Volume 210 — Michigan Reports

), J. Bill by Charles H. Billings and another, executors of the last will of Samuel F. Dobbins, deceased, against the Marshall Furnace Company, Charles W. Dobbins and others, for a construction of said will. From a decree for plaintiffs, defendant Dobbins appeals.

), J. Assumpsit by the Cadillac Theatre Company against James A. Fitzgerald for premiums paid on insurance policies upon leased premises. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>1. Trial — Voir Dire Examination — Peremptory Challenges— Waiver.</p> <p>In an action against the owner of an automobile for personal injuries received by plaintiff while riding therein, where a juror, on his voir dire examination, after he had stated that he owned an automobile, was asked if he was a member of the Citizens’ Mutual Automobile Co., and his answer taken over defendant’s objection, and defendant’s counsel afterward, on direct examination, went into the insurance matter at length, the inquiry complained of was apparently made in good faith, and the record does not disclose that defendant exercised any of his peremptory challenges or preferred any request to charge upon the subject, any error therein, is held, to have been, waived.</p> <p>2. Master and Servant — Workmen’s Compensation Act — Person Other Than Employer.</p> <p>Where plaintiff, an employee of a corporation, in the course of his employment, was injured while riding in an automobile driven by defendant, also an einployee and vice president and a director of said corporation, as to plaintiff, the defendant was “some person other than the employer,” within the meaning of the workmen’s compensation act (section 15, part 3, 2 Comp. Laws 1915, § 5468), giving to plaintiff the option to proceed either-at law against said other person or under said act against the employer.</p> <p>3. Trial — Argument oe Counsel — Curing Error.</p> <p>Where there was testimony that plaintiff was seriously injured, that he had suffered considerable pain, and had expended about $300 for medical attendance, a verdict for $800, held, to negative any inference of prejudice because of the statement of plaintiff’s counsel that he “would not go through what plaintiff did for several times ten thousand dollars,” in view of the instructions of the trial judge to the jury not to be influenced by reason of any statement of counsel.</p> <p>Authorities discussing the question as to who are employees within the meaning of the Compensation Statutes, see notes in L. R. A. 1916A, 113; 245; L. R. A. 1917D, 143, and L. R. A. 1918F, 179'. i</p>

), J. Bill by J. Boyd Pantlind and others against the city of Grand Rapids to enjoin the enforcement of a garbage ordinance. From a decree for plaintiffs, defendant appeals.

), J. Bill by Fannie B. Cary and another against Wilford C. Toles and another for the construction of a will. From a decree dismissing the bill, plaintiffs appeal.

), J. Minnie Morris, presented her final account as administratrix of the estate of Frank B. Morris, deceased. The account was allowed in the probate court, and Manley Morris and others appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

<p>Error to Ottawa; Cross (Qrien S.), J.</p> <p>Replevin by George .Messer against Cornelius Dornbos, sheriff of Ottawa county, for goods seized on execution. Judgment for defendant. Plaintiff brings error.</p>

), J. Bill by Elmer U. Burch against George E. String-ham to enjoin the collection of a note and mortgage, and to set aside a sale on the ground of fraud. From a decree dismissing the bill, plaintiff appeals.

Clair; Tappan (Harvey), J. Bill by the Dickinson Island Land Company against Edward E. Hill and another to enjoin a trespass upon land, and for an accounting. From a decree for plaintiff, defendants appeal.

), J. Bill by Charles F. Ruggles and another against the Buckley & Douglas Lumber Company, the Manistee Iron Works Company and others to enjoin the performance of an alleged ultra vires contract. From a decree dismissing the bill, plaintiffs appeal.

<p>Error to superior court of Grand Rapids; Dunham (Major L.), J.</p> <p>Case by Leonard Ward against Cornelius De Young for. personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. Assumpsit by the Berkshire Land Company against William E. Moran, principal, and the Fidelity & Deposit Company of Maryland, surety, on a bond. Judgment for plaintiff against the principal only. Plaintiff brings error.

<p>Error to Wayne; Mandell (Henry A.), J.</p> <p>Case by Cora B. Oliver against the Detroit Taxicab & Transfer Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. Case by Mahlon H. Winget, doing business as T. J. Winget & Son, against the Grand Trunk Western Railway Company for misdelivery of a carload of beans. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>Error to Wayne; Wiest (Howard), J., presiding.</p> <p>Case by Jennie B. Green against the Detroit United Railway for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

<p>Error to Berrien; White (Charles E.), J.</p> <p>Case by Adolph Tober against the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. Harry Martin was convicted of assault with intent to commit the crime of rape and sentenced to imprisonment for not less than 2% nor more than 10 years in the State prison at Jackson.

<p>Error to Jackson; Parkinson (James A.), J.</p> <p>Case by Edwin Boner against the Eastern Michigan Power Company for personal injuries. Judgment for •plaintiff. Defendant brings error.</p>

Mandamus by Jacob Ferie, individually and as mayor of the city of Lansing, to compel Judson A. Parsons, clerk of the city of Lansing, and the .city council of the city of Lansing, to take the necessary steps to provide for a referendum vote on a city ordinance. From an order denying the writ, plaintiff brings certiorari.

), J., presiding. Proceedings by the city of Big Rapids against the-Big Rapids Furniture Manufacturing Company and others to determine the damages resulting from a change of grade in a public street. From the judgment rendered, defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

), J. Bill by Catherine Hawthorne and others against William Dunn and another to set aside a deed. From a decree for plaintiffs, defendants appeal. John Dunn, a resident of Macomb county, died May 15, 1915, leaving as his next of kin plaintiff Catherine Hawthorne, a sister, plaintiffs Frank Dunn and Terrence Dunn, brothers, plaintiff Francis Dunn, a nephew, and defendant William Dunn, a brother.

<p>Error to Calhoun; North (Walter H.), J.</p> <p>Alice Rogers presented a claim against the estate-of Frederick Mayer, deceased, for services .rendered. Deceased left no known heirs, and Alex. J. Groesbeck, attorney general, entered appearance under the statute. The claim was allowed in part by the commissioners, and the attorney general appealed to the circuit court. Judgment for claimant. Contestant brings error.</p>

), J. Mandamus by Lillie Blickle and another to compel the board of education of the city of Grand Rapids to admit a child to the schools. From an order granting the writ, defendant brings certiorari.

<p>Appeal from Emmet; Shepherd (Frank), J.</p> <p>Bill by John Feily and others against the Bay View Campground Association of the Methodist Episcopal Church and others to set aside a settlement for the payment of taxes. From a decree for plaintiff, defendant association appeals.</p>

), J. Mandamus by Charles H. Clements to compel John C. McCabe, commissioner of buildings and safety engineering, and others to issue a building permit. From an order granting the writ, defendants bring certiorari.

), J. Bill by Louis Hill and others against Samuel Rabinowitch to enjoin the violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.

Bill by Alex. J. Groesbeck, attorney general, against the Detroit United Railway to enjoin the collection of illegal rates. From a decree for plaintiff, defendant appeals.

<p>Appeal from Wayne; Searl (Kelly S.), J., presiding.</p> <p>Bill by the Dow Chemical Company against the American Bromine Company and another to enjoin the manufacture of certain chemicals. From a decree for plaintiff, defendants appeal.</p>

<p>Exceptions before judgment from the recorder’s court of Detroit; Wilkins (Charles T.), J.</p> <p>Herman Schultz was convicted of conspiracy.</p>

), J. Case by Agnes Jaworski, administratrix of the estate of George Jaworski, deceased, against the Detroit Edison Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

), J. Bill by D. Adelbert Clark and another against Joseph B. Beckenstein and Walter H. Clark to enjoin summary proceedings before a commissioner, and for an accounting. From the decree rendered, plaintiff and defendant Clark appeal.

), J. Assumpsit by Daniel C. Harrington, administrator of the estate of John C. Vogel, deceased, against the Inter-State Business Men’s Accident Association on a policy of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>Error to Jackson; Parkinson (James A.), J.</p> <p>Case by Charles N. Bernard against the Michigan United Traction Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. George A. Fritch was convicted of manslaughter, and sentenced to imprisonment for not less than 1 nor more than 15 years in the branch of the State prison at Marquette.

Peter Blozina presented his claim-for compensation against the Castile Mining Company for the accidental death of his son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Violet B. Thier presented her claim for compensation against Henry W. Widdifield for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the ¿Etna Life Insurance Company, insurer, bring certiorari.

Guy Nixon presented his claim for compensation against the Furniture Manufacturers’ Association for injuries received in defendant’s employ. From an order denying an application for discontinuance of payments under an award, defendant and the Furniture Mutual Insurance Company, insurer, bring certiorari.

Frances Tanner presented her claim for compensation against the Aluminum Castings Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Hartford Accident & Indemnity Company, insurer, bring certiorari.

Henrietta E. Dewey presented her claim for compensation against the Dewey Fuel Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Southern Surety Company, insurer, bring certiorari.

Charles Stein presented his claim for compensation against the Packard Motor Car Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Clair; Tappan (Harvey), J. Bill by the McMorran Milling Company against the Pere Marquette Railway Company to enjoin' the obstruction of certain* easements. From a decree for plaintiff, defendant appeals.

), J. Assumpsit by William P. Porter against the East Jordan Realty Company, Carl Stroebel, and William Stroebel on a promissory note. Judgment for plaintiff against defendant company alone. Plaintiff brings error.

<p>1. Railroads — Negligence — Crossing Accident — Contributory Negligence — Directed Verdict.</p> <p>In an action for damages to plaintiff’s automobile, caused by a collision on a highway crossing with a motor car used by defendant’s section men, where plaintiff, on a clear, bright day, drove a distance of 50 feet at a rate not faster than 5 miles an hour, when he could have stopped in 6 or 8 feet, and failed to see the motor car coming from the north, although he had an unobstructed view of the track for more than half a mile in that direction, he was guilty of contributory negligence precluding recovery.</p> <p>2. Same — Duty to Look and Listen.</p> <p>It was plaintiff's duty to look just before entering the danger zone, and the fact that the view to the south was obstructed by a curve in the track was not a sufficient reason for his failure to again look to the north just before going upon the track.</p> <p>On duty of driver of automobile at railroad crossings generally, see notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 924 and 46 L. R. A. (N. S.) 702.</p> <p>3. Appeal and Error — Question Not Raised in Court Below— Discovered Negligence.</p> <p>The question of subsequent or discovered negligence, not having been raised in the court below, cannot be considered in this court.</p> <p>4. Railroads — Owner Not Liable for Negligent Acts op Agents</p> <p>op Director General.</p> <p>The cause of action having arisen when defendant's property was being operated by the director general of railroads, defendant railroad company cannot be held liable, and the case as to it must be dismissed, with leave to amend within 30 days.</p>

), J. Bill by Milos Dabits against Sam Hauser and others to enforce a lease. Defendants filed a cross-bill to obtain possession of the premises. From a decree for defendants, plaintiff appeals.

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

), J. Bill by Harry J. Tierney against the Union School District of Bay City to enjoin the expenditure of certain money. From a decree dismissing the bill, plaintiff appeals.

Error tq Mecosta; Lamb (Fred S.), J., presiding. • Replevin by Manning Rossman and others against Alfonzo Ward for the possession of an automobile. Judgment for plaintiffs. Defendant brings error.

<p>Exceptions before judgment from Berrien; White (Charles E.), J.</p> <p>John Urcavitch was convicted of violating the liquor law.</p>

<p>1. Constitutional Law — Statutes—Police Power — Intoxioatinq Liquors — Due Process of Law.</p> <p>The provision, in Act No. 53, Pub. Acts 1919, amending Act No. 338, Pub. Acts 1917, prohibiting the possession of liquor by a private person for his own use, held, not in violation of the constitutional inhibition against depriving a person of his liberty and property without due process of law. but to be a proper exercise of the police power of the State to make more effective the prohibition of the liquor traffic under the constitutional mandate.</p> <p>2. Same — Judicial Notice of Litigation Before the Court— Intoxicating Liquors.</p> <p>The Supreme Court will take judicial notice of the sequence of legislation and litigation which prevailed, and the cases which came before it in official efforts to enforce and put into effect the constitutional amendment prohibiting the liquor traffic.</p> <p>3. Same — Statutes—Immediate Effect — Presumptions.</p> <p>Following the holding by this court that the “Damon Act” was repealed by the “Wiley Act” (204 Mich. 559), the emergency of passing effective legislation for the enforcement of State-wide prohibition became a legislative question, and under the legitimate intendment, presumption, or inferences to be made and drawn from the situation disclosed in favor of the propriety of such legislative action, this court cannot say that the giving immediate effect to Act No. 53, Pub. Acts 1919, amending the “Wiley Act” (Act No. 338, Pub. Acts 1917), constituted a clear violation of the limitation imposed by Article 5, § 21, of the State Constitution.</p>

<p>1. Intoxicating Liquors — Illegal Possession — Evidence—Sufficiency.</p> <p>In a prosecution for the possession of intoxicating liquor^ in violation of Act No. 338, Pub. Acts 1917, as amended, evidence held, sufficient to take the ease to the jury.</p> <p>2. Constitutional Law — Criminal Law — Statutes — Ex Post Facto Law — Enlarging Penalty.</p> <p>Act No. 3, Extra Session 1919, amending Act No. 53, Pub. Acts 1919, amending section 51 of Act No. 338, Pub. Acts, 1917 (the penal clause), held, not open to tbe objection that, as to defendant, it is ex post facto within the meaning of section 9, article 2, Constitution of Michigan, having become operative after the commission of the alleged offense, since said penalty clause was not enlarged or increased thereby.</p> <p>3. Same — Statutes — Mandatory Constitutional Provisions— Intoxicating Liquors.</p> <p>The contention of defendant that Act No. 53, Pub. Acts-1919, amending Act No. 338, Pub. Acts 1917, is unconstitutional in that it ignores the express mandate of section 11, Art. 16, Constitution of Michigan, held, decided adversely to defendant’s contention in People v. Vrcavitch, ante, 431.</p> <p>4. Same — Statutes—Time op Taking Effect — Immediate Effect' —Legislative Discretion — Abuse.</p> <p>In giving immediate effect to Act No. -53, Pub. Acts 1919,. held, that the legislature did not abuse its discretion.. People v. Vrcavitch, ante, 431; People v. Btambosva, ante,. 436.</p>

), J. Assumpsit by the Haberkorn Investment Company against William E. Moran, principal, and the Fidelity & Deposit Company of Maryland, surety, on a bond. Judgment for plaintiff on a directed verdict against the principal only. Plaintiff brings error.

<p>Error to Wayne; Mandell (Henry A.), J.</p> <p>Assumpsit by Marian H. Noble against Adolph E. Sturm on a lease. Judgment for plaintiff. Defendant brings error.</p>

Burget), J. Bill by Addie S. Coulter and another against Charles L. Smith and another to set aside a deed on the grounds of undue influence and mental incompetency. From a decree dismissing the bill, plaintiffs appeal.

), J. Mandamus by Edwin T. Allen to compel Ross Stock-well and others, constituting the Oakland county plat board, to approve a plat. From an order denying the writ, plaintiff brings certiorari.

Bill by Sana Schutt against Gregg B. Bush, individually and as trustee, to determine plaintiff’s rights under the will of Charles. M. Perkins, deceased. Upon settlement of the case, William K. Clute intervened to establish a lien for services rendered. From a decree dismissing the petition, he appeals.

), J. Separate actions of assumpsit in justice’s court by the people of the State of Michigan, for the use and benefit of Carmeno Tavolieri, Paul Garbino and Andrew Bostinelli, against Charles R. Schewe, principal, and the United States Fidelity & Guaranty Company, surety, on a bond. Ther,e were judgments for plaintiffs, and defendants appealed to the circuit court where the cases were consolidated and tried as one. Judgment for plaintiffs on a directed verdict.

<p>1. Vendor and Purchaser — Land Contracts — Notice—Bona Fide Purchaser.</p> <p>Where the vendees in a land contract are in possession of the premises, one who buys from the vendor without inquiry cannot be said to be a tona fide purchaser.</p> <p>2. Contracts — Enforcing Contract as Made.</p> <p>Courts can only require the performance of contracts the parties have made themselves, and cannot make contracts for them.</p> <p>3. Specific Performance — Land Contracts to be Enforced Must be Certain and Definite.</p> <p>In order to warrant specific performance of a land contract, it must be certain and definite, so that the full intention of the parties may be ascertained to a reasonable degree of certainty.</p> <p>4. Same — Not a Remedy of Right.</p> <p>Specific performance is not a remedy of right, but one resting in the sound discretion of the court.</p> <p>5. Same — Land Contract — In capable of Enforcement — Equities —Dismissal.</p> <p>In a suit for the specific performance of a land contract, which was imperfect in its terms, containing contradictory f clauses, and although time was of the essence of the contract the time within which it should have been performed had expired, subsequent to which other parties acquired interests in the property conveyed whose equities were superior to plaintiff’s, the court below properly dismissed the bill.</p>

<p>1. Appeal and Errob — Great Weight of Evidence — New Trial.</p> <p>A motion for a new trial not having been made, an assignment of error that the verdict is against the great weight of the evidence cannot be considered</p> <p>2. Landlord and Tenant — Action for Rent — Eviction—Question for Jury.</p> <p>In an action for rent, whether the building of a balcony by the landlord obstructed the passage of light and deprived the tenants of the use and enjoyment of a portion of the premises, amounting to a constructive eviction, where the testimony was conflicting, held, a question of fact for the jury, under proper instructions.</p> <p>3. Same — Consent to Obstruction — Question for Jury.</p> <p>Held, that the court properly submitted to the jury the controverted question as to whether defendants’ consent to the building of the balcony was absolute, or whether it was on condition that it would not interfere with the light in their shop.</p> <p>On effect of partial eviction upon liability for rent, see notes in 17 L. R. A„ 275, 41 L. R. A. (N. S.) 430.</p> <p>4. Same — Waiver—Imputations.</p> <p>A waiver of defendants’ lights could not be implied from their conduct in remaining in possession, in paying rent, and in permitting plaintiff to erect the balcony, where the light was not obstructed until its completion, since a waiver by continued occupancy or silence is generally a waiver only of conditions existing at the time.</p> <p>5. Same — Continued Possession and Payment of Rent — Waiver.</p> <p>Defendants’ continuance in possession for several months after the obstruction of the light will not be construed as consent to the eviction, nor will the subsequent payment of rent according to the terms of the lease, as a voluntary act, operate as a waiver, since nothing but a new contract by the tenants to pay rent, in substitution for the original lease, will renew his obligation to pay.</p> <p>6. Same — Directed Verdict Against One Defendant Not Warranted — Partial Possession.</p> <p>Where the lease did not provide for any division of the property or of the rent between defendants, the fact that the light in one portion of the building which was occupied by one of the defendants was not obstructed would not warrant the direction of a verdict against said defendant, since defendants had the right to the use and occupation of each and every part of the premises.</p>

(Orien S.), J. Bill by Oscar Arnham and others against Daniel J. Round and Charles E. Ashley, drain commissioners of Allegan and Van Burén counties, to enjoin the construction of a drain. From a decree for defendants, plaintiffs appeal.

<p>Boundaries — Ejectment—Assumption of Surveyor — Evidence—■ Great Weight of Evidence — New Triad.</p> <p>In ejectment proceedings, where plaintiff’s claim that defendant’s building encroached upon his lot was supported only by the testimony of a surveyor which was based upon his assumption that his starting point was correct, although he admitted there was nothing in the original plat to show where to start from or any witness trees, and defendant's claim1 that its building was at least 16 inches south of the line of an old boundary fence between its lot and plaintiff’s (was supported by the positive testimony of ten witnesses, a verdict for plaintiff, held, to be against the great weight of the evidence.</p>

), J. Submitted April 8, 1920. Bernard J. Wortmann presented his final account as administrator of the estate of Joseph H. Wortmann, deceased, and asked for an order of distribution. The account was allowed and order of distribution made in the probate court, and Elizabeth Wortmann appealed to the circuit court. Judgment affirming the probate order. Plaintiff brings error.

(Clement), J. Bill by Alexander Milbourn and another against Henry H. Maatsch and another for the rescission of a land contract, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.

<p>Appeal from Kent; Perkins (Willis B.), J.</p> <p>Bill by James F. Knowlton against Mary L. Gibbons and another to enforce a mechanic’s lien. From a decree for plaintiff, defendants appeal.</p>

<p>1. Evidence — Witnesses — Attorney and Client — Privileged Communications — Rejection—Waiver.</p> <p>In an action against a street railway company for personal injuries, where plaintiff denied the truth of a statement in a bill for divorce .filed by her some time previously that about five years before she had had a stroke of paralysis, and she testified that she told her attorney that she had nervous prostration, any error in rejecting the testimony of her attorney, as privileged, as to what she told him, held, not prejudicial, in view of the fact that there was abundant evidence that at the time of the accident sued on and prior thereto plaintiff was and had been in good health, and it is not claimed that paralysis or nervous prostration is the cause of her present trouble or that it is related in any way with her previous illness.</p> <p>2. Impeachment — Evidence as to Material Matters.</p> <p>Evidence for impeachment should relate to matter material to the issue.</p> <p>3. Appeal and Error — Excessive Verdict to be Raised by Motion eor New Trial.</p> <p>A complaint that the verdict is excessive will not be reviewed on error unless first brought to the attention of the trial court by a motion for new trial.</p> <p>4. Same — Trial—Remarks by Court — Curing Error.</p> <p>A statement by the trial court, in rejecting certain evidence, that counsel for defendant was “trying to smuggle in something that the law does not recognize,” held, not prejudicial where the court, on the following day, on his attention being called to the statement by plaintiff’s attorney, stated to the jury that he had no intention of Imputing any trick or anything of a wrong nature to counsel, for whom he had the utmost respect, to which statement counsel for both parties assented.</p> <p>6. Same.</p> <p>Although a sentence in a statement by the court to a physiclan, defendant’s witness, taken alone, might be prejudicial, held, not reversible error when it is taken with the context, and the circumstances under which it was uttered are taken into consideration.</p>

<p>Exceptions before judgment from Ottawa; Cross (Orien S.), J.</p> <p>Louis Grabiec was convicted of violating the liquor law.</p>

Mandamus by Charles J. Reynick and others, executors of the last will of Ezra Rust, deceased, to compel Ernest A. Snow, circuit judge of Saginaw county, to vacate an order extending the time to settle a bill of exceptions.

Mandamus by Nicholas C. Hartingh to compel Albert Widdis, circuit judge of Iosco county, to vacate an order suspending plaintiff from the office of circuit court stenographer, and to decide a motion to rescind such order of suspension.

Mandamus and prohibition by the Consumers Power Company to compel Albert Widdis, circuit judge of Iosco county, to call another judge to try causes of action against plaintiff, and to prohibit defendant from trying the same.

<p>Error to Wayne; Hosmer (George S.), J. Submitted April 22, 1920.</p> <p>Assumpsit by Eugene J. Longcor against the Detroit Homeopathic College for breach of a written lease. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Negligence — Personal Injuries — Contributory Negugenoe— Evidence — Question for Jury.</p> <p>In an action for personal injuries caused to plaintiff by a collision witb some steps projecting over tbe curb into the pavement, placed there by defendant, tbe failure of plaintiff and his chauffeur to see the obstruction, field, not to constitute contributory negligence as a matter of law.</p> <p>On contributory negligence of person injured by material placed in street by individuals, see note in 46 L. R. A. (N. S.) 333.</p> <p>General rules as to effect of contributory negligence as affecting liability of municipal corporation for defects and obstructions in streets, see notes in 21 L. R. A. (N. S.) 614; 48 L. R. A. (N. S.) 628.</p> <p>2. Same.</p> <p>If candid and intelligent men might reach different conclusions on the facts, the question of plaintiff’s contributory negligence was one for the jury.</p> <p>S. Same — Proximate Cause.</p> <p>It cannot be said that a reasonably prudent person could deliberately put an obstruction in the traveled part of a main thoroughfare in a city without contemplating that some vehicle might collide with it. '</p> <p>4. Same — Peeading—Evidence—City Ordinance.</p> <p>A city ordinance, counted upon in plaintiff’s declaration, inhibiting the placing of building materials in the street without permission of the board of public works was admissible in evidence as tending to show that defendant was guilty of negligence in placing some steps so that they projected into the traveled way.</p>

), J. Separate actions of assumpsit in justice’s court by Albert I. Stevens and Edward P. Lang against N. Z. Graves Corporation and another for services rendered. There were judgments for plaintiffs by default, and defendants appealed to the circuit court where the cases were consolidated. Judgments for plaintiffs. Defendants bring error.

), J. Assumpsit by Bryant & Detwiler Company against Joseph S. Peterman for damages caused by breach of a contract, at the same time instituting garnishment proceedings for moneys paid under the contract. From an order denying a motion to dismiss the garnishment proceedings, defendant brings certiorari.

Bill by Charles G. Niemetta and another against Kobert T. Teakle for the specific performance of a lease. From a decree dismissing the bill, plaintiffs appeal.

), J., presiding. Petition by Anna Brown against Charles F. Brown for an appeal from an order of the probate court allowing defendant’s account as administrator of the estate of Henry C. Brown, deceased. From an order denying the petition, plaintiff appeals.

), J. Bill by Edward Neidhold against Louis A. Henry and others to enjoin an execution levy and sale. From the decree entered, plaintiff appeals.

), J. Bill by William F. Bainton and another against the Clark Equipment Company to enjoin a trespass. From a decree dismissing the bill; plaintiffs appeal.

<p>Error to Newaygo; Barton (Joseph), J.</p> <p>Assumpsit by Elena M. McNatt against the Patrons’’ Mutual Fire Insurance Company on a policy of insurance. Judgment for defendant non obstante veredicto. Plaintiff brings error.</p>

), J., presiding. Orrin S. Breen and William Bohrer, executors, presented the last will of Anna Klink, deceased. The will was allowed in the probate court, and Louisa Ollenbrook appealed to the circuit court. Judgment for contestant. Proponents bring error.

Exceptions before judgment from Calhoun; North (Walter H.), J. C. H. Luce was convicted of taking indecent liberties with the person of a female child.

<p>Error to Shiawassee; Collins (Joseph H.), J.</p> <p>Assumpsit by James Sullivan against the Fidelity & Casualty Company of New York, surety, and Arthur L. Waldorf, principal, on a bond. Judgment for plaintiff. Defendant surety brings error.</p>

), J., presiding. Richard L. Newnham, executor, and another presented for probate the last will of Susan Rosa, deceased. The hearing was certified'under the statute to the circuit court. Elizabeth Newell and another, sole heirs at law, contested the allowance of the will. Judgment for contestants. Proponents bring error.

), J. Assumpsit in justice’s court by Joseph Rundell against the Farmers’ Co-operative Elevator Company of Corunna for breach of a contract of employment. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Divorce — Aukoiíy—Excessive Award,</p> <p>In. a suit by a wife for a divorce, where it appears that the accumulations of the parties amounting to $15,890 were largely due to her conduct, good management, and work beyond the ordinary duties of a wife, the decree of the court below awarding her one-half of the property, as the result of their “joint adventure,” and, in addition, for alimony, the expenses of litigation, and for the support, maintenance, and education of their minor child, one-third of defendant’s one-half, will be modified, providing that on the execution of the conveyances therein provided for, the plaintiff pay to defendant the sum of $1,000.</p>

<p>Exceptions before judgment from Muskegon; Vanderwerp (John), J.</p> <p>Mabel McLean was convicted of violating the liquor law.</p>

), J. Bill by Burl O. Scott and others against Mary E. Scott and others for the construction of a will. From a decree for plaintiffs, defendants appeal.

Case-made from Kent; Brtíwn (William B.), J. Assumpsit by Jacob Aman against Frank L. Carpenter as surety upon a statutory bond. Judgment for plaintiff on a directed verdict. Defendant appeals.

<p>Appeal from Wayne; Davis (Frank D. M.), J., presiding.</p> <p>Bill by Vouwie B. Gillberg against Gustave S. Gill-berg for a divorce. From a decree for plaintiff, defendant appeals.</p>

), J., presiding. Bill by Frances H. Supple against Kate Henderson Wheeler and others for the cancellation of a deed. Albert C. Barley was permitted to intervene and file a bill claiming under a prior deed which had been destroyed. From a decree dismissing the bills, plaintiff Barley appeals.

), J., presiding. Assumpsit by Enrico Garavaglio against the Verona Mining Company for services rendered. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Shiawassee; Collins (Joseph H.), J.</p> <p>Assumpsit by Arthur J. Hanchett against the Fidelity & Casualty Company of New York, surety, and Arthur' L. Waldorf, principal, on a bond. Judgment for plaintiff. Defendant surety brings error.</p>

), J. Proceedings by Frank J. Hughes under the log-lien law against John A. Hughes and the W. C. Sterling & Son Company for work and labor. Judgment for plaintiff. Defendant company brings error.

Mandamus by Harry Rosenfeld and another to compel Harry J. Dingeman, circuit judge of Wayne county, to vacate an order setting aside a default and judgment.

), J. Case by John A. McRae against the Union Trust Company for wrongfully allowing access to a safety deposit box. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J. Petition by the National Surety Company to reopen the estate of George W. Thayer, deceased, for the purpose of filing a claim. The petition was denied in the probate court, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant Michigan Trust Company, trustee, brings error.