Volume 76 — Michigan Reports

(Newton, J.) Case by a married woman for refusal of defendants, as inspectors of election, to receive her vote for school officers. Defendants bring error. Campbell, J., dissenting. The facts, as also the points of counsel passed upon, and the authorities cited, are stated in the opinion.

<p>Contributory negligence — Assumption of risks of business.</p> <p>In this case the plaintiff is held to have been injured through his own negligence, and the action of the circuit judge in directing a verdict for the defendants is affirmed.</p>

(Gartner, J.) Bill filed to quiet title. Defendant appeals. Campbell, J., and Sherwood, C. J., dissenting. The facts, and points of counsel, are stated in the opinions.

<p>Equity — Bill to compel set-off — Remedy at late.</p> <p>Complainants, as copartners, erected certain buildings for defendant Billings, apd obtained $500 of one Mills, for which Dewey gave his note, which complainants claim was paid by Billings out of moneys due complainants, with their consent. Dewey also gave his note to Billings for $300, to be valid if on final settlement nothing was due to complainants from Billings, he claiming not to owe them anything at the time. Complainants afterwards brought suit under the lien law for the balance due them from Billings, and pending such suit filed the bill in this case, setting up the foregoing facts in detail, and charging that defendant Little held the notes without having paid value for the same, and with full knowledge of the rights of complainants (which Little in his answer denies, and claims to be a bona fide holder), and praying that said notes should be set off in said lien suit against complainants’ claim, and be regarded as paid, and be canceled.</p> <p>Held, that complainants’ remedy, if they have any, is at law, their claim being in the nature of a set-off, and available, if valid, when suit is brought upon the notes, which is doubtful from the testimony, which fails to show any mutuality between the parties before the court.</p>

<p>Negligence — Master and servant — Assumption of risks by employe— Evidence.</p> <p>1. In this case it is held, upon the undisputed facts, that if plaintiff had exercised the ordinary caution which men of ordinary prudence usually observe, he might have avoided the injury complained of, and that the court was not in error in directing a verdict for the defendant.</p> <p>2. If the danger incident to a given employment is apparent, the employe assumes the risks, and cannot recover for injuries thereby sustained.1</p> <p>8. Where a witness has testified to the dangers incident to operating a machine, which are obvious and apparent, the jury are as com' petent as the witness to judge of the danger to which an inex perienced man would be subjected if set to perform such work, and it is not error to reject the opinion of the witness on that subject.</p>

(Brevoort, J.) Trover. Defendant brings error. The facts are stated in the opinion, and in the one filed on the former hearing, reported in 70 Mich. -- (38 N. W. Rep. 472).

<p>Error to Kent. (Montgomery, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, as also the points of counsel.</p>

(Aldrich, J.) Trover for attached property. Defendant brings error. The facts, and points of counsel passed upon, are stated in the opinion.

(O’Hara, J.) Action for enforcement of mechanic’s lien under Act No. 270, Laws of 1887. Defendant Nettie Hobbs brings error. The facts are stated in the opinion, as also the points of counsel passed upon by the Court.

<p>Error to Monroe. (Kinne, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>.The facts are stated in the opinion.</p>

<p>Error to Lenawee. (Lane, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Master and servant — Contract for employment of miller — Action for wages.</p> <p>1. Where the testimony in. a case tended to show that the defendant engaged the plaintiff as a miller to work in a grist-mill, which was old and out of repair and did but little work, and the tolls were received and used by plaintiff by defendant’s direction, who knew when be employed plaintiff that the earnings of the mill would be insufficient to pay for plaintiff’s services, the question whether plaintiff received the entire proceeds of the mill, or whether the defendant received no benefit from the labor of the plaintiff, is irrelevant under plaintiff’s theory of the case.</p> <p>2. In such a case an instruction to the jury that the burden rested on the plaintiff to show his right to recover by a fair preponderance of evidence, — to show the work he did, and what it was worth, and what understanding defendant had of the matter, and that the work was done with his knowledge and approval, and that he received the benefit of it, — sufficiently covered a request by ■defendant for an instruction that “ the burden of proof was on plaintiff to establish everything necessary to a recovery in the action.”</p> <p>■8. In such a case the ownership of the mill is not in question, the question of its occupancy by plaintiff, as defendant’s employé, being submitted to the jury under proper instructions.</p>

(Grant, J.) Negligence case. Plaintiff brings error. The facts are stated in the opinion, as also the points of counsel passed upon by the Court.

(Lane, J.) Bill of interpleader filed to determine rights of claimants under a certificate issued by a mutual benefit association. The facts are stated in the opinion.

(Brevoort, J.) Assumpsit. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

<p>Shipping — Contract—Parol evidence — Implied condition as to seaworthiness of vessel.</p> <p>1. Matters lying outside of a written contract should be scanned very closely before being allowed to affect it. So held, where plaintiff sought to recover the price agreed to be paid in a written contract for the use of a tug and two scows to transport lumber, and the defendants sought to show that plaintiffs agent made false representations concerning the speed and carrying capacity of the leased property, and the price received from, other parties under a similar contract; which questions are held not to be foreclosed, and that damages arising from these causes, if they exist, can be recouped, the contract having been performed.</p> <p>3. Where scows are chartered for the transportation of lumber, which is claimed to have been damaged by excessive leakage, if nothing is said on the subject, seaworthiness is an implied condition of the hiring, and whatever qualifications may exist to this doctrine cannot exonerate from responsibility for a tight hull that would resist such leakage.</p> <p>3. Under a contract for the hiring of scows for the transportation of lumber, which provides that the owners of the lumber assume all liability for loss or damage to the cargoes from whatever cause, if water is shipped during the voyage, by the ordinary fortunes of proper navigation, the risk is on such owners, but not so if from the unseawortbiness of the scows ; and in a suit involving these questions it is error to take them from the jury.</p>

Mandamus. Relator applies for mandamus to compel the Secretary of State to file a copy of its articles of association under Hew. Stat. § 4098. The facts are stated in the opinion, as also the points of counsel passed upon by the Court.

(Gartner, J.) Assumpsit. Defendant brings error. The facts, as also t\i& points of counsel passed upon by the Court, are stated in the opinion.

(Arnold, J.) Negligence case. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Gartner, J.) Debt. Defendants bring error. The facts are stated in the opinion, and in the one filed on the former hearing.

(Ramsdell, J.) Assumpsit. Defendants bring error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Exceptions before judgment from Newaygo. (Palmer, J.) Eespondent was convicted of larceny. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Exceptions before judgment from Iosco. (Simpson, J.) Respondent was convicted of statutory burglary. The facts, and points of counsel passed upon by the Court, are stated in the opinion. '

<p>Exceptions before judgment from Berrien. (O’Hara, J.)</p> <p>Respondents were informed against for assault with intent to do great bodily harm less than the crime of murder, and convicted of assault and battery.</p> <p>The facts, and points of counsel passed upon by the Court, are stated in the opinion.</p>

(Palmer, J.) Respondent was convicted of murder in the second degree, and sentenced to State prison for life. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Exceptions before judgment from Muskegon. (Dicker-man, J.) Respondent was convicted of larceny. The facts, and the points of counsel. passed upon by the Court, are stated in the opinion.

(Buck, J.) Respondents were convicted of burglary on their plea of guilty, and sentenced to State prison for the terms of five years, and remanded to jail to await the execution of such sentences, and on the same day made an unsuccessful attempt to break jail'; whereupon the sentences were vacated, and heavier ones imposed, under which respondents were confined in State prison at time of deciding this case.

<p>Error to Wayne. (Gartner, J.)</p> <p>Negligence case.- Defendant brings error.</p> <p>The facts, and points of counsel passed upon by the Court,, are stated in the opinion.</p>

(Cobb, J.) Ejectment. Defendant brings error. The facts,, and points of counsel passed upon by the Court, are stated ia the opinion.

Mandamus. Relator applied for a mandamus to have a service of sumjnons set aside for breach of privilege. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Loveridge, J., presiding.) Negligence case. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Simpson, J.) Assumpsit. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Reilly, J.) Assumpsit upon a constable’s bond under How. Stat. § 6988. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Smith, J.) Assumpsit. Defendants bring. error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

<p>Certiorari to Manistee. (Judkins, J.)</p> <p>Certiorari to review the judgment of the circuit court of Manistee county overruling a special appeal.</p> <p>The facts, and points of counsel passed upon by the Court, are stated in the opinion.</p>

, (Beach, J.) Assumpsit upon an insurance policy. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Smith, J.) Assumpsit. Defendant brings error. The facts and points of counsel passed upon by the Court, are stated in the opinion.

Mandamus. Relator applies for a mandamus to compel respondent to deliver the files, records, and docket belonging to his office, as a justice of the peace of the city of Grand Rapids, to another justice, as provided by Act No. 200, Laws of 1889. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Palmer, J.) Negligence case. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Mandamus. Relator applied for a mandamus to compel the respondents to apportion among the townships for assessment and collection a balance claimed to be due the State. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Brevoort, J.) Replevin. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Hosmeif, J.) Defendant McDuff applied for a rehearing, which application was denied, and a supplemental decree made fixing the compensation of defendants as trustees, etc., at $100, from which decree, as also the order denying a rehearing, he appealed. The facts are stated in the opinion.

(Newton, J.) Bill filed to enforce the specific performance of a land contract. Defendant appeals. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

■ Joseph. (Loveridge, J.) Bill filed to remove encroachments from, and to restrain highway commissioner from discontinuing, a highway. Defendants appeal from an order overruling a special demurrer to the bill. The facts are stated in the opinion.

(Gartner, J.) Appeal from decree of probate court. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Steere, J.) Proceedings under chapter 285, How. Stat., to collect damages for a tort alleged to have been committed by respondents. Respondents appeal. The facts,- and points of counsel passed upon by the Court, are stated in the opinion.

<p>Contract — Damages for breach — Submission to jury,</p> <p>In this case it is held that the evidence offered by the plaintiffs tended to establish the agreement counted on, and that plaintiffs had sustained damages by reason of its non-performance by defendant, the amount of which could have been ascertained by the jury, and that the court erred in directing a verdict in favor Of defendant.</p>

<p>Error to Wayne. (Reilly, J.)</p> <p>Libel case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(O’Hara, J.) Trover. Plaintiff brings- error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Peck, J.) Proponents appealed from the order of the probate court disallowing a will, which was affirmed in the circuit court. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

<p>Error to Shiawassee. (Newton, J.)</p> <p>Negligence .case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applies for mandamus to compel respondent to set aside an order staying proceedings in a partition suit until complainant establishes his title at law, and to enter a final decree. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Smith, J.) Respondent was convicted of forgery. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Gartner, J.) Debt for taxes. Plaintiff brings error. The-facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Brevoort, J.) Assumpsit. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Burlingame, J.) Negligence case. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Moore, J.) Assumpsit. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Brevoort, J.) Assumpsit. Defendant brings error. The-facts, and points' of counsel passed upon by the Court, are Btated in the opinion.

(O’Hara, J.) Trespass. Defendant brings error. The facte, and points of counsel passed upon by the Court, are stated is. the opinion.

(Lane, J.) Bill filed for divorce on the ground of desertion. Defendant appeals. The facts are sufficiently stated in the opinion.

<p>Certiorari to Van Burén circuit court to review an order setting aside an order of the probate court granting leave to bring suit upon a guardian’s bond.</p> <p>The facts, and points of counsel passed upon by the Court, are stated in the opinion.</p>

Mandamus. Relators apply for mandamus to compel respondent to set aside an order denying a motion to set aside a default. The facts are stated in the opinion.

(Hosmer, J.) Bill and cross-bill filed to determine validity of trust provisions of a will. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Montgomery, J.) Assumpsit. Defendants bring error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Burén. (Mills, J.) Bill filed by a stockholder to set aside the sale of a railroad, and for other relief. The Toledo & South Haven Railroad Company appeals from a decree granting the relief prayed, excepting as to the appointment of a receiver, and dismissing its cross-bill, etc. The facts, and points of counsel passed upon by the Court, are stated in the opinion.,

(Grant, J.) Dill filed to declare complainants’ rights in- a mining property, and secure a deed of the same, and for other relief. Defendant appeals from a decree granting the relief prayed for. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

<p>Error to Wayne. (Gartner, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts, and points of counsel passed upon by the Court, are stated in the opinion.</p>

Certiorari. Certiorari' to the recorder’s court of Detroit to review proceedings had in opening and extending Superior street from Bussell street to Mt. Elliott avenue, where not already open. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Brevoort, J.) Assumpsit. Defendant brings error. Thej facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Ilosmer, J.) Bill filed to enjoin defendants from advertising or selling real estate of complainant to pay taxes, etc. Complainant appeals from decree dismissing bill. Tbe facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Hosmer, J.) Assumpsit. Plaintiffs bring error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Hart, J.) Replevin. Plaintiffs bring error. The facts, and points of counsel passed upon by the Court, are stated in the opinion. ,

Joseph. (Loveridge, J.) Action on the case. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Ramsdell, J., presiding.) ' Trover. Plaintiff brings error. The facts, ■and points of counsel passed upon by the Court, are stated in the opinion.

(Simpson, J.) Replevin. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Reilly, J.) Assumpsit. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Peck, J.) Negligence case. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Brevoort, J.) Assumpsit. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

<p>Error to Van Buron. (Buck, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts, and points of counsel passed upon by the Court, are stated in the opinion.</p>

(HosmeT, J.) Garnishment proceedings. Plaintiff brings error upon judgment in favor of garnishee defendants. The> facts, and points of counsel passed upon by the Court, are* stated in the opinion.

(Hosmer, J.) Assumpsit. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion. •

<p>Garnishment — Foreign corporation — Service.</p> <p>The service of the summons to show cause is held not to have been made upon any person answering the condition prescribed by the statute (Act No. 175, Laws of 1885), and that the judgment - against the garnishee defendant was rendered without authority.</p>

(Gartner, J.) Bill to quiet title to homestead. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

(Gage, J.) Assumpsit on an insurance policy. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Gage, J.) Administrator brings error from judgment of circuit court allowing claim against estate on appeal. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Mandamus. Eelators applied for a mandamus to compel the respondent to vacate an order denying a motion to dismiss a probate appeal. The facts, and points of counsel gassed upon by the Court, are stated in the opinion.

<p>Error to Wayne. (Reilly, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Grove, J.) Replevin. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Clair. (Canfield, J.) Assumpsit on insurance policy. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Simpson, J.) Bill in aid of execution. Defendants appeal from decree-overruling demurrer. The facts are stated in the opinion.

(Simpson, J.) Bill in aid of execution. Defendants appeal from decree •overruling demurrer. The facts are stated in the opinion, and in Brock v. Rich, 76 Mich. 644.

Certiorari. Certiorari to review proceedings of highway commissioner in laying out a road. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Simpson, J.) Assumpsit on a fire insurance policy. Defendant brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Stickney, J.) Trover for alleged conversion of certain notes and a mortgage belonging to tbe estate. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

Olair. (Canfield, J.) Beplevin. Defendants bring error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(O’Hara, J.) Proceedings to recover possession of premises. Defendants appeal. The facts, and points of counsel passed upon by the Court, are stated in the opinion.

(Gartner, J.) Petition by secured creditor for payment of his claim by assignee, who appeals from decree directing such payment. The facts are stated in the opinion.

(Gage, J.) Action against garnishee, who was discharged. Plaintiff brings error. The facts, and points of counsel passed upon by the Court, are stated in the opinion.