smith (Clement), J.,. presiding. Bill by Paul A. Sorge against Louise Dickie for the-specific performance of a land contract. From the decree rendered, both parties appeal.

Assumpsit in justice’s court by the Holcomb & Hoke Manufacturing Company against Peter Cataldo on certain promissory notes. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment, for defendant. Plaintiff brings error.

<p>Mandamus by Estelle Morris Goodspeed to compel P. J. M. Hally, circuit judge of Wayne county, to vacate an order setting aside an order appointing an appraiser.</p>

<p>1. Divorce — Extreme Cruelty — Evidence—Sufficiency.</p> <p>On a bill by a husband for divorce on ground, of extreme cruelty, evidence of continued and repeated charges by defendant of illicit relations between plaintiff and the widow of defendant’s deceased brother, helé, to justify decree for plaintiff.1</p> <p>2. Same — Alimony.</p> <p>A decree in a suit by a husband for divorce allowing defendant all of the real estate and personal property, acquired by her and plaintiff while living together as husband and wife, upon condition that she pay plaintiff $1,800 on or before seven years with interest and with privilege of paying $50 or more on the principal at any time, the payment of such sum being secured by lien on the real estate, and ordering plaintiff to pay clerk’s fees and court costs, but no other fees or costs being allowed to or against either party, was reasonable. j</p>

Cross-appeals from Delta; Flannigan, J. Bill by the North Michigan Water Company against the city of Escanaba and others to restrain the construction and maintenance of a municipal waterworks system. From the decree rendered, all parties appeal.

, presiding. Assumpsit by Henrietta Kunzie against William Nibbelink on a contract for the division of property devised by will. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by the American Varnish Company against the Globe Furniture Company for goods sold and delivered. Judgment for plaintiff on a directed verdict. Defendant brings error.

Anna C. Brackett presented a claim against the estate of Chauncey Burnham, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. On the death of claimant, the appeal was prosecuted in the name of William A. Brackett, executor. Judgment for claimant, defendant brings error.

, presiding. Assumpsit by Walter Frederick against William P. Hillebrand for breach, of a contract to exchange real property. Judgment for plaintiff. Defendant brings error.

Assumpsit by William E. Snyder against Paul H. King and Dudley E. Waters, receivers of the Pere Marquette Railroad Company, for damages” to horses in transit. Judgment for plaintiff. Defendants bring error.

, presiding. Case by Laura F. Brown against Alfred A. Gray for personal injuries. On the death of defendant, Frederick B. Gray, his executor, was made defendant. Judgment for defendant on a directed verdict. Plaintiff brings error.

, presiding. Assumpsit in justice’s court by School District No. 5, fractional, of Byron and Wyoming townships against Peter D. Long for money had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

, presiding. Case by Catherine Hill against Fred Lappley for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error. Testimony for the plaintiff tends to prove that she was 77 years old in July, 1917. She lives in the country north of the city of Grand Rapids, and September 30, 1916, she went to the city with a neighbor in a Ford auto truck, driven by one George De Groot.

John Balzer presented his claim for compensation against the Saginaw Beef Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.

, presiding. Mandamus by Elmer Leach to compel Vernal R. Davy and another to produce certain corporate files for inspection. From an order granting the writ, defendants bring certiorari.

Mary A. Dingman presented for probate the last will of Edward W. Dingman, deceased. The will was disallowed in the probate court, and proponent appealed to the circuit court. Judgment for proponent. Contestant brings error.

<p>Cancellation of Instruments — Exchange of Property — Fraud —Evidence.</p> <p>On a bill for tbe cancellation of a mortgage, evidence examined and held, to sustain a decree for tbe plaintiff.</p>

<p>Appeal from Calhoun; North, J.</p> <p>Bill by Frank E. Roff against Vance McCreery to redeem from a mortgage foreclosure. From a decree dismissing the bill, plaintiff appeals.</p>

Petition by William J. Graham, administrator of the estate of James S. Madison, deceased, to determine the heirs of said intestate. There was an order awarding the estate to Hattie Belle Spencer, as widow, and the people of the State of Michigan appealed to the circuit court. Judgment affirming the order of the probate court. The people bring error.

<p>1. Appeal and Eeeoe — Motion to Stbike Testimony — Objections Not Raised on Teial.</p> <p>In an action by an employee for personal injuries sustained as tbe result of a fall caused by tbe breaking of a cross plank used as a support for tbe flooring of a scaffold, there was no reversible error in denying a motion to strike out tbe opinion evidence of a foreman of tbe defendant employer as to tbe strength of such plank where no objection was made to tbe. admission of such evidence at tbe time it was introduced and the jury might have regarded bis opinion as entitled to little weight.</p> <p>2. Master and Servant — Personal Injuries — Scaffolds—Negligence — Contributory Negligence — Question for Jury.</p> <p>In an action by a servant for personal injuries due to the falling of a scaffold on which he was at work, under the direction of a foreman,' with other employees in installing a heavy piece of metal work, the negligence of the master and lack of contributory negligence of plaintiff were questions for the jury.1</p>

, presiding. Case by Charles H. Sayre against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent burning of plaintiff’s buildings. On the death of plaintiff the cause was revived in the name of Frank J. Sayre, administrator de bonis non. Judgment dismissing suit for failure to prosecute. Plaintiff brings error.

, presiding. Assumpsit in justice’s court by Adolph Billig against Joseph P. Goodrich and another for money had and received. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

Assumpsit by Frederick W. Dennis, administrator of the estate of Arthur S. Dennis, deceased, against Warren Jay Vinton for services rendered. .Judgment for defendant on a directed verdict. Plaintiff brings error.

Selina I. Kinney presented her claim for compensation against the Cadillac Motor Car Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Bill by Lulu F. Gates, individually and as executrix of the last will of Jasper C. Gates, deceased, and William H. Wetherbee against Serena McLaulin for the specific performance of a contract. From' a decree for plaintiffs, defendant appeals.

Delos Bristol presented his final account as guardian of Harlow Bristol, an incompetent. The account was allowed in the probate court, and Elizabeth Bristol and another appealed to the circuit court. Judgment dismissing appeal. Contestants bring error.

Habeas corpus proceedings by James Couzens against Albert F. Sellers, police justice of the city of Detroit, and Edward Stein, sheriff of Wayne county, for his release from a commitment for contempt of court. From an order quashing the commitment, defendant Sellers brings certiorari.

Bill by Norman J. Fite and another against the North River Insurance Company and others to correct the form bf certain policies of fire insurance, and to enforce them. From a decree for plaintiffs, they appeal.

, presiding. Bill by Levi F. Horton and another against the Grand Rapids & Indiana Railway Company and another to enjoin the construction of a spur track on a street. From a decree for plaintiffs, defendants appeal.

Case by Lillian Boyle against Dudley E. Waters and Paul H. King, receivers of the Pere Marquette Railroad Company, and the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendants bring error.

, presiding. Petition by Oramel B. Fuller, auditor general, for the sale of land delinquent for taxes: On objection filed by the MacKinnon Boiler & Machine Company. From a decree for plaintiff, defendant appeals.

Assumpsit in justice’s court by M. Frances Stewart against Joseph G. Lawson for rent. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Assumpsit by Samuel H. Knisely, trustee in bankruptcy of O. F., Thom and others, against the People’s Savings Bank of Saginaw for the amount of a draft. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by Gertrude D. Lee and others against Joseph B. Lee for the specific performance of a land contract. From .a decree for plaintiffs, defendant appeals.

<p>1. Adverse Possession — Evidence—Burden of Proof.</p> <p>Whether entry is made on land as a cotenant or as a stranger the burden of establishing title by adverse pos- ' session is on the person making the entry.</p> <p>2. Same.</p> <p>The quantum of evidence necessary to establish the defense of title by adverse possession is much less in case of entry as a stranger than as a tenant in common.</p> <p>3. Same — Tenants in Common — Intent.</p> <p>In case of cotenants ap ouster is not effected, unless the possession asserted as adverse has been taken and continued with the intent to oust the other tenants.</p> <p>4. Same.</p> <p>Where a cotenant claiming title by adverse possession knows that an interest in the property was assessed for 15 years before suit to a claimant of such interest and the taxes paid by him, and, during the time, through its attorney, attempted to buy claimant’s interest, such facts constitute a recognition of claimant’s title and tend to show the holding of possession of such cotenant without the intention of ousting claimant.1</p> <p>5. Evidence — Admissibility.</p> <p>Evidence that defendant attempted to purchase plaintiff’s interest as cotenant was inadmissible, in an action of ejectment, on the question of adverse possession, where the authority of an attorney to represent defendant in the purchase was not shown.</p> <p>6. Tenants in Common — Adverse Possession — Inconsistent Uses.</p> <p>The use by a cotenant, a mining company, of cut-over lands, for the purpose of obtaining water for use on its adjoining land and in the locomotives of its railroad passing over a corner of the land, is not a use inconsistent with the possession as cotenant.</p>

Assumpsit by John Maurer and Charles A. Maurer, copartners as Maurer Brothers, against the Greening Nursery Company for an amount due on a building contract. Judgment for defendant on a directed verdict. Plaintiffs bring error.

Replevin by Alzina Anderson against Henry Bone-man for the possession of certain horses. Judgment for plaintiff on a directed verdict. Defendant brings error.

Isaac Freeman Shaffer presented his claim for compensation against the D’Arcy Spring Company for injuries received in defendant’s employ. From an order awarding compensation on petition to reopen the case, and making such order final, plaintiff and defendant, and the Prudential Casualty Company, insurer, bring certiorari.

<p>Error to Newaygo; Barton, J.</p> <p>Case by Earl Sherman against the Consumers’ Power Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Case by Lucy Barkley against the village of Highland Park for personal injuries. From an order granting a motion to dismiss, plaintiff brings certiorari.

<p>1. Divorce — Extreme Cruekty — Evidence—Sufficiency.</p> <p>On a bill by a wife for divorce, evidence held, insufficient to show that defendant was guilty of extreme cruelty.</p> <p>2. Same.</p> <p>Where a husband intentionally strikes his wife a severe blow on the stomach with his fist, and she is ill for several days as a result, he is guilty of extreme cruelty, so as to warrant a decree for divorce.</p> <p>3. Same — Extreme Cruelty — Condonation.</p> <p>The act of a wife in discontinuing a suit for divorce on the ground of extreme cruelty and continuing to live with her husband, agreeing to forget the past, constitutes a condonation of the offense.</p> <p>4. Same.</p> <p>Condonation of an act of extreme cruelty on the part of a husband towards his wife constitutes a complete defense in a subsequent suit where the acts have not been repeated and no other acts are relied upon.</p>

, presiding. Bill by William E. Henze, administrator of the estate of Richard Rogatzky, against Mathilda Rogatzky to set aside a deed. From a decree for plaintiff, defendant appeals.

Mandamus by George W. Ross to compel Otto Stoll, register of deeds of Wayne county, to receive and record a land contract. From an order granting the writ on the payment of the tax required by Act No. 91, Pub. Acts 1911, plaintiff brings certiorari.

Case by Herbert E. Congdon, administrator of the estate of Napoleon Pare, deceased, against the Michigan United Traction Company for the negligent killing of plaintiff’s, decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Ejectment by Samuel A. Howes, administrator with the will annexed of the estate of Oliver Barney, deceased, against Fred W. Barney and others. Judgment for plaintiff on a directed verdict. Defendants bring error.

Wallace May was convicted of larceny of goods of the value of more than $25, and sentenced to imprisonment for not less, than 2% nor more than 5 years in the State prison at Jackson.

<p>1. Negligence— Elevators — Personal Injuries — Contributory Negligence — Question for Jury.</p> <p>In an action by an employee of the owner of a moving van against a warehouseman to recover damages for injuries due to stepping into an aperture between an elevator platform in the building and the floor while assisting his employer in removing a box from the platform, evidence held, to present a jury question whether plaintiff was guilty of contributory negligence.</p> <p>2. Principal and Agent — Authority of Agent — Question for Jury.</p> <p>In an action by an employee of the owner of a moving van against a warehouseman to recover for personal injuries sustained by falling into an aperture ^between an elevator platform and the floor in the building while assisting his employer in removing a box from the platform preparatory to carrying it to the van, evidence held, to present a jury question whether defendant’s checker had the apparent authority to invite plaintiff and his employer on the premises to remove the goods so as not to constitute plaintiff a trespasser.</p>

, presiding. Assumpsit by John S. Sweeney against the Travelers’ Insurance Company of Hartford, Connecticut, on certain policies of accident insurance. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by William Green and others against Stanislaus Reder and another to enjoin waste. Defendants filed a cross-bill for specific performance of a land contract. From a decree for plaintiffs, defendants appeal.

, presiding. Assumpsit in justice’s court by Sprague, Warner & Company against Paul F. Fischer for goods sold and delivered. There was judgment for plaintiff, and defendant appealed to the circuit court, filing the statutory appeal bond. On defendant’s being adjudged a bankrupt, plaintiff asked for judgment against the sureties on the appeal bond. Judgment for plaintiff. Defendants bring error.

Case by Bertha Hartwig, an infant, by her next friend, against Milton Kell for a criminal assault. Judgment for plaintiff. Defendant brings error.

Bill by Thomas P. McDermott and others against the board of county road commissioners of Kent county and others to restrain the letting of a road contract. From a decree dismissing the bill, plaintiffs appeal.

, presiding. Bill by Stanley Rozycki against Joseph Leppek and another to have a conveyance in form a deed decreed to be a mortgage which has been fully paid, and for its discharge of record. From a decree for plaintiff, defendants appeal.

Bill by the Montgomery Peat Fuel Company against the J. D. Fate Company and others to enjoin the delivery of a note, and for the cancellation of said note. From a decree for plaintiff, defendant company appeals.

<p>1. Divorce — Alimony—Statutes.</p> <p>The authority to mate decrees in relation to alimony and the division of property in cases of divorce is purely statutory and is conferred by 3 Comp'. Laws 1915, chapter 217.</p> <p>2. Same — Decree—Construction—Title to Land.</p> <p>A decree of divorce providing that plaintiff from the date thereof should have and enjoy the “use, benefit, and possession” of the described land with all appurtenances belonging thereto until further order of court, and requiring a deed forthwith from defendant, and further providing that the further consideration of the question of alimony and property interests are reserved for further order and decree, does not give the plaintiff a fee simple in the property.</p>

, presiding. Bill by Charles G. Scheibner against Louisa Scheibner and others for a construction of a will. From a decree denying a motion to dismiss, defendants appeal.

<p>Error to Muskegon; Sullivan, J.</p> <p>Assumpsit by Kittie Christophersen against the Metropolitan Life. Insurance Company on a policy of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

<p>Error to Jackson; Parkinson, J.</p> <p>Case by Clifford H. Cholerton against the Detroit, Jackson & Chicago Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case in justice’s court by Elijah B. Hosley and another against William Bamber and another for trespass. There was judgment for plaintiffs, and defendants appealed to the circuit court. Judgment for plaintiffs against defendant Bamber, who brings error.

Case by Marie L. Kethledge, an infant, by her next friend, against the city of Petoskey for personal injuries. Judgment for defendant. Plaintiff brings error.

Case-made from Van Buren; Des Voignes, J. Katherine Carney presented for probate the last will of Byron S. Carney, deceased. The will was allowed in the probate court, and Claude S; Carney appealed to the circuit court. Judgment for contestant for lack of jurisdiction. Proponent appeals.

John Moll presented his claim for compensation against the City Bakery for the accidental death of his son in defendant’s employ. From an order awarding compensation, defendant and the London & Lancashire Indemnity Company, insurer, bring certiorari.

Assumpsit in justice’s court by J. Ed. Burroughs and others, copartners as J. P. Burroughs & Son, against the Postal Telegraph Cable Company for failure to promptly deliver a message. There was. judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

Cross-appeals from Wayne; Hart, J., presiding. Bill by James Walsh against Robert Oakman and others to have a land contract declared invalid. Defendant Oakman filed a cross-bill for the specific performance of said contract. From the decree rendered, both parties appeal.