Volume 209 — Michigan Reports

Case by George V.'Black against William J. Spears and another for a wrongful seizure of a stock of merchandise under a writ of attachment. Judgment for defendants on a directed verdict. Plaintiff brings error. On January 24, 1914, defendant William J. Spears caused an attachment to be issued against plaintiff from a justice’s court under the claim that plaintiff was about to remove a stock of goods from the county.

<p>1. Stbeet Railways — Negligence—Contbibutoey Negligence.</p> <p>. In an action against • a street railway company for the wrongful death of plaintiffs decedent, evidence that decedent, a man 52 years of age, in good health, in broad daylight, started to cross a street car track, walking diagonally towards the approaching car which was in plain sight, less than 12 feet away, and running at a rate of speed not in excess of 6 miles an hour, held, sufficient to sustain the finding of the trial court that decedent was guilty of contributory negligence as a matter of law.</p> <p>2. Same — Subsequent Negligence.</p> <p>Where, after decedent entered the danger zone, there elapsed less than two seconds before he was struck by the car, the doctrine of subsequent negligence is not applicable, there being insufficient time for the brain and body to function properly to stop the car in time to avoid the injury.</p> <p>3. Same — Negligence—Reasonable Cabe.</p> <p>In such action, defendant, through its agents, must be held to the exercise of reasonable care from the instant decedent placed himself in a position of peril.</p> <p>4. Same — Negligence—Subsequent Negligence.</p> <p>Even if the motorman was guilty of negligence in failing to observe decedent as he entered the danger zone, no greater burden is cast upon defendant than it would have been obliged to sustain had decedent been seen at the instant ' of his entry; failure to act during the lapse of a single second being insufficient to invoke the doctrine of subsequent negligence.</p> <p>On right (f motorman to assume that no one will attempt to cross track so close in front of car as to render collision probable, see note in 5 L. R. A. (N. S.) 1059.</p> <p>On right of motorman to assume that person on track will get out of the way, see note in 21 L. R. A. (N. S.) 880.</p>

), J. Case by Harry M. Luttenton against the Detroit, Jackson & Chicago Railway Company for negligently colliding with plaintiff’s automobile. Judgment for plaintiff. Defendant brings error.

<p>Appeal from Berrien; White (Charles E.), J.</p> <p>Bill by Clara Koebel against George C. Koebel'for a divorce. From a decree for plaintiff, defendant appeals.</p>

), J., presiding. Bill by Louisa Gregor against Ernest J. Olde, Jr., for the specific performance of a land contract. From ian order dismissing the bill, plaintiff appeals.

), J. Bill by the Lenawee County Gas & Electric Company against the city of Adrian and others to enjoin the enforcement of an ordinance fixing gas rates. From a decree dismissing the bill, plaintiff appeals.

), J. Elizabeth Morgan appealed from an order of the probate court of Calhoun county appointing Frank B. Morgan administrator of the estate of Benjamin F. Morgan, deceased. From a judgment affirming the probate order, appellant brings error.

), J. Bill of interpleader by Dewitt C. Maxim against David S. Shotwell and Angie L. Williams, individually and as special administratrix of the estate of* Martha E. Shotwell, deceased, to enjoin an action at law and to determine the value of certain sheep. From an order denying a motion to dismiss, defendant' Shot-well appeals.

<p>1. Appeal and Error — Directed Verdict.</p> <p>On. a motion for a directed verdict for defendant, the testimony most favorable to plaintiff must be accepted.</p> <p>2. Master and Servant — Personal Injuries — Negligence—Fellow Servant — Alter Ego.</p> <p>In an action for personal injuries received by an employee as tbe result of tbe falling of a scaffold due to tbe absence of a bolt in a steel beam on which the platform rested, testimony that the employee in charge of the work was superintending the same and was the only one in charge, field, sufficient to justify the jury in finding that he was the representative of the master and not a fellow-servant of plaintiff, although he may have received orders from some superior.</p> <p>3. Same — Res Judicata — Safe Place — Assumption of Risk.</p> <p>Held, that the doctrine of safe place, as applied to construetion. work, and the question of assumption of risk, were determined in the former decision of this case by this court (198 Mich. 501).</p> <p>Í. Sake — Contributory Negligence — Notice of Defect — No Duty on Employee to Inspect.</p> <p>Where plaintiff was not at work near the point where the bolt was missing, and knew nothing of the defect, it cannot be said that he was guilty of contributory negligence, as a matter of lav/, because he'failed to inspect the work before going upon the platform; there being no duty upon plaintiff to inspect under the facts of the case.</p> <p>5. Appeal and Error — Action — Pleading — Assumpsit—Tort— Harmless Error.</p> <p>Where, upon the record, it is a reasonably close question as to whether the declaration should be in assumpsit in- . stead of tort, and the question of damages was submitted to the jury in accordance with the request and insistence of defendant’s counsel, and it is not pointed out wherein defendant was in any way prejudiced, the judgment for plaintiff will not therefor be reversed.</p> <p>6. Action — Splitting Cause of Action — Damages Subsequent to Date of Settlement.</p> <p>By accepting compensation for one year for personal injuries, plaintiff is not thereby precluded, on the ground of splitting his cause of action, from bringing an action for his damages, where there was an understanding that if he had not recovered at the expiration of the year he would in the future be paid reasonable compensation, or the question of further compensation beyond that period should be left open.</p> <p>7. Damages — Measure of Damages — Deduction of Interest on Former Payment — Res Judicata.</p> <p>The former decision of the • Supreme Court that if, on the new trial, the damages found by the jury exceeded the total amount previously paid, those payments, with interest at 5 per cent., should be deducted, became the law of the case and should have been applied by the trial judge.</p> <p>8. Same — Conditional Judgment.</p> <p>Where the trial court deducted the principal payment but not the interest, the judgment will be modified in this court by deducting the interest and affirmed conditionally.</p> <p>S. New Triar — Great Weight or the Evidence.</p> <p>The Supreme Court does not try the facts, and that a different result might have been reached on the evidence is insufficient for reversal unless the verdict is clearly. and manifestly against the great weight of the evidence.</p> <p>10. Same.</p> <p>Held, that the evidence is not so clearly and overwhelmingly in favor of defendant as to justify setting aside verdict for plaintiff.</p>

Mandamus by P. Corey Taylor to compel Ray Hart, circuit judge of Isabella county, to vacate an order denying a petition for the return of certain intoxicating liquor. For over 25 years plaintiff has conducted a drug store in the city of Mt. Pleasant. He is and has been a registered pharmacist.

<p>1. Criminal Law — Cemeteries—Destroying Pence.</p> <p>In a prosecution for cutting a wire fence inclosing a cemetery in violation of 3 Comp. Laws 1915, § 15485, defendant’s contention that the prosecution would not lie because the fence was on the line between the cemetery lands and those of defendant is untenable.</p> <p>2. Same — Res Judicata — Good Paite.</p> <p>The decision of the Supreme Court in a case between the township and defendant determining defendant’s right to the use of the way to the cemetery for purposes not inconsistent with the rights of the owner of the easement, held, not res judicata of defendant’s rights in a criminal prosecution for cutting a wire fence inclosing said cernetery in violation of 3 Comp. Laws 1915, . § 15485, but it might be admissible as bearing upon his good faith.</p> <p>3. Eminent Domain — Fee Acquired — Statutes.</p> <p>By the express terms of the statute (1 Comp. Laws 1915, § 5130) the title in fee is acquired by condemnation proceedings.</p> <p>4. Appeal and Error — Trial—Requests to Charge Covered in General Charge.</p> <p>It is not error to refuse to give the requests to charge in their exact language, if the charge as a whole correctly states the law and covers the subject to which the requests are directed.</p> <p>5. Trial — Instructions—Good Faith.</p> <p>Held, that the trial judge in his charge fairly submitted the question of defendant’s good faith to the jury.</p> <p>S. Appeal and Error — Argument of Counsel — Criminal Law.</p> <p>Argument which might well have been made to the jury in the condemnation case, and to the trial judge upon the matter of what sentence should be imposed in the penal case, are not proper for consideration by the Supreme Court on exceptions before judgment in the penal case.</p>

), J. Case by Adam Lambert, administrator of the estate of John Sigatagon, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant non obstante veredicto. Plaintiff brings error.

), J. Bill by William A. L. Dursum and another against Laurance D. Benedict for an accounting, and to enjoin the collection of certain promissory notes. From a decree dismissing the bill, plaintiffs appeal.

Quo warranto by Alex. J. Groesbeck, attorney general, against Joseph J. Bairley to try the title to the office of sheriff of Monroe county. The action is quo warranto, to determine the title of the defendant to the office of sheriff of Monroe county. On April 11, 1919, charges were filed with the governor against defendant, alleging that he had been guilty of malfeasance in office in a number of particulars.

Burget), J. Case by BJarold B. Lawrence against Gladstone R. Beattie, sheriff of Van Burén county, for an unlawful conversion of certain personal property. Judgment for plaintiff. Defendant brings error. Some time prior to the year 1913, one James Ingersoll Day was the owner of a farm and grape juice plant in Van Burén county. The farm was mortgaged; the mortgage had been foreclosed, but the equity of redemption had not expired.

M.), J. Bill by John Nickerson and another against Eva Nickerson for the specific performance of a land contract. From a decree for plaintiffs, defendant appeals. Prior to 1874, Levi Nickerson lived in Morrow county, Ohio. He had two sons, John, the plaintiff, the elder, and Mack, the deceased husband of the defendant, the younger. In that year, Levi Nickerson purchased 160 acres of heavily timbered land in Campbell township, Ionia county, this State.

Burget), J. Bill by Mamie Rudolphi against William I. Gilbert, individually and as administrator of the estate of Eugene B. Gilbert, deceased, for an accounting. From an order denying a motion to dismiss, defendant ap- • peals. Plaintiff and defendant are the only children and sole heirs at law of Eugene B. Gilbert, deceased. Defendant was duly appointed administrator of the estate of his father.

), J. Assumpsit by Cornelius Vandervliet, individually and as surviving partner and assignee of Kichard Heystek, against The Standard Accident Insurance Company of Detroit, Michigan, for the amount of a policy of indemnity insurance. Judgment for plaintiff. Defendant brings error. Prior to June 6, 1914, Heystek and Vandervliet had entered into a contract with the city of Flint to pave certain streets, in said city.

<p>Error to recorder’s court of Detroit; Wilkins ¡(Charles T.), J.</p> <p>Chester Mandell was convicted of an attempt to break and enter a store building in the nighttime.</p>

<p>1. Venue — Change of Venue — Discretion of Court.</p> <p>It is discretionary witb the trial court to grant a change of venue, and courts of review will not disturb the action of the trial court in the exercise of such discretion, except in cases of plain abuse.</p> <p>2. Same — Mandamus—Discretion of Court — Abuse.</p> <p>On mandamus to compel the trial judge to vacate an order denying a change of venue, showing held, insufficient to show an abuse of discretion.</p>

), J. Assumpsit by the county of Saginaw against Fred W. Kent, principal, and the United States Fidelity & Guaranty Company of Baltimore, Maryland, surety, on an official bond. Judgment for plaintiff. Defendants bring error.

Case by Carl L. Lian and another against Henry Bradford & Company and another for fraud and deceit in the sale of land. Judgment for plaintiffs. Defendants bring error.

Mandamus by the Fremont Canning Company to eompel James L. Waters, clerk of Dayton township, to draw an order in compliance with Act No: 347, Pub. Acts 1917. From an order denying the writ, ■plaintiff brings certiorari.

Case by Charles - Maycroft and another against The Jennings Farms for the unlawful conversion of certain mortgaged personal property. Judgment for plaintiffs. Defendant brings error.

Bill by Alton J. Hager against Carrie Rey for the specific performance of a land contract. Fronj. a decree for plaintiff, defendant appeals.

<p>1. Deeds — Validity—Grantee Must Be Named.</p> <p>A deed wherein, no grantee is named is void; it must distinguish the grantee from the rest of the world.</p> <p>2. Ejectment — Courts—Equity—Trial.</p> <p>In ejectment to recover land conveyed to plaintiff by voluntary deed, of which he was dispossessed by the purchaser from the executor of the grantor’s estate, the court below was in error in holding that plaintiff could only enforce his rights in a court of equity.</p> <p>S. Deeds — Construction.</p> <p>A deed or other written instrument is to be construed so as to render it valid and effectual, rather than void.</p> <p>4. Same — Voluntary Deed — Validity.</p> <p>A grantee by voluntary deed has a good title as against the grantor and any subsequent grantee or mortgagee under him.</p> <p>5. Same — Description by Street Number.</p> <p>A description by street number in a voluntary deed, heldr sufficient.</p> <p>6. Same — Validity—Lack oe Seal — Statute.</p> <p>Under 8 Comp. Laws 1897, § 10417, in force when this deed was made, it was not invalid for want of a seal.</p> <p>7. Same — Words oe Conveyance — “Give”—“Gave.”</p> <p>The word “give” or “gave” in a voluntary deed, held, sufficient to pass title.</p> <p>8. Same — Sueeiciency.</p> <p>A conveyance in the following words: “Gave to my brother, S. L. Stamp, property at 91 and 95 E. Webster Avenue, Muskegon, Michigan, with contents therein, for his own,” properly signed, witnessed, and delivered, held, sufficient to pass title.</p> <p>9. Ejectment — Rights op Owner.</p> <p>The fact that after the death of grantor the property conveyed was included as assets of grantor’s estate, and sold as such, was not controlling of the rights of plaintiff.</p> <p>10. Same — Possession—Notice—Bona Fide Purchaser.</p> <p>Where plaintiff was in actual possession of the land conveyed to him, his possession was notice of his claim thereto, and( purchasers under such circumstances, held, not bona, fide purchasers.</p> <p>11. De^DS — ACKNOWLEDGMENT.</p> <p>Title may pass although the deed is not acknowledged.</p> <p>12. Same — Intent oe Grantor — Rights of Creditors.</p> <p>Land may be conveyed by any words which manifest that purpose, and for ány consideration the owner pleases, so that others having legal or equitable claims are not injured.</p> <p>13. Appeal and Error — Ejectment—Reversal—New Trial.</p> <p>On reversal of a judgment for defendant in ejectment, the case being here upon writ of error, the Supreme Court cannot enter judgment for plaintiff, but must send the case back for a new trial.</p>

M.), J. Warren Utter was convicted of murder, and sentenced to imprisonment for life in the branch of the State prison at Marquette.

<p>Error to Wayne; Mandell (Henry A.), J.</p> <p>Case by John Jankowski against Thomas Skupny for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Divorce — Decree—Appeal and Error. — Duty oe Supreme Court to Pass Upon Evidence on Appeal.</p> <p>While the Supremo Court ought not lightly to reverse a decree in a suit for divorce, where the chancellor has seen and heard the witnesses, and has had the advantage of determining their credibility, nevertheless it is not thereby relieved of the duty of exercising its own judgment in passing upon the evidence in the case.</p> <p>2. Same.</p> <p>In divorce proceedings, on appeal from a decree dismissing the bill of plaintiff wife, evidence, held,, not to sustain the finding of the court below that the parties were equally to blame.</p> <p>S. Same — Extreme Cruelty — Personal Violence.</p> <p>Where it is undisputed that defendant husband was guilty of repeated acts of personal violence, amounting to extreme cruelty, decree will be granted to the wife, although she has not been entirely blameless.</p> <p>4. Same — Condonation—Evidence—Sufjtcienoy.</p> <p>An attempted reconciliation and resumption of marital relations after the filing of the original bill, held,, under the evidence, not to amount to condonation of defendant’s wrongful conduct on the part of plaintiff.</p> <p>5. Same — Aiimony.</p> <p>Where defendant’s property consists of an apartment building worth from $17,000 to $20,000, with a mortgage against it of $6,500, and he owes about $2,500 besides, plaintiff is awarded permanent alimony in the sum of $5,000 in lieu of dower, also costs, including an attorney fee of $150, all to be a lien upon defendant’s property until paid, under the circumstances an award being preferable to an undivided interest in the property.</p> <p>On sufficiency of evidence to establish condonation of cruelty, see note in 6 B. R. C. 626.</p> <p>The question of money decree for permanent alimony or a separate maintenance as a lien on real property is discussed in a note in 25 L. R. A. (N. S.) 132; L. R. A. 1916B, 651.</p>

<p>Appeal from Menominee; Flannigan (Richard C.), J.</p> <p>Bill by Louis Labranche against Menazip Perron' and another for the reformation of a land contract. From a decree for plaintiff, defendant Perron appeals.</p>

<p>1. Mechanics’ Liens — Statutes — Proceedings to be Strictly Followed.</p> <p>While all the proceedings required by the statute to create a mechanic’s lien must be strictly followed, after the lien has once attached the statute becomes remedial and should receive a reasonable construction so that its provisions beneficial to the lienors be not frittered away.</p> <p>2. Same — Notice.</p> <p>All persons entering into1 contracts in which the construction of buildings is involved are chargeable with notice of the provisions of said statute.</p> <p>3. Same — Interest Attached.</p> <p>Under 3 Comp. Laws 1915, § 14796, the lien attaches not only to the buildings erected, but to the interest of the party erecting them, the owner, part owner, or lessee.</p> <p>4. Same — Lien on Building.</p> <p>Under section 14,798, if the person contracting for the erection of the building has no legal title to the land the lien attaches to the structure erected.</p> <p>5. Same — Foreclosure—Sale oe Building Alone ie Severable.</p> <p>Under section 14809, the court may order the sale of the land and buildings together, or the buildings separately if severable from the land.</p> <p>6. Same — Decree Modified.</p> <p>Although the building upon which the lien attached was erected by one defendant on land belonging to another, under a contract to operate a plant therein for ten years, a decree ordering the sale of same, with option of removal in case of default in payment of amount found due, but without barring any future proceedings in case the purchaser did not carry out the terms of the contract, is affirmed, on appeal, but modified to provide that, in case of removal, the premises are to be restored to substantially the same condition as before the construction of the building.</p>

), J. Fred Sharac was convicted of manslaughter, and sentenced to imprisonment for not less than 7 nor more than 14 years in the State prison at Jackson.

), J. Assumpsit by Elvert M. Davis, administrator, with the will annexed, of the estate of James W. Hunter, deceased, against the Great Eastern Casualty Company on a policy of accident insurance. Judgment for plaintiff. Defendant brings error.

M.), J. Walter S. Phelps presented for probate the last will and testament of John Williams, deceased. The will was allowed in the probate court, and Jennie V. Beard appealed to the circuit court. Judgment for proponent on a directed verdict. Contestant brings error.

<p>1. Specific Performance — Oral Contract for Conveyance of Land — Must Be Clear and Complete.</p> <p>A court of equity will not grant specific performance of an oral contract to transfer real estate unless the terms of the contract are clear and complete so that no reasonable doubt can exist respecting the enforcement of it according to the understanding of the parties.</p> <p>2. Same — Contracts—Evidence—Sufficiency.</p> <p>In a suit for specific performance, evidence examined, and held, sufficient to establish the making of the contract as claimed by plaintiff, viz., that he was to have a farm belonging to his father’s estate, and defendant, his brother, was to have the personalty.</p> <p>3. Same.</p> <p>Evidence held, sufficient to establish the fact that defendant wife was a party to the agreement and gave her assent thereto.</p> <p>4. Same — Inadequacy of Consideration — Fraud.</p> <p>While specific performance of an oral contract to convey land rests in the legal discretion of the court, a court of equity should not decline to grant it because of inade- • quacy of consideration or because it is unfair and inequitable, unless its enforcement will operate as a fraud upon the rights of defendants.</p> <p>5. Same — Division of Inherited Property by Agreement Favored by Courts.</p> <p>Compromises and divisions of property thereby reached after the death of a parent are favored by courts of equity.</p> <p>6. Same — Inadequacy of Consideration — Knowledge of Value— Fraud.</p> <p>Where defendants, in agreeing to deed to plaintiff a farm belonging to the father’s estate, while they were to take the personalty, were in no way deceived as to the inadequacy of the part of the estate they agreed to accept when compared with the whole, and said division was assented to for more than two years, specific performance will not be refused on tbe ground of inadequacy of consideration.</p> <p>7. Same — Frauds, Statute of — Oral Contract for Conveyance of Land — Part Performance — Proof—Sufficiency.</p> <p>Proof that defendants took possession of tbe personalty and converted it to tbeir own use, and that plaintiff took possession of tbe farm, put in crops, and made considerable improvements thereon, in pursuance of said contract, held, sufficient as to part performance to relieve from the effects of the statute of frauds under the rule applicable thereto.</p>

<p>1. Criminal Law — Stolen Property — Identification.</p> <p>In a prosecution for receiving stolen property, where, on direct examination, the complaining witness testified that he could identify Exhibit “A,” a case or box of cigarettes as his, which had; been stolen from him, but on cross-examination he admitted he could not identify the cigarettes that were in the box because they were similar to-other cigarettes of like brand, a motion to strike was. properly denied, since he might be able to identify the case or box and yet be unable to identify the cigarettes.,</p> <p>2. Same^-Appeal and Error — -Hearsay — Failure to Object — - Saving Questions for Review.</p> <p>The Supreme Court, on error, will not consider a complaint based 'on the testimony of complaining witness that he-knew the cigarettes were his because the man who stole them told him they were, where no objection appears of record, and no motion to strike the same was made.</p> <p>3. Same — Voluntary Action — Waiver.</p> <p>Although defendant could not have been compelled to write his name and that of his supposed alias for the purpose of comparison with certain checks claimed by the prosecution to have been given in payment for the stolen cigarettes and cashed by him, where he did so voluntarily, held, that he waived his rights therein.</p> <p>4. Same — Statutory Rights — Waiver.</p> <p>Such waiver of defendant’s right to refuse to sign his name, held, not a waiver of his right to object to the comparison with said checks under 3 Comp. Laws 1915, § 12539.</p> <p>5. Same.</p> <p>The withdrawal of defendant’s objection to the examination of the witness called to compare defendant’s handwriting with that on the canceled checks, after the prosecution had laid the proper foundation for his qualification as an expert, and defendant’s failure to interpose his right to have such comparison excluded under 3 Comp. Laws 1915, § 12539, held, to be a waiver of his rights thereunder.</p> <p>6. Same — Witnesses — Handwriting Expert — Qualifications — ■ Sufficiency.</p> <p>Testimony by a witness called as an expert on handwriting that he had been working as a bookkeeper in a bank for five years, and that in his duties he compared 400 or 500 signatures daily, held, sufficient to qualify him as an expert.</p>

<p>Certiorari to Jackson; Parxinson (James A.), J.</p> <p>Mandamus by the city commission of the city of Jackson to compel Clifton H, Vedder, city clerk, to countersign and to deliver to the city treasurer certain sewer bonds. From an order granting the writ, defendant brings certiorari.</p>

<p>1. Insurance — Burglary Insurance — Nonjoinder of Parties.</p> <p>.In an action on a policy of burglary insurance by one of several parties named as assured, where plaintiff was the sole owner of the property stolen for which recovery is sought, defendant’s contention that plaintiff could not recover because of nonjoinder of the other parties assured, held, properly overruled, since the policy, although in form a joint one, was evidently intended to cover the several as well as joint property of the parties, as evidenced by the provision that “the release of either the assured or the actual owner of the property shall relieve the corporation from all further liability.”</p> <p>2. Same — Splitting Cause of Action.</p> <p>Where plaintiff was the sole owner of the property insured, was entitled to enforce the whole claim, and her recovery will relieve defendant from further liability therefor, her action without joining the other parties assured, held, not a splitting of the cause of action.</p> <p>3. Same — Special Defenses — Notice —Pleading—Amendments— Abuse of Discretion.</p> <p>In said action, where the defense of failure to give immediate notice as required by the policy was not pleaded, the denial of a motion to amend in this respect after the proofs were closed and the witnesses dismissed, held, not an abuse of discretion.</p> <p>4. Same — Evidence—Sufficiency.</p> <p>Evidence held, sufficient to support an inference that the property insured had been stolen.</p> <p>5. Trial — Evidence—Inconsistent Testimony fob the Jury.</p> <p>Where the testimony of a witness is inconsistent, the question as to which statements should be given credence is for the jury.</p> <p>6. Insurance — Circumstantial Evidence — Sufficiency.</p> <p>Where there was nothing in a burglary insurance policy to the contrary, circumstantial evidence establishing the fact that an insured article had been stolen, held, sufficient.</p> <p>On several and joint property covered by burglary and theft insurance, see notes in 46 L. R. A. (N. S.) 564; L. R. A. 1918B, 565.</p>

), J., presiding. Case by John W. Lanier against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for personal injuries and damage to plaintiff’s automobile by collision. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J. Bill by Henry A. Pearson against Catherine Sullivan to enjoin the forfeiture of a lease and for other relief. From a decree dismissing the bill, plaintiff appeals.

<p>Specific Performance — Oral Agreement for Lease — Part Performance — Frauds, Statute of.</p> <p>On a bill for the specific performance of an agreement to make a written lease for three years, testimony by plaintiffs that, in pursuance of said agreement, they went into possession of said premises, paid the stipulated rent in advance, and, on defendant’s refusal to make certain agreed repairs, made them themselves at a cost of approsimately $200, held, sufficient part performance to take the agreement out of the operation of the statute of frauds and to entitle plaintiffs to a decree.</p> <p>ón part performance under parol lease to satisfy the statute of frauds, see note in 49 L. R. A. (N. S.) 113.</p>

), J. Bill by Harry A. Eberline, trustee in bankruptcy, against Benjamin M. Prager and another to recover assets concealed in fraud of creditors. From a decree dismissing the bill, plaintiff appeals.

<p>Error to Cass; Des Voignes (L. Burget), J.</p> <p>Case by Sylvester N. Nichols against the Grand Trunk Western Railway ‘ Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Wills — Evidence to Establish Will — Suittoiency.</p> <p>In a will contest case, on appeal to the circuit court from the allowance of the will in the probate court, evidence held, sufficient to show that testatrix knew what she was doing, was satisfied with the will as drawn, declared it to he her last will, and asked that it he signed and witnessed as such, and that the requirements of the statute (3 Comp. Laws 1915, § 11821) were met.</p>

<p>Exceptions before judgment from Grand Traverse; Mayne (Frederick W.), J.</p> <p>Merritt W. Underwood was convicted of violating the motor vehicle law.</p>

Bill by the village of Shelby against the Steams Lighting & Power Company for the specific performance of a contract. From a decree for plaintiff, defendant' appeals.

Mandamus by Frank H. Ellsworth, commissioner of insurance, to compel Charles B. Collingwood, circuit judge of Ingham county, to vacate an order denying a motion to dismiss a temporary injunction.

' Appeal from Kalamazoo; Weimer (George V.), J. Bill by Duane W. Allen and another against Glenn S. Allen and others for an accounting. From a decree dismissing the bill, plaintiffs appeal.

<p>Error to Wayne; Hosmer (George S.), J.</p> <p>Case by Clarence A. Hershey, administrator of the estate of John L. Hobbins, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s. decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Summary proceedings by Charles E. Raymer, and another against Dexter Blake. There was judgment of restitution before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

Mandamus by the Lake Superior Brass Foundry Company to compel Patrick H. O’Brien, circuit judge of Houghton county, to vacate an order transferring an action at law to the equity side of the court.

), J. Case by Mary A. Stapleton, administratrix of the estate of Thomas J. Stapleton, deceased, against the Furniture Exhibition Building Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error. Plaintiff brought this suit as administratrix of the estate of her deceased husband, Thomas. J. Stapleton, and recovered a verdict of $21,702.62 as damages.

Cross-appeals from Ingham; Wiest (Hjoward), J. Bill by the city of Detroit against the Michigan railroad commission and the Michigan State Telephone Company to set aside an order of defendant commission establishing rates. From the decree rendered, all parties appeal.

, presiding. Bill by L'avina B. Donaldson, substituted for Donaldson Craig, against John M. Crossman and another for the specific performance of a land contract, and for an accounting. From a decree for plaintiff, defendants appeal.

), J., presiding. Replevin by Joe Weiss against. Edward F. Stein, sheriff of Wayne county, for the possession of certain potatoes. Judgment for plaintiff. Defendant brings error.

), J. Separate actions by the board of supervisors of Bay county against Edward E. Corliss, principal, and the American Surety Company of New York, surety, Edward E. Corliss, principal, and the Title Guaranty & Surety Company, surety, and Omar J. Morton, principal, and the Title Guaranty & Surety Company, surety, on official bonds. From the judgment rendered, all parties bring error.

M.), J., presiding. Assumpsit by the Perfection Socket Company against the American Forging & Socket Company for royalties due under a contract. Judgment for plaintiff. Defendant brings error.

), J. Case by Golden & Boter Transfer Company against Brown & Sehler Company and another to recover damages paid to a dependent under the workmen’s compensation act for the death of an employee killed by reason of defendants’ negligence. Judgment for plaintiff. Defendants bring error.

), J., presiding. Case by Levi C. Annis against Reiser & Company, Jerome Probst and Sarah E. Probst for fraud and deceit in the sale of a promissory note. Judgment for plaintiff. Defendants Probst bring error.

Bill by Dayton W..Closser against the Hanson Land Company to remove a cloud upon the title to land. From the decree rendered, both parties appeal.

), J. Bill by the Webb Academy against the city of Grand Rapids and others to set aside an assessment for taxes. From a decree for plaintiff, defendants appeal.

), J. Case by Catherine Vincent against the city of Detroit and the Detroit United Railway for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

<p>1. Trial — Misconduct of Counsel — Prejudicial Error.</p> <p>In an action for personal injuries, where counsel for plaintiff deliberately placed before the jury facts designed to advise them that the real defendant was an insurance company, such conduct was so prejudicial as to require a reversal of the judgment in plaintiff’s favor, although the trial court instructed the jury to pay no attention to the remarks of counsel, and that the question of liability insurance was not at issue. Moore, C. J., and Bird and Sharpe, JJ., dissenting.</p> <p>2. Same — Excessive Verdict — Damages.</p> <p>A verdict for $18,000, under the circumstances of this case, held, excessive. Moore, C. X, and Bird and Sharpe, JX, dissenting.</p> <p>3. Parties — Assignment as Security — Real Party in Interest —Question for Jury.</p> <p>In an action for personal injuries, where plaintiff had made an assignment of his claim, but there was testimony that said assignment was given as security merely, the trial court was not in error' in submitting to the jury the question as to whether plaintiff was the real party in interest under 3 Comp. Laws 1915, § 12353.</p> <p>4. Trial — Evidence—Exhibition of Injured Arm.</p> <p>Where plaintiff was on the stand as a witness in his own behalf, the trial court was not in error in allowing him. to enter the jury box and in permitting the jurors to feel his injured arm.</p> <p>On excessiveness of verdicts in actions for personal injuries other than death, see comprehensive note in L. R. A. 1915F, 30.</p>

<p>1. Words and Phrases — “Legislature”—“Legislative Power”— Definition.</p> <p>The term “legislature” is defined as “That body of men which makes the laws for a State or nation;” and “legislative power” as “authority exercise^ by that department of government which is charged with the enactment of law as distinguished from the executive and judicial functions. The law-making power of a sovereign State.”</p> <p>2. Constitutional Law — Legislative Power.</p> <p>Under section 1, Art. 5, Constitution of Michigan, the legislative power of the State of Michigan is vested in a senate and house of representatives.</p> <p>3. Same — Amendments — Ratification — Legislature— Intent —Law-making Body — Referendum.</p> <p>As employed in Art. 5 of the United States Constitution, referring to the ratification of an amendment thereto, the word “legislature” was intended by its framers to mean the representatives of the people elected to make the laws of the several States, when acting as a body; and a State has no power, through its Constitution or by statute, to restrict this action of the legislature by subjecting it to a review by popular vote.</p> <p>4. Words and Phrases — “Act”—Definition.</p> <p>As pertaining to legislation, an “act” is defined as “A statute or law made by a legislative body.”</p> <p>5. Constitutional Law — Initiative—Referendum.</p> <p>While, under section I, Art. 5, Constitution of Michigan, the people using thei initiative have ‘the power to propose legislative measures, resolutions, and laws,” the power under the referendum is limited "to approve or reject at the polls any act passed by the legislature, except," etc.</p> <p>6. Same — Ratifying Amendment'Not an “Act” — Referendum.</p> <p>The action of the State legislature in ratifying an amendment to the Federal Constitution is not an “act” within the meaning of section 1, Art. 5, Constitution of Michigan, reserving to the people the right “to approve or reject at the polls any act passed by the legislature, except,” etc.'</p>

), 3. Bill by the Reo Motor Car Company against Matthew A. Young for the specific performance of a contract. From a decree for plaintiff, defendant appeals.

), J., presiding. Case by Nancy J. Steele against the city of Ionia for damages for an alleged flooding of plaintiff’s land. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J., presiding. Bill by Peter Harnau against Louis P. Haight and others in the nature of a judgment creditor’s bill, a bill in aid of execution and a bill for a discovery. From a decree for plaintiif, defendants appeal. The material facts in this case are not seriously in dispute. Counsel do not agree, however, as to the inferences to be drawn from them. Defendant Louis.

<p>Appeal from Charlevoix; Mayne (Frederick W.), J.</p> <p>Bill by William Grund against the First National Bank of Petoskey and Chalmers Curtis for an accounting. From a decree for plaintiff, defendant Curtis appeals.</p>

<p>1. Pleading — Amendments—Variance.</p> <p>In an action for a claimed balance due plaintiff for his services in building a house, where the declaration charged that plaintiff was to receive, in addition to $6 per day, '6 per cent, of the total cost of the material used, while his claim on the trial, supported by evidence, was that he was to receive 6 per cent, of the cost of the labor as well as material, an amendment to the declaration to include the cost of the labor was justified.</p> <p>2. Trial — Issues oe Fact — Instructions.</p> <p>Meld, that the charge of the trial judge presented the one disputed question of fact, viz., what the actual contract between the parties was, fairly and without favor to either party.</p> <p>3. New Trial — Weight of Evidence.</p> <p>Meld, that the verdict was not so strongly against the weight of the evidence as to require reversal.</p>

), J. Bill by Victor M. Burman against Henry Sakari to establish a trust in certain shares of corporate stock, and for an accounting. From a decree dismissing the bill, plaintiff appeals.

<p>Appeal from Genesee; Black (Edward D.), J.</p> <p>Bill by Frank H. Beckmann against Julia A. Beckmann for a divorce. From a decree for plaintiff, defendant appeals.</p>

), J. Assumpsit by James A. Ruddock, administrator of the estate of Charles H. Ruddock, deceased, against the Detroit Life Insuránce Company on a policy of insurance. Judgment for defendant non obstante veredicto. Plaintiff brings error. Plaintiff’s decedent was his son, nearly 27 years of age and unmarried. On September 2, 1917, deceased made application to the defendant for a policy of insurance in the sum of $2,000 and paid the regular premiums for one year.

), J. Assumpsit by Bernard W. Morgan against William T. Hoey for breach of a contract of employment. Judgment for plaintiff. Defendant brings error. This action was commenced by plaintiff against defendant for breach of an alleged contract of hiring. The summons was issued and served on August 16, 1918.

(Richard C.), J. Case by Peter C. Dube, Sr., administrator of the estate of Joseph Desrochers, deceased, against the Northwestern Cooperage & Lumber Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J. Case by Clyde Wright against Stanley A. Dwight for the unlawful conversion of an automobile. Judgment for plaintiff. Defendant brings error. In the spring of 1917, plaintiff purchased from defendant, an automobile dealer, an “Allen” car.

Mandamus by the Sault Ste. Marie Hospital to compel Albert E. Sharpe, treasurer of Chippewa county, to pay an appropriation voted by the board of supervisors. From an order granting the writ, defendant brings certiorari.

), J. Replevin by the Rex Beach Pictures Company against Harry I. Garson Productions, and others for the possession of certain pictures. Judgment for defendants on a directed verdict. Plaintiff brings error.