Volume 211 — Michigan Reports

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

' Error to Houghton; O’Brien (Patrick H.), J. Case by Hilda Kutramo against the Michigan Bonding & Surety Company, surety, and Elias Haanpaa, principal, under the civil-damage act. Judgment for plaintiff. Defendants bring error.

), J. Case in justice’s court by Irvin E. Mosier against the American Railway Express Company for the nondelivery of a trunk. There was judgment for plaintiff for less than the amount claimed, and he appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

M.), J., presiding. Summary proceedings by Martin Whalen against Joseph Galy for the possession of leased premises. There was judgment of restitution, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error. On November 8, 1915, plaintiff entered into a lease with one Elias A. Fraam. The lease covered three stories and the basement and expired by its terms on November 1, 1918.

), J. Bill by the township of Avon and others against the Detroit United Railway to enjoin the collection of illegal rates. From an order adjudging defendant’s agents guilty of contempt, defendant-brings certiorari.

), J. Bill by Orson R. Devereaux against the township board of Genesee township and others to enjoin the enforcement of Act No. 97, Pub. Acts 1919. From a decree for plaintiff, defendants appeal.

), J. Robert Garner was convicted of statutory rape and sentenced to imprisonment for not less than 2% nor more than 5 years in the State prison at Jackson.

), J. Bill by Kate Jacobs and others against Fred J. Weissinger and another to set aside a deed on the ground of mental incompetency. From.a decree for plaintiffs, defendants appeal.

<p>Criminal Law — Indictment and Information — Assault With</p> <p>Intent to Rape — Included Lesser Offenses.</p> <p>In a prosecution for assault with intent to commit rape, the trial judge was in error in charging the jury that, included within the charge of “assault with intent to commit rape” there is a lesser offense, to wit, “attempted rape,” since the only included lesser offense is assault and battery.</p>

Bill by Fannie Fisher, administratrix of the estate of Florence B. Grandfield, deceased, against Walter Grandfield and another to enjoin the disposal of certain jewelry, and for other relief. From a decree dismissing the bill, plaintiff appeals. One Florence B. Grandfield died seised of certain personal property, consisting principally of jewelry set with diamonds.

<p>Mandamus by Jessie De Velin to compel Adolph Marschner, circuit judge of Wayne county, to vacate an order setting aside a service of summons.</p>

), J. Assumpsit by the board of education of the city of Sault Ste. Marie against Louis E: Chaussee, principal, and the Chicago Bonding & Surety Company, surety, on a bond for the construction of a building. Judgment for plaintiff. Defendant company brings error.

Exceptions before judgment from recorder’s court of Detroit; Jeffries (Edward J.), J. Francisco Pizzura was convicted of statutory rape. Reversed, and defendant discharged.

), J. Mandamus by Matthew H. Bishop, prosecuting attorney of Wayne county, on the relation of Edgar O. Durfee, to compel Richard Lindsay, city clerk of Detroit, to give the statutory notice of re-registration of electors. From an order denying the writ, plaintiff brings certiorari.

Mandamus by the public schools of the city of Muskegon to compel John Vander Laan, president of the board of education of Muskegon, to sign certain bonds. From an order granting the writ, defendant brings certiorari.

Case-made from Wayne; Jayne (Ira W.), J. Assumpsit in justice’s court by Lazarus D. Davidow against the Wadsworth Manufacturing Company for wages due for labor performed, and for the penalty provided under section 5385, 2 Comp. Laws 1915. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for plaintiff. Defendant appeals.

. Bill by Eli Sprunger and others against William B. Ensley, Jr., and others, to enjoin an action of ejectment and to quiet title to land. From a decree dismissing the bill, plaintiffs appeal.

), J. Case by William Beno, an infant,' by his next friend, against Anthony J. Kloka and another for personal injuries. Judgment for defendants. Plaintiff brings •error.

), J. Bryant Walker presented Ms final account as surviving trustee under the will of Frederick Buhl, deceased. The account was disallowed in part, and he appealed to the circuit court. Judgment, on a directed verdict, allowing the account in full. Hazel Buhl and Harry C. Buhl, beneficiaries, bring error.

), J. Mandamus by L. A. Thompson Scenic Railway Company to compel John C. McCabe, commissioner of buildings and safety engineering of the city of Detroit, to issue a building permit. From an order granting the writ, defendant brings certiorari.

), J. Bill by Isaac-E. Boomer against Anna Shewitz and. others to enforce a mechanic’s lien. Fred C. Wolf and another were admitted as parties defendant and filed a cross-bill to establish mechanics’ liens against defendant Shewitz. From an order overruling a demurrer to the cross-bill, defendant appeals.

), J. Submitted April 7, 1920. Bill by the Michigan Crown Fender Company against John R. Welch for an injunction, an accounting, and other relief. From a decree for plaintiff, defendant appeals.

<p>Error to superior court of Grand Rapids; Duiiham (Major L.), J.</p> <p>Assumpsit by George F. Reinhard against the Grand Rapids School Equipment Company for commissions on the sale of goods. Judgment for plaintiff. Defendant brings error.</p>

), J. Assumpsit by Isaac Ogooshevitz against George L. Sampson for breach of a land contract. Judgment for plaintiff for an insufficient amount. He brings error.

Frank C. Roberts was convicted of murder in the first degree, and sentenced to imprisonment for life-in the State prison at Marquette.

), J. Bill by the Palmer Woods Company and others 'against Walter M. Nelson to enjoin the violation of certain building restrictions. From a decree dismissing the bill, plaintiffs appeal.

<p>1. Evidence — Annulment of Marriage — Documentary Evidence of Foreign Marriage — Admissibility.</p> <p>In proceedings by a wife for tbe annulment of her marriage to defendant on the ground that he had, at the time, a lawful wife living in Ireland, a certified copy of the , matrimonial register of the parish of the Catholic church showing said marriage to have been performed, held, admissible in evidence.</p> <p>2. Same — Identity.</p> <p>Evidence as to the identity of the parties, held, sufficient.</p> <p>3. Annulment of Marriage — Fraud—Voluntary Cohabitation— Statutes.</p> <p>Plaintiff’s. voluntary cohabitation with defendant, after hearing that he had a former lawful wife living, would not bar her relief, in annulment proceedings, under 3 Comp. Laws 1915, § 11425, where it appears she did so in reliance upon his assurance that it was untrue, and as soon as she became satisfied, after investigation,'that it was true, she left him.</p> <p>4. Same — Evidence—Admissions and Confessions — Statutes.</p> <p>The original statute having been amended by striking out the words referring to the annulment of a marriage, the provision in 3 Comp. Laws 1915, § 11428, that no decree of divorce shall be made solely oh the declarations, con-</p> <p>On presumption as to capacity flowing from marriage ceremony, see note in 16 L. R. A. (N. S.) 100. fessions, or admission of the parties does not apply in proceedings for the annulment of a marriage.</p> <p>5. Marriage — Authority of One Officiating Presumed.</p> <p>The authority of the officer or clergyman shown to have performed a marriage ceremony will he presumed, in the absence of any showing to the contrary.</p> <p>6. Same — Legality Presumed.</p> <p>Where a marriage ceremony is shown, every presumption will be indulged that it was legally performed.</p> <p>7. Same — Laws of Foreign State — Presumptions.</p> <p>There is no presumption that the marriage laws of another State or country are different from the laws obtaining in the forum.</p> <p>8. Evidence — Annulment of Marriage — Admissions of Spouse—</p> <p>Admissibility.</p> <p>In the absence of statutory exception, admissions of the spouse, who is alleged to have contracted the prior marriage, are admissible in evidence.</p> <p>9. Annulment of Marriage — Evidence—Sufficiency.</p> <p>.Evidence of prior marriage, held, sufficient to sustain decree of annulment.</p>

), J. Mandamus by Beatrice G. Blickle, an infant, by her next friend, to compel Clark E. Higbee, probate judge of Kent county, to expunge an order from the record of said court. From an order denying the writ, plaintiff brings certiorari.

<p>Error to Wayne; Goff (John H.), J.</p> <p>Assumpsit by the National Building Supply Com-, pany against Samuel B. Spencer on a contract of guaranty. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

<p>Appeal from Ionia; Moinet (Edward J.), J., presiding.</p> <p>Bill by Charles J. Stout against Jennie Stout for. a divorce. From a decree for plaintiff, defendant appeals.</p>

), J. Petition by Oramel B. Fuller, auditor general, for the sale of land delinquent for taxes: 'On objection of Frederick F. Ayer, trustee of the estate of James O. Ayer, deceased. „ From an order overruling the objections, said trustee appeals.

Appeal.from Wayne; Mandell (Henry A.), J. Bill by Jennie L. Sayers against Frank A. McKeever and another for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.

<p>Error to Wayne; Mandell (Henry A.), J.</p> <p>Case by Stanley Bloch, administrator de bonis non of the estate of Kaspar Dziwak, deceased, against the Detroit United Railway for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant. Plaintiff brings error.</p>

Alonzo Curtis presented his claim for compensation against the Hayes Wheel Company for injuries received in defendant’s employ. From an order granting a petition to reopen an award for permanent disability, defendant and the Michigan Mutual Liability Company, insurer, bring certiorari.

<p>Exceptions before judgment from Bay; Houghton (Samuel G.), J.</p> <p>Thomas Strzempkowski was convicted of violating the liquor law.</p>

), J., presiding. Bill by Ignatius J. Salliotte, guardian of Catherine C. Salliotte, against Alexander H. Dollarhite and others for an accounting. From a decree for plaintiff, defendant Dollarhite appeals.

<p>1. Negligence — Contributory Negligence — Personal Injuries— Excessive Speed — Evidence—Question for Jury.</p> <p>In an action for personal injuries to plaintiff, an errand boy 15 years of age, who while riding a bicycle south on the west side of a city street was struck at a street intersection by defendant’s truck as it turned to go west, the court properly refused to instruct the jury that plaintiff was guilty of contributory negligence as a matter of law, for riding at an excessive rate of speed, where there was testimony that defendant’s truck had come from a point about 50 feet south of the street intersection and had crossed the street and made the turn to the point of collision while plaintiff had come from a point 50 feet north of the intersecting street.</p> <p>2. Same — Law of Road — Automobiles.</p> <p>It was not the duty of plaintiff to anticipate that the driver</p> <p>On liability of municipal corporation for collision of automobile and bicycle, see note in 28 L. R. A. (N. S.) 944.</p> <p>On reciprocal duty of driver of automobile and child riding bicycle in street, see note in L. R. A. 1918A, 255. of the truck would cut across the corner and drive on the wrong side of the street. '</p> <p>3. Same — Violation of Law of Road — Duty of Drives — Presumptions.</p> <p>One who violates the “law of the road” by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side, and if a collision takes place the presumption is against him.</p> <p>4. Same — Trial—Instructions.</p> <p>The trial court was not in error in instructing the jury that plaintiff’s age, intelligence, and experience were to he considered.</p> <p>5. Appeal and Error — Instructions in General Charge — Refusal of Requested Instruction. j</p> <p>Where the trial judge, in the charge as á whole, correctly instructed the jury regarding plaintiff’s duty, under the circumstances of the case, it was not error to instruct them that plaintiff had a right to assume that the defendant would obey the law of the road without also instructing them that this would not relieve him from exercising care in crossing a street intersection.</p>

(George P.), J. Bill by A. Russel Keys against Katherine G. Keys for a divorce. There was a decree for plaintiff and the custody of a child was given him. Defendant afterwards petitioned for the partial custody of the child, and the decree was so modified. From an order rescinding such modification on petition for rehearing, defendant appeals.

<p>1. Negligence — Personal Injuries — Defective Premises — Duty of Owner.</p> <p>In an action for personal injuries by the owner of a lot in defendant’s cemetery caused by an alleged defective cover over a concrete drain inlet in a roadway, testimony by plaintiff that the cover was of improper and defective construction, not suited to the purpose, easily removed from place, likely to be displaced by travelers, and that the roadway was used for travel, held, to make the question of defendant’s negligence one of fact for the jury, since defendant owed to persons lawfully upon the premises the duty to have such parts thereof as were used for travel in a reasonably safe condition.</p> <p>2. Same — Contributory Negligence — Question for Jury.</p> <p>The fact that plaintiff went across lots to reach her lot would not render her guilty of contributory negligence, as a matter of law.</p> <p>3. Same — Defective Premises — Defect in Construction — Notice.</p> <p>it was not necessary, in order to recover, for plaintiff to show that defendant had notice, either actual or constructive, of the claimed defective condition of the roadway, since the rule requiring notice is not applicable where the defect is one in construction, as distinguished from a mere condition of repair.</p> <p>4. Evidence — Subsequent Condition of Defective Roadway — ■ Admissibility.</p> <p>Testimony of the condition of a drain inlet and cover as found by witness nearly a year after the accident sued upon, where there was testimony by other witnesses, although somewhat indefinite, that there had been no change in the condition, held, admissible.</p>

Clair presented his claim for compensation against the A. H. Meyer Music House for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Travelers Insurance Company, insurer, bring certiorari.

<p>1. Contracts — Building Contract — Evidence — Submission of Uncontroverted Question to Jury.</p> <p>In an action for a claimed balance due on a contract for the construction of a barn, where the testimony of both parties shows that it was agreed that the proposed barn should be a duplicate, except as to proportions, of one built in the neighborhood, the trial court was in error in submitting to the jury the question as to whether such agreement was made.</p> <p>2. Trial — Instructions—Assumption Contrary to Testimony.</p> <p>Where there was testimony that plaintiff never substantially completed the building, it was error for the trial court, in his instructions to the jury, to assume that the plaintiff had substantially complied with the terms of his contract.</p> <p>3. Damages — Quantum Meruit — Breach of Contract.</p> <p>In an action on the quantum meruit for the construction of a barn which was never completed according to contract, the measure of damages is the reasonable value of the building, of which defendant took possession, not exceeding the contract price, less the reasonable cost of completing the building according to contract.</p> <p>4. Trial — Instructions—Duty of Trial Judge.</p> <p>It is the duty of the court to instruct the jury correctly upon pertinent matters of law, even when not requested so to do.</p> <p>5. Same — Abstract Questions — Instructions.</p> <p>An instruction by the court which invites the jury to formulate their verdict from abstract notions of what is right between man and man is objectionable.</p>

<p>Corporations — Foreign Corporations — Licenses —• Interstate Commerce.</p> <p>In an action by a foreign corporation not licensed to do business in Michigan under Act No. 310, Pub. Acts 1907, as amended, on a contract to furnish defendant certain ornamental plaster work for a school building, where the record discloses that there are concerns in Michigan furnishing ornamental plaster work, and it is apparent that there are mechanics in the State competent to erect such material, there is no such “intrinsic or peculiar quality or inherent complexity” in the article sold as would prevent its sale unless erected by the vendor, and the trial court properly held that plaintiff could not recover because it was an undomesticated foreign corporation engaged in intrastate business.</p> <p>On validity of contracts made by foreign corporations which have not complied with statutory conditions of the right to do business in the State, see notes in 24 L. R. A. 315; 1 L. R. A. (N. S.) 1041.</p>

<p>Appeal from Gratiot; Moinet (Edward J.), J.</p> <p>Bill by Maude G. Cowdrey against Joseph E. Cowdrey for a divorce. From a decree dismissing the bill, plaintiff appeals.</p>

Burget), J. Assumpsit by Wilson & Company against Fred Niffenegger and others, copartners as Niffenegger Brothers, for goods sold and delivered. Judgment for defendants on a directed verdict. Plaintiff brings error.

Mandamus by the Detroit Mortgage Corporation, a foreign corporation, to compel Coleman C. Vaughan, secretary of State, to issue a certificate of authority to transact business in this State. Plaintiff’s business is all conducted and its entire assets are located in the State of Michigan. It was incorporated May 5, 1917, under the laws of the State of Delaware with 250,000 shares of common stock of the par value of $10 each, and preferred stock of the par value of $2,500,000.

<p>Error to Kent; McDonald (John S.), J.</p> <p>Case by the Thomas Canning Company against the Pere Marquette Railway Company for damages to certain beans. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Landlord and Tenant — Possession of Tenant Inures to Benefit of Landlord — Adverse Possession.</p> <p>Where the relation of landlord and tenant exists tfye possession of the tenant is the possession of the landlord.</p> <p>2. Adverse Possession — Tacking Possession.</p> <p>Possession of a strip of land by a tenant inured, to the benefit of his landlord, and could not be tacked on to his occupancy as owner, after his purchase from the landlord of adjoining land, for the purpose of establishing title by adverse possession.</p> <p>3. Same — Conveyances — Right to Grantor’s Possession Not Conveyed,</p> <p>Where the grantee relies upon his deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not conveyed by the deed.</p> <p>4. Same — Possession for Statutory Period — Evidence — Sufficiency.</p> <p>Held, that, if the description in plaintiff’s contract of purchase be deemed broad enough to include the disputed strip of land and he be, permitted to add the period of his grantor’s occupancy with that of his own, he still fell short of the full statutory period of 15 years.</p> <p>5. Boundaries — Line Fence — Establishment by Agreement.</p> <p>An agreement to rebuild a line fence on the old line and that if a later survey showed it to be off the true line it should be placed on that line, held, not to show such am actual dispute as to where the line was and an agreement for its adjustment as to render applicable the rule of established boundaries.</p> <p>6. Same — Rule—When Applicable.</p> <p>To render applicable the rule of established boundaries by agreement, there must have been an actual dispute as to where the line is, and an agreement for its adjustment.</p> <p>7. Adverse Possession — Quieting Title — Plaintiff to Prevail on Strength of Own Title.</p> <p>To entitle plaintiff to a decree quieting title to a strip of land to which, defendants have the 'record title, plaintiff must establish title in himself, and must prevail, if at all, upon the strength of his own title rather than upon the weakness of defendants’.</p> <p>8. Same — Evidence—Suottciencv.</p> <p>In said action, proofs held, insufficient to establish title in plaintiff!</p> <p>9. Appeal and Error — Damages Due to Injunction — Question.</p> <p>Not Decided Below.</p> <p>In proceedings to quiet title, defendants’ request in this court that the case be referred to a .commissioner to ascertain the damages they have sustained by reason of the issuance and continuance of an injunction must be denied where the decree of the court below makes no such provision and defendants have not appealed,, and there is no proof of any damages by reason thereof.</p>

<p>Error to Livingston; Collins (Joseph H.), J.</p> <p>Assumpsit in justice’s court by Florent Lignell against John Bruhns for breach of a contract of leasing. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Berrien; White (Charles E.), J.</p> <p>Case by Hattie M. Stahl against the Southern Michigan Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Wayne; McDonald (John S.), J., presiding.</p> <p>Assumpsit by Herbert H. McCall against Thomas F. Cowhey for breach of a contract of leasing. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Wayne; Brown (William B.), J., presiding.</p> <p>Bill by the Wayne Woods Land Company against Sarah Beeman and others for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.</p>

<p>Appeal from Roscommon; Smith (Guy E.), J.</p> <p>Bill by Jane E. Taylor against John Carter, Sara Craig Buckley and others for the foreclosure of a mortgage. Defendant Buckley filed a cross-bill to obtain a release of certain land from said mortgage lien. From a decree for plaintiff and dismissing the cross-bill, defendant Buckley appeals.</p> <p>September 5, 1902, John Carter and wife executed to Charles R. Taylor a mortgage upon some 40,000 acres of land located in Roscommon county to secure the payment of $20,000 which was part of the purchase price of the lands. The mortgage contained the following provisions:</p> <p>“It is furthermore expressly understood and agreed that the mortgagee shall release any part of said lands upon the payment to him by the said mortgagor or his assigns, of the sum of one dollar per acre upon the lands so released. * * *</p> <p>“It is further understood and agreed that all of the covenants herein contained shall extend to and be binding upon the heirs, administrators and assigns of the parties hereto.”</p> <p>Shortly after the execution of this mortgage the premises were conveyed to the St. Helen Development Company. From time to time partial releases were executed by'the mortgagee until in the aggregate something over 26,000 acres had been released from the lien of the mortgage. The full sum of one dollar per acre had not always been paid to the mortgagee upon, the execution of these partial releases.</p> <p>July 28, 1911, the St. Helen Development Company executed to defendant Sara Craig Buckley a mortgage to secure the payment of the sum of $6,918.89 upon a portion of the lands described in the mortgage to Taylor, being section 22, town 23 north, range 1 west. This is a fractional section' containing 463 55/100 acres, 120 of which has been released from the Taylor mortgage.</p> <p>Plaintiff acquired the Taylor mortgage by descent and files this bill for its foreclosure. Defendant by way of cross-bill in her answer sets up that she has tendered and offered to pay the sum of oné dollar per acre on the lands covered by her mortgage which have not heretofore been released, sets up the refusal of plaintiff to accept such sum, continues her offer and prays that she may be permitted to pay that sum, and upon such payment being made that the lands covered by her mortgage be released from the lien of the Taylor mortgage. Upon the hearing it appeared that there was approximately $20,000 due to plaintiff including about $7,000 paid for taxes, but that none of the taxes paid were upon lands covered by defendants’ mortgage. The trial judge at the earnest insistence of defendants’ counsel heard the matters set up in defendants’ cross-bill prior to the hearing of the case itself. Upon such hearing a decree was entered dismissing defendants’ cross-bill on the merits, and from this decree defendant appeals.</p>

), J. David Cochrane and others presented for probate the last will of William Cochrane, deceased. The will was disallowed in the probate court, and proponents appealed to the circuit court. Judgment for proponents on a directed verdict. William King, contestant, brings error.

<p>1. Appeal and Error — Trial by Court Without a Jury — Exceptions to Findings — Amendments—Review.</p> <p>Where the case was tried in the court below without a jury, and the only findings of fact and law were in a Written opinion in which judgment was rendered for defendant, • and no attempt was made by plaintiff to follow the provisions of Circuit Court Rule No. 45 or 3 Comp. Laws 1915, §§ 12586, 12587, and the only exception filed was that the evidence did not support the findings of fact or the judgment, the Supreme Court, in reviewing same, will give the record the most liberal construction possible and treat the opinion as a finding of fact and law duly excepted’ to, and consider whether the evidence supports the judgment.</p> <p>2. Same — Finding Supported by Evidence — Insurance — Insurable Interest.</p> <p>In an action on an insurance policy for the value of hay destroyed by fire, the finding of the court below that title to the hay by sale had passed from plaintiff to third parties, before the fire, and therefore plaintiff could not recover, held, supported by the evidence..</p>

), J. Summary proceedings by Charles W. Burton and another against Edward R. Ladd for the possession of leased premises. There was judgment of ouster before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiffs on a directed verdict. Defendant brings error.

<p>1. Drains — Board of Supervisors — Consent of Township Boards —Statutes—Repeal by Implication.</p> <p>Act No. 91, Pub. Acts 1901, amending tbe drain law, and authorizing tbe board of supervisors of Saginaw county by resolution to fix and determine “such further conditions than those herein set forth to be complied with” before any contract should be entered into for the construction, improvement, or clearing out of any drain as to such board should seem necessary and proper to protect persons and townships affected thereby, held, not repealed by implication by Act No. 118, Pub. Acts 1909, because it provided for action by township boards as to the necessity of proposed drains.</p> <p>2. Same — Conetjct of Laws — Statutes.</p> <p>Where, by Act No. 118, Pub. Acts 1909, the legislature assumed to legislate on the subject of notice to and consent of township boards in respect to the construction of drains, it operated to deprive the board of supervisors of the right, granted by Act No. 91, Pub. Acts 1901, to impose, by resolution, the condition that the consent of the majority of township boards should be obtained as a prerequisite to the construction of a drain, since there would be a conflict of authority.</p> <p>3. Same — Consent of Township Boards.</p> <p>In proceedings to determine the necessity of a drain and award just compensation to landowners for right of way, an objection by defendants that the proceedings were defective because not in compliance with a resolution of the board of supervisors authorized by Act No. 91, Pub. Acts 1901, cannot be sustained where the subject-matter of the resolution was superseded by legislation in Act No. 118, Pub. Acts 1909; and the fact that the provisions in the latter act were dropped out of the law in 1915, and again reinstated in the laws of 1917, after the proceedings in the present case were under way, would not avail defendants anything, unless the resolution was again passed by the board of supervisors, of which there is no claim made.</p>

<p>Mandamus by William A. Harrington to compel Coleman C. Vaughan, secretary of State, to certify the candidacy of plaintiff for a public office.</p>

), J. Bill by C. Fred Schneider against the city of Grand Rapids and another to enjoin the conveyance of certain land to defendant city. From a decree dismissing the bill, plaintiff appeals.

), J. Case by George A. Kelley, administrator of the estate of George Kirby Kelley, deceased, against Louis F. Keller and another for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.

<p>Error to Wayne; Marschner (Adolph F.) J,</p> <p>Assumpsit by the Master Spark Company against Benjamin F. Hickerson for money had and received. Judgment for plaintiff. Defendant brings error.</p>

Clair; Tappan (Harvey), J. Case by Lulu Howell against the township of Burtchville for personal injuries caused by a defective highway. Judgment for plaintiff. Defendant brings error.

L.), J. Assumpsit by Sigrid J. Sorensen against Fred W. Sorensen for services rendered. Judgment for plaintiff. Defendant brings error. Plaintiff is a daughter-in-law of defendant, having married defendant’s son some time prior to the year 1908. In December of that year, after some correspondence, plaintiff and her husband ^removed from Kenosha, Wisconsin, to Michigan, and went upon defendant’s farm in the county of Manistee.

), J. Case by George L. Belcher against Delbert D. Ranney for the conversion of certain post office fixtures. Judgment for plaintiff. Defendant brings error.

), J. Assumpsit in justice’s court by George R. Williams against the Southern Surety Company on a policy of insurance. There was judgment for plaintiff and defendant appealed to the circuit court. Plaintiff died and the action was revived in the name of Anna T. Williams, administratrix. Judgment for defendant. Plaintiff brings error.

Barbara Kropf presented her claim for compensation against the Michigan Bean 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.

M.), J., presiding. Bill by Israel Schoenfeld against Freda Kemter and others for the specific performance of a land contract. From a decree for plaintiff, defendants Kemter appeal.

), J. Assumpsit in justice’s court by Cólby E. White against Louise Hoenighausen for commissions on the sale of certain real estate. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>1. Municipal -Corporations — Sewer Contract — Substantial Compliance — Approval op Engineer — Arbitrarily Withholding Approval.</p> <p>Although a sewer contract provided that the work should be done to the satisfaction of the village engineer, where there were attached to the contract plans and specifications which provided in detail what should be done, the contractor was entitled to the approval of the engineer on substantially complying with the terms of the contract.</p> <p>2. Same — Compliance with Contract — Question por Jury.</p> <p>Ah to whether there had been a substantial compliance with the contract, held, under the evidence, a question of fact for the jury.</p> <p>■3. Same — Evidence—Expert Testimony — Collateral Issues.</p> <p>Expert testimony on the part of plaintiff to the effect that vitrified segment block sewers (the kind specified by defendant) had been failures in certain cities, held, objectionable, since it raised collateral issues difficult for defendant to meet.</p> <p>4. Same — Contracts—Engineer Agent op Village.</p> <p>A provision in the contract that the contractor should “carry on the work under the supervision and direction of the village engineer,” made the orders and directions of the engineer those of defendant.</p> <p>5. Same — Evidence as to'Approval op Engineer — Admissibility.</p> <p>It was competent for the plaintiff to show that he had done the work in such manner as to gain the approval of the engineer, which was one of the things the contract provided he should do, although the contract provided that the work was also subject to the approval of the council.</p> <p>6. Costs — Supreme Court Rule.</p> <p>Although defendant was entitled to costs, where little, if any, effort was made to comply with Supreme Court Rule No. 40, requiring the brief of the party bringing the cause into this court to contain a clear and concise statement of tbe facts distinct from argument, etc., the cost of printing its brief will be excepted.</p>

<p>1. Annulment of Marriage — Common-Law Marriage — Evidence—</p> <p>Burden of Proof.</p> <p>In proceedings by a husband to annul a marriage on the. ground that defendant had a former lawful husband living, the burden of proof is upon her to establish her clairm that after she obtained a divorce from the former husband! marital relations constituting a common-law marriage were resumed between herself and plaintiff.</p> <p>2. Same — Cohabitation—Mutual Pbomises.</p> <p>Mere cohabitation, without a mutual understanding that they should accept each other as husband and wife, would he insufficient to establish a common-law marriage.</p> <p>3. Same — Evidence—Sufficiency.</p> <p>Held, that the record fails to establish a common-law marriage, and the decree of annulment is .therefore affirmed.</p> <p>For authorities discussing the question of presumption flowing from marriage ceremony, see notes in 45 L. R. A. 540; 16 L. R. A. (N. S.) 98; 34 L. R. A. (N. S.) 940; and L. R. A. 1915E, 186.</p> <p>On sufficiency of words and conduct to, constitute common-law marriage, or of circumstantial evidence to imply marriage, see note in L. R. A. 1915E, 60.</p>

), J. Charles Foster and William Burns were convicted of murder in the first degree and sentenced to imprisonment for life in the State prison at Jackson.

<p>1. Trial — Pleading—Abandonment of Counts.</p> <p>A statement by plaintiff's counsel, in the course of the trial, that he was ready to plant his action on the second count of his declaration, but nothing further was done, held, not to amount to an abandonment of the other two counts.</p> <p>2. Same — Election of Counts.</p> <p>Where the three special counts fully advised of all plaintiff claimed, were cumulative, and not inconsistent, no election could be required.</p> <p>3. Same — Brokers—Commissions—Termination of Agency — Notice — Question for Jury.</p> <p>In an action by a real estate broker for commissions, where one count of his declaration charged an exclusive listing, and that his agency could not be terminated without notice, and the testimony as to whether there was notice of its termination was in conflict, the issue was properly left to the jury.</p> <p>4. Brokers — Commissions—Liability of Seller on Refusal to Perform</p> <p>A provision in the contract between a broker and his client that payment of the commission was to be “made at the time of settlement of the sale,” could not be taken advantage of by the client to evade liability for the commission, where the consummation of the sale was prevented by his refusal to perform.</p> <p>5. Same — Statute of Frauds — Written Agreement to Pay ComMISSION.</p> <p>A written agreement to pay a commission for the sale of real estate is valid, although it fail to state the selling ' price or terms of sale, etc.</p> <p>6. Same — Compliance with Statute.</p> <p>Where the seller accepted in writing a legal and enforceable land contract to. sell the property to the purchaser produced by the broker, the statute of frauds was satisfied.</p> <p>On right of broker to commissions where he procures purchaser at price stated by his principal, but on slightly different terms in regard to cash or time of payment, and the owner refuses to consummate the sale, see note In 21 L. R. A. (N. S.) 935.</p>

Burget), J.' Bill by Martin A. Martin and another against Glen W. Critton and another to enjoin an action at law, and to set aside an exchange of property for fraud. From the decree rendered, all parties appeal.

), J., presiding. Quo warranto• by Stephen H. Watties, prosecuting attorney, on the relation of William H. Johnson, against William E. Upjohn and others to try the title to the offices of commissioners of the city of Kalamazoo. Judgment of ouster. Defendants bring error.

Burget), J. Case by the Lake Shore Stone Company against Orlo Westgate and others, members of the township board of South Haven township, for an unpaid balance due from a contractor who had not given a statutory bond. Judgment for plaintiff on a directed verdict. Both parties, bring error.

<p>1. Divorce — Separation by Consent — Desertion — Extreme Cruelty.</p> <p>Where a husband and wife agreed to separate, she to live with her parents and he with his, his leaving her, if it could be said to amount to legal desertion, would not constitute such “extreme cruelty” as to warrant a divorce short of the statutory two-year period.</p> <p>2. Same — Financial Condition op Husband No Ground por Divorce.</p> <p>That defendant husband was financially unable to do as much for his wife, and furnish her as comfortable a home after marriage as her parents had, would not constitute grounds for divorce.</p> <p>S. Same — Evidence—Sufficiency.</p> <p>The conclusion of the court below, that plaintiff had not established her right to a divorce, held, justified by the record.</p> <p>On failure to furnish support as grounds for divorce or separation, see notes in 29 L. R. A. (N. S.) 618; 43 L. R. A. (N. S.) 262.</p> <p>On inability of husband to support wife as excuse for her refusal to live with him, see note in L. R. A. 1915A, 222.</p>

Carl Leitz presented his claim for compensation against the Labadie Ice Company for injuries received in' defendant’s employ. From an order denying a petition for the discontinuance of payments under an award, defendant and the Standard Accident Insurance Company, insurer, bring certiorari.

<p>Mandamus by Lucy Ostrander to compel Frank Emerick, circuit judge of Alpena county, to extend the time for settling a case on appeal.</p>

<p>Error to Chippewa; Fead (Louis H.), J.</p> <p>Case by Jane Hawkins, against Henry Ermatinger for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Kent; Perkins (Willis B.), J.</p> <p>Bill by Charles Anway against the Grand Rapids Railway Company, under Act No. 150, Pub. Acts 1919, to obtain a declaration of rights involved in Act No. 361, Pub. Acts 1919. Division 836, Amalgamated Association of Street and Electric Railway Employees of America, intervened as a party defendant. From a decree for plaintiff, defendants appeal.</p>

), J. Bill by The Stern Company against Morris Fried-, man, surviving partner of M. Friedman & Comnany, and Alexander W. Hompe under Act No. 150, Pub. Acts 1919, for a declaration of rights in certain leases. From a decree for plaintiff, defendant Friedman appeals.

), J. Case by John H. Gardner against Isaac W. Russell for personal injuries. Judgment for defendant. Plaintiff brings error. This is a suit for damages for an alleged negligent injury to the plaintiff.

), J. Supplemental bill by Marl S. White against Frederick N. Wadhams and others to enforce a decree entered on a bill for a partnership accounting, and to adjudge defendants in contempt of court. Held: handled and cashed it, and disposed of its avails only as, said Frederick N. Wadhams’ agents, and not as owners.

), J. Assumpsit by A. E. Butler, doing business as A. E. Butler & Co., against J. William Foley for breach of a contract for the sale of certain corporate stock. Judgment for plaintiff. Defendant brings error.

), J. Case by Fay Marsh against Augustus S. Burnham for personal injuries. Judgment for plaintiff. Defendant brings error. This is an action for, damages growing out of a collision of two automobiles. The accident happened in daylight. Plaintiff was driving his car in a northerly direction toward the city of Hillsdale and defendant was driving in a southerly direction.

), J. Separate actions of replevin by Ray E. Becker, doing business as the Becker Auto Company, against John O. La Core, Guy M. Johnson, A. W. Mebert, William E. Wilson, and Fred Wilcox for the possession of certain automobiles. The cases were consolidated and tried before the court without a jury. Judgment for defendants. Plaintiff brings error.

Assumpsit in justice’s court by Lewis G. Webert against Bessie L. Roberts for commissions on the sale of real estate. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

), J. Assumpsit by the Westinghouse Electric & Manufacturing Company against Robert C. Hupp and Louis G. Hupp on certain promissory notes. Plaintiff later assigned its claim against Robert C. Hupp. Judgment for defendant. Plaintiff brings error.