Volume 213 — Michigan Reports

), J. Assumpsit in justice’s court by Dey Krolik and others, copartners as A. Krolik & Company, against Bernice Ossowski for goods sold and delivered. There was judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs on a directed verdict. Defendant brings error.

), J. 'Bill by Heaman Castle and others against Amanda F. Castle and another to set aside the sale of land, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.

), J. Nick Oprita was convicted of manslaughter, and sentenced to imprisonment for not less than 2% nor more than 15 years in the State prison at Jackson.

Assumpsit in justice’s court by the East Lansing State Bank against Edward A. Keil for the amount of a check. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>Error to Genesee; Black (Edward D.), J.</p> <p>Case by Helen E. Deland against the Michigan Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Black against William J. Spears and Anna H. Spears for a wrongful seizure of a stock of merchandise under a writ of attachment. Judgment for defendants on a directed verdict. Plaintiff brings error.

M.), J. Bill by Frank S. Gibson and William H. Browne, executors of the last will of William D. Johnson, deceased, against Charles J. Gibson, William H. Browne and Laura S. Richardson for a construction of said will. From a decree for plaintiffs, defendant Richardson appeals.

<p>Error to Washtenaw; Sample (George W.), J.</p> <p>Assumpsit by the First National Bank of Ann Arbor against Harmon S. Holmes and another on a promissory note. Judgment for plaintiff. Defendants bring error.</p>

<p>1. Contracts — Construction — Evidence — Parol Evidence — Written Contracts.</p> <p>The terms of a written contract cannot be altered or enlarged by proof of contemporaneous or previous oral agreements upon the subject.</p> <p>2. Same — Construction—Ambiguous Contracts.</p> <p>There is no room for construction or explanatory evidence of the unexpressed intention of the parties where the wording of a written contract between them is not obscure or ambiguous.</p> <p>3. Same — Patent Ambiguity.</p> <p>A patent ambiguity is one apparent upon the face of the instrument, arising by reason of inconsistency, obscurity, or an inherent uncertainty of the language adopted, such that the effect of the words in the connection used is either to convey no definite meaning or a double one.</p> <p>4. Same — Latent Ambiguity.</p> <p>A latent ambiguity is defined as one which arises not upon the words of the will, deed, or other instrument, as looked at in themselves, but upon those words when applied to the object or to the subject which they describe.</p> <p>5. Same — Extrinsic Evidence — Latent Ambiguity.</p> <p>Extrinsic evidence is not, as a rule, admissible to explain or remove a patent ambiguity, but is admissible to show a latent ambiguity, if one exists, and to remove it.</p> <p>6. Same — Omission ob Mistake Not Ambiguity.</p> <p>An omission or mistake is not an ambiguity.</p> <p>7. Same — Franchises — Construction — Street Railways — Ambiguity.</p> <p>A franchise contract between a township and a street railway company, to construct a railway through said township, and providing that the rate of fare through said township should not exceed five cents per passenger per trip “from the township of Zilwaukee to Genesee avenue in Saginaw,” held, not ambiguous for failure to state the exact point on Genesee avenue where transportation was to begin and end.</p> <p>8. Same — Practical Construction Controlling Only Where Ambiguous.</p> <p>Practical interpretation by the parties can only be regarded where the contract is of doubtful or ambiguous meaning.</p> <p>9. Same — Practical Construction Not Controlling to Change Unambiguous Contract — Injunction.</p> <p>There being nothing doubtful in the wording of the franchise contract between plaintiff township and defendant street railway company as to the rights of passengers thereunder, the fact that defendant had, for 23 years, been carrying passengers farther for the fare provided therein than required, held, not to entitle plaintiff to an injunction restraining defendant from charging extra fare beyond the point where defendant’s railway intersects Genesee avenue in said city of Saginaw. '</p>

), J. Bill by John C. Battige against the Walker Shoe Company and others for the appointment of a receiver, the dissolution of defendant corporation, and an accounting. From a decree dismissing the bill, plaintiff appeals.

<p>1. Trial — Instructions — Contracts — Acceptance — Appeal and Error.</p> <p>In an action for a balance due for coke furnished under two written contracts, where defendant accepted all the coke shipped to him, although he complained that part of it was inferior, 7¡,eld, that he could not complain because the question as to whether he was entitled to an allowance for loss by reason of said claimed inferiority was submitted to the jury.</p> <p>2. Same — Contracts—Breach.</p> <p>Where the contracts provided for the shipment of a certain number of tons of coke a month, and provided further that failure to accept the agreed amount, during the warmer months gave plaintiff the right to deduct any such shortage from the amount to be furnished during the colder months, and there was evidence that defendant requested that instead of the amounts provided in the contracts, coke be shipped only on his order, and all his orders were filled, his contention that plaintiff wgs conclusively shown to have breached the contract cannot be sustained.</p> <p>3. Same — Instructions—Contracts—Construction.</p> <p>Where the contracts were introduced in evidence, were unambiguous and required no construction, and there was also a large number of letters and telegrams introduced which were properly for the consideration of the jury, the charge of the court that the exhibits were all for the consideration of the jury, held, not objectionable as submitting to the jury' the construction of the contracts.</p> <p>4. Same — Issues Submitted.</p> <p>Held, that the charge as a whole fairly submitted the issues to the jury.</p>

Exceptions before judgment from superior court of Grand Rapids; Brown (William B.), J., presiding. Christopher Cline was convicted of taking indecent liberties with the person of a female child.

), J. Bill by Mary F. Engelman against George C. Engelman for a divorce: On petition of plaintiff for a modification of the decree respecting alimony. From a decree for plaintiff, defendant appeals.

), J. Bill by William H. Davis and wife against S. Neihardt to set aside an execution levy on a homestead. From a decree for plaintiffs, defendant appeals.

Clair; Law (Eugene F.), J. Case by William Randolph, individually and as administrator of the estate of Margaret Randolph, deceased, against the Detroit United Railway and the Port Huron, St. Clair & Marine City Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgments for plaintiff. Defendants bring error.

<p>Habeas corpus proceedings. by John Grabinski to obtain his release from imprisonment in the Michigan reformatory at Ionia.</p>

), J. Assumpsit in justice’s court by Ira G. Humphrey against the Detroit, Monroe & Toledo Short Line Railway for the statutory penalty for collecting an excessive fare. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>1. Commerce — Regulation — Interstate Commerce — Constitutional Law — States.</p> <p>Under the Federal Constitution (art. I, § 8,. subd. 3) congress is vested with the power to regulate commerce among the several States.</p> <p>2. Same — Intoxicating Liquors — Transportation.</p> <p>Intoxicating liquor, being an article of commerce, its transportation from State to State is subject to such regulations as congress provides.</p> <p>3. Same — Reed Amendment — Webb-Kenyon Act — Federal Statutes.</p> <p>By the Reed amendment to the postal service appropriation act for the fiscal year 1918 (chap. 162, § 5, Act March 3, 1917, 39 U. S. Stat. p. 1069, U. S. Comp. Stat. 1916, § 8739a), congress restored t.o intoxicating liquors its interstate commerce character, of which it was divested by the Webb-Kenyon act (chap. 90, 37 U. S. Stat. p. 699, U. S. Comp. Stat. 1916, § 8739).</p> <p>4. Intoxicating Liquors — Criminal Law — Federal Statutes— Commerce — State Statutes — Jurisdiction.</p> <p>The illegal transportation of intoxicating liquors from the State of Ohio into the State of Michigan, being in violation of the Reed amendment, is punishable thereunder, and a conviction of defendant of said offense under the State law (section 57, Act No. 53, Pub. Acts 1919) is void.</p> <p>On Constitutionality, construction and effect of Webb-Kenyon Act, see notes in L. R. A. 1916C, 299; L. R. A. 1917B, 1229.</p>

), J. Bill by Adolph H. Brandt, trustee, and the Grand Rapids Savings Bánk against Harry Vanderveen and others to foreclose a trust deed as a mortgage and for an adjudication of the liability of certain of the defendants to plaintiff bank upon an instrument of guaranty. From a decree for plaintiffs, but dismissing the bill as to defendants Peter Vanderveen and Thomas Newhof, plaintiffs appeal.

), J. Petition by George L. Hauser, deputy auditor general, against the estate of Ezra Rust, deceased, for a determination of an inheritance tax. There was an order denying the petition, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Bill by the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, against William Pagenkoff to cancel a policy of insurance, and to set aside an award by an adjusting board on said policy. From a decree for plaintiff, defendant appeals.

), J. Edgar D. De La Mater was bound over to the superior court for an alleged violation of the liquor law. The information was quashed on motion of defendant, and the liquor seized ordered returned. To review this judgment under Act No. 159, Pub. Acts 1917, the people bring error.

<p>1. Intoxicating Liquors — Criminal Law — Search Warrant — Constitutional Law.</p> <p>A conviction of a violation of the liquor law resting upon evidence obtained by proceedings taken under section 25, Act No. 53, Pub. Acts 1919, declared unconstitutional by the Supreme Court. (People v. De La Mater, ante, 167), must be set aside.</p> <p>2. Same — Search Warrant — Premises—Person.</p> <p>As to whether a search warrant which authorizes a search of defendant’s premises authorizes a search of defendant’s person, — qucere.</p>

), J. Bill by Anthony F. Wolfschlager and others against Isaac Applebaum and another to enjoin the erection of a factory building in a residential district. From a decree for plaintiffs, defendant Applebaum appeals.

), J. Bill by Marsden C. Burch and another against Elmer Nippress to redeem from the sale of land delinquent for taxes. From a decree for plaintiffs, defendant appeals.

Case by Mike Kulesza against Felix Wyhowski and another for alleged misrepresentation and fraud. Judgment for plaintiff. Defendants bring error.

), J. Assumpsit by Carl E. Stone against the American Mutual Auto Insurance Company on a) policy of insurance against theft. Judgment for plaintiff on a directed verdict. Defendant brings error.

), J. Assumpsit by Robert G. Ferguson against the Perry Coal Company for money due under a written contract. Judgment for plaintiff non obstante veredicto. Defendant brings error.

), J. Bill by Fred I. Nichols against Ward B. Mumford to enjoin the disposal of partnership assets, and for an accounting. From a decree for plaintiff, defendant appeals.

), J. James Murnane was convicted of assisting in unlawfully driving away an automobile, and sentenced to imprisonment for not less than 3 nor more than 10 years in the State prison at Jackson.

), J. Bill by Louis Silver and another against Benjamin Shulman and another for the specific performance of a land contract. From a decree for plaintiffs, defendants appeal.

), J. Assumpsit in justice's court by the Night Commander Lighting Company against Ira Brown on a contract for the sale of a farm lighting plant. There was judgment for defendant, and plaintiff appealed to the circuit court.- Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Master and Servant — Workmen’s Compensation Act — Award of Industrial Accident Board — Conclusiveness—Certiorari —Review.</p> <p>On certiorari to review an award of the industrial accident hoard under the workmen’s compensation act, the Supreme Court may not weigh the evidence, or pass upon the preponderance, and may only set aside the award when the record contains no testimony to facts or theory amounting to legal evidence that death was attributable to the accident.</p> <p>2. Same — Cause of Death — Evidence.</p> <p>Although two physicians testified that by a post mortem, they found that death was caused by a thrombus, or blood clot, at the mouth of the left coronary artery of the heart, and that in their opinion an injury to decedent’s leg in no way contributed thereto, where another physician testified that in his opinion the “accident contributed or resulted in the man’s death,” that bacteria from the infection in the wound might have produced the condition revealed, it cannot be said that there was no testimony sustaining the finding of the board that the accidental injury to decedent’s leg was the cause of his death.</p> <p>On recovery for infection under workmen’s compensation act, see note in L. R. A. 1918F, 876.</p>

Grace Brown and Eckert (Walter) Hobson, an infant, by M. Hubert O’Brien, his guardian, presented their claim for compensation against the Long Manufacturing Company, Michigan Mutual Liability Insurance Company, insurer, for the accidental death of Mathew John Brown in defendant’s employ. From an order disallowing the claim, plaintiff Hobson brings certiorari.

William F. Woodcock presented his claim for compensation against Dodge Brothers for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

), J. Case in justice’s court by F. Irwin Bryan against the Houseman-Spitzley Corporation for fraud and deceit in the sale of a house. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff for an inadequate amount. He brings error.

), J. Bill by William Lyle against William C. Munson for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals;

Case by Valda Van Sickle, administrator of the estate of Philander Van Sickle, deceased, against the Grand Rapids, Grand Haven & Muskegon Railway Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Nick Margenovitch presented his claim for compensation against the Newport Mining Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

<p>Default — Court Rules — Setting Aside Default — Limitation.</p> <p>Under Circuit Court Rule No. 32, § 4, where more than six months had elapsed after- defendant’s default in a suit for divorce had been regularly entered, and decree granted to plaintiff, the court was without jurisdiction, on defendant’s petition, to set aside said default; the provisions of said rule being mandatory.</p>

Garnishment proceedings by the Bank of Italy against Charles F. Welsh and others, garnishee defendants of E. G. Rideout and another. From orders denying plaintiff’s motion for summary judgment, and granting' defendants’ motion to quash, plaintiff brings error.

<p>Error to Ottawa; Cross (Orien S.), J.</p> <p>Ejectment by Grace Kingsnorth against Hendrick Baker. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Venue — Change of Venue — Showing—Sufficiency.</p> <p>In a prosecution for arson, the denial of the motion for a change of venue, held, justified by the record, there being no sufficient showing of ill feeling or prejudice against defendant.</p> <p>2. Criminal Law — Arson—Evidence—Admissions.</p> <p>The admission of testimony by an inspector of the State fire marshal’s department, in a prosecution for arson, as to statements made to him by defendant admitting that he had made false entries in his books to make it appear that his loss by the fire was greater than it really was, held, not reversible error.</p> <p>3. Same — Trial—Instructions.</p> <p>Where there was testimony that the fire was first discovered about 1 o’clock in the! morning, an instruction by the trial judge that it was undisputed that the mill was burned about 1 o’clock in the nighttime,.held, not reversible error, although it was shown that the alarm was turned in at 1:55, the fire chief testifying that he responded at once and when he got there the fire' was all through the mill.</p> <p>4. Same — Trial—Argument of Counsel.</p> <p>An assignment of error that the prosecuting officer, in his use of a blackboard in his argument to the jury, upon which figures were placed, used one large item twice, and thereby the jury were misled, is not well taken, said blackboard being used in the presence of defendant and his counsel, and the accuracy of the figures thereon being open to their criticism.</p> <p>5. Same — Circumstantial Evidence — Inferences.</p> <p>Although the evidence was largely.circumstantial, held, that the inference of guilt therefrom could be fairly drawn.</p> <p>6. Same — Trial—Argument of Counsel.</p> <p>The argument of counsel for the people, when proper allowances are made for the excitement growing out of the trial and the arguments of opposing counsel, held, not reversible error.</p> <p>7. Appeal and Error — Miscarriage op Justice — Statutes.</p> <p>Where a careful reading of the record does not satisfy that the verdict has resulted in a miscarriage of justice, it should not he set aside, under 3 Comp. Haws 1915, § 14565.</p>

), J. Bill by Ira G. Curry and another against Arthur L. Curry and another for the specific performance of a land contract. From a decree for plaintiffs, defendants appeal.

), J. Case by Frederick Uithoven, an infant, by his next friend, against J. Allen Snyder for personal injuries. Judgment for plaintiff. Defendant brings error.

), J. Bill by Elizabeth Ruby, guardian of Mary Ann Romer, a mentally incompetent person, against Mary Tyler to cancel a deed. From a decree for plaintiff, defendant appeals.

'Bill by Jessie M. Harrington and others against the Kneeland-Bigelow Company to enjoin the removal of timber from certain land. From a decree for plaintiffs, defendant appeals.

), J. Assumpsit by Charles W. Burridge against the . Studebaker Corporation for commissions on the sale of real estate. Judgment for plaintiff. Defendant brings error.

), J. Bill by Irving Woodworth against Benjamin C. Porter, executor of the last will of Abby R. Burnham, deceased, and others for the specific performance of a land contract. From an order denying motions to dismiss, defendants appeal.

Milton Bailey and others presented for probate the last will of John J. Bailey, deceased. The will was allowed in the probate court, and Orla H. Bailey and others appealed to the circuit court. Judgment for proponents on a directed verdict. Contestants bring error.

Mandamus by William Schavey, James Houston and Bert Lee, county road commissioners of Eaton county, to compel Frank F. Rogers, State highway commissioner, to apportion the benefits of an inter-county highway as determined by the board of review of Eaton county.

), J. Vernon Smith was convicted of unlawfully driving away an automobile, and sentenced to pay a fine of $50 and to be confined for 30 days in the county jail.

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

<p>Error to Kent; Perkins (Willis B.), J.</p> <p>Assumpsit by Wilbur E. Lawrence against Jacob C, Fapaport for rent. Judgment for defendant. Plaintiff brings error.</p>

<p>Appeal from Kalamazoo; Weimer (George V.), J.</p> <p>Bill by Bertha M. Hatfield against George B. Hatfield for a divorce. From a decree dismissing the bill, plaintiff appeals.</p>

Bill by Fred Woodwork against May Woodwork for a divorce. Defendant filed a cross-bill asking for a divorce. From a decree for plaintiff, defendant appeals.

), J. Bill by Ben. B. Jacob against George H. Cummings for an accounting on the terms of certain option contracts, and for a personal decree for breach thereof. From a decree dismissing the bill, plaintiff appeals.

Case-made from Wayne; Dingeman (Harry J.), J. Replevin by the Hallet & Davis Piano Company against William A. Droste for the possession of a piano. Judgment for plaintiff on a directed verdict. Defendant appeals.

<p>Appeal from Genesee; Black (Edward D.), J.</p> <p>Bill by Albert G. Gill against Georgianna Gill for a divorce. From a decree for plaintiff, defendant appeals.</p>

), J. Summary proceedings by Henry Underwood and another against William A. Slaght for the possession of leased premises. There was. judgment of ouster before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

), J. Assumpsit in justice’s court by Mack Niman against the Story & Clark Piano Company for money had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Eaton; Smith (Clement), J.</p> <p>Case by Charles Creitz against thé Wolverine Engineering Company for damages to an automobile caused by an obstruction in a highway. Judgment for plaintiff. Defendant brings error.</p>

), J., presiding. Bill by Homer Cummings and others against Robert Garner, Thomas Lytle and John A. Adams, board of county road commissioners of Oakland county, to set aside a special assessment for the construction and improvement of a highway. From a decree dismissing the bill, plaintiffs appeal.

), J. Bill by Clara Baller against Rev. K. Spivack and another for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.

), J. Capias ad respondendum proceedings by the First National Tire & Reliner Company against Stuart R. Johnson. From an order quashing the capias and continuing the writ as a summons, plaintiff brings error.

Case-made from Wayne; Codd (George P.), J. Condemnation proceedings in justice’s court by the village of Ecorse against the Toledo, Canada Southern & Detroit Railway Company and the Lake Shore & Michigan Southern Railway Company to acquire land for street purposes. There was judgment for plaintiff, and defendant Lake Shore & Michigan Southern Railway Company appealed to the circuit eourfc. Judgment for plaintiff. Defendant appeals.

), J. Condemnation proceedings by the city of Detroit against the Fidelity Realty Company and Joseph F. Weber to acquire land for hospital purposes. Judgment for plaintiff. Defendants bring error.

) and Browne (Clarence M.), JJ. Bill by the city of Saginaw against the Consumers’ Power Company for the specific performance of a franchise contract. From an order denying a motion to dismiss, defendant appeals. Mandamus by the Consumers’ Power Company to compel Ernest A. Snow and Clarence M. Browne, circuit judges of Saginaw county, to set aside an order granting a temporary injunction. (Calendar No. 29,538.)

), J. Assumpsit by the Dulany-Vernay Company against the Kalamazoo Stationery Company for breach of an alleged contract for the sale of paper. Judgment for defendant. Plaintiff brings error.

), J. Assumpsit by Ernest Hassberger against the General Builders’ Supply Company for money had and received. Judgment for plaintiff on a directed verdict. Defendant brings error.

, presiding. Harry A. Morris presented his first annual account as administrator of the estate of James C. Taylor, deceased. The account was allowed in the probate court, and Henry B. Taylor and William P. Taylor appealed to the circuit court. Judgment sustaining probate order on a directed verdict. Defendants bring error.

<p>1. Appeal and Error — Amount Claimed in Counts — Declaration —Amendment in Supreme Court.</p> <p>Where, in an action of assumpsit on the common counts, the claim is first made in the Supreme Court that the judgment was erroneous because it exceeded the amount claimed, and defendant was fully advised of plaintiffs claim by the bill of particulars, and no request made to limit the amount of recovery to the amount stated in the counts, and no mention of it made in the motion for new trial or motion for rehearing of motion for new trial, this court will exercise its discretion and grant plaintiffs motion to amend the declaration as to amount claimed, and will treat the case as if said amendment had been made in the court below, under 3 Comp. Laws 1915, § 12478.</p> <p>2. Reference — Trial—Discretion of Court to Send Case to Referee.</p> <p>Where, in an action on the common counts for an amount claimed to be due on real estate deals, for work and labor, and for material furnished, no jury had been demanded by either party, the trial court had the power, in the exercise of its discretion under 3 Comp. Laws 1915, § 12640 et seq., to send the ease to a referee instead of trying it with a jury.</p> <p>3. Appeal and Error — Discretion of Court — Failure to Send Case to Referee.</p> <p>Where there was no request for an order referring the case to a referee, it will not be reversed because of failure of the trial court to exercise its discretion in this respect, since cases may not be reversed for failure of the trial court to exercise a discretion it was not asked to exercise nor upon rulings that were never made.</p> <p>4. Same — Suggestion of Court Not a Ruling.</p> <p>That defendant’s counsel was discouraged from offering in evidence a large number of checks given by defendant by the suggestion of the trial judge that considerable time would be consumed in identifying each check, is no cause for reversal, since no ruling was made and no evidence offered.</p> <p>5. Same — Refusal to Grant New Trial — Reasons Thebefok— Review.</p> <p>Assignments of error based on the refusal to grant a motion for a new trial will not be considered where the record does not show the reasons for the court’s refusal upon timely requests theretofore made.</p> <p>6. New Trial — Discretion of Court.</p> <p>The trial judge has a wide discretion in granting or refusing to grant new trials either upon his own motion~or upon the motion of a party.</p> <p>7. Same — Extension of Time — Denial of Motion — Abuse of Discretion.</p> <p>Where the trial judge once extended the time under Circuit Court Rule No. 48 for filing a motion for a new trial, which motion was made and denied, the denial of a so-called “motion for rehearing of motion for a new trial and motion for new trial,” which was in fact a motion for a new trial containing the grounds found in the former motion and additional grounds, was not an abuse of discretion.</p> <p>8. Same — Failure to Introduce Evidence Not Ground for New Teual — Miscarriage of Justice.</p> <p>The failure of defendant’s counsel to put in evidence certain checks which he then had in his possession, and which might have been of advantage to defendant, held, insufficient ground for a new trial, in view of the facts that they are not newly-discovered evidence, and an examination of the record is not convincing that the result is a miscarriage of justice.</p> <p>9. Appeal and Error — Cases Reviewed on Record Made.</p> <p>Cases in ,the Supreme Court must be disposed of upon the record as made and not upon post trial ex parte affidavits.</p>

<p>Trial — Instructions—Isolated Excerpts.</p> <p>Where the charge, considered as a whole, fairly submitted to the jury the issue presented by the testimony, the case will not be reversed, although an isolated excerpt, standing alone and disconnected from the balance of the sentence or the balance of the charge, may be considered objectionable.</p>

), J. Assumpsit by Albert E. Chapin against J. E. Bolles Iron & Wire Works for commissions on the sale of real estate. Judgment for plaintiff on a directed verdict. Defendant brings, error.

, presiding. Assumpsit by the Universal Service Company and others against the American Insurance Company of Newark, New Jersey, on a policy of collision insurance. Judgment for plaintiffs. Defendant brings error.

Mandamus by Alex. J. Groesbeck, attorney general, to compel Helmer Bruce, supervisor of Bark River township, to spread and levy a tax. From an order granting the writ, defendant brings certiorari.

<p>Error to Wayne; Hunt (Ormond F.), J.</p> <p>Assumpsit by Byron R. McCready against Louis A. Nicholson for a commission on the lease of a building. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Estoppel — Deeds — Plaintiep’s Consent to Deed to Wie® Estopped Him: eromc Asserting Title.</p> <p>In a suit to amend a deed, plaintiff claiming that same was taken in the name of his wife alone without his knowledge and consent, when it should have been deeded to them jointly as tenants by the entireties, evidence examined, and held, insufficient to support plaintiff’s contention; the record clearly showing that he not only consented, but directed that the deed be made in his wife’s name, and for over seven years acquiesced therein.</p> <p>2. Same — Equities—Deeds—Purchase Pbioe.</p> <p>Where the wife had deeded said land to her children before commencement of suit, in view of the fact that she deeded other property in exchange therefor, and in addition paid large sums of money on the purchase price, the equities of said children are superior to those of plaintiff husband, although a small part of the purchase price may have been paid out of joint earnings.</p> <p>3. Husband and Wiee — Land Contract — Estates by Entireties.</p> <p>The assignment of a land contract to a husband and wife created an estate by the entirety.</p> <p>4. Estoppel — Real Estate — Conveyance by Estoppel.</p> <p>Where plaintiff stood by and directed that the legal title to land to which he and his wife jointly held a land contract be conveyed to Ms wife, and acquiesced therein for over seven years, and until after her death, his claim that if it be now held that he is estopped from asserting title it will be equivalent to holding that real estate may be conveyed by estoppel, cannot be sustained, since he never held the legal title.</p> <p>5. 'Same — Conveyance by Parol — Frauds, Statute oe.</p> <p>Plaintiff’s claim that Ms action in directing that deed be made to his wife was a conveyance by parol and therefore void because in violation of 3 Comp. Laws 1915, § 11975, cannot be sustained, since his oral request was followed by execution of the deed in which he acquiesced 'for over seven years.</p>

), J. Bill by the St. Cecelia Society against the Universal Car & Service Company and others to establish title in a driveway. From a decree for plaintiff, defendants appeal.

<p>1. Evidence — Direct - examination — Cross-examination — Credibility of Witness.</p> <p>In weighing the testimony of a -witness, the whole testimony, both direct and cross, should' be considered together.</p> <p>2. Negligence — Automobile — Contributory Negligence — Question for Jury.</p> <p>In an action for personal injuries caused to plaintiff while crossing a public street by being struck by defendant’s automobile, evidence held, to present a question for the jury as. to plaintiff’s contributory negligence.</p>

Case-made from Saginaw; Snow (Ernest A.), J. Case-made before judgment under 3 Comp. Laws 1915, § 12754, by the city of Saginaw against the Second National Bank of Saginaw, executor of the last will of Wellington R. Burt, deceased, for the amount of a tax assessment. Judgment for plaintiff for less than amount claimed. It brings error.

<p>1. Brokers — Real Estate Brokers — Principal and Agent — Duty to Disclose.</p> <p>Where a real estate broker acted as the agent of both the seller and the buyer, it was his duty to disclose same to buyer, and also all the facts in his possession as to the value of the property.</p> <p>2. Same — Principal and Agent — Failure to Disclose — Fraud.</p> <p>Broker’s representation to the purchaser of a farm, for whom he was acting as agent, that the lowest price obtainable was $7,000, when in fact the price listed to him was $5,300, he to have all he obtained over that amount, if believed and acted upon, was a fraud upon the purchaser.</p> <p>3. Same — Fraud—Damages—Accounting.</p> <p>Where the evidence shows that the broker profited by the fraud to the amount of over $900, a decree in favor of the purchaser for that amount cannot be said to be excessive, on a suit for an accounting,</p>

<p>Error to Wayne; Webster (Arthur), J.</p> <p>Replevin by the National Cash Register Company against Ralph C. Paul for the possession of a cash register. Judgment for plaintiff. Defendant brings error.</p>

Bill by Lloyd R. Gillmett and another, infants, by Bessie M. Gillmett, their guardian, against Michael Tourcotfc and others for a partition of certain real and personal property, for an accounting for rents, and to enjoin removal or waste.- From a decree for plaintiffs, defendants appeal.

), J. Quo warranto proceedings by the people of the State of Michigan, on the relation of David E. Simmons, prosecuting attorney of Alger county, against the township of Munising to determine the legality of an election. Judgment for plaintiff. Defendant brings error.

), J. Leo Romanski and. Frank Bartell were convicted of receiving a bribe, and were sentenced to imprisonment for not less than 2 nor more than ten years in the State prison at Jackson.

<p>1. Cemeteries — Deed to Indians — Common-Law Dedication.</p> <p>Where a deed to the Ottawa tribe of Indians of án acre of land in the city of Muskegon “known and described as the Indian burying ground,” failed to convey legal title because the grantees therein named were incapable of taking title, but by reason. thereof the said described premises were used as a cemetery, there resulted a common-law dedication for cemetery purposes, the fee remaining in the grantors.</p> <p>2. Dedication — Grant—Distinction.</p> <p>A dedication may be distinguished from a grant in that there need be no grantee in esse at the time of the dedication, to give it effect.</p> <p>3. Same — No Particular Form Necessary — Intent.</p> <p>No particular form or ceremony is necessary to the validity of a common-law dedication; and while ordinarily some written instrument is required to transmit a right of real properly, the law applicable to dedication is different, and any way by which the intention of the dedicator can be evinced is sufficient.</p> <p>4. Same — Easement.</p> <p>By a common-law dedication the fee does not pass, but only an easement.</p> <p>5. Cemeteries — Easement—Abandonment—Reversion.</p> <p>Defendant, as the grantee by mesne conveyances of the original owner, is the owner in fee of the land subject to> the easement in the public for cemetery purposes, and in the event of the abandonment of the easement the possession and beneficial use of the land will revert to him.</p>

<p>Error to recorder’s court of Detroit; Keidan (Harry B.), J.</p> <p>Frederick H. Clum was convicted of violating the “blue sky law,” and sentenced to' imprisonment for not less than 6 months nor more than 1 year in the Detroit house of correction.</p>

<p>Appeal and Error — Exceptions—Assignments of Error.</p> <p>In an action of ejectment, tried before the court without a jury, upon stipulated facts, where no exceptions were taken and no assignments of error made, there is nothing before the Supreme Court to review. Circuit Court Rules Nos. 45 and 67.</p>

), J. Bill by Helen S. Kaiser against Titus J. Kaiser for a divorce. Prom an order adjudging defendant guilty of contempt for failure to comply with the. decree respecting alimony, he appeals.

), J. Assumpsit in justice’s court by James J. Simon .against Ljubica Zarevich for the amount of a judgment. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

), J. Bill by Jeremiah C. JEIubbell against Louis P. Ohler and others for the specific performance of a land contract, and to. relieve from an attempted forfeiture. From a decree for defendants, plaintiff .appeals.

), J.,. presiding. Mandamus by Burnette F. Stephenson to compel, the common council of the city of Detroit and others, to proceed with the construction of a sewer. From an order granting the writ, defendants bring certiorari.

Bill by Nettie Newton, administratrix of the estate of Wilson Newton, deceased, against Frank H. Freeman, for an accounting, and to enjoin the foreclosure of .a mortgage. From a decree dismissing the bill, plaintiff appeals.

), J. Case by John O. Sullivan, revived as Elizabeth F. Sullivan, administratrix oí the estate of John O. Sullivan, deceased, against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>Appeal from Muskegon; White (Charles E.), J., presiding.</p> <p>Bill by William Borgman and others against Harry Bultema and others for an injunction.</p>