Volume 203 — Michigan Reports

, presiding. Bill by S. Porter Tuttle, executor of the last will of Mary G. Pearsall, deceased, against Fannie E. Doty, individually and as special administratrix of the estate of Payson M. Doty, deceased, to set aside a deed and to enjoin the disposition of certain corporate stock. From the decree rendered, all parties appeal.

Appeal.from Menominee; Flannigan, J. Bill by the J. W. Wells Lumber Company against the Menominee River Boom Company to enjoin an action at law, and for an accounting. From a decree dismissing the bill, plaintiff appeals.

<p>1. Criminal Law — Burglary—Leading Questions — Cross-Examination — Evidence—Witnesses.</p> <p>In a prosecution for burglary, where defendant was a witness in his own behalf, held, no such abuse of discretion as to constitute reversible error for the trial court to, permit leading questions to be put to him, on cross-examination.</p> <p>2. Same-Witnesses for Prosecution — Indorsing Names on Information — Appeal and Error.</p> <p>In such prosecution, the court below was not in error in permitting the indorsement of the names of two witnesses upon the information after the trial began, where the prosecutor stated he had just learned of the witnesses, and no claim for a continuance was made.</p> <p>3. Same — Indictment and Information — Sufficiency — Statute —Burglary.</p> <p>Although a “garage” is not one of the buildings mentioned in the statute (3 Comp. Laws 1915, § 15292) under which the prosecution was brought, an information describing the place of the offense as “the shop, to wit, the garage,” etc., was sufficient.</p> <p>4. Same — Trial—Instructions—Reasonable Doubt.</p> <p>It was not error for the court below to refuse a requested instruction as to reasonable doubt, where there can be no doubt that, from the charge as a whole, the jury understood the burden which was put upon the people and what constituted a reasonable doubt.</p> <p>5. Same — Argument of Counsel.</p> <p>Argument of the prosecutor in reply to defendant’s attorney and justified by the testimony of defendant was not prejudicial error.</p> <p>6. Same — Trial—Misconduct of Jury — Affidavits.</p> <p>Where, if the affidavit of the officer in charge of the jury is believed there was no misconduct on the part of the jury or the officer in charge, alleged error based thereon was not prejudicial; the trial judge having the advantage ' of knowing the affiant.</p>

, presiding. Bill by the county of Saginaw and others against Alexander H. McKillop, drain commissioner of La-peer county, and others, to enjoin the construction of a drain. From an order denying a motion to dismiss, defendants appeal.

Bill by Clara S. Gaffney and others against Josephine Bliven to set aside a deed. From a decree dismissing the bill, plaintiffs appeal.

, presiding. Assumpsit by Newell B. Wallace against H. W. Noble & Company for breach of a contract for the sale of corporate stock. Judgment for plaintiff. Defendant brings error.

Bill by George J. Gnau and others against Patrick Fitzpatrick and another to enjoin the violation of certain building restrictions. From a decree dismissing the bill, plaintiffs appeal.

Frank Buvia, Joseph Boissineau and Belle Cennell, administratrix of the estate of Thomas Cennell, deceased, presented their claims for compensation against the Oscar Daniels Company for injuries and the accidental death of Thomas Cennell in defendant’s employ. From orders awarding compensation, defendaxit and the Employers’ Liability Assurance Corporation, insurer, bring certiorari.

, presiding. Assumpsit by Harry B. Hamburger against Julius Berman for breach of a contract to exchange certain real estate. Judgment for plaintiff. Defendant brings error.

Kate Vereeke presented her claim for compensation against.the cityof Grand Rapids for the accidental death of her son in defendant’s employ. On petition of defendant to discontinue payments under an award. From an order denying the petition, defendant brings certiorari. Certiorari to the industrial accident board. On October 1, 1913, David Vereeke was killed while in the employ of the city of Grand. Rapids.

Assumpsit by Michael D. Norris against Home City Lodge No. 536, Independent Order of Odd Fellows, and others, on a promissory note. Judgment for defendants. Plaintiff brings error. In this case plaintiff sought to recover $2,000 and interest upon the following note: “$2,000.

Mandamus by the Grand Rapids & Indiana Railway Company to compel Orien S. Cross, circuit judge of Allegan county, to vacate an order denying a motion for additional writs of certiorari in certáin drain proceedings. This is an application for mandamus to compel the vacation of an order of the circuit judge denying a motion to issue additional writs of certiorari to review proceedings for cleaning out, deepening, and extending the Bisbee drain.

<p>Default — Court Rules — Settino Aside Default.</p> <p>The provisions of Circuit Court Rule No. 32, section 4, providing that where the plaintiff has taken the default of the defendant, the default should not be set aside after the expiration of six months, does not apply where the default of the plaintiff is taken by the defendant; in which case the question of setting aside the default addresses itself to the sound discretion of the court.</p>

<p>Error to Menominee; Flannigan, J.</p> <p>Case by the American Insurance Company of Newark, N. J., against Jacob J. Martinek for failure to cancel a policy of insurance. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Libel and Slander — Privilege—Malice.</p> <p>A slanderous statement is not privileged, although, made in response to a direct question by a third party, where there was proof of actual malice in that defendant circulated stories to the same effect as the slanderous statement both before and after the date of the alleged slander, and that he also made the same slanderous statements to persons who had no interest in the subject-matter.</p> <p>2. Same — Trial—Instructions—Damages.</p> <p>An instruction by the court below that the jury, in estimating the amount of plaintiff’s damages, might take into account any damage suffered by him by reason of the repetition or circulation of the slanderous words which was directly caused by defendant’s publication thereof in the first instance, although not supported by the record, was not prejudicial, where the verdict was not excessive.</p> <p>3. Same — Malice—New Trial — Excessive Verdict.</p> <p>Where it was plaintiff’s theory that, ever since litigation between them many years before, defendant had repeatedly circulated and published these slanderous statements about plaintiff, and had even pursued him and carried them into a new neighborhood to which he had removed, the court below was not in error in refusing a new trial on the ground that the verdict for $1,000 was escessive.</p> <p>4. Trial — Instructions—Issues Presented.</p> <p>Held, that the issue presented by the parties was fairly submitted to the jury with proper instructions.</p>

Bill by the Loud Lumber Company against the Sterling Cedar & Lumber Company and others for the rescission of a contract on the ground of fraud and for an accounting. From a decree for plaintiff, defendants appeal.

<p>1. Carriers — Railroad Companies — State Regulation — Contracts — Statutes.</p> <p>The enactment of Act No. 300, Pub. Acts 1909 (2 Comp. Laws 1915, § 8109 et seq.), regulating common carriers and prohibiting unjust discrimination among- shippers, rendered void a contract between a railway company and a lumber company whereby the railway company agreed to furnish cars for unlimited time free from demurrage charges, although said contract Was lawful at the time it was entered into.</p> <p>See note in 6 L. R. A. (N. S.) 834.</p> <p>2. Same — Constitutional Law — Police Power.</p> <p>Said act cannot be said to impair the obligation of a contract within the constitutional inhibition, since it was entered into with the knowledge that the State, in the exercise of its police power, could pass laws regulating common carriers within its borders, and the hands of the State in the exercise of this power may not be tied by private contract.</p> <p>3. Same — Demurrage—Contracts—Recoupment.</p> <p>In an action for demurrage charges subsequent to the passage of the act, the railway company was entitled to recover, since the contract was void; and defendant could not recoup its damages for the breach of an unenforceable contract.</p>

Bill by Margaret Lavin against Jeremiah Lynch, an incompetent, and others to enforce an equitable lien and for an accounting. From an order dismissing the bill, plaintiff appeals. It appears by the bill in this case that at the time of his death, December 24, 1881, Patrick Lynch was the owner of certain real estate in Kent county. By his will it was devised to Jeremiah Lynch, subject to the payment of $400 to Mary Wheeler; $1,200 to Johanna Simonds, and $900 to plaintiff.

, presiding. Bill by Thomas Sharon and another against Ray M. Fee, Louis H. Spicer and Edwin C. Spicer, copartners as David Spicer’s Sons, and others, to enforce a mechanic’s lien. From a decree for plaintiffs against defendants Spicer, they appeal.

Assumpsit by Albert H. Landsberger against Albert L. Joyce and Albert É. Joyce, doing business as A. L. Joyce & Son, for goods sold and delivered. Judgment for plaintiff. Defendants bring error.

<p>Divorce — Ahmoht—Decree—Modification.</p> <p>On appeal in divorce proceedings, the decree of the court below sustaining the validity of a separation agreement disposing of the property interests of the parties, but deducting $70 advanced to the wife by order of the court, will be modified by awarding her the .full amount of the agreed settlement, and giving fier a lien on plaintiffs farm to secure performance.</p>

Assumpsit by Dudley E. Waters and another, receivers of the Pere Marquette Railroad Company, against the Lakewood Utilities, Company for the construction of a side track and for demurrage charges. Judgment for defendant on a directed verdict. .Plaintiffs bring error.

<p>1. Homesteads — Contract to Convey — Validity—Land Contracts —Vendor and Purchaser — Default.</p> <p>A contract to convey a farm consisting in part of the homestead, signed by the husband alone, is binding upon him; and his default in failing to perform may be made the basis of an action for damages.1 Ostrander, C. J., and Moore, J., dissenting.</p> <p>2. Vendor and Purchaser — Breach of Contract — Measure of Damages.</p> <p>In an action for damages for the breach of a contract to convey land, the plaintiff is entitled to recover the difference between the price fixed by the contract and the market value thereof.</p> <p>3. Variance — Trial—Pleading—Instructions.</p> <p>Where the case was submitted to the jury upon a theory wholly at variance with the theory of the declaration, the judgment of the court below will be reversed.</p>

, presiding. Case by John Laskowski against the People’s Ice Company for injuries to plaintiff’s wife. Judgment for plaintiff. Defendant brings error. Anna Laskowski had judgment against the People’s Ice Company for personal injuries caused by a runaway horse owned and used by said People’s Ice Company. The judgment was affirmed on appeal. 190 Mich. 331.

<p>Error to St. Clair; Tappan, J.</p> <p>Case by Bert Andrews against Charles R. Osius for fraud and deceit. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Case by Joseph Kruczkowski, an infant, by his next friend, against the Polonia Publishing Company for personal injuries. Judgment for plaintiff. Defendant brings error.

Clair; Law, J. Case by Alex. Moore, trustee in bankruptcy of the Consolidated Fisheries, Incorporated, against Bert Andrews for the conversion of certain money of said corporation. Judgment for plaintiff on a directed verdict. Defendant brings error.

, presiding. Bill in aid of execution by Bradford & Company against Frank C. Baxter and another to set aside a deed. From a decree dismissing the bill, plaintiff appeals.

<p>1. Trial — Conduct of Counsel — Appeal and Error — Prejudicial Error.</p> <p>In an action for personal injuries, for defendants’ counsel, on cross-examination of plaintiff’s witness, to suddenly change the subject and ask, “What relation are you to this fellow (plaintiff), anyway?” and on the reply, “Not any,” exclaim “Good for you,” and dismiss the witness, was prejudicial error which was not cured by the admonition of the court not to take such remark seriously.</p> <p>2. Same.</p> <p>For defendants’ counsel to exclaim, on plaintiff’s reply to a question, “What a liar you are!” was highly prejudicial and was not cured by an admonition by the court to the jury to pay no attention to such remarks, especially as counsel exclaimed further, “For a man to sit there and tell me that!” which was tolerated without further reprimand.</p> <p>See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.</p> <p>3. Same — Master and Servant — Workmen's Compensation Act —Employers Not Operating Under the Act — Defenses—Instructions.</p> <p>In an action for personal injuries by a servant against his employer, who .was not operating under the workmen’s compensation act, the defenses of assumption- of risk and contributory negligence not being available (2 Comp. Laws 1915, § 5423), it was error for the court below to instruct the jury that plaintiff must bear the consequences of all ordinary risks incident to his employment, although he had previously instructed them in accordance with the law.</p> <p>4. Same — Personal Injuries — Instructions.</p> <p>In an action for personal injuries, where the negligence charged was that the place where the plaintiff was required to work was rendered unsafe by and in connection with the unsafe condition of the équipment and machinery, an Instruction that “defendants were under no legal obligation to provide a guard, screen, or cover for this buzz-saw, if there was sufficient room to carry on the work with ordinary safety,” was erroneous, since the work was done in the open and the question of sufficient room was not involved.</p>

Assumpsit by Hattie E. Smith against the Cigar-makers’ International Union of America for the amount of a benefit certificate. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by the Pontiac, Oxford & Northern Railroad Company and others against the Michigan railroad commission and J. T. Wylie & Company and others, interveners, to review an order establishing freight rates. From a decree dismissing the bill, plaintiffs appeal.

<p>1. Divorce — Extreme Cruelty — Condonation—Evidence.</p> <p>Although plaintiff had condoned defendant’s act in communicating to her a venereal disease, and was thereby estopped from reviving the cause in the absence of subsequent misconduct, nevertheless it was an element competent for the court to consider in weighing their conflicting testimony as to her health and defendant’s subsequent dissolute tendencies, neglect and loss of affection, and association with women of questionable reputation, supporting the decree of divorce on the ground of extreme cruelty.</p> <p>See notes in 4 L. R. A. (N. S.) 909; 5 L. R. A. (N. S.) 729; 44 L. R. A. (N. S.) 1003.</p> <p>2. Same — Alimony—Lien.</p> <p>An allowance of $5 per week as alimony, the same being made a lien on defendant’s real estate, including a lot standing in their joint names as tenants by the entireties, which by the decree was to vest in and be the sole property of defendant on compliance therewith, he being a young man in robust health and earning $15 a week, held, not excessive.</p> <p>3. Same — Modification of Decree — Default.</p> <p>While it may be questionable whether it is for the best interest of either party to hold unproductive property tied up indefinitely, and a modification of the decree might be advisable on a proper showing of compliance therewith, defendant is in no position to move therein while in default.</p>

<p>Automobiles — Contributory Negligence — Negligence — Highways and Streets — Motor Vehicle Law.</p> <p>Where plaintiff alighted from an automobile standing slightly to the west of the center of the traveled track, and started to the east to cross the road without looking, when he was struck and injured by defendant’s automobile which approached from the south, he was guilty of contributory negligence precluding recovery, although defendant was concededly negligent in violating the statute by passing to the right of the standing car.</p> <p>See notes in 38 L. R. A. (N. S.) 491; 42 L. R. A. (N. S.) 1183. 203—Mich.—18.</p>

, presiding. Case by Louis Reichle against the Detroit United Railway for personal injuries and damage to his automobile. Judgment for plaintiff. Defendant brings error.

, presiding. Bill by the F. M. Sibley Lumber Company against David Doran and others to enforce a mechanic’s lien. From a decree dismissing the bill, plaintiff appeals.

, presiding. Bill by the village of Otsego against the Allegan County Gas Company to enjoin the collection of illegal charges. From a decree for plaintiff, defendant appeals.

<p>1. Process — Criminal Charge — Exemption—Extradition.</p> <p>A nonresident, charged with crime and brought within the jurisdiction of the court by compulsory process, is exempt from service of civil process while coming into the jurisdiction, while necessarily in attendance upon court, and while returning to his place of residence without unnecessary delay.</p> <p>2. Same — Exemption—Waiver.</p> <p>In an action in Michigan to recover installments of alimony which had accrued on a decree granted plaintiff for alimony alone in an Ohio court, the service of process upon defendant in the alimony suit while he was in Ohio under extradition to answer a criminal charge, was a violation of his privilege and unless waived is a valid defense to this action.</p> <p>3. Same — Day in Court.</p> <p>Defendant, having instituted proceedings in the same court to have the alimony proceeding dismissed, and being denied relief, has had his day in court, and, it having been determined adversely to him, is not now available as a defense to this action.</p> <p>4. Divorce — Foreign Judgments — Constitutional Law.</p> <p>Although a decree for alimony in an Ohio court is subject to modification, the wife has a vested interest in installments already due and payable, entitled to recognition under the füll faith and credit clause of the Federal Constitution.1</p> <p>5. Same — Alimony—Termination of Decree.</p> <p>A divorce obtained by the husband in Michigan, where he had become domiciled, terminated the decree of an Ohio court for alimony alone as to installments falling due thereafter.</p>

Case by Richard Willett against Paul King and another, receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for plaintiff. Defendants bring error.

<p>Error to Ottawa; Cross, J.</p> <p>Assumpsit by the Cohn-Goodman Company against the People’s Savings Bank of Grand Haven on a certificate of deposit. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Assumpsit by John B. Smithman against Edward Gray on a foreign judgment. Judgment for plaintiff on a directed verdict. Defendant brings error. Plaintiff herein obtained a judgment against defendant in the sum of $9,346.54 upon a directed verdict. His action was based upon a Pennsylvania judgment for $8,390 dated July 3, 1915.

<p>Error to Wayne; Gage, J., presiding.</p> <p>Assumpsit by Howard' H. Smithman against Edward Gray on a foreign judgment. Judgment for plaintiff on a directed verdict. Defendant brings error.</p>

<p>Divorce — Extreme Cruelty — Refusal to Cohabit — Desertion—■ Statutory Period.</p> <p>'Where the parties to divorce proceedings were less than 20 years of age, and after less than two months of married life the wife returned to her parents, refusing to live with the husband, his bill for divorce on the ground of extreme cruelty in refusing to cohabit was properly- denied; the case made being one of desertion, which has not continued for the statutory period.</p> <p>See notes in 14 L. R. A. 685; 39 L. R. A. (N. S.) 1118; L. R. A. 1915B, 772.</p>

Mandamus by the Attorney General, on the relation of the common council of the city of Detroit, to compel Oscar B. Marx, mayor of the city of Detroit, and the board of education of the city of Detroit, to fill alleged vacancies on the board of education. From an order denying the writ, plaintiff brings certiorari.

<p>Error to Lenawee; Hart, J.</p> <p>Assumpsit by Frank M. Livesay against the East Side Creamery Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.</p>

Bill by Elizabeth P. Clugston and others against Austin L. Rogers to redeem from the sale of land delinquent for taxes. From a decree for plaintiffs, defendant appeals.

<p>1. Taxation — Redemption—Notice—Sufficiency.</p> <p>Where the notice to redeem from tax sale advised the owner that his land had been sold for taxes and that he could redeem within six months for a certain definite sum, the notice was not invalid because in giving the years for which sale was made one year was omitted, in the absence of a showing that he was prejudiced thereby.</p> <p>2. Same — Notice—Return.</p> <p>1 Comp. Laws 1915, § 4138, requiring that if the last grantee be a resident of any county other than that in which the land is situated, then the return as to such person shall be made by the sheriff of the county where such person resides, does not require that the return be made , by the sheriff of a county where the grantee resided 22 years before, when the deed was executed, where, after diligent search, the whereabouts of said grantee could not be ascertained.</p> <p>3. Same — Notice to Heirs oe Grantee — Presumptions.</p> <p>In the absence of information that the grantee was deceased, it was unnecessary for the sheriff’s return to show that he was unable to locate her heirs; the lapse of 22 years after the date of her deed giving her residence being insufficient to warrant the presumption that she was deceased.</p> <p>'4. Same — Description—Government Description — Statutes.</p> <p>Under Act No. 9, Pub. Acts 1882, amending the tax law requiring assessing officers to follow the government description of land, and allowing it to be assessed by any description by which it might be known, land described in a way that could have been easily understood by the owner was a valid description.</p> <p>5. Same — Husband and Wife.</p> <p>The rule preventing a husband from purchasing a tax title upon land of his wife is not applicable where the wife had been dead for three years, and the title had descended directly to her daughter.</p> <p>6. Same — Redemption—Notice.</p> <p>The record holder of a tax deed for the taxes of an earlier year is entitled to notice of redemption from a subsequent tax title purchaser.</p>

<p>1. Waters and Watercourses — Surface Waters — Servitudes— Natural Drainage.</p> <p>The natural flowage of surface water from an upper estate Is a servitude which the owner of the lower estate must bear, and he cannot hold it back by dykes or dam its natural channels of drainage to the injury of the owner of the upper estate.</p> <p>2. Evidence — Similar Conditions — Foundation.</p> <p>In an action for damages for injury to plaintiff’s standing timber and crops by obstructing his natural drainage, evidence of farmers as to their individual experience with their own land to support the defense that the crop failure was due to unfavorable seasons, without laying the proper foundation of similarity, was inadmissible.</p> <p>3. New Trial — Discretion—Abuse.</p> <p>Refusal of plaintiffs unopposed motion for a new trial because of the court’s action in striking out, of its own motion, in the midst of the charge, of legal documents introduced by plaintiff to refute defendant's contention that plaintiff had agreed to the construction of the dyke where located amounted to an abuse of discretion.</p> <p>4. Same — Pleading—Diligence—Newly-Discovered Evidence.</p> <p>Where defendant’s plea was the general issue with notice of the defense that plaintiff had consented to the dyke complained of as placed, plaintiff’s failure to anticipate and prepare for the defense of high water on Lake Huron during the years involved was not an inexcusable lack of diligence, and a new trial should have been granted to enable him to present government data and newly-ascertained evidence material to a vital issue in the case.</p> <p>5. Trial — Requests to Charge — Instructions.</p> <p>In an action for damages caused by the construction of a dyke, where defendant emphasized the fact that plaintiff was refused a temporary injunction, plaintiff was entitled to have the jury instructed, as requested, that the granting or not granting of a temporary injunction is no ground for action or defense.</p>

Bill by Archie Lozon and another against James McKay for the specific performance of a land contract. Defendant filed a cross-bill to set aside the contract for default. From a decree for defendant, plaintiffs appeal.

Case by William H. Allswede against the Central Warehouse Company for the conversion of certain beans. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>1. Railroads — Crossing Accident — Personal Injuries — Negligence — Question for Jury.</p> <p>In an action for personal injuries caused by a collision between plaintiff’s automobile and defendant’s train at a crossing in a village, evidence that the train was running 30 miles an hour and that the statutory signals were not given, held, to present a question of fact for the jury as to defendant’s negligence.</p> <p>2. Same — Contributory Negligence.</p> <p>Where plaintiff’s automobile stopped within 10 feet of the side track waiting for an east-bound train to pass, and, after looking and listening, proceeded to cross, although view of west-bound track was obstructed, and was struck and injured by west-bound train, it cannot be said that plaintiff was guilty of contributory negligence, as matter of law, for failure to again stop on side track or space between tracks to make observations before proceeding. Ostrander, C. J., and Brooke, J., dissenting.</p> <p>See notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 924; 46 L. R. A. (N. S.) 702.</p>

Case by the township of Hart against Edwin A. Noret for indemnity against a judgment for personal injuries. Judgment for defendant. Plaintiff brings error.

Bill by Charles L. Sponenburgh and another against John Gillespie, commissioner of police of the city of Detroit, to enjoin the dismissal of plaintiffs from the police department. From a decree for plaintiffs, defendant appeals.

, presiding. Bill by John C. Fowler against Wilson H. Stubbings and others to quiet title to land sold for delinquent taxes. Defendant Stubbings filed a cross-bill to redeem from said sale. From a decree for defendant, plaintiff appeals.

Mandamus by Henry N. Brevoort and another to compel Frederick W. Mayne, acting circuit judge of Wayne county, to grant an extension of time to settle a bill of exceptions.

Bill by Henry Drier, guardian of Frank Larsen, against James Gracey, administrator de bonis non of the estate of Mathias Larsen, deceased, and others, for a construction of the last will of Mathias Larsen, to set aside certain conveyances, and for an accounting. From a decree for plaintiff, defendants appeal.

Cross-appeals from Ottawa; Cross, J. Bill by Charles E. Misner against Claus H. Stange, Walter I. Lillie, and Anna Wegner for the foreclosure of certain liens. Defendants Lillie and Wegner filed separate cross-bills asking affirmative relief. From the decree rendered, defendants Lillie and Wegner appeal.

, presiding. Bill by Irving G. McCulley against Addie Rivers for the specific performance of a land contract. Defendant filed a cross-bill to rescind the contract on the. ground of fraud. From a decree for defendant, plaintiff appeals.

<p>Error to Shiawassee; Searl, J., presiding.</p> <p>Case by Hugh A. McDonald against Louis C. Hall, Sr., and others for conspiracy- and malicious arrest. Judgment for plaintiff against defendant Hall, Sr., who brings error.</p>

, presiding. Case by Meyer Wine against Newcomb, Endicott & Company for personal injuries to plaintiff’s wife. Case by Leah Wine against Newcomb, ^Endicott & Company for personal injuries. The causes were heard as one. Judgment for defendant. Plaintiffs bring error.

, presiding. Bill by Robert M. Dalton and another against Joseph-F. Weber, Sarah A. Warner, Franklin E. Bushman and others to redeem from certain mortgage foreclosures. Defendant Warner filed a cross-bill asking affirmative relief. From the decree rendered, all parties appeal. Modified as to plaintiffs and defendants Weber.

Mandamus by the Leonard-Hillger Land Company to compel the board of auditors of Wayne county to approve a plat. From an order denying the writ, plaintiff brings certiorari.

Cross-appeals from Wayne; Lamb, J, presiding. Judgment creditors’ bill by the Olson Manufacture ing Company and another against the Rex Motor Company, Charles H. Riopelle, and others. From the decree rendered, plaintiffs and defendant Riopelle appeal.

<p>1. Account Stated — Action—Multiplicity of Suits.</p> <p>Am account stated and the express or implied promise of one party to pay the amount of the balance indicated therein is none the less binding because one or more of the items, the factors, used in making up the account, are therein charged or credited upon a distinct promise and agreement of one or the other of the parties to do in the future some other or further thing with respect to such item or items.</p> <p>2. Same.</p> <p>Where in a partnership accounting between plaintiff and defendant the latter was allowed credit for certain notes which he assumed and agreed to pay, but which he paid only in part, plaintiffi paying the balance, an action there■on by plaintiff is not barred by recovery in a former action upon the account stated, although defendant had defaulted in the payment of the notes at the time suit upon the account-stated was brought against him. Fellows, J., dissenting.</p> <p>3. Same — Res Judicata.</p> <p>The validity of the account stated and the credit to defendant having been adjudicated in the former action, the question of the validity of the partnership between plaintiff and defendant, not having been then raised, is not open in this action.</p>

<p>Error to Berrien; Bridgman, J.</p> <p>Tony Onesto and Frank Damico were convicted of murder in the second degree.</p>

<p>Appeal from Kent; Perkins, J.</p> <p>Bill by Lida Spratler against Joseph Spratler for a divorce. From a decree for plaintiff respecting alimony, she appeals.</p>

Bill by Martha B. Woolfitt and another against Claudia M. Preston and others to construe the last will of Augusta N. Bannister, deceased. From a decree for plaintiffs, defendants appeal.

, presiding. Bill by Charles Marcoux against William Reardon and others for an accounting for the conversion of certain shares of corporate stock. From a decree for defendants, plaintiff appeals.

Bill by James L. McKee and others against the city of Grand Rapids and another to enjoin the collection of special assessments. From a decree for plaintiffs, defendants appeal.

Assumpsit by the Morehead Manufacturing Company against the Alaska Refrigerator Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.

Bill by Samuel D. Ludwig against Henry W. Bruner, executor of the last will of Sarah E. Ludwig, deceased, to determine the title to a certificate of deposit and a mortgage. Defendant filed a cross-bill for an accounting. From a decree for defendant, plaintiff appeals. On October 9, 1883, plaintiff purchased a farm in St. Joseph county, Michigan, taking title thereto in his own name.

, presiding. Replevin in justice’s court by Mathew A. Young against Andrew T. Phillips and another for the possession of an automobile. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for defendants. Plaintiff brings error.

Case by John Van Lonkhuyzen against the Daily News Company for libel. Judgment for defendant. Plaintiff brings error. Upon a former trial of this cause, a judgment for the defendant, entered upon a verdict directed for defendant, was reversed and a new trial granted. 195 Mich. 283.

Ellen Gaffney presented her claim for compensation against James G. Goodwillie and David L. Goodwillie, copartners as- Goodwillie Brothers, for the accidental death of plaintiff’s husband in defendant’s employ. From an order awarding compensation defendants bring certiorari.

Exceptions before judgment from Ingham; Wiest, J. Michael Miller was convicted of violating section 1 of Act No. 63, Pub. Acts 1913. Respondent was informed against, charged with violating section 1, Act No. 63, Pub. Acts 1913 (2 Comp.

, presiding. Bill by Jessie Carlisle against Mary E. Dunlap and others to set aside a mortgage foreclosure. From a decree dismissing the bill, plaintiff appeals.

Bill by Joseph H. Monger against Esther E. Monger and others to set aside a deed, and for an accounting. From an order denying a motion to dismiss, defendants appeal.

Carl Schanning presented his claim for compensation against the Standard Castings Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire and Life Assurance Corporation, Limited, insurer, bring certiorari.

Bill by Mary E. McGrath against John McGrath to annul a mortgage. From a decree for plaintiff, defendant appeals. The bill is filed to annul a real estate mortgage and the notes evidencing the debt secured by it, and to compel the assignee of the mortgage to discharge it of record.

<p>Í. Fraud and Deceit — Conspiracy—Evidence—Admissibility.</p> <p>In an action for fraud and deceit, with a count alleging conspiracy, based upon' false representations to plaintiff by defendants as to the value of certain gas bonds accepted by plaintiff in exchange for a farm which he conveyed to one of the defendants, and in which transaction the other defendants profited, evidence as to statements and correspondence of one defendant, not in .the presence of other defendants, was admissible, as tending to .prove concert of action and similar false representations made by each of them to plaintiff.</p> <p>2. Same — Expert Witnesses.</p> <p>Testimony by an engineer, who had made an appraisement of the property of the gas company a year or two before, as'to the value of the property of the company, and therefore as to the value of the bonds,, based in part upon a map in the office of the company, shown to him by the manager, was not objectionable as incompetent, irrelevant, or hearsay.</p> <p>3. Same — Evidence—Admissibility.</p> <p>Oral testimony that the property of the gas company was then in the hands of a receiver, who was operating the plant, was admissible for the purpose of showing whether the company was in possession of its property, and as bearing upon the value of its bonds, although not admissible for the purpose of proving the legality of the •appointment of the receiver, which should be proved by the record.</p> <p>4. Same — Books oe Account- — Evidence.</p> <p>There was no error in admitting in evidence the books of the company, and in permitting a witness to testify to what was contained in them, for the purpose of showing the condition of the company and the extent of the business carried on by it, where an expert testified that they apparently showed all receipts and disbursements, also corporate meetings and What was done at them.</p> <p>5. Appeal and Error — Party Appealing — Harmless Error.</p> <p>Upon a record showing that only one of several defendants appealed from a judgment against all of them, error In the court below in the rejection of evidence bearing on the separate defense of one of the defendants not appealing, will not be considered by this court.</p> <p>6. Trial — Instructions—Requests to Charge.</p> <p>There was no error in the refusal of requests to charge, where the court fully and carefully presented to the jury the issues and the governing law, embodying in his charge the substance of any request which ought to have been given.</p> <p>7. Same — New Trial — Damages.</p> <p>Evidence that plaintiff gave a valuable farm, worth at least $5,500, in exchange for bonds secured by property worth less than one-half the face.value of the bonds, that it was represented to plaintiff that the by-products of the company which issued the bonds would pay operating expenses, while in fact there were no by-products of value, and the company had never earned enough to pay operating expenses and interest on its bonded debt, held, sufficient to support a judgment for plaintiff.</p>

Assumpsit by Fred Van Orman and another against Elmer C. Puffer for breach of a contract of guaranty. Judgment for defendant. Held: that it was such a departure from the terms of the contract as amounted to a breach, even though no damage is shown to have resulted to the defendant. “It is claimed by plaintiffs that this slight deviation from the strict terms of the contract with the Fred Miller Brewing Company, which could injure no one but the brewing company,…

, presiding. Assumpsit by the Steel Furniture Company against George W. Pearce and another, copartners as Pearce Brothers, for goods sold and delivered. Judgment for plaintiff on a directed verdict. Defendants bring error.

Sill by Adeline Kendall against William Chase and others for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.

, presiding. Bill by Isaac Ogooshevitz against Martin Warijas and another for the specific performance of a land contract. From the decree rendered, plaintiff appeals.

<p>Error to Kent; Brown, J.</p> <p>Case by Lewis C. Fischer against the Michigan Railway Company for damages to plaintiffs automobile. Judgment for plaintiff. Defendant brings error.</p>

Merve Adams presented his claim for compensation against the W. E. Wood 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.

Assumpsit in justice’s court by Anna W. Engel against Walter F. Tate for breach of a land contract. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

C. H. Lintz was convicted of having purchased and concealed a stolen automobile, and sentenced to imprisonment for not less than one year or more than five years in the State reformatory at Ionia.

Case by Vinco Wudlick against the Chicago & Northwestern Railway Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error. The plaintiff in this case, a man 51 years of age, had been employed by the defendant railway company as a section hand for nine months prior to the time he received the injury which constitutes the basis. of this action. Prior to his employment by the defendant he had worked for about two years in the woods.

Case by William Rathbone against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error.