Volume 200 — Michigan Reports

<p>Mandamus by William B. Hatch to compel Edward D. Kinne, circuit judge of Washtenaw county, to vacate an order denying a stay of execution.</p>

, presiding. Bill by the Detroit, Toledo & Ironton Railroad Company against the Western Union Telegraph Company for the specific performance of a contract. From a decree for plaintiff, defendant appeals.

, presiding. Assumpsit by Samuel Mintz against Elmer F. Soule and others upon an appeal bond. Judgment of non-suit for plaintiff. Defendants bring error.

Industrial Accident Board. Anna, Carey presented her claim for compensation against the Grand Trunk Western Railway Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Case by Flora Willis, administratrix of the estate of John Willis, deceased, against the Oscar Daniels Company for the negligent killing of plaintiff’s intestate. Judgment for defendant non obstante veredicto. Plaintiff brings error.

Assumpsit by the Mt. Clemens Sugar Company against the Grand Trunk Railway Company for demurrage charges paid under protest. Judgment for plaintiff. Defendant brings error.

Mandamus by the people of the State of Michigan, on the relation of William C. Brown, prosecuting attorney of Ingham county, to compel Judson A. Parsons, clerk of the city of Lansing, to remove certain petitions from his files and to refrain from placing certain names upon the official ballot for city offices. Judgment for relator.

<p>Error to Houghton; O’Brien, J.</p> <p>Case by William Hendrickson against Absalom Harry for the alienation of his wife’s affections. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Case by Joseph. Hildebrandt against the Detroit United Railway for personal injuries. ‘ Judgment for defendant on a directed verdict. Plaintiff brings error.

Petition by William A. Paine and others for the dissolution of a mining corporation. From a decree for petitioners, Willard É. Saulsbury and another, minority stockholders, appeal.

Condemnation proceedings by the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company against David W. Simons and others to acquire certain land for railway purposes. From an order confirming the award of the jury, respondents appeal.

<p>1. Food — Warranty oe Fitness — Dealers—Implied Warranty— Inspection.</p> <p>There is no implied warranty of fitness or quality in the sale of articles of food, between dealers, where the buyer has an opportunity to inspect the articles before delivery.</p> <p>2. Same — Written Contracts — Trial—Instructions—Warranty.</p> <p>Where defendant, a retail grocer, purchased of a wholesale dealer a quantity of eggs for future delivery, under written contract, accepting the stocli in the condition it was in when it went into cold storage, in an action for the purchase price, the court properly instructed the jury that if, when the goods went into cold storage, they were fit for food and they afterward deteriorated and became , unfit for food, the loss would be on defendant, there being no claim of fraud or misunderstanding in making the contract.</p> <p>3. Same — Statutes—Defenses.</p> <p>Where the eggs were sound when defendant purchased them, and they decomposed after being placed in cold storage, section 6473, 2 Comp; Laws 1915, making it a misdemeanor to have in one’s possession, with intent to sell, any article of food which is diseased, decomposed, etc., is no defense to an action for the purchase price.</p> <p>4. Appeal and Error — Prejudicial Error — Review.</p> <p>Where the issue as to defendant’s liability was determined by the jury in favor of the plaintiff, and it recovered only the contract price, the admissibility of certain evidence, which appears to be of no consequence, will not be considered, on review.</p>

Assumpsit by Benjamin F. Cox and another against Henry Holkeboer and another for money obtained by fraud and deceit. Judgment for plaintiffs. Defendants bring error.

Bill by George W. Voorhies against William Pratt and others to restrain defendants from the use of certain drains and for damages arising out of their use. From a decree dismissing the bill, plaintiff appeals.

Assumpsit by the Grand Traverse Fruit & Produce Exchange against the Thomas Canning Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.

Bill by Adolphus Aull and another, guardians of Henry Aull, an incompetent, against Mary E. Peterson and another for the cancellation of a contract and. for an accounting. From the decree rendered, both parties appeal.

.Error to Wayne; Mandell, J. Assumpsit by the State Security & Realty Company against Albert E. Badger for money obtained by fraud and deceit. Judgment non obstante veredicto for defendant. Plaintiff brings error.

, presiding. Case by Albert A. Albrecht & Company against the Whitehead & Kales Iron Works to recover damages paid under the workmen’s compensation act to an employee injured by reason of defendant’s negligence. Judgment for plaintiff. Defendant brings error.

Case-made from Wayne; Van Zile, J. Case by the Edison Illuminating Company against Otto Misch for damages to its mains and conduits. Judgment for plaintiff. Defendant appeals.

, presiding. Case by Christ Bilakos against William Kelley and others, copartners as the Olympia Baking Company and Kelley Bros., for personal injuries. Judgment for plaintiff. Defendants bring error.

Nellie Holnagle presented her claim for compensation against the Lansing Fuel & Gas Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Casualty Company, insurer, bring certiorari.

,' presiding. Case in justice’s court by John W. Theisen against the Detroit Taxicab & Transfer Company for damages to plaintiffs automobile. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Mandamus by the city of Kalamazoo to compel George V. Weimer, circuit judge of Kalamazoo county, to vacate an order dismissing an action for the violation of an ordinance.

<p>1. Trial — Evidence—Directed Verdict.</p> <p>Where the testimony is all one way, is uncontradicted by. any testimony given in the case by the witnesses of either party, either on direct or cross-examination, or by any facts or circumstances in the ease, is not in itself in any way improbable or discredited, and but one legitimate inference may be drawn from it, and a case is thereby made for the plaintiff or a defense made for the defendant, the duty rests upon the court to direct a verdict.</p> <p>2. Same.</p> <p>That it is many times a difficult question to determine whether there is any testimony on a given subject, does not relieve the court from the responsibility or the duty of solving it.</p> <p>3. Sales — Conditional Sales — Retaining Title.</p> <p>Title to personal property may be retained by parol in the vendor for security until paid for, even though a note is given to evidence the indebtedness; and the vendor may sue upon the note without losing his security.</p> <p>4. Trover and Conversion — Conditional Sales — Evidence — Directed Verdict.</p> <p>In an action for the conversion of a marine engine, placed in a boat on which defendant had a chattel mortgage, after the giving of the mortgage, which did not cover after-acquired property, where plaintiff’s demand for the engine was refused although it could have been removed without damage to the boat, and defendant sold and bid in the boat and engine, and the testimony is undisputed that title to the latter was retained in plaintiff, a verdict for plaintiff was properly directed by the court below.</p>

Bill by Shirley T. Barker and another against Agnes W. Finley for the specific performance of a land contract. Defendant filed an answer in the nature of a cross-bill asking for a reformation of the contract. From a decree dismissing the bill and granting the prayer of the cross-bill, plaintiffs appeal.

Kate Brown presented her claim for compensation against the Central West Coal Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Casualty Company, insurer, bring certiorari.

<p>Error to Kent ;• Brown, J.</p> <p>Case by Thomas Gray, administrator of the estate of Morton B. Jameson, deceased, against Brown & Sehler Company for the negligent killing of plaintiffs intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

John Teller presented a claim against the estate of Eliza Teller, deceased, for services rendered. The claim was allowed in the probate court, and Ella Madden, an heir, appealed to the circuit court. Judgment for claimant. Contestant brings error.

, presiding. Assumpsit in justice’s court by Clark H. Gleason against Clifton G. Stone and others for rent. There was judgment for plaintiff, and defendants appealed to the circuit court. Judgment for defendants. Plaintiff brings error.

Fred H. Cooke presented his claim for compensation against the Holland Furnace Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, insurer, bring certiorari.

Roy McMullen presented his claim for compensation against the Gavette Construction Company for medical and hospital services. From an order awarding compensation, defendant and the Globe Indemnity Company, insurer, bring certiorari.

Effie L. Homan presented her claim for compensation against the Boardman River Electric Light & Power Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Fidelity and Casualty Company, insurer, bring certiorari.

<p>1. Automobiles — Motor Vehicle Law — Negligence — Felony —Statutes.</p> <p>Actionable negligence must be proved in order to recover for tbe death of a pedestrian accidentally killed on a public street by one violating tbe provisions of Act No. 33, Pub. Acts 1909 (3 Comp. Laws 1915, § 15431), prohibiting, under penalty, tbe unauthorized taking or using of automobiles, notwithstanding the provisions of section 14577, 3 Comp. Laws 1915, permitting recovery for the death of a person under circumstances amounting in law to a felony, since it does not create a cause of action where there is no causal connection between the death and the felony.</p> <p>2. Same — Pedestrians—Unauthorized Taking oe Automobile— Right oe Action.</p> <p>Act No. 33, Pub. Acts 1909, prohibiting the unauthorized taking or using of automobiles, does not of itself give a right of action to pedestrians injured upon the street; they not belonging to the class for whose protection the law was passed.</p> <p>3. Appeal and Error — Res Judicata — Admissions.</p> <p>Where it was conceded upon a former trial that the accident occurred in a residence street, such admission was conclusive upon plaintiff on the second trial.</p> <p>4. Automobiles — Motor Vehicle Law — Negligence — Lights — Audible Warning.</p> <p>The driver of an automobile who approached a pedestrian in the street on, a dark and rainy night owed a duty of giving reasonable warning of his approach, and this duty was not discharged by the presence of lights on his machine, since subdivision 1, § 6, Act No. 318, Pub. Acts 1909 (1 Comp. Laws 1915, § 4812), requires an automobile to have “a suitable and adequate bell, horn or other device,” for the purpose of “signaling.”</p> <p>5. Trial — Automobiles—Death—Warning—Instructions.</p> <p>In an action for the negligent killing of plaintiff’s decedent, who was struck, on a dark and rainy night, while in a public street for the purpose of taking a street car, by an automobile driven by defendant, an instruction by the trial court that, “the automobile having the usual lights upon it at the time, there was, as a matter of law, a reasonable warning,” taken in connection with his failure to instruct that defendant owed a duty to a pedestrian in a public highway to give an audible warning of his approach, amounted to reversible error. Subdivision 2, § 7, and subd. 1, § 6, Act No. 318, Pub. Acts 1909 (1 Comp. Laws 1915, §§ 4818, 4812).</p>

<p>1. Appeal and Error — Assignments— Waiver — Supreme Court Rule.</p> <p>Assignments of error not discussed in counsel’s brief must be deemed to be waived and abandoned. Supreme Court Rule No. 40.</p> <p>2. Conversion — Evidence—Partnership— Automobiles — Receipt —Authority of Partner to Sign Eirm Name.</p> <p>Where plaintiffs, in an action for the conversion of an automobile sold to them as part of the property of a garage business, of which they claimed to have been put in possession by the vendors, copartners, which fact was in dispute, a receipt for part of the purchase price, signed in the firm name by one of the partners, in the presence of the other, who received the money, was admissible as proof of the transaction, and was not open to the objection that there was no evidence that the signer was authorized to sign the firm name.</p> <p>3. Same — Evidence—Acts op Dominion — Demand.</p> <p>Under plaintiffs’ theory' of the case that there had been a completed sale, it was competent for them to show their acts of dominion over the property after the sale, and also to show that after defendant took the car they made a demand on him for it, and what conversation was had between the parties on that occasion.</p> <p>4. Same — Value op Car — Witnesses—Competency.</p> <p>Where a witness testified that he was in the business of selling automobiles; that he had handled cars for eleven years; that he was the agent for the same make of car, and was engaged in selling them; that he had seen and driven the car in question, he was qualified to testify as to its value, and the price at which it was sold.</p> <p>5. Same — Rescission—Contracts—Inability to Perform — Trial.</p> <p>The exclusion of testimony as to the ownership of the lease, attempted to be developed by defendant on cross-examination, for the purpose of showing a rescission of the contract of sale to plaintiffs by the vendors, and a subsequent sale of the automobile to defendant, for the reason that the vendors were unable to transfer the lease, was not error, since their inability to perform would not entitle them to rescind, nor release them from their obligation to perform.</p> <p>6. Appeal and Error — Evidence—Cumulative Evidence.</p> <p>Where one of the plaintiffs had already testified that he was present when defendant took the car, and did not protest, it was not prejudicial error to exclude further evidence of the fact.</p> <p>7. Trial — Evidence—Rebuttal.</p> <p>There was no error in permitting plaintiffs, in rebuttal, to contradict evidence given by defendant’s witnesses.</p> <p>8. Same — Evidence—Issue—Question f®r Jury.</p> <p>Testimony of three witnesses to the fact that plaintiffs were copartners was sufficient to take the question to the jury.</p> <p>9. Conversion — Trial—Bona Fide Purchaser.</p> <p>The court below was not in error in refusing to direct a verdict for defendant on the ground that he was a bona fide purchaser of the automobile, since his belief that his vendor was the true owner could not defeat recovery by the true owner.</p> <p>10. New Trial — Weight oe Evidence.</p> <p>A motion for a new trial on the ground that the verdict was against the great weight of the evidence was properly denied.</p> <p>11. Appeal and Error — Pleading—Practice—Defenses—Review.</p> <p>The question as to plaintiffs’ failure to file their certificate of copartnership, as required by the statute, cannot be raised for the first time by defendant upon motion for a new trial.</p>

<p>Error to Calhoun; North, J.</p> <p>Case by Stuart K. Thomas against Sumner Bush for malicious prosecution. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Assumpsit in justice’s, court by the J. F. Hartz Company against S. J. Lukaszcewski for goods sold and delivered. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

, presiding. Case in justice’s court by George W. Bolton against Harwood Cummings for trespass. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Bill by W. Crawford Young against Ella O. Young to set aside the probate of á will, to establish a later will, and for an accounting. From a decree dismissing the bill, plaintiff appeals.

<p>Habeas corpus proceedings by Herbert W. Merrill to obtain his release from the county jail of Saginaw county.</p>

Case by Abraham D. Budd against the Ann Arbor Railroad Company for the negligent burning of plaintiff’s buildings. Judgment for plaintiff. Defendant brings error.

<p>Error to Van Burén; Tucker, J., presiding.</p> <p>Replevin by Benjamin F. J. O’Dell against James Ingersoll Day. Judgment for plaintiff. Defendant brings error.</p>

Charles Jerner presented his claim for compensation against the Imperial Furniture Company, for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Furniture Mutual Insurance Company, insurer, bring certiorari.

Case by the Oceana Canning Company against Paul H. King and Dudley E. Waters, receivers of the Pere Marquette Railroad Company, for the loss of freight in transit. Judgment for plaintiff. Defendants bring error.

Case by George A. Wilcox against Elon Gauntlett- and others for the conversion of a deposit. Judgment for defendants on a directed verdict. Plaintiff brings error.

Michael Tarpper presented his claim for compensation against the Weston-Mott Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.

Assumpsit by Archibald H. McMillan, trustee in bankruptcy of the Valley Mantel & Tile Company, against School District No. 2 of the township of Portsmouth for a balance due on a building contract. Judgment for plaintiff, defendant brings error.

Ida M. Krout presented her claim for compensation against the J. L. Hudson Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Globe Indemnity Company, insurer, bring certiorari.

<p>Error to superior court of Grand Rapids; Dunham, J.</p> <p>Case by Cornelius Van Driel against Harry Stevens for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Phoebe Roach presented her claim for compensation against the Kelsey Wheel Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the ■ iEtna Life Insurance Company, insurer, bring certiorari.

<p>1. Trial — Jury—Voir Dire Examination — Challenges—Appeal' and Error — Waiver.</p> <p>In an. action for damages against the owner of an automobile, where plaintiff’s counsel in the voir dire examination inquired of each juror if he owned an automobile, if it was insured, and if he was a member of the Citizens’ Mutual Automobile Insurance Co., said examination apparently being in' good faith, and counsel for defendant, after examining the jury, passed them for cause, and both sides announced themselves satisfied with the jury, and the record does not disclose that counsel for defendant exercised any of his peremptory challenges or preferred any request to charge upon the subject, any error in the examination is held, to have been waived.</p> <p>2. Evidence — Hearsay—Res Gestas — Admissions — Appeal and Error — Automobiles.</p> <p>In an action against the owner of an automobile for damages caused by a collision with a motorcycle on a public highway,' where witnesses were permitted to testify as to what was said by the driver and the occupants of the automobile, a few minutes after the accident occurred, in the nature of admission of responsibility for the accident, where, independent of said testimony, plaintiff had sustained his theory of the case by a clear preponderance of the evidence, its admission, even if erroneous, held, not prejudicial. Ostrander, C. X, dissenting.</p>

Assumpsit by the Duluth, South Shore & Atlantic Railway Company against Edmund Wilson for brokerage fees received while in plaintiff’s employ. Judgment for plaintiff. Defendant brings error.

Bill by Frederick H. Zeigen against Charles H. Roiser and wife, Florence S. Fox, and others, for the specific performance of a land contract. From a decree for defendants, plaintiff appeals.

Robert Williamson was convicted of carrying concealed weapons and sentenced to imprisonment for not less than six months nor more than two years in the Detroit house of correction.

Charles E. Tackles presented his claim for compensation against the Bryant & Detwiler Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, bring certiorari.

Ada A. Guthrie presented her claim for compensation against the Detroit Shipbuilding Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

<p>1. 'Appeal and Error — Trial—Instructions—Review.</p> <p>Exceptions to the charge on a theory of defense which might well have been disregarded by the trial court for lack of proof, will not be reviewed by the appellate court.</p> <p>2. Trial — Retrial—Evidence—Question eor Jury — Res Judicata.</p> <p>Where, on a former appeal, the appellate court held that a verdict for defendant had been improperly directed (184 Mich. 315), and, upon a retrial, the case in no essential feature differs from the former one, although defendant advanced a theory of independent, Intervening, effective cause, which failed for lack of proof, the court below was not in error in submitting the issues to the jury, under proper instructions.</p> <p>3. Appeal and Error — Trial — Instructions — Requests to Charge.</p> <p>Where the instruction of the court on the defendant’s theory of the case was correct so far as it went, the failure of the court to give more specific instructions was not reversible error in the absence of a request therefor.</p> <p>4. Same — Trial—Instructions.</p> <p>The charge of the court should be taken as a whole; error cannot be predicated upon isolated portions.</p> <p>5. Evidence — Conclusions—Expert Testimony.</p> <p>Conclusions of a witness, even an expert, as to what an ordinarily prudent man would have seen are inadmissible.</p> <p>6. Same — Fact—Conclusions—Contributory Negligence.</p> <p>In an action for personal injuries received by plaintiff by reason of the giving way of a floor on which defendant’s agent had negligently piled a great quantity of plaster, testimony of plaintiff that the presence of the plaster on the floor did not cause him any thought of danger was admissible, it being a fact, and not a conclusion, bearing upon the contributory negligence of plaintiff, since, if there was danger which he fully appreciated, he might have been guilty of contributory negligence.</p> <p>7. Trial — Miscarriage of Justice.</p> <p>Where there is no reversible error, and, upon the entire record, it cannot be said that the trial resulted in a miscarriage of justice, the judgment of the court below will be affirmed.</p>

<p>1. Principal and Agent — Evidence—Special Question — Finding oe Jury.</p> <p>In an action for money alleged to have been paid to defendant by plaintiff’s decedent to be applied to tbe payment of a specific debt, evidence Jield, to sustain tbe finding of tbe jury, in answer to a special question, that defendant was not acting as agent of a third party in receiving the money.</p> <p>2. Same — Special Agent.</p> <p>"When defendant accepted the money with instructions to pay a specific debt, he was acting as the agent of plaintiff’s decedent.</p> <p>3. Same — Agent oe Both Parties</p> <p>It is permissible for the agent of one party to be appointed by the adverse party as his agent for certain purposes, and each party will then stand in the relation of principal to the agent as to the matters entrusted to the agent,' and as to those alone.</p> <p>4. Same — Special Agent — Liability of Agent.</p> <p>Where a principal places money in the hands of an agent to ¿ay a debt when ordered, and the agent refuses to obey such orders, he becomes liable to the principal, whether the instructions are violated through mistake or design.</p> <p>5. Witnesses — Matters Equally Within Knowledge of Deceased — Opposite Party.</p> <p>Although the third party, for whom defendant claimed to be acting as agent, was not a party to the record, he had a pecuniary interest in the subject-matter of the litigation, and was an opposite party within the statute barring his testimony as to transactions with plaintiff’s .decedent.</p> <p>6. Evidence — Hearsay—Relevancy—Admissibility.</p> <p>The third party not being present when the money in question was paid to defendant, and what occurred then and there being the crucial and vital question in the case, the court might have excluded his testimony as irrelevant and immaterial.</p> <p>7. Damages — Duty to Minimize.</p> <p>Where there was no question that decedent owed the debt for the payment of which the money was paid to defendant, when decedent ascertained that the debt had not been paid, it was his duty, instead of entering into litigation to avoid its payment, to pay it, and thus make his damages as small as practicable, and the judgment in his favor should have been limited to the amount paid, with interest.</p>

Case by George W. Miller against the Detroit United Railway for injuries to himself and his automobile. Judgment for plaintiff. Defendant brings error.

Case-made from Kent; Barton, J., presiding. Replevin by Gust Engel and another against William L. Smith for the possession of an automobile. Judgment for plaintiff. Defendant appeals.

<p>Appeal from Kent; Perkins, J.</p> <p>Bill by Samuel B. Ardis against the Grand Rapids & Indiana Railway Company.for an accounting. From a decree for plaintiff, defendant appeals.</p>

Assumpsit by John Bugajski and another against John Siwka for breach of a land contract. Judgment for plaintiff on a directed verdict for less than the amount claimed. Plaintiffs bring error.

<p>Error to Kent; Brown, J.</p> <p>Replevin by the Friedrich Music House against Mrs. William Harris for the possession of a piano. Judgment for plaintiff. Defendant brings error.</p>

Bill by Charles H. H. Lee and another against Ernest Hedenskoog for an accounting ahd for other relief. From a decree for plaintiffs, defendant appeals.

<p>1. Drains — Establishment—Conclusiveness—Fraud.</p> <p>The finding of special commissioners of the necessity of • establishing a drain upon private property, and the compensation therefor, under section 4883, 1 Comp. Laws 1915, Is final, in the absence of fraud.</p> <p>2. Same — Injunction.</p> <p>Where, on appeal from a decree dismissing plaintiff’s bill to enjoin the establishment of a drain along plaintiff’s right of way, under section 4894, 1 Comp. -Laws 1915, the evidence shows that a drain had previously been maintained on plaintiff’s right of way, and to place it elsewhere would be more expensive, and there is no evidence of fraud, either actual or constructive, on the part of the special commissioners, the decree below will be affirmed.</p>

<p>1. Mandamus — Practice—Pleading—-Return—Conclusiveness.</p> <p>Where no plea has been filed to the answer and return in mandamus proceedings, according to well settled practice and under section 4, chap. 36 of the judicature act (3 Comp. Laws 1915, § 13440), all material facts stated in said return must be taken to be admitted as true.</p> <p>2. Exceptions, Bill of — Practice—Jurisdiction.</p> <p>An order of the Supreme Court extending the return day of 'the writ of error, is no authority for the circuit judge to disregard the correct practice pursuant to section 62, chap. 18, of the judicature act (3 Comp. Laws 1915, § 12634), and Circuit Court Rule No. 66, in settling a hill of exceptions after expiration of the time limited in the statute.</p> <p>3. Same — Time for Settling — Discretion—Jurisdiction—Statutes — Court Rules.</p> <p>Where the practice as prescribed in section 62, chap. 18, of the judicature act, and Circuit Court Rule No. 66, has not been followed, the circuit judge is without jurisdiction to settle a bill of exceptions, after expiration of the time limited in the statute, since he may exercise discretion only within the statutory limitations.</p> <p>4. Judgment — Non Obstante Veredicto — Motions.</p> <p>Where judgment had already been entered, a motion to enter judgment non obstante veredicto was unavailing. Wulff v. Bossier, 199 Mich. 70.</p> <p>5. Exceptions, Bill of — Time for Settling — Motion for New Trial — Extension of Time.</p> <p>A motion to enter judgment non obstante veredicto, if treated as a motion for a new trial, must conform to the practice prescribed in the statute (section 62, chap. 18) and Circuit Court Rule No. 48, in order to entitle plaintiff to extension of time to settle a bill of exceptions.</p> <p>6. Same — Extension of Time — Practice — Statutes — Court Rules.</p> <p>Because a writ of error may issue any time within one year after the entry of judgment, it does not follow that a bill of exceptions can likewise be settled as a matter of right within that time, unless the statute and rules providing for extending the time for settling such bill shall have been complied with. 3 Comp. Laws 1915, § 12634; Circuit Court Rule No. 66.</p>

<p>Appeal from Wayne; Hally, J.-</p> <p>Bill by Arthur E. Kunze against Mary E. Jones to foreclose a mechanic’s lien. From a decree dismissing the bill, plaintiff appeals.</p>

<p>1. Executors and Administrators — Services—Parent and Child —Presumptions.</p> <p>The presumption that services rendered to a mother by a daughter are gratuitous is not of itself destroyed by the fact that they were not members of the same household, yet this fact weakens the presumption, and it may be regarded as giving support to other facts tending to establish an implied contract.</p> <p>2. Same — Implied Contract — Question eor Jury.</p> <p>Evidence that plaintiff, a married woman living in her own home in the same city as her father and mother, in response to her mother’s request, gave up her own home to care for her mother, who promised her, in her father’s presence, that she should never regret it, presented a question for the jury as to whether there was an implied promise to pay for the services so rendered.</p>

<p>1. Master and Servant — Workmen’s Compensation Law — Findings of Industrial Accident Board — Review.</p> <p>On certiorari to review an award by the industrial accident board, under the workmen’s compensation law, a finding of the board, supported by evidence, will not be reviewed.</p> <p>2. Same.</p> <p>An order of the industrial accident board finding that plaintiff was entitled to compensation for partial disability from and after a certain date, at the rate of one-half the difference between his average weekly wage before and after the injury, was merely a statement of the law, of which defendants could not complain, in the absence of any evidence as to partial disability, or the fixing of any definite amount, but leaving this question to future proof.</p>

<p>Cross-appeals from Kalamazoo; Weimer, J.</p> <p>Bill by Hubert Elwell, administrator of the estate of Jeanette Parish, deceased, and others against Julia Pierce and others. Defendants demurred to the bill and filed a cross-bill to which plaintiffs demurred. From a decree dismissing the bill and cross-bill, all parties appeal.</p>

Bill by the Detroit & Northern Michigan Building & Loan Association against Minnie K. Oram and others to set aside the discharge of a mortgage, for subrogation to the rights of the mortgagee, and to foreclose the same. Joseph Strobel, executor of the will of Elizabeth Kaspers-Gitzen, intervened claiming equities. From a decree for plaintiff and the intervener, defendants appeal.

Benjamin F. Engle presented a claim against the estate of Charles E. Davis, deceased, for money loaned. The claim was allowed in part by the probate judge, and Glenn A. Davis, administrator with the will annexed of the estate, appealed to the circuit court. Judgment for claimant. Contestant brings error.

<p>Error to superior court of Grand Rapids; Brown, J., presiding.</p> <p>Sam Mullís was convicted of receiving stolen goods and -sentenced to imprisonment for not less than six months nor more than five years in the State reformatory at Ionia.</p>

<p>Negligence — Automobiles • — ■ Conteibutoky Negligence — Death Act — Question eob Juey.</p> <p>In an action under the death act for the negligent killing of plaintiff’s decedent hy collision with a runaway horse frightened by collision with defendant’s automobile, where the evidence shows that decedent was riding north, on a bicycle, on .the east side of the street, and, because of a head wind, was riding with his head down and failed to see the horse coming, he was not, as a matter of law, guilty of contributory negligence.</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Berton Jameson presented his claim for compensation against the Walter S. Newhall Compány for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Casualty Company, insurer, bring certiorari.</p>

<p>Brokers — Commissions — Written Contracts — Performance — Question of Law.</p> <p>In an action by a real estate broker for commissions on the leasing of land, where the undisputed testimony showed that the terms of the contract, which was in writing as required by section 11981, 3 Comp. Laws 1915, had not been met by the plaintiff, the court below properly directed a verdict in favor of defendant, and such action is not open to the objection that plaintiff was thereby deprived of a trial by jury.</p>

<p>Error to Huron; Beach, J.</p> <p>Assumpsit by Frank L. Woodward against the Huron Implement Company upon a contract alleged to have been obtained by fraud and deceit. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Appeal and Error — Trial—Evidence—Admissibility—Saving Question por Review.</p> <p>The rejection in the court below of testimony of plaintiff’s misconduct, offered in support of defendants’ theory that plaintiff voluntarily surrendered possession of the premises, in an action for damages for unlawful eviction, cannot be objected to for the first time in this, court on the ground that such testimony was admissible in mitigation of damages.</p> <p>2. Trial — Argument op Counsel — Curing Error.</p> <p>Improper argument of counsel as to amount of damages to be obtained in order to avoid payment of costs, was not reversible error where the court promptly instructed the jury not to consider the costs or who was going to pay them, and later covered the same question in his general charge.</p> <p>3. Forcible Entry and Detainer — Landlord and Tenant — Statutes — Termination op Tenancy.</p> <p>A landlord who obtained entry by means of fraud, and was followed by officers, who, by false representations as to the writ of restitution, and with a display of force calculated to intimidate and terrify, but without actual violence,, took plaintiff’s goods from the premises, was liable for damages for forcible entry under section 13229, 3 'Comp. Laws 1915, although the tenancy had been terminated by proper notice.</p> <p>4. Appeal and Error — Directed Verdict.</p> <p>Where the court below would have been justified in directing a verdict for plaintiff, there was no error of which defendant could complain in submitting the question to the jury.</p>

<p>1. Automobiles — Negligence—Contributory Negligence.</p> <p>In an action for the death of plaintiff’s decedent, caused by his being struck by defendant’s truck, where the evidence showed that decedent, in the middle of a block of a narrow street, suddenly stepped from behind another car where he could not be seen, and proceeded diagonally across the street with his back toward the direction from which vehicles would come, with his coat collar turned up and his head down, without looking, and apparently so engrossed in thought that he failed to hear either the noise of the truck or the shout of warning, and was hit by the truck, he was guilty of contributory negligence as a matter of law, barring recovery.</p> <p>2. Same — Contributory Negligence — Unlicensed Chaueeeur — ■ Negligence.</p> <p>Where decedent was guilty of contributory negligence as a matter of law, barring recovery, the fact that defendant’s chauffeur was unlicensed becomes immaterial.</p> <p>3. Appeal . and Error — Directed Verdict — Review.</p> <p>Where the court below properly directed a verdict for defendant, the judgment will be affirmed by the appellate court although for a different reason.</p>

<p>Error to Wayne; Brown, J., presiding.</p> <p>Case by Dora Goldman against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Mandamus by Harley Martin and another to compel Charles B. Collingwood, acting circuit judge of Benzie county, to grant a hearing upon a writ of habeas corpus.</p>

, presiding. Assumpsit by the people of the State of Michigan, for the use and benefit of the Westover-Kamm Company and others, against the Valley Mantel & Tile Company and others upon a statutory bond. Judgment for plaintiffs. Defendants bring error.

<p>Error to Genesee; Steyens, J.</p> <p>Ejectment by John H. Jennings against Edwin L. Reeson. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Catherine Herbert presented her claim for compensation against the Lake Shore & Michigan Southern Railway Company for the accidental death of her hus'band in defendant’s employ. From an order awarding compensation, defendant brings certiorari.</p>

<p>Appeal from Muskegon; Sullivan, J.</p> <p>Bill by Mary Mendel against Charles Poland, highway commissioner of Norton township^ to enjoin the removal of certain fences. From a decree for plaintiff, defendant appeals.</p>

<p>Mandamus by Frankie E. Marsh to compel Willis B. Perkins, circuit judge of Kent county, to settle and sign a record on appeal.</p>

Bill by John E. Kuick and others against the city of Grand Rapids and another to set aside the proceedings for the assessment and collection of a sewer tax. From a decree dismissing the bill, plaintiffs appeal.

<p>Error to Ottawa; Cross, J.</p> <p>Assumpsit by the Hillman Hardware Company against Louis F. Dietz on a promissory note. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

Bill by Minnie E. Allen against Israel N. Heft and another to enjoin an execution, levy and sale. From an order dissolving the injunction, plaintiff appeals.

Minnie A. Holbrook presented her claim for compensation against the Olympia Hotel Company for the accidental death of her husband in defendant's employ. From an order awarding compensation, defendant and the Hartford Accident & Indemnity Company, insurer, bring certiorari.

Joseph Kalucki presented his claim for compensation against the American Car & Foundry Company for injuries received in defendant's employ. From an order awarding compensation, defendant brings cer- . tiorari.

Joseph Dane presented his claim for compensation against the Michigan United Traction Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Frank L. Schild presented his claim for compensation against the Pere Marquette Railroad Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

, presiding. Bill by Susie Dreijer against George Dreijer for separate maintenance and alimony. Defendant filed a cross-bill asking for a divorce. A decree was entered for plaintiff and the defendant’s cross-bill dismissed. From an order denying defendant’s motion to amend, defendant appeals.

<p>Appeal from Wayne; North, J., presiding.</p> <p>Bill by LeRoy Northrup against Cora May Northrup for a divorce. From a decree dismissing the bill, plaintiff appeals.</p>

<p>Exceptions before judgment from the recorder’s court of Detroit; Connolly, J.</p> <p>Ebenezer Day was convicted of embezzlement.</p>

, J. Replevin in justice’s court by William J. Moore against William Harneck for the possession of a telephone. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

Bill by Albert Bradway and another against Frank P. Miller for the foreclosure of a land contract. Defendant filed a cross-bill to rescind the contract and for an order for the return of thé amount paid thereon. From a decree for defendant, plaintiffs- appeal.

' Error to Wayne; Chester, J., presiding. Assumpsit by Margaret Williamson against W. W. Hannan, William Devlin, and others for fraud and deceit in the sale of a rooming house business. Judgment for plaintiff. Defendants bring error.

Assumpsit by the city of Detroit against Sebastian S. Kresge for the amount of an assessment for taxes. Judgment for defendant on a directed verdict. Plaintiff brings error. •

Assumpsit by C. Durant Jones, doing business as. the Jones Chautauqua System, against F. J. Stainton and others, as the Lawton, Michigan, Chautauqua Association, for breach of an entertainment contract. Judgment for plaintiff. Defendant brings error.