Volume 207 — Michigan Reports

Daniel F. Manshaem filed a petition for a construction of the last will of John Manshaem, deceased. There was a construction of said will in favor of petitioner, and Florence Nichols and another, contestants, appealed to the circuit court. Judgment for contestants. Petitioner brings error. On September 6, 1910, John Manshaem made and published his last will and testament in the following language: “First.

<p>1. Commencement of Suit — Filing Declaration — Service—Statute — Legislative Intent.</p> <p>Under the judicature act (3 Comp. Laws 1915, § 12407) suits may be commenced by simply filing tbe declaration with, indorsed notice thereon; it being the evident intention of the legislature to change the former rule requiring service by omitting any reference whatever thereto,</p> <p>2. Insurance — Fire Insurance — Limitation of Actions — Service.</p> <p>Where a fire insurance policy limited the commencement of an action thereon to 12 months next after the fire, and the declaration with rule to plead attached was filed five days before the expiration of said time limit, but was not served until four days after its expiration, held, that the action was commenced within the time limited in the policy.</p>

Mandamus by Robert Oakman to compel Charles T, Wilkins, recorder of the city of Detroit, to strike a certain document from the files of the recorder’s court.

Ejectment by William H. Sylvester, administrator with the will annexed of the estate of James P. Button, deceased, against Earl P. Button and others. Judgment for plaintiff on a directed verdict. Defendant Button brings error.

Assumpsit by Louis F. Perkett against the Manistee & Northeastern Railroad Company for damages to certain fruit in transit. Judgment for plaintiff for less than amount claimed. Plaintiff brings error.

Mandamus by Vincent M. Brennan, assistant corporation counsel, to compel William F. Connolly, recorder of the city of Detroit, and another to take a complaint for an alleged violation of a city ordinance.

Ottawa; Cross,. J. Bill by Anna L. Mahder against Fay F. Soule for the discharge of a mortgage. From a decree for plaintiff, defendant appeals. Plaintiff by her bill of complaint in this cause sought to have a certain mortgage declared paid and discharged of record. Defendant has appealed from a decree of the circuit court granting the relief prayed for. The circumstances disclosed by the evidence are as follows.

Bill by the city of Detroit against the Triangle Land Company and another to enjoin the service of a writ of assistance. From a decree dismissing the bill, plaintiff appeals.

<p>Fraudulent Conveyances — Bill in Aid of Execution — Evidence —Sufficiency.</p> <p>On a bill in aid of execution to set aside the conveyance of certain lots by the debtor to his present wife, in pursuance of an ante-nuptial contract whereby she paid about one-half of the value of the lots at the time of the transfer, said conveyance being alleged to be in fraud of plaintiff’s rights as a creditor, testimony that the debt represented by the judgment is a part of the cost of constructing a house upon the premises in question, and that defendant did not intend to pay the debt, held, to justify the decree of the court below setting aside said conveyance, but subject to the claim and lien of the wife for the amount paid.</p>

, presiding. Bill by Oliver J. McCrilles against S. Floyd Sutton and others for the specific performance of a contract. From a decree for plaintiff, defendants appeal.

Mandamus by the Detroit Lumber Company to compel Kleber P. Rockwell, circuit judge of Oakland county, to vacate an order denying a motion to reinstate a cause of action.

, presiding. Bill by Edward P. Swan and others against Mark Mitshkun and another to enjoin the violation of certain building restrictions. From a decree for plaintiffs, defendants appeal.

<p>Error to Wayne; Mandell, J.</p> <p>Ejectment by Arthur W. Ford and others against Alfred Bailey. Judgment for plaintiffs. Defendant brings error.</p>

Bill by the Lexington State Bank against the Rose City Creamery Company and others for the foreclosure of a mortgage. From a decree dismissing the bill as to all but defendant company, plaintiff appeals. This is an appeal by the plaintiff from a decree of foreclosure of a certain mortgage given to plaintiff by the defendant Rose City Creamery Company.

Albert Vanden Berg presented for probate the last will of Maartje Vanden Bosch, deceased. On petition of Maggie Vos Vercade, as assignee and attorney of William Thiel, said will was certified to the circuit court. Proponent then filed a motion to dismiss the petition. Judgment for proponent. Contestant brings error.

<p>Appeal from Livingston; Collins, J.</p> <p>Bill by Hiram G. Beach against James Hayner and others to enjoin a trespass.. Fronra decree dismissing the bill, plaintiff appeals.</p>

, presiding. Habeas corpus proceedings by George C. Goldinger ' against Emma Gignac for the custody of an infant. From an order awarding the infant to defendant, plaintiff brings certiorari.

Mandamus by the common council of the city of Detroit to compel George Engel, controller, to prepare and execute certain bonds. From an order granting the writ, defendant brings certiorari.

Bill by William Chambers and another against Catherine Chambers, surviving executrix of the last will of Patrick Chambers, deceased, and another, for a construction of said will. From a decree for plaintiffs, defendants appeal.

Case by Orpha L. Chalker against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Pending the trial, plaintiff died, and the case was continued by her administrator. Judgment for defendant. Plaintiff brings error.

<p>1. Street Railways — Definition—Private Right of Way.</p> <p>A railway company operating its line on a private right of way cannot be said to be a street railway company in the ordinary meaning of that term.</p> <p>2. Same — Municipal Corporations — Reasonable Regulation — Police Power.</p> <p>Municipal regulations of the use of streets by a street railway are an exercise of the police powers of the city, and will be upheld if reasonable.</p> <p>3. Same — Ordinances.</p> <p>An ordinance of the city of Detroit requiring “all cars carrying passengers operated upon any line of street railroad” in said city to “come to a full stop immediately before crossing any street or avenue in said city whenever signaled to stop by any person desiring to take passage thereon or to alight therefrom,” held, not unreasonable.</p>

, presiding. Bill by Charles S. McDuffee against Daniel L. Col-well for the specific performance of a contract, and damages for failure to perform. From a decree for plaintiff, defendant appeals.

<p>Error to Kalamazoo; Weimer, J.</p> <p>Case by William Crawford against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Criminal Law — Opening Statement — Prior Oeeense — Evidence —Credibility oe Witness.</p> <p>In a prosecution for hunting and trapping for game without a hunter’s license, an assertion in the prosecutor’s opening statement that defendant had been guilty of the same offense five days previously, and the admission of testimony of said offense, held, to be error, which was not cured by the court’s instruction that said testimony was admitted solely as affecting defendant’s credibility, since the statement was made and the testimony admitted before it was known that defendant would be a witness</p>

Bill by Ari E. Woodruff and others against Joseph Venia and another to quiet title to land. From a decree dismissing the bill, plaintiffs appeal. The bill of complaint in this cause was filed to quiet title to lands lying between the property of the plaintiffs and the property of the defendants.

<p>1. Insurance — Hail Insurance — Growing Fruit — Definition.</p> <p>Fertilized growths on apple and pear trees, which in due course would have been apples and pears, held, to be within the terms of a hail insurance policy, indemnifying insured against damage to “growing grain, fruit, and other farm products,” in the absence of a rule in said policy defining growing fruit.</p> <p>2. Same — Damages—Evidence—Sufficiency.</p> <p>Where, in such action, it cannot be said that there was no competent evidence before the jury of the damages sustained, and no complaint is made that the judge’s charge to the jury was erroneous, the judgment in favor of plaintiff will be affirmed.</p>

<p>1. Wills — Construction—Life Estate.</p> <p>Where a husband’s will gave to his wife “$25,000, to he used and enjoyed hy her during her life, and at her death to he equally divided between” his nephew and niece, held, to give the widow the use of the money for her life, a life estate, and no more.</p> <p>2. Same.</p> <p>That testator in one clause of his will gave said nephew and niece $5,000 to he paid presently, in no way modified the plain, unambiguous language of another clause giving them $25,000, to he paid upon the death of the wife.</p> <p>3. Same — Termination of Life Estate — Disposition of Fund.</p> <p>Where the widow took under the statute and rejected the life estate in the $25,000 given her in the will, thereby diminishing the fund of the residuary legatee, held, that said sum should be placed in trust and the income therefrom paid to the residuary legatee during the life of the widow and at her death the corpus he paid to the remaindermen.</p> <p>4. Same — Acceleration—Applicability.</p> <p>While the doctrine of acceleration of the time of taking effect of the remainder upon the termination of the life estate hy act other than the death of the life tenant must be recognized and applied in proper eases, such doctrine should not be applied where, by the election of the widow to take under the statute, a portion only of the legacies are diminished in order to make up the amount required by the statute to satisfy the widow’s statutory rights.</p>

<p>1. Warranty — Breach — Representations — Opinions — Statements op Fact — Intention—Question por Jury.</p> <p>In an action by tbe purchaser of bonds against tbe seller, a brokerage corporation, for breach of warranty, where plaintiff notified defendant that he was ignorant of the value of the bonds and that he relied upon its representations, and demanded a statement in writing from defendant direct that the bonds were good, in response to which defendant’s secretary wrote that “We Know that the bonds are absolutely good,” held, to be open to thei inference that more than a mere expression of opinion was intended and the question as to whether an expression of opinion or statement of fact was intended was properly submitted to the jury.</p> <p>2. Same — Agent’s Authority — Evidence—Sufficiency.</p> <p>Testimony as to the secretary’s authority to make the warranty, held, sufficient to submit to the jury.</p> <p>3. Same — Agent’s Authority — Notice—Ratification.</p> <p>Where plaintiff refused to buy without a statement in writing from defendant that the bonds were good, and the next day he received such statement signed by defendant by its secretary, and thereupon defendant received plaintiff's money and retained it after being advised of the circumstances under which it was received, defendant, as a matter of law, ratified the act of its secretary, if he acted without authority.</p> <p>4. Same — Breach of Warranty — Measure of Damages — Instructions.</p> <p>Where there was some testimony that the bonds were worthless at the time they were sold in 1909, an instruction by the court that if the jury found that they were worthless, the measure of damages would be the amount plaintiff paid for them, with interest to the date of the trial, was not erroneous, where they were also instructed that if they found there was some intrinsic value in the bonds in 1909 they should ascertain that value, and the difference between that sum and what plaintiff paid for them, plus the interest, would be the proper measure of damages.</p> <p>5. Same — Conflicting Testimony — Question for Jury.</p> <p>Where certain letters- written by plaintiff, introduced in evidence, were in conflict with his testimony on the trial that he relied on the representations of defendant, it was the province of the jury to determine which, if either, of these statements was true.</p> <p>6. Trial — Evidence—After Events — Harmless Error.</p> <p>The admission of evidence of after events, although irrelevant, held, not prejudicial.</p>

<p>Appeal from Genesee; Brennan, J.</p> <p>Bill by the city of Flint against the Grand. Trunk Western Railway Company to enjoin the laying of certain tracks. Defendant filed a cross-bill, claiming affirmative relief. From the decree rendered, defendant appeals.</p>

Assumpsit by Elizabeth Earnhardt and another against Adolph Hamel and Adolph Kann, copartners as Hamel, Kann & Company, for fraud and deceit in the exchange of real- property. Judgment for plaintiffs. Defendants bring error.

Bill by Merritt Chandler and another against Thad B. Preston and another for the removal of defendant Preston as trustee, for the termination of the trust, and for an accounting. Held: in the form of land contracts and bonds taken in connection with the above sales, quick assets aggregating about $48,000.

<p>Error to Wayne; Shepherd, J., presiding.</p> <p>Assumpsit by the Interstate Construction Company, Limited, against the United States Fidelity & Guaranty Company and others on a bond. Judgment for defendants. Plaintiff brings error.</p> <p>Plaintiff as general contractor had entered into a contract with the United States for the erection of a post office building at Franklin, La. On April 22, 1913, plaintiff entered into a sub-contract with defendants Montagne, by .the terms of which said defendants agreed to furnish:</p> <p>“All of the labor and do and perform all the work required in constructing and putting in place the mortar and concrete, stone work, brick work, structural terra cotta, metal work, roofing and sheet metal work, plastering, interior marble and terazzo, wood work, hardware, painting and varnishing, glazing, plumbing marble work and terazzo floors for toilet rooms, under the head of plumbing, and approaches. All the material to be furnished by the party of the first part delivered on the site, party of the first part will also permit the second party to use any tools and apparatus which are owned by the first party and on the premises. * * *</p> <p>“This contract is to include all labor to complete this building and approach walk except, pile driving and main building excavation labor and labor in connection with mechanical equipment, but includes marble setting, terazzo floor labor and carpenter labor in toilet rooms in connection with mechanical equipment.”</p> <p>Section 2 of the contract follows:</p> <p>“And the said party of the second part further covenants and agrees that the labor and material and the work herein agreed to be performed shall be commenced promptly upon notice from first party to said second party, that the said building and premises are ready for the installation of the above mentioned labor, materials and work, and that the same shall be carried on in the order and manner as provided in said specifications and with such dispatch and in such manner as to not cause undue delay to other work on said building, and in such a manner as shall insure the completion of said work in all its parts by November 1, 1913. And it is expressly covenanted and agreed by and between the parties hereto that time is and shall be considered as of the essence of the contract on the part of the second party, and in the event that the second party shall fail in the due performance of the entire work to be performed under this contract, by and at the time herein mentioned or referred to, the said second party shall pay unto the first party as and for liquidated damages, and not as a penalty, the sum of forty ($40.00) dollars for each and every day the said second party shall' be in default, which said sum the said first party shall have the right to deduct from any moneys in its hands otherwise due or to become due, to said second party, or to 'sue for and recover compensation or damages for the nonperformance of this contract at the time or times herein stipulated or provided for. Provided, however, that for any delay to second party which shall be caused by the first party’s action or order, or by the order of the said supervising architect, the time fixed for the final completion of the work herein provided shall be extended for as many days as shall equal the delay caused to second party by any of the reasons above mentioned.”</p> <p>On the day of the date of the contract the following telegram was sent by plaintiff to defendants Montagne Brothers:</p> <p>(Dated April 22, 1913.)</p> <p>“Piles completed, if you include putting in foundations no excavating will send contracts for sixty-five hundred to our representative at Franklin and you can sign up there, you to start work about May first.</p> <p>“Answer.”</p> <p>To which upon the same day Montagne Brothers replied as follows:</p> <p>“We accept your offer for Sixty Five Hundred Dollars. Send contracts.</p> <p>“Montagne Bros.”</p> <p>Prior to the execution of the contract one of the defendants, R. Montagne, inspected the site, saw the condition of the work and testified that he was informed by plaintiff’s superintendent that the piling was completed and that he could probably go to work in two or three days. Plaintiff’s contract with the government, however, required that certain tests be made upon the piling before the superstructure was started. Those tests were made after some delay and resulted in an order from the government requiring plaintiff to drive some further piles. These piles were driven by plaintiff as required but the piling was not finally accepted by the government until July 10th. On July 17th plaintiff sent defendants Montagne the following communication:</p> <p>“The above named building is now in such shape so you can make arrangements to start your work, and would suggest that you get your batter boards located and arrangements made for your tools and men so you can start pouring concrete about Monday, July 21st, and as your contract calls for all labor to be performed by you with the exceptions of the piling and excavation, it is part of your contract to screen the cement now in the shed before using it, also the removing of the rust from the reinforcing rods all to be done as directed by Mr. Clark, the government inspector.</p> <p>“The writer will send you a complete list of all the materials and tools now on the site to be taken from the company’s books and invoices upon his return to Saginaw, Mich., which you can check up as soon as it reaches you and give us a receipt for same; in the meantime such cement, sand, and gravel can be used to allow you to proceed with the work without delay. All new materials to be delivered to the site you are to be responsible for, and give us a receipt for same upon its arrival; you are also to be responsible [for] all tools and material now on the site as soon as they are checked up and delivered to you. We are,”</p> <p>Defendants Montagne in response sent the following notice to plaintiff:</p> <p>“This is to inform you that on account of the great delay of time caused by your not being ready to turn the building work over to us, after your telegram of April 22d, 1913, confirmed by your letter of same date stating that work was to be started by us about May 1st, 1913, it will be absolutely impossible for us to complete the work in the time specified in the contract and unless certain changes are made in the contract, we will be unable to begin the work.</p> <p>“There are certain stipulations in' the contract which,' not being lived up to by you, certainly annuls same, and we would suggest that your representative call on us at once, and see what can be done with reference to getting the matter straightened out.”</p> <p>This was followed on July 19th with a formal cancellation of the contract as follows:</p> <p>“Please take notice that the contract entered into between you and Montagne Brothers, on April 22, 1913, has expired and is at an end. The contract terminated when you failed to live up to its specifications and to the agreements made by you. As soon as we check up and see what damages we have been put to, claim will be made.”</p> <p>To which plaintiff replied on the same day:</p> <p>“In this connection will say that we have lived up to our part of the contract to the letter, and expect you to do the same, and unless you proceed in accordance therewith, in accordance with the terms, conditions of contract and the plans and specifications, it is our intention to give you the five days’ notice in accordance with contract, and if you do not proceed it is our intention to notify your bonding company, and will make a demand upon them to complete your contract.</p> <p>“Hoping that you will not make it necessary to proceed against your bonding company, as outlined above, we are,”</p> <p>No accommodation between the parties having been reached, plaintiff was compelled under its contract with the government to perform through other channels the labor which the defendants Montagne had by their contract agreed to perform. Suit was brought against Montagne Brothers and the defendant United States Fidelity & Guaranty Company, as bondsmen, for damages arising out of the breach of contract. No service was had on defendants Montagne. The defendant Guaranty Co. filed a plea of the general issue giving notice of the following defenses thereunder:</p> <p>“(a) The said Interstate Construction Company did notify Montagne Brothers to begin work in accordance with said contract on or about May 1st, 1913, and in accordance with the said contract and the said notice, Montagne Brothers did prepare for the due execution on their part of said contract, did in turn enter into contracts with various parties to enable them to fulfill the said contract, but up to and including the date when they elected not to be bound further by said contract, no opportunity on the part of the said plaintiff had been given to said Montagne Brothers to proceed with the work, but on the contrary through the fault of the said plaintiff they were prevented from fulfilling the contract sued upon.</p> <p>“(6) The said plaintiff did not provide proper materials upon which work was to be done, as provided in said contract.</p> <p>“(e) That through the unreasonable delay on the part of said plaintiff in fulfilling its part of the contract and in enabling said Montagne Brothers to proceed with their part of the contract, causing an unreasonable delay in the execution of said contract through no fault of the said Montagne Brothers, and that on account of said unreasonable delay said Montagne Brothers had a right to rescind the said con-< tract sued upon.</p> <p>“(d) That said Montagne Brothers, subsequent to April 22d, 1913, did repeatedly request of the said plaintiff an opportunity to fulfill their part of said contract; that they were always ready, able and willing to fulfill their part of said contract, but through the neglect and unreasonable delay of this plaintiff, were prevented from fulfilling their part of the contract, and had the right thereby to rescind the said contract.</p> <p>“(e) That the said plaintiff, because of its failure to furnish materials, to prepare the excavations and piling necessary to be done before the said Montagne Bros, could proceed duly with their work, made it impossible for the said Montagne Brothers to perform their said contract.</p> <p>“ (/) That because of the unreasonable delay on the part of the plaintiff in fulfilling its part of said contract and because of the unreasonable delay which the said plaintiff caused the said Montagne Brothers in the fulfillment of their contract, the said Montagne Brothers did have a right to rescind the said contract and consider the same at an end.</p> <p>“(g) That a material provision of said contract sued upon subjected the said Montagne Brothers to a penalty in the sum of Forty Dollars ($40.00) per day from and after November 1st, 1913, provided the obligations on the part of the said Montagne Brothers were not fulfilled upon that date, and yet without any waiver of said provision and being a material part of said contract, the plaintiff further, by its unreasonable delay in preventing the said Montagne Brothers from fulfilling their part of said contract, did justify the said Montagne Brothers in rescinding the contract and treating it as at an end, and were thereby relieved from any obligations imposed by said contract.</p> <p>“(h) That the said contract did specify and provide a time certain for the completion of the obligations of said Montagne Brothers, and yet through the unreasonable delay 'on the part of the plaintiffs did make it impossible for the said Montagne Brothers to fulfill their obligations within the time specified.</p> <p>“(i) That the said contract sued upon presupposed an opportunity for due and diligent execution on the part of said Montagne Brothers of their obligations under said contract, and yet, through the fault of the said plaintiff and because of the delay due entirely to the fault of the said plaintiff, the said right of Montagne Brothers was deprived them wrongfully by said plaintiff, thereby fully justifying them in rescinding the said contract and treating it as at an end.”</p> <p>The case was tried at considerable length and submitted to the jury under an exhaustive charge in which we find the following:</p> <p>“Under the well settled principles of law applicable to contracts of this character, I charge you that when the defendants, Montagne Brothers, contracted to do and perform the labor referred to in said contract, under the terms and conditions therein set forth, they were bound to make it good, regardless of the cost or difficulty to them in so doing, unless you should find that they were excused from performance by reason of unreasonable and unjustifiable delays on the part of the plaintiffs in the case, which amounted to an actual breach of the contract on their part, and in this class of case§ I charge you that the mere delay complained of is not in itself sufficient to justify the defendants, Montagne Brothers, in refusing to 'perform the contract, and before they can claim the right to be set free they must satisfy you as I have already told you in effect by a fair preponderance of evidence, that the action of the plaintiffs, independent, of other contributing causes, occasioned such an unreasonable delay as to impose a material and unnecessary burden upon the Montagne Brothers.”</p> <p>The jury returned a verdict in favor of the defendants. A motion for the entry of judgment in favor of the plaintiff notwithstanding the verdict was later denied and judgment rendered for defendants upon the verdict.</p>

<p>Appeal from Tuscola; Beach, J.</p> <p>Bill by George T. Bennett against Caroline Fleming and others to correct a description in a deed. Defendants filed cross-bills to have said deed set aside. From a decree for defendants, plaintiff appeals.</p>

<p>Municipal Corporations — Ypsilanti Charter — Common Council —Duties—Taxation—Paving.</p> <p>Where the charter of the city of Ypsilanti (section 323) imposed upon the common council the duty to assess and levy taxes to raise funds for paving and other municipal purposes, the council could not evade its responsibility by calling a special election of the voters in a ward to determine the amount of a proposed pavement to be levied against the property owners and the amount to be borne by the ward as a whole.</p>

Bill by Walter >N. Kelley and another against William W. Parr and others for an accounting. From the decree rendered, plaintiffs appeal.

Frank Addison presented his claim for compensation against the W. E. Wood Company for injuries received in defendant’s employ. From an order denying a petition to discontinue payments under an award, defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, bring certiorari.

Assumpsit by the Central Savings Bank & Trust Company against Isadore J. Stotter and others on certain promissory notes. Judgment for plaintiff on a directed verdict. Defendants bring error.

Bill by Peter Whitman against John D. Whitman and another to compel a reconveyance of certain property, and for an accounting. From a decree for plaintiff, defendants appeal.

, presiding. Petition by Leon W. Harrington and Harold W. Bryant, amici curise, for the disbarment of Corie C. Coburn and Roman F. Glocheski. From an order granting the petition, defendants bring certiorari.

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

<p>Appeal from Ottawa; Cross, J.</p> <p>Bill by Munroe, Boyce & Company, a copartnership,, against Michael Ward for an accounting. From the decree entered, defendant appeals.</p> <p>The learned trial judge who heard this case filed an opinion at the close of the proofs, which clearly and concisely states facts sufficient for an understanding of the issues which are before us for consideration. It is as follows:</p> <p>“The bill of complaint was filed in this cause for a partnership accounting. Issue was joined and proofs taken by depositions, before a commissioner, and in-open court.</p> <p>“The plaintiff, a copartnership, composed of Stephen L. Munroe, Sherman H. Boyce and Nelson R. Hewlett, of Grand Haven, Michigan, were engaged in the business of manufacturing and selling lumber and timber. Mr. Boyce died in 1904, and Nelson R. Howlett was made executor of his estate. Upon the death of Mr. Boyce, the partnership affairs were not closed, but were continued under the'firm name; Mr. Howlett, as executor, represented the estate of Mr. Boyce.</p> <p>“The defendant, Michael Ward, of Harvard, Michigan, and his brother, James Ward, Sr., under the firm name of Ward Bros., had been engaged for many years in buying and selling timber and logging the same. James Ward, Sr., died and Michael Ward acquired the • interests of James Ward, Sr., and continued in the same business.</p> <p>“Munroe, Boyce & Co. and Michael Ward entered into an oral partnership agreement, and bought timber land and cut the timber into lumber and sold the same. When the timber from a certain tract was sold, the parties would have a settlement, and each party would share one-half of the profit or loss.</p> <p>“In November, 1884, the parties purchased a large tract of timber land in the State of Minnesota, and in 1910 they started logging operations upon this tract.</p> <p>“On the 19th day of September, 1910, the plaintiff and the defendant entered into a written contract with Wick O’Connell & Co. to cut and haul the timber on certain parts of the Minnesota lands, for the sum of $6.75 per thousand feet.</p> <p>“After operating for a time under this contract it was discovered that the scale of the logs made in the woods was much larger than the scale made at the sawmill, and in the fall of 1911, a new contract was entered into between the parties. By the terms of this contract the final settlement with Wick O’Connell & Co. was to be made after the scale of the lumber at the sawmill.</p> <p>“Munroe, Boyce & Co. and Michael Ward had no definite agreement as to just what authority James Ward, a son of the defendant, had in reference to the logging operations, but in a general way it was left to him to look after the interests of both parties in the timber transactions in Minnesota.</p> <p>“On December 1, 1911, the plaintiff employed James B. Alverson to go into the woods in Minnesota, and look after its interests.</p> <p>“The books of account were kept by James Ward and James B. Alverson. A reference to the books so kept will show that neither party was an experienced bookkeeper. The checks to pay the accounts were signed by James Ward. Reports were made by James B. Alverson to the plaintiff.</p> <p>“In the fall of 1913, Wick O’Connell & Company were financially unable to go ahead with their contract, so a new arrangement was made with them by James Ward to guarantee the payment of the bills for the logging job. Thereafter the bills of Wick O’Connell & Co. on the logging job were paid by the plaintiff and the defendant, and charged to the account of Wick O’Connell & Co. Checks for the same were given by James Ward, and the items were entered in the books of account by James B. Alverson or by James Ward.</p> <p>“The result of the operations under this arrangement was an increase in the cost of the logging operations over and above the original contract price of $6.75 per thousand feet.</p> <p>“A dispute arose with Wick O’Connell & Co. as to the construction of the terms of the written contract and a lawsuit resulted. A judgment was rendered against Munroe, Boyce & Co. and Michael Ward, and upon appeal the same was affirmed by the supreme court of Minnesota. To satisfy this judgment a levy was made upon the lumber belonging to the parties.</p> <p>“Disputes arose between Munroe, Boyce & Co. and Michael Ward, and the bill of complaint in this case was filed, and an injunction was issued restricting the defendant from disposing of any of the assets of the partnership, including the lumber on hand.</p> <p>“After the bill of complaint was filed, and upon application of the plaintiff, the defendant was ordered to file all the books and papers pertaining to the business of the parties, with the county clerk, so that either party could examine the same.</p> <p>“The plaintiff employed the Michigan Trust Company to make an audit of the books. An audit was made by H. W. Fick, an expert accountant, of the books, etc., of the timber transportations for the years 1911 to January, 1915, and the same was offered in this case, being 'Exhibit N.’</p> <p>“The report of the auditor was divided into two schedules, marked ‘A’ and ‘B.’ Schedule ‘A’ includes all the items of disbursements which were substantiated by proper invoices, receipts or other written evidence of payment and debit. Schedule 'B’ shows the same accounts as are included in Schedule 'A’ and also includes a list of items which were not substantiated to the satisfaction of the auditor, by proper invoices, receipts or other written evidences of debt and payment.</p> <p>“Testimony was taken in regard to all of the items and after a careful consideration of the same, it appears that Schedule ‘B’ is a correct statement of the amount due the plaintiff, with the following exceptions; the proof is insufficient to substantiate the following items:</p> <p>July 31, 1914, cash telegrams.................. $3.77</p> <p>August 22d, 1914, Dan Campbell................ 21.00</p> <p>Checks:</p> <p>April 6th, 1911, Postal Telegraph Co........... $2.60</p> <p>July 9th, 1912, S. A. Story...................... 7.95</p> <p>September 3d, 1913, A. D. Ellefson.............. 10.00</p> <p>September 23d, 1913, Thos. Kearney............ 50.00</p> <p>December 1st, 1913, James Moonan.............. 207.55</p> <p>August 29th, 1913, Thos. Kearney..............114.10</p> <p>January 5th, 1915, S. A. Story.................. 1.34</p> <p>“These items amount to the sum of $418.31 and ,one-half of this sum should be added to the amount due plaintiff as shown by Schedule ‘B,’ viz.: $9,364.11, making a total of $9,573.26.</p> <p>“The testimony shows that the following items listed on page 71, of the report of the auditor, and not listed in Schedule ‘B,’ should be allowed, viz.:</p> <p>Aug. 12th, 1914, Marshall Wells Hdwe. Co..... $28.67</p> <p>Locke No. 279, for labor........................ 78.85</p> <p>Williams No. 280, for labor................... 76.95</p> <p>April 3d, 1914, Parker & Ayres, J. 16..........192.00</p> <p>October 7th, 1914, Parker & Ayres, J. 68........ 62.00</p> <p>January 15th, 1914, Ledger B. Folio 176, C. 125 check 1876 .................................. 6.50</p> <p>February 22d, 1914, E. A. Kemp & Son, insurance 302.40</p> <p>“These items amount to the sum of $747.37, and one-half of this amount should be charged to the plaintiff and deducted from the sum of $9,573.26, which leaves a balance of $9,199.58, due plaintiff from defendant, together with interest at five per- cent, from March 30th, 1915, to the date of payment.</p> <p>“Plaintiff had notice of the change of the contract with Wick O’Connell & Co. before all the payments had been made thereon, and cannot now charge the defendant for the amount of the overpayment of the original contract price.</p> <p>“After the bill of complaint was filed in this cause, the judgment obtained by Wick O’Connell & Co. was affirmed by the supreme court of the State of Minnesota, and the lumber levied upon was sold under an execution to satisfy that judgment. Prior to the sale, Munroe, Boyce & Co. endeavored to have Michael Ward raise'his share of the money to pay the judgment, but the defendant failed to raise the money, and to protect the interests of the parties, one of the partners, Stephen L. Munroe, made an arrangement to attend the sale to see that the lumber belonging to the partnership was sold for at least enough to pay the judgment and costs. Mr. Munroe personally bid at the sale the amount necessary to satisfy the execution and the costs of sale. The amount bid was paid by Mr. Munroe, and the lumber was then turned over to him. Afterwards, Mr. Munroe sold this lumber for the sum of $53,234.79, its fair market value at that time.</p> <p>“The defendant contends that Mr. Munroe should account to the defendant for one-half of the profits on the sale of this lumber.</p> <p>“At the time of the purchase and sale of the lumber, the partnership between the parties had not been dissolved, and Mr. Munroe, a partner, could not make a purchase of the property of the firm at an execution sale, against the interests of the other partner.</p> <p>“Testimony was taken as to the amount paid for the lumber, the amount for which it was sold and the expenses thereof, and although Mr. Munroe made the purchase and re-sale in good faith, yet under the law he will be required to account to the defendant for one-half of the amount received by him on the sale of the lumber, less the amount paid to satisfy the execution and the expenses of the sale.</p> <p>“The testimony shows that Mr. Munroe incurred the following expenses in looking after the lumber after the same had been attached, until same was finally sold, viz.:</p> <p>November 2, 1914, expense to Minnesota........ 870.00</p> <p>November 2, 1914, services, Lillie & Lillie......132.85</p> <p>August 15, 1915, expenses to Minnesota.......... 75.00</p> <p>August 15, 1915, services, Lillie & Lillie........125.00</p> <p>August 16, 1915, expenses, S. L. Munroe........ 42.30</p> <p>September 9, 1915, telegrams................... 1.90</p> <p>September 10, 1915, making lists of lumber...... 2.00</p> <p>September 12, 1915, expenses, S. L. Munroe____ 58.54</p> <p>September 15, 1915, expenses, S. L. Munroe, Chicago ..................................... 8.50</p> <p>September 15, 1915, expenses, S. L. Munroe, Winton ...................................... 54.00 .</p> <p>September 15, 1915, services, Lillie & Lillie......$176.43</p> <p>September 27, 1915, Mr. Sias, services.......... 15.00</p> <p>September 29, 1915, insurance.................. 24.93</p> <p>October 1, 1915, interest,....................... 209.74</p> <p>October 1, 1915, revenue stamps................ 6.80</p> <p>October 6, 1915, John H. Moore, services......187.13</p> <p>“These items amount to the sum of $1,190.12, and added to the sum of $33,980.83, the amount paid to satisfy the judgment, make his total expenditures the sum of $35,170.95, and deducting this sum from the amount received for the lumber, viz.: $53,234.79, leaves a balance of $18,063.84. One-half of this sum, or $9,031.92, Mr. Munroe will be required to pay to the defendant, together with interest at five per cent, from September 29, 1915, to the time of payment of same.</p> <p>“The tug, boom chains and any other personal property on hand should be divided equally between the parties.</p> <p>“During the trial of this case it appeared that defendant was mentally incompetent to transact business and a guardian ad litem was appointed to represent him. Before the conclusion of the case the defendant died and his administrator appeared and defended the case.</p> <p>“The partnership being dissolved by the death of the defendant, the partnership affairs should be wound up and closed. The plaintiff will recover costs.</p> <p>“The amount of the witness fees of the expert accountant is not determined, for the reason no proof was submitted as to the cost of the same. Proofs may be submitted and the amount of the same will be determined on a settlement of a decree herein.</p> <p>“A decree may be prepared for signature in accordance with these findings.”</p> <p>Thereafter certain amendments were made to these findings, as follows:</p> <p>“Certain amendments to the findings heretofore filed having been proposed, and upon the consideration of the same it appears that the accounts receivable in the sum of $625.29 were charged to the defendant, and the accounts payable of $27.03 were credited as paid by the defendant. One-half the accounts receivable belong to each of the parties, and each party should pay one-half of the accounts payable.</p> <p>“It also appears that certain advancements of ’ money were made by the plaintiffs in September and October of 1915 and January, 1916, after the bill of complaint was filed. These items should not bear interest from the date the bill of complaint was filed, but only from the date of the payment of same. This would make a credit on the interest item of $83.64.</p> <p>“It also appears that the item of ‘September 27, 1915, Mr. Sias, services, $15.00,’ should be stricken from the findings, as the same appears in the report of the auditor. This correction gives the defendant a credit of $7.50 in addition to the amount due from Stephen L. Munroe.</p> <p>“The expert accountant, acting as a witness in the trial of this cause, is not included within the provisions of the statute in regard to employing and paying expert witnesses, therefore no order will be made for the payment of extra fees.”</p> <p>From a decree entered in accordance with this opinion and this amendment, both the plaintiff and defendant have filed notices of appeal.</p>

<p>Mandamus by Frederick E. Rupright to compel John Vanderwerp, circuit judge of Muskegon county, to reinstate capias ad respondendum proceedings.</p>

, presiding. Case by Parke, Davis & Company against the Grand Trunk Railway System for the negligent killing of plaintiff’s horse. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Wayne; Webster (Clyde I.), J.</p> <p>Case by James Ottaway against William Gutman for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

, presiding. Assumpsit by the Straus Land Corporation, Limited, against Dennis R. Dupuis for an overpayment on the purchase of land. Judgment for defendant. Plaintiff brings error.

<p>1. Contracts — Construction — Instructions — Set-off and Recoupment.</p> <p>In an action for the purchase price of a carload of iron, where defendant claimed as an offset damages for plaintiff’s failure to deliver iron under another contract made in November, 1917, under which three cars were immediately ordered, although by its terms shipments were not to begin until January, 1918, an instruction by the court to the jury that no orders given by defendant for shipment prior to January should be considered in determining defendant’s damages, held, correct.</p> <p>2. Same — Modification of Contract — Construction—Waiver.</p> <p>Where plaintiff insisted upon a change in the contract in regard to the terms of payment, to which defendant reluctantly consented, on January 4th, upon plaintiff’s promise that shipments would begin immediately, defendant’s contention that thereby plaintiff waived the time fixed in the contract for shipments to begin, so as to render it liable for damages for failure to ship on orders given prior to January, held, not tenable.</p> <p>3. Same.</p> <p>Where defendant’s order, given on January 4th, was later canceled or merged in an order given on January 25th, so that plaintiff was not in default until it failed to make shipment of said order, the construction given the contract by the court that plaintiff would not be in default if shipment was made upon the last day of January, held, not prejudicial. .</p>

Assumpsit in justice’s court by Thomas J. Doyle against Arthur S. Widrig for goods sold and delivered. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Assumpsit by Selig Solomon against Frank H. Richardson for breach of a contract, for the sale of lumber. Judgment for defendant. Plaintiff brings error.

, presiding. Bill by the city of Bay City against the Saginaw-Bay City Railway Company to restrain the operation of its street railway in certain territory. From a decree dismissing the bill, plaintiff appeals.

, presiding. Ejectment by Ralph Phelps and another against Henry N. Brevoort and another. Judgment for plaintiffs on a directed verdict. Defendants bring error. In an action of ejectment plaintiffs seek to recover possession of a, strip of land about 20 feet wide and about 2,200 feet in length located on Grosse Isle, Wayne county, Michigan. On October 20, 1859, by a decree ©f partition in the circuit court for the county of Wayne, Private Claim No. 550 was subdivided.

<p>1. Railroads — Negligence—Death op Child — Crossing Accident —Excessive Speed — Question for Jury.</p> <p>In an action against a railroad company for the negligent killing of a hoy -5 years and 2 months old at a public Street crossing near the central part of a city, where hundreds of persons, including children, crossed daily, testimony that the train was running at from 40 to 60 miles an hour and that the electric hell was out of order, held, to present a question of fact for the jury as to defendant’s negligence.</p> <p>2. Same — Excessive Speed — Unanticipated Act.</p> <p>Where the train was running at an unlawful rate of speed, it cannot he held, as a matter of law, that the accident was caused hy the sudden and unanticipated act of the child.</p> <p>3. Same — Killing of Child — Negligence op Mother.</p> <p>The mother of a hoy 5 years and 2 months old is not, as a matter of law, guilty of negligence in permitting him to remain out of her sight for a few minutes on the porch of a hotel while she went into the office, during which time he wandered upon the tracks and was killed.</p> <p>On excessiveness or inadequacy of damages for personal injuries resulting in death, see note in L. R. A. 1916C, 820.</p> <p>4. Same — Evidence — Financial Ability of Father — Admissibility.</p> <p>Testimony of the father as to his financial ability, held, admissible for the purpose of bearing upon the probability of the child being put to work earning 'money for the father.</p> <p>5. Same — damages—Excessive Verdict.</p> <p>A verdict of ?1,275 for the negligent killing of a boy 5 years and 2 months old, held, not excessive.</p>

<p>1. Criminal Law — Continuance—Absent Witness — Affidavits— Abuse of Discretion.</p> <p>The denial of a continuance in a criminal case cannot be said to have been an abuse of discretion on the part of the trial judge, where the affidavit gave no intimation as to what testimony the witness, whose presence was desired, would give bearing upon the issue to be tried. Bird, C. J., and Kuhn, J., dissenting</p> <p>2. Appeal and Error — Record—Contents—Assumption by Court.</p> <p>Where the record in a criminal case does not contain a report of the argument of counsel for defendant, the Supreme Court will assume that the argument was made exactly as indicated in the charge of the court.</p> <p>3. Criminal Law — Argument1 of Counsel — Instructions.</p> <p>. Argument in a criminal case by defendant’s counsel asking the jury how they would like their son convicted under the testimony in the case, held, improper.</p> <p>On the propriety of arguments to juries citing statements in affidavits for continuance, see note in L. R. A. 1918D, 57.</p>

<p>Exception before judgment from Kalamazoo; Weimer, J.</p> <p>Etta Eamaus was convicted of keeping a house of ill-fame.</p>

<p>1. Nuisance — Abatement—Equity.</p> <p>Equity courts ought not to prohibit the conduct of a lawful business by a defendant on his own unrestricted premises except as a last resort to restrain an otherwise unavoidable nuisance existing in violation of a complaining party’s rights.</p> <p>2. Same — Injunction—Modification of Decree.</p> <p>On appeal from a decree perpetually enjoining defendant from continuing its woodworking mill in the vicinity of plaintiffs’ homes, on the ground that the same constituted a private nuisance, there being a showing that the objectionable features constituting a nuisance can largely be avoided by alterations, etc., the decree is modified to imposing correction of, and enjoining, the offensive features in the conduct of defendant’s business.</p> <p>Por authorities passing upon the question of duty and liability of one maintaining temporary obstruction in street for purpose of loading and unloading vehicle, see note in 24 L. R. A. (N. S.) 97.</p> <p>On municipal power over nuisances relating to trade or business in general, see note in 38 L. R. A. 640.</p>

<p>1. Evidence — Rebuttal—Trial—Comment by Court.</p> <p>Where, in a personal injury case, a physician, called by defendant, testified as to what plaintiff said to him about her headaches, that she said “something of that sort,” that he “gathered that inference,” the trial court properly permitted her, on rebuttal, to testify as to what she said instead of confining her answers to whether or not she so stated as the doctor testified, and on objection it was not error for the court to comment, “The trouble was that the doctor himself only was able to give his impression or inference from what she said.”</p> <p>2. Damages — Future Damages — Rule.</p> <p>Future damages are limited to such as the evidence makes reasonably certain will necessarily result from the injury sustained.</p> <p>3. Same — Permanency—Evidence—Instructions.</p> <p>Where there was no evidence that plaintilf’s injuries were permanent, except as to a slight scar upon the face, instructions that plaintiff would be entitled to recover for future damages without distinct differentiation or direct instruction that under the evidence there was no element of permanency for them to consider, except as to the cut upon the face, held, reversible error.</p> <p>On mental suffering arising from contemplation of disfigurement or mutilation as element of damages for personal injuries, see notes in 15 L. R. A. (N. S.) 775 and L. R. A. 1916E, 890.</p>

<p>Error to superior court of Grand Rapids; Dunham, J.</p> <p>Assumpsit by the city of Grand Rapids against Alexander E. Krakowski, principal, and the Southern Surety Company, surety, on a bond. Judgment for plaintiff. Defendant surety company brings error.</p>

Case by Stanislaus Swaczyk, administrator of the estate of Stanley Swaczyk, deceased, against the Detroit Edison Company for the negligent killing of plaintiffs decedent. Judgment for plaintiff. Defendant brings error.

<p>Error to Montcalm; Snow, J., presiding.</p> <p>Case by Sanford Simmons against Frank Petersen for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Criminal Law — Return of Examining magistrate — “Judicial Determination” — Two Offenses.</p> <p>Where defendant was charged in the complaint and warrant with felonious assault “with intent to ravish and carnally know,” followed by a statutory charge of assault, at the same time and place, with a dangerous weapon, without a specified intent, an offense springing out of the same transaction and covered by the same testimony, and the examining magistrate, after an examination of the whole matter, including taking testimony, came to the opinion that an offense not triable by a justice had been committed, and there was probable cause to believe the accused guilty thereof as charged, and so certified to the circuit court, he made a “judicial determination” adequate to confer jurisdiction and afford the basis for filing an information in said court, although his said return did not specify the offense committed.</p> <p>2. Same — Information—Joinder of Counts — Duplicity — Election of Counts.</p> <p>An information containing two counts, charging two distinct crimes, where they were committed by the same acts, at the same time, and the same testimony must be relied on for conviction, held, not defective for duplicity, and election could not be required.</p> <p>3. Same.</p> <p>The trial court was not in error in allowing the prosecutor to dismiss the second count and proceed upon the first.</p> <p>4. Same — Evidence of Good Character — Instructions.</p> <p>Refusal by the trial court to give a requested instruction to the jury that defendant was “entitled to the benefit of good character even if they should find positive evidence tending to show commission of the crime,” that it was “admissible not only in case where doubt exists, but may be offered for the purpose of creating a doubt,” held, not error, where the charge as given was favorable to defendant, and in essentials fairly complied with the general rule upon good character testimony.</p> <p>6. Same.</p> <p>Held, that the charge as a whole properly submitted to the jury the principles of law applicable to the questions of fact submitted for their determination.</p>

<p>1. Appeal and Error — Statutory Right oe Appeal — Jurisdiction,</p> <p>The right of appeal is a statutory one, and unless the mandatory provisions of the statute are complied with, the court has no jurisdiction to entertain the appeal.</p> <p>2. Same — Police Court oe Detroit — Justices oe the Peace.</p> <p>Under Act No. 118, § 23, Pub. Acts 1891, appeals from the police court of the city of Detroit are controlled by the general laws of this State applicable to appeals from convictions by justices of the peace to the circuit court in criminal cases.</p> <p>3. Same — Recorder’s Court oe Detroit — Special Appeal — Extension oe Time.</p> <p>In the absence of any provision in the general laws of the State or in the charter of the city of Detroit authorizing the recorder’s court of said city to extend the time for appeal from the police court to said recorder’s court beyond the limit of 10 days fixed in the statute (3 Comp. Laws 1915, § 15786), said court has no authority to grant leave for a special appeal after the expiration of said 10 days.</p> <p>4. Same — Dismissal—Mandamus.</p> <p>Mandamus will lie to compel the judge of the recorder’s. court of the city of Detroit to vacate an order granting special leave to appeal from a conviction in the police court of said city to said recorder’s court after the expiration of the 10 days fixed in the statute; there being no showing that said appeal was prevented by any action or nonaction on the part of the court or its officers beyond the control of appellant.</p>

<p>Appeal from Bay; Houghton, J.</p> <p>Bill by the Kneeland-Bigelow Company and another against the Michigan Central Railroad Company and another for a temporary injunction and the specific performance of a contract. From a decree dismissing the bill for want of jurisdiction, plaintiffs appeal.</p>

<p>Error to Wayne; Tappan, J., presiding.</p> <p>Case by Anna Woods against the Chalmers Motor Company for the negligent burning of plaintiff’s houseboat. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Vendor and Purchaser — Land Contracts — Execution—Consideration Open to Inquiry.</p> <p>In a suit to restrain summary proceedings, to set aside a certain land contract, and for an accounting, -where the vendee denied the execution of the contract and also denied the correctness of the consideration expressed therein, the latter was still open to inquiry although she failed to prove that she did not execute the contract; the consideration being always open to inquiry, even where execution is not denied.</p> <p>2. Same — Consideration—Accounting.</p> <p>Where plaintiff sustained the burden of proof that the consideration for each of two former contracts was $1,200, and that the consideration in the contract in dispute should be the combined balance owing on the two, she is entitled to an accounting on that basis with credit for all payments satisfactorily shown.</p>

Petition by Roy McMullen against the Gavette Construction Company and the Globe Indemnity Company, insurer, praying for a lump' settlement of a claim for accidental injuries. From an order awarding payment, defendants bring certiorari.

<p>Motion by George Poes against the Buick Motor Company and another to dismiss a writ of certiorari.</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Caroline Brown presented her claim for compensation against George W. Bouschor and the Consolidated Lumber Company for the accidental death of her husband in defendant Bouschor’s employ. From an order awarding compensation, the Lumbermen’s Mutual Casualty Company, insurer, brings certiorari.</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Beatrice B. Burdick presented her claim for compensation against the Grand Trunk Railway System for the accidental death of her husband in defendant’^ employ. From an order denying compensation, plaintiff brings certiorari.</p>

<p>Master and Servant — Workmen’s Compensation Act — Cancer— Finding oe Industrial Accident Board — Evidence—Sufficiency.</p> <p>On certiorari to review an award of compensation by the industrial accident board to plaintiff for disability from a cancer claimed to be caused by an injury to his hand nearly three years before, while in defendant’s employ, and for which settlement had been made in full, where there is no testimony amounting to legal evidence that the cancer, which is in another part of his body, is attributable to the injury to plaintiff’s hand, the award will be set aside.</p> <p>On what constitutes an “accident” or "personal injury” within the meaning of the workmen’s compensation acts, see notes in L. R. A. 1916A, 29, 227; L. R. A. 1917D, 103, and L. R. A. 1918F, 867.</p>

Henry Diebel, personally, and as guardian of Eunice and Clara Diebel, presented his claim for compensation against the Spitzley & Widenman Construction Company for the accidental death of his son in defendant’s employ. On petition of the Chicago Bonding & Insurance Company, and another, insurers, to be relieved from further payments under an award. From an order denying the petition, defendants bring certiorari.

<p>1. Master and Servant — Workmen’s Compensation Act — Discretion ox Board to Extend Time eor Appeal on Proper Showing.</p> <p>A showing that, through some oversight, no copy of the award of the committee on arbitration, in proceedings under the workmen’s compensation act, was sent to defendants’ attorneys, although it is a well-known and established custom of the board promptly to send one to the parties, to the insurance company carrying the risk, and to the attorneys for the parties, that as soon as defendants’ attorneys learned of the award they promptly applied for an extension of time in which to perfect an appeal, held, sufficient to invoke the discretion of the board, under part 3, § 8, of said act, upon sufficient cause shown, to grant such extension, and the board was in error in holding that it was without discretion in the matter.</p> <p>2. Same — Custom ox Board — Right to Relv on — Question eor Board.</p> <p>As to whether defendants had the right to rely upon said custom of the board and assume that when they received notice of the award their attorneys also received the same notice, and would properly protect their rights, held, primarily a question for the board.</p>

<p>1. Principal and Surety — Bonds—Right of Injured Party to • Sue in Own Name.</p> <p>The bond of a public officer to faithfully perform the duties of his office is made for the benefit of any and all to whom he owes an official duty, and it is no longer required that actions upon such bonds be brought in the name of the obligee for the use and benefit of the party claimed to have been injured. 3 Comp. Laws 1915, § 12353.</p> <p>2. Evidence — Admissions—Confession—Admissibility.</p> <p>In an action against a defaulting public official and his surety jointly on his official bond, proof of his oral admissions to the prosecuting attorney of his defalcations and a written confession were admissible so far as he was concerned, where substantial facts beyond mere conclusions of law were included.</p> <p>3. Same — Admissibility Against Surety.</p> <p>Such admissions, being admissible against the principal, cannot be excluded, and, being admitted as against him, will generally be considered against the surety.</p> <p>4. Principal and Surety — Bonds—Clerk; of Court — Liability— Proof.</p> <p>While no recovery could be had upon the bond of a defaulting court clerk unless it was shown that the money was paid to him pursuant to some mandate of the court, it is not necessary .to show that the order was reduced to writing or recorded in the court journal.</p> <p>5. Same — Court Records — Neglect of Clerk — Secondary Evidence — Admissibility.</p> <p>While it is the general rule that an order of a court of record cannot be proved in a collateral proceedin'! otherwise than by a journal entry, yet the neglect of the clerk of the court to make the proper entries in regard to money passing through his hands would not bar other available evidence upon the subject, in an action against him and his surety on his official bond.</p>

<p>1. Railroads — Negligence—Speed op Train — Witnesses—Competency.</p> <p>Witnesses who had sufficient opportunity to see a train when it was running, and to observe where it stopped, after striking an automobile bn a highway crossing, held, competent to testify as to its speed in an aetipn for personal injuries alleging negligence of defendant for running- at an excessive rate of speed.</p> <p>2. Same — Negligence—Question for Jury.</p> <p>Conflict in the testimony as to whether a box car on the siding obstructed plaintiff’s view of the approaching train, as to the speed of the train, and as to whether the crossing signals were given, held,, to render them peculiarly questions for the jury.</p> <p>3. Same — New Trial — Weight of Evidence.</p> <p>Held, that the verdict in favor of plaintiff was not against the great weight of the evidence.</p> <p>4. Same — Contributory Negligence — Crossing Accident.</p> <p>Where plaintiff stopped, looked, and listened, but saw and heard nothing, when about 50 or 60 feet from the track, • if the view of the main track was so obstructed by a box car on the siding that after passing the obstruction there was no safety zone in which to stop, look and listen, the court below was not in error in not applying the rule requiring the driver of an automobile to do so before proceeding to cross the track.</p> <p>Steere, Brooke, and Fellows, JJ., dissenting.</p>

), J., presiding. Case by Richard Marx against George M. Schultz and others, copartners as the Peninsular Drug Company, for the negligent killing of plaintiff’s wife. Judgment for defendants on a directed verdict. Plaintiff brings error.

Julia M. Holmes presented a claim against the estate of Patrick J. Connell for services rendered. The claim was disallowed by the commissioners, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by Alice M. Harvey, administratrix of the estate of William M. Harvey, deceased, against Henry F. George, principal, and the Fidelity & Deposit Company of Maryland, surety, on a bond. Judgment for plaintiff against defendant George, and for defendant surety non obstante veredicto. Plaintiff brings error.

<p>Diyop.ce — Extreme Cruelty — Intention — Possibility of Reconciliation.</p> <p>In proceedings for a divorce by a husband on the ground of extreme cruelty, where the record sustains the finding of the court below that the acts of misconduct on the part of the wife were largely due to her run down physical condition and her highly nervous temperament, and that she had no intention of being cruel to plaintiff, and in view of the facts that in the meantime she has had treatment in a hospital with beneficial effect, and that her viewpoint has changed, the decree of the court below, who had the advantage of seeing and hearing the witnesses and of obtaining an impression as to whether the breach might not possibly be healed, dismissing the bill, will be affirmed.</p> <p>On relations between one spouse and relatives of other as affecting the question of desertion or cruelty, see notes in 13 L. R. A. (N. S.) 222, 34 L. R. A. (N. S.) 758, and L. R. A. 1915E, 161.</p>

<p>1. Insurance — Accident Insurance — Failure to Issue Policy— Liability.</p> <p>Where plaintiff’s husband made application for accident insurance in defendant company, and paid the premium, which had not been returned or a policy issued at the time of his death, defendant’s liability would not be any greater than if the policy had been actually issued.</p> <p>2. Same — Restrictive Policies — Remedy—Courts.</p> <p>That many so-called accident policies are filled with such restrictions and limitations as to make it impossible to recover thereon in many cases is a condition to be remedied by the legislature and not the courts, whose duty it is to enforce the contracts as they are made by the parties thereto, if legal.</p> <p>3. Same — Construction oe Policy — Restricting Liability.</p> <p>Plaintiff’s contention that the proviso limiting defendant’s liability to such loss as occurred within 30 days from the date of the accident applied to the loss of members of the body only, and not to loss of life, held, at variance with the plain provisions of the policy.</p> <p>4. Same.</p> <p>Plaintiff’s husband having lived for more than two months after the accident, the conclusion of the court below that defendant was not liable, held, correct.</p>

Bill by Nettie Preston against Shinar Preston and others for the reformation of a deed. From a decree for plaintiff, defendants appeal.

Exceptions before judgment from Allegan; Cross, J. Horace Moore was convicted of an assault with intent to commit the crime of rape.

, presiding. Bill by Henry N. Backus against Newton D. Backus for the specific performance of an express trust. From a decree dismissing the bill, plaintiff appeals.

), J. Assumpsit by Peter Meeuwsen against the Clough & Warren Company and the Manophone Corporation for commissions on the sale of goods. Judgment for plaintiff. Defendant Manophone Corporation brings error.