Volume 206 — Michigan Reports

Adam Smolkiewicz was convicted of taking indecent liberties with a female child, and sentenced to imprisonment for not less than 2 y% nor more than 5 years in the State prison at Jackson.

Grant Parmalee was convicted of taking indecent liberties with a female child, and sentenced to imprisonment for not less than 8 nor more than 10 years in the State prison at Jackson.

Assumpsit by the Merchants’ National Bank against the Federal State Bank for the amount of certain forged checks. From the judgment rendered, both parties bring error.

<p>Exceptions, before judgment from Bay; Houghton, J.</p> <p>Frank Woods was convicted of arson under section 15289, 3 Comp. Laws 1915.</p>

<p>Contracts — Partnership—Certificate—Fictitious Names.</p> <p>Where a contract to erect a building was signed by partners in their individual names, with no partnership name stated nor reference made to a partnership, said 'contract was not void, although no certificate of copartnership had been filed with the county clerk as required by Act No. 164. Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seg.).</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Clinton C. Gage presented his claim for compensation against the board of control of the Pontiac State Hospital for medical, surgical and hospital expenses incurred as a result of an accidental injury in defendant’s. employ. From an order awarding compensation, defendant brings certiorari.</p>

<p>Error to Cass; Des Voignes, J.</p> <p>Petition by Milton A. Henderson against Harley Henderson for the removal of defendant as his guardian under 3 Comp. Laws 1915, § 13950. The petition was denied in the probate court, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.</p>

<p>Exceptions before judgment from Van Burén; Des Voignes, J.</p> <p>Clarence J. McElheny was convicted of perjury.</p> <p>Respondent stands convicted of the crime of perjury. It appears that sometime in the year 1914 one Charles H. Showers as plaintiff brought .suit in assumpsit against the respondent, McElheny, claiming damages, according to his bill of particulars, in the sum of upwards of $14,000. One item of--the plaintiff’s demand under the amended bill of particulars was as follows:</p> <p>“To amount agreed to be paid by the defendant to the plaintiff at the conclusion and winding up of an arrangement which they had theretofore entered into by the terms of which plaintiff was to furnish the money against which the defendant was to put his time to carry on the business of constructing drains, $6,000 being the amount then agreed to be due the plaintiff and the amount of his interest in the dredges, machinery, contracts and assets of the business including moneys earned and moneys advanced and which sum the defendant agreed to pay and the plaintiff accept; and the defendant did take over the dredges, machinery, assets, contracts and funds but refused to pay said sum of money.”</p> <p>Respondent by his amended plea in that case denied the making of any agreement to share with the plaintiff in that case the profits arising out of the Coin and Blanchard drain and averred that if any such arrangement was made that the same was settled between the parties in December, 1910. Upon the trial of the issue in that case, respondent here, defendant there, swore:</p> <p>“I never had any talk and arrangement with him about carrying on the business. I was borrowing money of Showers. I didn’t have any arrangement. At the beginning of any of these jobs I didn’t have any further or different arrangement than what you have stated already to the jury. I had no agreement that I was to pay him half the profits or anything of that sort.”</p> <p>On the trial of the issue in the case at bar plaintiff, Showers, swore:</p> <p>“The talk was that I should furnish the money and he would the labor, and I would get one-half of the profits. I furnished the money for the drain, I did. I put in a little over $3,000.”</p> <p>Plaintiff’s wife was sworn in this case and testified:</p> <p>“He wanted Mr. Showers to put up the money and he would put in the labor, you know, and put up the money for the drain and I heard it different times. On our porch we were all there and he told Mr. Showers if he would put up the money why he thought, if he put up the money for the Coin and Blanchard drain that there would be between eleven and twelve thousand dollars profit, which would be divided between Mr. McElheny and Mr. Showers, and he also said that he would make more money for Mr. Showers than Mr. Showers ever made in his life if he would let him have the money to put in the drain.”</p> <p>Defendant, sworn in his own behalf in the former-case, testified:</p> <p>“There was nothing said whether he would have-any profits- from the jobs or not; no, sir.</p> <p>“Q. Was there anything said at any time as to the-fact that he should put up the money in these jobs and you would put your time up and the profits would be divided?</p> <p>“A. Never was anything of. that kind talked.</p> <p>“Q. You never said to him?</p> <p>“A. No.</p> <p>“Q. Never had such an idea in your head from any talks that you had with him, did you?</p> <p>“A. I never had a talk of that kind with him.</p> <p>“Q. You never contemplated that that arrangement was made?</p> <p>“A. No, sir.”</p> <p>A letter was introduced from respondent to plaintiff, Showers, dated November 21, 1910, in which the following appears:</p> <p>“Now, stop and reason; you put your money in and I put my work up against it. You must-figure that you have to be out* of the use of it. There was nothing to them other jobs any way, and how could I pay you the waterworks job? You put in 200 for 45 days and got 300. Here you put in around 2,500 and will get three for one for the use of it six months.”</p> <p>The foregoing constitutes practically all the testimony in the record bearing upon the question of respondent’s guilt of the crime of which he was convicted. The record is not clear as to how the civil action ended except that it resulted in a settlement of some kind and apparently in the entry of a judgment upon which later an execution was issued against respondent.</p> <p>During the cross-examination of the respondent by the prosecuting attorney the following occurred:</p> <p>“You came over to the jail, I think, after Mr. Beat-tie. Nobody called you that I saw. I was right there in the jail and you came yourself after Mr. Beattie. Beattie may have called you over. You told me if I would pay this judgment of $100 that you wouldn’t sue me in this case, or wouldn’t press me in this case; that you would let it go; that is what you told me. You did tell me that you and I had been friendly and that was the first of it. You never mentioned that if you issued a warrant for me that you wouldn’t dismiss the case, under any circumstances; you never mentioned that. You said pay the $1,600 judgment and you wouldn’t press the case. You showed me those letters there; yes, sir. There was three together. You said you had been a friend of mine and didn’t want to issue a warrant for me on perjury; that I would get railroaded for it; that is what you said. Every word that I have spoken here is the truth.</p> <p>“The Court: Now, Mr. McElheny, be careful. I am not saying you are not telling the truth, but what you are stating now creates a condition here that, if there was other parties that observed, this will put you perhaps in a bad position, therefore be very careful. I am not going to permit this matter, especially under your statement now in this case to go unnoticed. This court is going to demand of its. officers exact and impartial right. I want you to understand that if an officer of this court is accused of seeking to compound a felony, this court is going to call in outside assistance, if necessary, to make the investigation, and if it is found that you have told an untruth in relation to that, as to the officer, you would know what it would do.</p> <p>“A. Your honor—</p> <p>“The Court: I don’t care; I am cautioning you. I have said, I am not saying whether it is true or untrue. I am simply cautioning you, that you are now in a court of justice and in a court where you must be cautious in what you say, and that you may have á full and thorough understanding of it. That is all. Now proceed with your examination.”</p> <p>At the close of the case for the people respondent’s counsel made, a motion for a directed verdict upon the following grounds:</p> <p>“First: For the reason that the testimony introduced in this case and claimed to have been false does not constitute perjury for it was not material to the issue then being tried in the case of Showers v. Mc-Elheny.</p> <p>“Second: For the reason, to constitute perjury, it must be predicated upon the testimony of two witnesses or one witness with other credible testimony corroborating the witness of equal value to one witness, and for these reasons I ask for a directed verdict in this case.”</p> <p>This motion was denied and the case went to the jury under voluminous instructions. After being absent for a time the jury returned and the following occurred:</p> <p>“The Court: Gentlemen, I am speaking now to the foreman — you have a foreman? Mr. Foreman, I am informed by the sheriff that you desire to see the court relative to some portion of the charge in this case.</p> <p>“The Foreman: Yes, sir.</p> <p>“The Court: Now, before you ask any questions I will ask you some, a question or two. Is your difficulty one arising over a question of fact or a' question of law? Is it over the evidence or over the law?</p> <p>“The Foreman: It is over the testimony, I think— the evidence that would be, I suppose.</p> <p>“The Court: Well, Mr. Foreman, if it is a question relative to the construction of the testimony, I can’t help you. If it is a question relative to the law I might perhaps give you additional instructions, but of the facts in this case and resolving of some question on the evidence, I can’t help you; that is your province alone. You think it is on the question of evidence, Mr. Foreman?</p> <p>“The Foreman: I think so. I am sure it is. That seems to be the difficulty.</p> <p>“The Court: How do you stand? Wait a moment before you answer. What I mean — I don’t care to say — have you say whether for or against, but do you stand six to six?</p> <p>“The Foreman: No, sir.</p> <p>“The Court: Four to eight or three to nine? How do you stand?</p> <p>“The Foreman: Ten to two.</p> <p>“The Court: You may be seated, Mr. Foreman. Mr. Bullard, that is your idea of it, as stated by the foreman, it is over a question of fact, over the question of the evidence that you seem to differ, is it?</p> <p>“Mr. Bullard: Your honor, as I understand you—</p> <p>“The Court: (Interrupting.) No, I don’t care—</p> <p>“Mr. Bullard: Yes, sir.</p> <p>“The Court: I have got to be pretty careful about these mattérs, Mr. Juror — Mr. Bullard. I simply wanted to know whether your difficulty in arriving at a verdict is over the facts testified to in the case, over the evidence.</p> <p>“Mr. Bullard: Yes, sir.</p> <p>“The Court: It is that, is it?</p> <p>“Mr. Bullard: Yes, sir.</p> <p>“The Court: It is not relative as to what the law is in a given case at all?</p> <p>“Mr. Bullard: Yes, I think it. is in a way.</p> <p>“The Court: Well first you tell me you think it is a question of fact, just as the foreman does, Mr. Bullard, and then you think it is a question of law. You may be seated. Juror on the rear seat — I can’t think of your name — Mr. Cochrane, is it your idea that the difficulty arises here is over the evidence in the case, over a question of fact?</p> <p>“Mr. Cochrane: It seems to me a question of law, I should think.</p> <p>“The Court: You think it is a question of law that the difficulty is about?</p> <p>“Mr. Cochrane: It is over your instruction to the jury.</p> <p>“The Court: If you state it is a question of law— or let me hear you state what the proposition is to me that you need further instruction on.</p> <p>“Mr. Cochrane: I could tell — maybe I would give it wrong.</p> <p>“The Court: Well, you are conscientious about it. State it.</p> <p>“Mr. Cochrane: It is the question whether this settlement was made before this letter, and you stated if the settlement was made before—</p> <p>“The Court: (Interrupting.) After the letter.</p> <p>“Mr. Cochrane: After this letter was written why the plaintiff would be considered under contempt.</p> <p>“The Court: Would not be guilty of perjury.</p> <p>“Mr. Cochrane: Yes, that is the way I interpreted.</p> <p>“The Court: Well, now gentlemen, give me that paper. Therefore, your question or difficulty arises from this, as to whether or not the matter testified to by the respondent in this case was material to the issue; that seems to be your trouble, does it not?</p> <p>“Mr. Cochrane: Yes.”</p> <p>Then followed a repetition by the court of a large portion of his charge together with some added matter, in closing which the court said:</p> <p>“That is all I care to say to you, gentlemen. You may retire. You are so near a verdict, ten to two, that I feel I should send you back for further deliberation. You may now go with the officer.”</p> <p>Counsel excepted in the following language:</p> <p>“Mr. Barnard: At this time I desire to take an ex-' ception to the additional instructions, for it would tend to mislead the jury, and was not an additional instruction at the point asked by the juror. They said they wanted to know whether or not the settlement was made after or before — the claimed settlement was made, after or before the writing of the letters, and it is undisputed in this case that the settlement, if any was made, was made in December, and the last letter that was written in this case was November 21, 1910, therefore said instructions would tend to mislead the jury,”</p> <p>. — to which the court replied:</p> <p>“The Court: The facts remain very carefully on this record that the jurors — the jury were interrogated in relation as to what the, difficulty was. It is clear from the investigation of the juror that what was in his mind was whether or not — -and he so replied to a question that I asked him, whether or not the trouble with them was whether the testimony was material, and it is upon that question — and I simply gave to the jury the instructions that I had given to them upon the proposition heretofore.”</p> <p>The jury thereupon retired and returned with a verdict of guilty.</p>

Trespass quare clausum, fregit by Frank Standard and others against Edson Jewell, Walter D. Young and others. Judgment for defendants on a directed verdict. Plaintiffs bring error. Plaintiffs sued in an action of trespass, alleging that defendants had wrongfully entered upon their lands and cut and removed therefrom certain timber.

Romanie Naerteand others presented a claim for compensation against the Western Union Telegraph Company for the accidental death of claimants’ decedent in defendant’s employ. From an order awarding compensation, defendant brings certiorari. Certiorari to the industrial accident board. Joseph Naert, son of claimant, Romanie Naert, and half brother of claimant, Mary Naert, was killed on April 24, 1918.

<p>Cancellation of Instruments — Deeds—Proof.</p> <p>On a bill by brothers of the grantor to cancel certain deeds placing the title of certain hotel property in the grantor and his wife as tenants by the entireties, the decree of the court below dismissing the bill for failure of proof, is affirmed on appeal.</p>

<p>1. Evidence — Admissibility—Pleading—Variance.</p> <p>In an action for personal injuries, where the declaration alleged that said injuries caused a prolapsus of the uterus necessitating an abdominal operation, testimony that in the operation one of plaintiff’s ovaries was removed, was admissible, it not being open to the objection that the declaration alleged one injury while plaintiff was permitted to prove another.</p> <p>2. Negligence — Contributory Negligence— Evidence — Question for Jury.</p> <p>Testimony by plaintiff that, on'alighting from a street car, she looked before proceeding towards the curb, and saw no automobile approaching, and by plaintiff’s daughter-in-law that plaintiff was about two feet behind witness and that she saw the automobile just before it struck plaintiff, who was still in the safety zone, but not in time to warn her, being all of the testimony on this question, held, to present a question for the jury as to whether plaintiff was guilty of contributory negligence.</p> <p>3. Trial — Argument of Counsel — Harmless Error.</p> <p>Statements by plaintiff’s counsel, in his argument to the • jury, which should not have been made, but which were either stricken out or withdrawn after being criticized by the court, and which cannot be said to have influenced the verdict, held, not reversible error.</p> <p>4. Same.</p> <p>Reference by plaintiffs counsel, in his argument to the jury, in refuting a suggestion by defendant’s counsel that plaintiffs trouble in the uterus might have been caused by child-birth, to the fact, brought out by defendant on cross-examination, that plaintiff had a son who was a soldier in active service, explaining, on objection, that his purpose was to show the lapse of time between the birth of the child and the discovery that her uterus was affected, held, not reversible error.</p>

Roy Moshinski presented his claim for compensation against the Kay Salt Company for injuries received in defendant’s employ. From an order denying a petition to discontinue payments for partial disability, defendant and the Royal Indemnity Company, insurer, bring certiorari.

<p>Contracts — Sales—Waiver of Inspection — Acceptance.</p> <p>In an action to recover the purchase price of 13 bags of beans which plaintiff purchased from defendant and paid for in advance, evidence that the beans were shipped subject to inspection, that plaintiff surrendered to the railroad company the order bill of lading which had been indorsed to him, and, without inspecting the beans, removed them to his warehouse on June 28th, held, to warrant the finding of the court below that plaintiff by his conduct accepted the beans and was precluded from thereafter claiming a right to recover because inspection “some time in July,” disclosed that they were spoiled.</p>

<p>Appeal from Allegan; Cross, J.</p> <p>Bill by Leon J. Klein against David R. Miller and others to set aside a deed and assignment of a mortgage on the ground of fraud. From a decree for plaintiff, defendants appeal.</p> <p>The plaintiff herein is engaged in the business of loaning money in the city of Chicago, dealing principally in second mortgage securities. From October 20, 19l4, to July 31, 1915, he had loaned to defendant David R. Miller in various sums a total of $8,725.82, said sums being secured up to that time by a second mortgage of $20,000 on Chicago property as collateral. On March 16,1915, said defendant David R. Miller had purchased from two men named Petersen and Thurs-ton a farm in Allegan county known as “Sunny-Slope Farm.” This farm consisted of three parcels, 86% acres, 30 acres, and 40 acres, a total of 156% acres. At the time of the conveyance from Petersen and Thurs-ton to defendant David R. Miller, there rested upon said farm two mortgages — a first mortgage of $7,000 to one Fritz and a second mortgage for $3,000 to Henry Speer and Francis Downen. Defendant David R. Miller, being the owner of the legal title to said Sunny-Slope Farm On July 31, 1915, September 2, 1915, October 15, 1915, and October 25, 1915, conveyed to plaintiff, Klein, in partial payment of his indebtedness, 116% acres of said farm, being the 86%-acre parcel and the 30-acre parcel. Agreements between the parties were entered into by the terms of which defendant David R. Miller was to reduce the mortgages on said land, then amounting to $10,000, to the sum of $5,800.00. To secure his agreement to make this reduction, David R. Miller and his wife executed a mortgage to defendant in the sum of $3,600.00 on the 40 acres of said farm, title to which had been retained by them. Later and on April 15,1916, defendant David R. Miller purchased the second mortgage of $3,000 running to Henry Speer and Francis Downen and thereupon released plaintiff Klein’s 116% acres from the same, and plaintiff Klein indorsed the sum of $3,000 upon the $3,600 mortgage given by defendant Miller to secure the performance of his promise. On February 14, 1917, defendant Miller executed an agreement making the $600 balance of the $3,600 mortgage a lien upon the 40 acres prior to the $3,000 mortgage which he had purchased from Speer and Downen. In the meantime and on February 21, 1916, the first (Fritz) mortgage had been foreclosed and the equity of redemption would expire on February 21, 1917. On the 19th of February plaintiff and his attorney came to Michigan and attempted to secure from Fritz an agreement to convey to him the whole of said farm after the foreclosure proceedings became absolute upon the payment to him, Fritz, of the amount of the mortgage with interest and costs. In this attempt plaintiff was unsuccessful because upon his arrival in Grand Rapids he found, after consultation with Fritz, that Fritz had already executed such an agreement to Petersen and Thurston. It should be noted in passing that Petersen and Thurston had filed a bill in chancery against defendant Miller and plaintiff Klein, claiming that they had been induced to part with their title to the Sunny-Slope Farm through the fraud of defendant David R. Miller. Failing to secure the agreement from Fritz which they sought, some investigation was made by plaintiff Klein, as to the value of the 116% acres to which he had title and as to the value of the 40 acres, the part of the farm to which defendant David R. Miller had retained title, and it is his claim that he concluded that he -would not redeem from the Fritz mortgage unless he could secure title to the 40 acres owned by David R. Miller. It clearly appears from the record that the 40 acres so owned was worth about the same amount as the 116% acres owned by plaintiff ($5,500 to $6,000). Plaintiff sent his lawyer back to Chicago on the 20th of February and his said lawyer that evening interviewed Miller and his wife and presented to them a warranty deed of the 40 acres to plaintiff for execution, telling them, it is claimed, that plaintiff Klein would not redeem without said deed, in which event neither Klein nor the Millers would get the farm, but that it would go to Petersen and Thurston under their agreement with Fritz. The Millers refused to execute said deed that night but agreed to and did meet plaintiff Klein and his lawyer at the latter’s office on the morning of the 21st, the day during which redemption had to be made, otherwise the title in Fritz under the foreclosure would become absolute. On that morning the situation was as follows: Plaintiff owned 116% acres of the farm. Defendant David R. Miller and his wife, Louise, owned the other 40 acres. The Fritz mortgage, which with interest and costs amounted to about $7,300, was foreclosed, the same becoming absolute that day 'in default of redemption. Defendant David R. Miller had purchased the $3,000 mortgage and had made it subject to $600 of the $3,600 mortgage given to Klein as security for his promise to reduce incumbrances on the farm. So far as plaintiff knew that was the actual condition of the title on that morning. Upon leaving Michigan the 'night before he had left with his attorney a draft for $7,500 with instructions to redeem from the Fritz mortgage on the 21st only in case he received instructions so to do from the plaintiff, which it was understood would be given in the event only that plaintiff secured title to the 40 acres. There is a sharp dispute upon the record as to what occurred on the morning of the 21st in Chicago. ' It is asserted on behalf of the plaintiff that he advised the Millers that he would not redeem from the Fritz mortgage unless he had absolute title to their 40 acres, and that, confronted with the alternative of seeing the title to their 40 acres go to him or to Thurston and Petersen, who had by their bill charged them with fraud, they expressed their willingness to convey the title to him by a quitclaim deed. On the part of the Millers it is asserted that plaintiff advised them he could not redeem from the mortgage unless he had a legal title to the entire 156% acres and that if they would execute the quitclaim deed to him of the 40 acres he would make the redemption and immediately thereafter reconvey to them their 40 acres. They claim that they advised him that they had already deeded the 40 acres to Frank Rogers, a stepson of David R. Miller, and therefore could not properly deed to him, but were advised by his attorney that the execution of the quitclaim deed could not injure them as it conveyed no more title than they had. Whatever may be the actual facts as to what occurred on that morning, the Millers, David R. and Louise, his wife, did execute a quitclaim deed to the plaintiff of the 40 acres, upon receipt of which plaintiff caused redemption to be made from the Fritz foreclosure. Immediately on the execution of his deed David R. Miller took a train leaving Chicago about noon and arrived at Allegan some time that evening. He found the register of deeds and there placed upon record a deed from himself and wife to his wife’s son, defendant Frank Rogers, covering said 40 acres, said deed being dated and acknowledged February 15,1917. This deed being without consideration, a second deed dated February 26, 1917, was executed wherein the consideration was mentioned as “$1.00 and other valuable consideration.” The first deed remained of record, however, with consideration as' named in the second deed inserted. At the same time he placed on record an assignment of the $3,000 mortgage from himself to his brother, defendant John H. Miller, bearing date February 15, 1917.</p> <p>Plaintiff filed his bill of complaint setting up the facts from his standpoint and prayed for a cancellation of the deed from David R. Miller to defendant Frank Rogers and of the assignment of the mortgage from David R. Miller to his brother, John H. Miller. From a decree granting the relief prayed defendants have appealed.</p>

Claude H. Perkins presented his claim for compensation against the Jackson Cushion Spring Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, bring certiorari.

Thomas C. O’Brien presented his claim for compensation against Albert A. Albrecht Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari. On December 28, 1914, plaintiff, a carpenter, then in the employ of Bryant & Detwiler Company, received a severe accidental injury to both feet and both ankles.

Ella B. Kelly and another presented for probate an instrument as the last will and testament of Bridget Broffee, deceased. The will was allowed in the probate court, and Elsie M. Curtis, guardian of Irene L. Broffee, appealed to the circuit court. Judgment for proponents. Contestant brings error.

<p>Error, to Wayne; Collingwood, J., presiding.</p> <p>Assumpsit by Jack Gettleson against Amy Neal Lewis for commissions on the sale of real estate. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Justices’ Courts — Affidavits—Validity—Transcript of Judgment — Neglect to Date.</p> <p>Where the affidavit for a transcript of a justice’s judgment was properly signed and filed by affiant, the neglect of the justice to fin in the date was not a fatal defect.</p> <p>2. Homesteads — Exemption—Fraud—Creditors’ Bill.</p> <p>The decree of the court below setting aside a deed of a homestead of 40 acres from a father to his son as in fraud of creditors of the father, will be modified, on appeal, to exclude from the operation of the decree the homestead rights up to §1,500.</p>

On right of real estate broker who acts for both parties to commissions, see notes in 45 L. R. A. 44; 24 L. R. A. (N. S.) 659. Error to Wayne; Murphy, J. Assumpsit by W. Sherman Lister against Nicholas Sakwinski and another for commissions on the sale of real estate. Judgment for plaintiff. Defendants bring error.

Case-made from Wayne; Davis, J., presiding. Assumpsit by Peter Beland against the Cigar-makers’ International Union of America for the amount of a benefit certificate. Judgment for plaintiff. Defendant appeals.

Martin Levey was convicted of breaking and entering a store in the night time under 3 Comp. Laws 1915, § 15292, and sentenced to imprisonment for not less than 2 nor more than 15 years in the State prison at Jackson.

Assumpsit by John L. Dows, trustee, against Herman L. Schuh and others on a promissory note. Judgment for plaintiff. Defendants bring error. The Differential Clock Company is an Illinois corporation. It made application to the Michigan securities commission for permission to sell its stock in this State. On May 9, 1917, the commission heard its application, and, acting under the provisions of section 8 of Act No. 46, Pub. Acts 1915 (8 Comp.

, presiding. Petition by William E. Thompson against Patrick E. Hurson and others to vacate a portion of a decree. From an order granting the petition, defendants Hurson appeal. When this case was last before us we affirmed the decree of the court below. Thompson v. Hurson, 201 Mich. 685. A reference to the opinion will disclose the facts and they need not be here repeated.

, Frank J. Sokup presented a claim against the estate of Albert L. Davis, deceased, for services rendered. The claim was disallowed by the commissioners, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Bill by Frank WV Fletcher against Frank W. Fletcher and Allan M. Fletcher, executors of the will of George N. Fletcher, deceased, and Grace Fletcher King for an accounting. From the decree rendered, all parties appeal.

Assumpsit by Emma Carter against Bert Babcock for money had and received. Judgment for defendant on a directed verdict. Plaintiff brings error.

, presiding. Bill by the First National Bank of Bay City against John C. Vanden Brooks and others to quiet title to land. Defendant Vanden Brooks filed a cross-bill claiming title by adverse possession and prescription. From a decree for plaintiff, defendant Vanden Brooks appeals.

Jess Jackzo was cpnvicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Marquette.

Case by Boyd Preston, an infant, by his next friend, against John Austin for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Kalamazoo; Collingwood, J., presiding.</p> <p>Case by Bert J. Munn against the Michigan State Telephone Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. Case by Rose Krantz against the Detroit United Railway and the Michigan Builders’ Supply Company for personal injuries. Judgment for defendant railway, on a directed verdict, and non obstante veredicto the supply company. Plaintiff brings error.

Case by Richard F. Schilawske, administrator of the estate of August Schilawske, deceased, against the Detroit, Jackson & Chicago Railway Company and the Detroit United Railway for the negligent killing of plaintiff’s decedent. Judgment for defendant Detroit United Railway on a directed verdict, and non obstante veredicto the Detroit, Jackson & Chicago Railway Company. Plaintiff brings error.

Case by Archibald D. McIntyre against the township of Grant for personal injuries caused by a defective highway. Judgment for plaintiff. Defendant brings error.

Lewis Hawks was convicted of larceny, and sentenced to imprisonment for not less than 2^ nor more than 5 years in the State prison at Jackson.

Bill by Peter Keyzer and another against Ed. Peterson and others to enjoin a trespass upon land. Defendants Lynch filed a cross-bill claiming title. From a decree for defendants, plaintiffs appeal.

The Detroit Trust Company presented its final account as special administrator of the estate of Pauline Klein, deceased. The account was allowed in the probate court, and Adele L. Klein, executrix, appealed to the circuit court. Judgment for claimant. Contestant brings error.

James Sawtells presented his claim for compensation against the Ekenberg Company for the accidental death of his wife in defendant’s employ. From an order awarding compensation, defendant and the ¿Etna Life Insurance Company, insurer, bring certiorari.

Charles D. Crosby presented his claim for compensation against Thorp, Hawley & 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.

Bill by Dorothy C. Young against Charles L. Young for a divorce. Defendant filed a cross-bill asking for a divorce. From a decree for defendant, plaintiff appeals.

, presiding. Case by Leo Anderson, an infant, by his next friend, against the Manistique & Lake Superior Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>1. Trial — Instructions—Damages—Permanent Injury.</p> <p>In an action against a street railway company for personal injuries, it was error for the court to advise the jury that they might allow damages for permanent injury, in the absence of evidence that the injury was permanent.</p> <p>2. Same — Argument oe Counsel — Duty of Court — Curing Error.</p> <p>Argument by plaintiff’s counsel, in a personal injury case against a street railway company, that the testimony of defendant’s medical witnesses was colored, apparently made deliberately and withdrawn only in an effort to prevent a reversal of any judgment secured, deserved immediate and emphatic condemnation by the court.</p> <p>3. Same — Cubing Error.</p> <p>There is no good reason for trial counsel imposing upon the trial court the duty to cure, if possible, the calculated and the natural effect of improper argument of counsel to a jury.</p> <p>4. Appeal and Ebroe — Miscarriage of Justice — Instructions— Argument of Counsel.</p> <p>Where, in an action for personal injuries, a verdict was returned for plaintiff, and upon examination of the evidence by the appellate court it cannot be said that there was no miscarriage of justice by reason of erroneous charge of the court and intemperate argument of counsel, the judgment will be reversed.</p>

Cross-appeals from Ionia; Davis, J. Bill by Harley Hansbarger and others against Ada R. Hansbarger for the construction of a will. Defendant filed a cross-bill asking affirmative relief. From the decree rendered, all parties appeal.

Henry J. Rose presented his claim for compensation against the Desmond Charcoal & Chemical Company for injuries received in defendant’s employ: On petition of defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, to cease payments. From an order denying the petition, defendants bring' certiorari.

Mandamus by Clayton E. Deake, drain commissioner of Washtenaw county, and another to compel Eugene A. Stowe, probate judge of Livingston county, to vacate an order empaneling a jury in certain joint drain proceeding’s. From an order denying the writ, plaintiffs bring certiorari.

B.), J., presiding. Case by Linda M. Pershing, administratrix of the estate of Girard B. Pershing, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Clarence Fishell presented a claim against the estate of Miles A. Fishell, deceased, for services rendered. The claim was allowed by the commissioners, and Rozell Fishell appealed to thé circuit court. Judgment for claimant. Contestant brings error.

, presiding. Bill by Emma A. Prost against Edward G. Prost for a divorce. From an order granting plaintiff temporary alimony and a solicitor’s fee, defendant appeals: On motion to dismiss.

, presiding. Bill by Robert Oakman against Gertrude Esper and others for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.

, presiding. Proceedings by E. J. Doane, drain commissioner of Ingham county, against Frank Biggs and others for the establishment of a drain. The necessity of said drain was determined in the probate court, and defendants appealed to the circuit court by writ of certiorari. Judgment for plaintiff. Defendants bring error.

<p>Appeal and Error — Pleading — Amendments' — Hearing Upon Merits.</p> <p>Where the wife’s bill for divorce was amended at the hear-lug to ask for annulment of marriage claimed by defendant to have taken place after he had procured a decree of divorce from her while she was out of the State, an objection that the court, on the amended pleadings, could not grant a divorce and could not dispose of property matters is technical, and will be disregarded by this court, in view of the fact that the parties had a full hearing upon the merits, and this court has power to permit amendment of pleadings to conform with the testimony.</p>

<p>Exceptions before judgment from Charlevoix; Chester, J., presiding.</p> <p>Cora E. Biossat was convicted of arson.</p>

Assumpsit by Harry T. Lagden against the .Concordia Mutual Fire Insurance Company of Bay, Saginaw and Arenac counties on a policy of insurance. Judgment for defendant on a directed verdict. Plaintiff brings error.

Mandamus by Seward E. Whitman to compel Emmett E. Cochrane and Raymond H. Briggs, drain commissioners of Jackson and Calhoun counties, to award a contract to plaintiff for the construction of a drain. From an order denying the writ, plaintiff brings certiorari.

Mary Zoladtz and others presented a claim for compensation against the Detroit Auto Specialty Company for the accidental death of plaintiffs’ decedent 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 Michael Herp against George Murphy and another to restrain an action at law and for an accounting. From a decreé for plaintiff, defendant Murphy appeals.

John Miller presented his claim for compensation against S. Fair & Sons for accidental injury in defendant’s employ. From an order awarding compensation in an insufficient amount, plaintiff brings certiorari.

Case by Jacob Granader, an infant, by his next friend, against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error.

<p>■Constitutional Law — Petition for Submission of Amendment— Revival — Elections.</p> <p>A petition, filed with the secretary of State to submit to the electors'at the next general election a proposed constitutional amendment, and found insufficient for that purpose, because lacking signatures, performed its office and cannot be treated as a continuing petition, to be revived from time to time by the addition of other names.</p>

Bill by Alex. J. Groesbeck, attorney general, against the Michigan State Telephone Company and another to restrain a proposed increase in rates. From a decree for plaintiff, defendants appeal.

Bill by Alex. J. Groesbeck, attorney general, against the Michigan State Telephone Company and another to restrain a proposed increase in rates. From a decree for plaintiff, defendants appeal.

Bill by Alex. J. Groesbeck, attorney general, against the Michigan Independent Telephone & Traffic Association and another to restrain a proposed increase in rates. From a decree for plaintiff, defendants appeal.

), J., presiding. Bill by Amariah F. Freeman against Charles T. Mitchell and others, executors of the estate of William W. Mitchell, deceased, the Alamo Manufacturing Company and others to set aside the foreclosure of a mortgage against the defendant corporation. From a decree dismissing the bill, plaintiff appeals.

Quo warranto by Alex. J. .Groesbeck, attorney general, against Edwin C. Bolton to try the title to the office of justice of the peace in the city of Detroit.

, presiding. Mandamus by Louis H. Wolfe and another to compel the city election commission of the city of Detroit to place their names upon a primary ballot. From an order denying the writ, plaintiffs bring certiorari.

<p>Error to Wayne; Williams (W. B.), J., presiding.</p> <p>Assumpsit by Hattie Randall against the Travelers Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

Mary Chaudier presented her claim for compensation against the Steams & Culver Lumber Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Southern Surety Company, insurer, bring certiorari. Certiorari to the industrial accident board. Claimant’s decedent, a man 42 years of age, was employed by respondent Stearns & Culver Lumber Company in its shingle mill vdiere he worked during the week.

Wasye Rudski presented his claim for compensation against the Detroit Wire Spring Company for injuries received in defendant’s employ. From an order denying a petition to discontinue payments for partial disability, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.

Carl Schimmel presented his claim for compensation against the Detroit Pressed Steel Company for injuries received in defendant’s employ. From an order denying a petition to discontinue payments for total disability, defendant and the American Mutual Liability Insurance Company, insurer, bring certiorari.

Theodore Kirchner presented his claim for compensation against the Michigan Sugar Company for injuries received in defendant’s employ. From an order granting a petition of defendant and the State Accident Fund, insurer, for the modification of the award, plaintiff brings certiorari.

Dennis M. Marshall presented his claim against the Baker-Vawter Company and the London & Lancashire Indemnity Company, insurer, for injuries received in defendant’s employ. From an order denying compensation, plaintiff brings certiorari.

Rocco Gabriel presented his claim for compensation against the A. J. Smith Construction Company for the accidental death of his decedent in defendant’s employ. From an order awarding compensation, defendant, and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.

: Charles L. Cousineau presented his claim against Frank D. Black for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

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, defendant and the Prudential Casualty Company and the Chicago Bonding & Insurance Company, insurers, bring certiorari.

John Corkin presented his claim for compensation against the River Raisin Paper Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Michigan Workmen’s Compensation Mutual Insurance Company, insurer, bring certiorari.

Sarah Rowe and another presented their claim for compensation against the Leonard Warehouses, Incorporated, for the accidental death of plaintiffs’ decedent in defendant’s employ. From an order awarding compensation, defendant and the Travelers Insurance Company, insurer, bring certiorari.

Case by Adrian L. H. Ver Wys against Thomas H. Vander Mey for fraud and deceit. Judgment for plaintiff. Defendant brings error. This is an action on the case for fraud and deceit.

Case by Lillian Boyle against Dudley E. Waters and another, receivers of the Pere Marquette Railroad Company, and the Ann Arbor Railroad Company for personal injuries: On petition of Reuben Hatch and others, copartners as Hatch, McAllister & Raymond, to establish a lien for services. Judgment for petitioners. Plaintiff brings error.

Bill by Edward Prendergast' against Richard J. Prendergast and others for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.

, presiding. Bill by the city of Iron Mountain against the Iron Mountain Waterworks to enjoin an action at law and for an accounting. From the decree rendered, both parties appeal.

<p>1. Negligence — Proof—Circumstantial Evidence — Prima Facie Case.</p> <p>While the happening of an accident alone is not evidence of negligence, it may he established by circumstantial evidence; and where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, at least a prima facie case is made.</p> <p>2. Same — Street^ Railways — Personal Injuries.</p> <p>In an action against a street railway company for personal injuries to a pedestrian, caused by the trolley pole falling and striking him as he was passing the car, held, that the circumstances, surrounding the accident, unexplained, made a prima facie case for the jury.</p> <p>S. Appeal and Error — Directed Verdict.</p> <p>Upon a motion to direct a verdict, the evidence and legitimate inferences from the established facts most favorable to the other party must be accepted.</p> <p>4. Negligence — Prima Facie Case — Rebuttal — Inspection — Proof.</p> <p>To rebut the prima facie case made by plaintiff, it was necessary that defendant prove an inspection of the trolley pole in fact; evidence that a system of inspection was established being insufficient.</p>

, presiding. Bill by Edward Rieden against Loretta Rieden for a divorce. Defendant filed a cross-bill alleging extreme cruelty. From a decree for defendant, plaintiff appeals.

Case-made from Wayne; Webster (Arthur), J. Replevin in justice’s court by Owen & Company against Morris Keller for the possession of certain furniture. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff.

<p>Frauds, Statute of — Contracts—Breach—Description of Land.</p> <p>A contract for the sale of land described as “All that certain piece or parcel of land situate in the township of Byron, in the county of Kent and State of Michigan, described as follows, viz.: The east half of the southeast quarter and the southeast quarter of the northeast quarter, less one acre (E. % S. E. U, and S. E. % of N. E. Ü, less 1 A) of township 5 north of range 12 west, containing 119 acres of land, more or less, according to the government survey thereof,” was defective under the statute of frauds (3 Comp. Laws 1915, § 11977) for omitting the section, and an action for the breach thereof could not be maintained.</p>

Assumpsit by the Standard Drug Store against A. E. Wood & Company for rent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by Jacob R. Neuschafer and others against. David G. Rockwell and another to set aside a deed or to establish a lien. From the decree rendered, plaintiffs appeal.

, presiding. Case by Joseph O. Parkyn and others against Julius C. Ford for fraud in an exchange of real estate. Judgment for defendant on a directed verdict. Plaintiffs bring error.

Case by Wilson & Co., Inc., against Fred C. Franz, sheriff of Berrien county, for permitting a judgment debtor to escape jail limits. Judgment for plaintiff. Defendant brings error.

, presiding. Quo warranto by the- people of the State of Michigan, on the relation of William A. Harrington, against Wirt Barnhart to try the title to the office of prosecuting attorney of Otsego county. Judgment dismissing the writ. Plaintiff brings error.

, presiding. Bill by the Atlas Press Company against Gardner T. Eames and others to enjoin unfair trade competition, and for the specific performance of a contract. From a decree for plaintiff in part, it appeals.

Bill by Perry E. Hillier and another against Edbert M. Carpenter and another to reform a contract for an exchange of real estate on the ground of misrepresentation and fraud. From a decree for plaintiffs, defendants appeal.

<p>Error to Wayne; Codd, J.</p> <p>Assumpsit by William Zimmerman against Frank P. Miller for breach of a land contract. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Bill by Marl S. White against Frederick N. Wad-hams and others for an accounting. From an order denying a motion to dismiss, defendants appeal.

Bill by Christian Becker against James A. Welch to set aside a judgment and settlement on the ground of fraud. From an order granting a motion to dismiss the bill, plaintiff appeals.

. Assumpsit by Samuel Furstman and another against Joseph Frank and another on a plumbing and heating contract. • Judgment for defendants on a directed verdict. Plaintiffs bring error.

Bill by Frank E. Krieg against Samuel R. Kaufman and another to enjoin the flooding of plaintiff’s land. From a decree granting insufficient relief, plaintiff appeals.

Assumpsit by Re^L & Cheney Company against Richards-Wilson Company and others for breach of a contract of guaranty. Judgment for defendants on a directed verdict. Plaintiff brings error.

Assumpsit by the village of Portland against the Citizens Telephone Company for the amount of a judgment. Held: I think by the verdict of the jury and judgment of this court, and of the Supreme Court in the first case I have cited, and by the judgment of the court in the second case, that these parties were each of them guilty of negligence, active negligence. “I shall hold in this case, and so instruct you, that the negligence complained of…

Fred C. Rice was convicted, of obtaining money by false pretenses, and sentenced to imprisonment for not less than 4 nor more than 15 years in the State prison at Jackson.

Habeas corpus proceedings by Henry Joseph to obtain his release from custody under a writ of capias ad satisfaciendum by the American Express Company. From an order discharging defendant from custody, plaintiff brings certiorari. The K. & W. Rubber Company of Ashland, Ohio, shipped to Henry Joseph at Grayling, automobile tires of the value of $1,835.68.

Bill by the American Forging .& Socket Company against Harry'W. Wiley and others for the cancellation of certain shares of stock. From a decree for plaintiff, defendants appeal.

<p>1. Exemptions — Personal Property — Cows—Chattel Mortgages —Sales.</p> <p>Under 3 Comp. Laws 1915, § 12858, exempting to each householder two cows, and providing that “any chattel mortgage, bill of sale, or other lien created * * * shall be void, unless such mortgage, bill of sale, or lien shall be signed by the wife,” etc., the right of the husband to make an- absolute sale of such property is not interfered with; h'is right to convey as security only being removed.</p> <p>2. Replevin — Personal Property — Joint Ownership — Husband and Wipe — Sale Without Wife’s Consent.</p> <p>Where the title to a cow was jointly in the husband and wife, the husband could not sell the wife’s interest without her consent, and therefore replevin would not lie at the instance of the purchaser by bill of sale not signed by the wife, in the absence of evidence of her oral consent to the sale.</p> <p>3. Exemptions — Heifer—Cow—Question of Law.</p> <p>Where a heifer 14 months old had been bred at the time of the sale, and was the only cow owned by defendant, the court below should have instructed the jury that, as a matter of law, she was a cow within the meaning of the exemption statute.</p>

Mandamus by Ray L. Duell to compel Frank L. Covert, circuit judge of Oakland county, to set aside an order dismissing an action at law. This is an application for a mandamus to require the circuit judge to set aside an order dismissing a case under the provisions of section 12574, 3 Comp.

Bill by Jacob Newman against H. E. Adelsperger and another for the cancellation of certain notes, and to enjoin an action at law. From a decree dismissing the bill, plaintiff appeals.

, presiding. Bill by John E. Swan and others against the estate of Sara E. Stevens and another to set aside a deed. From a decree dismissing the bill, plaintiffs, appeal.

, presiding. Case by Ernest H. Powell against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.