Volume 78 — Michigan Reports

<p>Libel and slander — Publication—General and special damages— Partnership — Liability of firm for slanderous words of member — Evidence.1</p> <p>1. A partnership is liable for slanderous statements made by one partner, the purpose of which is to aid the partnership business by preventing another party from making sales of an article which the partnership is at the time selling.</p> <p>2. Words spoken or written injurious to a person in his business, and false and malicious, are actionable per se, and special damages need not be proved.</p> <p>3. The fact that a plaintiff, in a slander suit, calls the defendant ' as a witness, who denies any knowledge of the alleged slanderous statements or of their publication, will not, of itself, prevent the plaintiff from proving his case by other witnesses or circumstances, nor will the jury be debarred from drawing the natural and necessary inferences, from facts proven by such other testimony and circumstances, outweighing the positive-statements of the defendant.</p> <p>4. In this case it is held that the facts shown, and offered to be shown, by the plaintiff, raised issues which should have gone to the jury, and that under the evidence given and offered, which upon this record must be taken as true, the plaintiff was entitled to have the alleged libelous article placed before the jury; and that, under proper instructions, it was a question of fact for their consideration whether its publication was within defendants’ knowledge, or whether they were responsible for it.</p>

(Palmer, J.) Judgment creditor's bill. Defendant Sigmund Rothschild appeals from order appointing receiver, etc. The facts are stated in the opinion.

<p>Appeal from Wayne. (Reilly, J.)</p> <p>Bill for a reconveyance of property, and for ah accounting for rents and profits. Complainant appeals.</p>

<p>Error to Wayne. (Gartner, J.)</p> <p>Replevin. Plaintiffs bring error.</p> <p>The facts . are stated in the opinion.</p>

(Hart, J.) Bill in aid of executions. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Error to Bay. (Cobb, J,)</p> <p>Garnishment. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Chippewa. (Grant, J., presiding.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Joint promissors — Belease—Neto agreement — Circuity of action.</p> <p>,An agreement made by one of three joint makers of a promissory note with the payee, by which the payee agrees that two-thirds of the note shall be collected of the other makers, and that the remaining one-third shall be paid by the third maker, by applying thereon one-third of the profits arising from running a boat formerly owned by the three makers, and which the payee had bid in at marshal’s sale, to which agreement the other two makers were not parties, but who paid two-thirds of the note to the payee, bút not in reliance upon said agreement, will be respected and enforced in a suit by the payee against the three makers brought after such agreement and payment, said two makers' having been discharged by such, payment, and the third maker having the right to pay the remaining one-third according to the new agreement.</p>

<p>Judgment creditor’s bill — Mortgage—Fraudulent transfer — Husband and urife.</p> <p>1. Complainant filed a creditors’ bill to subject a mortgage, originally executed to defendant Levi Conkwright to secure part of the purchase price agreed to be paid on the sale of 80 acres of land owned by him, and which, after delivery, was changed so as to make defendant Oalista Conkwright the mortgagee, to the satisfaction of a judgment in favor of complainant and against Levi Conkwright; and,- on a review of the testimony, the Court find that such change was made with intent to defraud complainant, and affirm the decree below granting the relief prayed for.</p> <p>2. The voluntary assignment of a mortgage to the mortgagee’s wife, by substituting her name as mortgagee after the instrument has become operative by delivery, and without consideration, will not prevent the subjection of the mortgage to the equitable remedies of a judgment creditor of the husband, in order to apply it in satisfaction of the judgment.</p> <p>3. Where land, paid for by a wife, is by mistake conveyed to the husband, and the wife sells the land as her own, and informs the purchaser that she is the owner, and both understand that a purchase price mortgage shall be drawn in her favor, which, by a mistake of the scrivener, is drawn in favor of the husband, the correction of said mistake, after the delivery of the mortgage, by the consent of the mortgagor, by substituting the name of the wife as mortgagee, cannot be claimed to be in fraud of the husband’s creditors, and need not be supported by a new consideration.</p>

<p>Construction of contract — Sale of apparatus, etc., to be accepted if satisfactory — Cities and villages — Authority of alderman to waive provision of contract.</p> <p>Plaintiff made a written proposition to furnish defendant a fire-alarm bell, etc., in which it was stipulated that defendant should thoroughly test the working of the same within 30 days after the completion of the - work, and, if found to be satisfactory, and according to contract, accept and pay for the same. A contract was thereafter made between the parties, of which the proposition was made a part, which provided that the defendant should have 30 days after the completion of the contract to test the bell and the working apparatus, and in case the same was satisfactory, as per contract, should pay for the same. The work was performed, and tested, and rejected by the defendant’s comujon council, and in a suit upon the contract to recover the contract price it is held that the provision in the contract as to testing the work does not change the import of the like clause in the proposition, but that they must be construed together, and that their reasonable construction is that the defendant was not obliged to accept and pay for said fire-alarm unless it was satisfactory to its common council, when tested.</p>

<p>Error to Isabella. (Hart, J.)</p> <p>Eeplevin. Plaintiff brings error.</p> <p>The facts</p> <p>are stated in the opinion.</p>

(Judkins, J., presiding.) Proceedings under mechanics' lien law of 1887. Plaintiff brings error. The facts are stated in the opinion.

<p>Sawing contract — Lien upon products — Waiver.</p> <p>A log-owner contracted with a mill-owner for sawing a quantity of logs, and sold 700,000 feet of the lumber, which was paid for, and piled by itself on the dock, and marked by the mill-owner with the initial letters of the vendee’s name, who shipped 600,000 feet, and, at the close of the season’s sawing, the vendor settled for the balance of the saw-bill by his note, which was accepted by the mill-owner, who is held by these acts to have waived any lien he had upon said lumber; and it is further held that he had no lien upon the lumber so sold for the entire season’s sawing.</p>

<p>Error to Berrien. (O'Hara, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts' are stated in tlie opinion.</p>

<p>Appeal from, superior court of Grand Rapids. (Burlingame, J.)</p> <p>Street-opening case. Defendant . appeals,</p> <p>The facts are stated in the opinion.</p>

(Chambers, J.) Respondent was convicted of selling produce on the streets of the city of Detroit contrary to an ordinance of said city. The facts are stated in the opinion.

Case made from Ottawa. (Arnold, J.) Appeal from order allowing an administrator’s final account. The facts are stated in the opinion.

(Hooker, J.) Proceedings under forcible entry and detainer act. Defendants bring error. The facts are stated in the opinion.

<p>Error to Marquette. (Grant, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts, are stated in the opinion.</p>

<p>Water privileges — Construction of contract.</p> <p>1. A survey referred to in a deed for greater certainty forms a part of it, and both should be construed together.</p> <p>2. A deed cannot be made worse ,by the introduction of testimony conforming to it, and, even if such secondary evidence is incomplete, the party objecting to it cannot complain of an immaterial error.</p> <p>8. This case involves the construction of a deed of a right of flow-age, and it is held that the marks on certain trees mentioned in the deed were established as points or levels from which to measure downward, the number of inches specified, to the point or line beyond which the water could not be raised.</p>

<p>Promissory notes — Usury—Want of consideration — Challenge of juror.</p> <p>1. Refusal to allow a peremptory challenge after the jury is sworn in is not error.</p> <p>2. A note given in renewal of one which is paid, so far as lawfully collectible, and which is not supported by any new consideration, is void for want of consideration.</p>

<p>Fraudulent sale — Assumpsit—Common counts — Recovery of money paid for worthless bond — Directing verdict.</p> <p>1. Money paid without consideration may be recovered under a declaration on the common counts for money had and received.</p> <p>2. The abbreviation, “ M. C. R. R.,” is the recognized name of the Michigan Central Railroad.</p> <p>3. The absence of past-due coupons is some indication that a coupon-bond is not in default.</p> <p>4. If a bond is represented as belonging to a certain known kind, and has nothing in its general looks to raise suspicion, and if it is purchased honestly on such a recommendation, it is a fraud to so transfer it, if such representation is false.</p> <p>So held, where the owner of a bond belonging to a series issued by the Michigan Air Line Railroad Company, and which was of no value by reason of the foreclosure of the accompanying mortgage, placed it in the hands of a broker for sale, representing it to be an “ M. C. R. R.” bond, which latter road had become liableon aseries of bonds known as “Air Line” bonds, which were at a premium in the market. The bond left for sale bore a general resemblance to the Michigan Central bonds, and the past-due coupons had been removed. The broker made a sale of the bond, and on the fraud being discovered, and the owner refusing to refund the money, the purchaser brought suit to recover the same, and it is held that he made out a case for recovery, and had a right to go to the jury.</p>

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

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

<p>Fire insurance — Forfeiture clause — Title to premises — Effect of clerical en'or in deed.</p> <p>"Where, at the time of issuing a policy of insurance, the insured was in possession of the insured premises (a homestead) under a deed in which the land was incorrectly described, but was correctly described in the policy, which mistake was not discovered until after a loss had occurred, when it was at once corrected by the execution of a quitclaim deed by the original grantor to the insured, such mistake cannot work a forfeiture of the policy, under a clause avoiding it if the interest of the insured is other or less than a perfect legal and equitable title and ownership; the title to the premises being substantially as represented, as in equity the insured had the right to the legal title as she then had the equitable title, and when it was so conveyed it related back to the time of taking possession under the deed containing the wrong description.</p>

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

<p>Error to Grand Traverse. (Ramsdell, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are-stated in the opinion.</p>

<p>Negligence — Question of fact — Conclusiveness of finding by jury.</p> <p>1, It is negligence to throw bales of hay from the loft of a barn, facing a public street, onto the sidewalk, without first looking into the street and onto the sidewalk, to see if any one is near by, and giving sufficient warning to prevent approach.</p> <p>2, Where, in a suit to recover damages for injuries sustained by being hit by a bale of hay thrown from a barn loft onto a public sidewalk, there was no proof that the plaintiff saw other bales fall, or that she was where she could not well avoid seeing them, there can be no proper inference that she saw them, and the court is not called upon to instruct the jury that if plaintiff had seen other bales fall she should have been wary of the one causing the injury.</p>

<p>Sale — Inspection of lumber — Proof of conspiracy to defraud— Estoppel.</p> <p>1. Plaintiff, a mill-owner, contracted with defendants Holland & Stewart for the sale of 1,700,000 feet of lumber, to be inspected by their co-defendants, and brought suit against all of said defendants, claiming a conspiracy on their part to defraud him in the inspection of said lumber, and it is held that the testimony introduced by the plaintiff to show such fraud was competent, and upon' its face made out a prima faeie showing. Said testimony is reviewed in the opinion, to which reference is had.</p> <p>3. Where a mill owner complained of the inspection oi certain cargoes of lumber shipped-to the vendees as fraudulent, and accompanied the complaint with the statements of the inspectors, and received and discounted the vendees’ notes for the amount shown by the statements, he waived no claim for the lumber fraudulently obtained, if any, through such inspection, having received no more than his own for the lumber which the vendees had confessedly received.</p>

<p>Error to Alpena. ^(Kelley, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts-are stated in the opinion.</p>

Mandamus. Relators apply for mandamos to compel respondent to vacate a judgment for costs in favor of plaintiff in an action for damages for obstructing a highway, where the judgment was less than $100. The facts are stated in the opinion.

(Hosmer, J.) Bill to foreclose a mortgage and to redeem a prior mortgage. Defendant Van Zee appeals from decree granting. relief prayed. The facts are stated in the opinion.

<p>Sheriffs and ex-sheriffs — Bight to execute process — Fees.</p> <p>1. It is the duty of an ex-sheriff who has attached property in his custody, after an execution has been issued in the suit, to expose such property to the sheriff, when requested by him, in order that it may be taken in execution and sold to satisfy the same.</p> <p>2. If an ex-sheriff has any valid charges as custodian, he should make out his bill of items, and present it to the clerk or other taxing officer for taxation, or, if they are not statutory fees, he should apply to the court for such allowance upon motion, and notice to the parties interested. He has no right arbitrarily to fix his own price, and retain the property until paid.</p> <p>8. The right of an ex-sheriff to execute process until the service upon him of the clerk’s certificate required by How. Stat. § 597, showing that his successor has qualified and given the security required by law, exists only as to such process as he has in his hands, and which he is required by How. Stat. § 599, to deliver to his successor upon service of such certificate.</p> <p>4. The following propositions are summarized from the opinion of Mr. Justice Champlin:</p> <p>a — "Whether a sheriff can be allowed for ■ custody of goods levied upon, query? Bank v. Judge, 54 Mich. 305.1</p> <p>6 — How. Stat. §§ 587, 599, 601, deal with process, and not with property, in the hands of the ex-sheriff.</p> <p>c — The requirement that if the sheriff whose term of office is about to expire has commenced the service of process he shall complete the same, is to prevent a divided responsibility in the execution of process.</p> <p>d — A writ of attachment is mesne process, and must be returned by the officer, and when so returned remains in the custody of the clerk as a part of the files in the case. The property attached remains in the custody of the officer who served the writ until the suit is disposed of, unless bonded or the attachment is dissolved.</p> <p>e — If judgment is entered for plaintiff in attachment, execution is to issue thereon to the sheriff or other proper officer of the county, but there is no authority in the law for issuing an execution or other process to a sheriff whose term of office has expired, and whose right to execute process has ceased by the election and qualification of his successor.</p>

Mandamus. Relator applies for mandamus directing that his witness’ and attorney’s fees in a street-opening case be taxed and paid by the city. The facts are stated in the opinion.

(Newton, J.) Bill to annul a marriage claimed to be voidable for fraud. Defendant appeals from decree granting relief prayed.' The facts are stated in the opinion.

(Moore, J.) Bill to set aside a sale and conveyance of real estate by executors. Complainant appeals. The facts are stated in the opinion.

<p>Error to Wayne. (Reilly, J.)</p> <p>Assumpsit. Plaintiff and defendant Randall bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to superior court of Grand Eapids. (Burlingame, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Constitutional law — Municipal corporations — Defective sidewalks— Negligence — Declaration—Evidence.</p> <p>1. Act No. 264, Laws of 1887, providing for the recovery of damages for injuries sustained by reason of defective highways, etc., is constitutional.</p> <p>2. A declaration under said act avering that the accident occurred upon one of the principal streets of a city, by reason of a defective sidewalk, which defect was a dangerous one, and had existed for three months, and that the defendant then and there knew that the sidewalk was unsafe, and not fit for travel, sufficiently states knowledge or notice of the defect by the defendant.</p> <p>3. In such a case it is error to permit the plaintiff to show the bad and defective condition of the walk at other places beyond the defect which caused the injury. Dundas v. Lansing, 75 Mich. 499.</p>

<p>Error to Bay. (Cobb, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The fac.ts are stated in the opinion.</p>

<p>Costs — Judgment reduced by set-off below $100. .</p> <p>In this case it is held that the plaintiff established a claim, exceeding $100, which was reduced by set-off, and that he is entitled to costs.</p>

<p>Contract — Agency—Ratification,</p> <p>In this case it is held that the authority of defendant’s local agent to make the contract sued upon is sufficiently shown by the evidence, which question should have been submitted to the jury, as also the question of defendant’s ratification of said contract.</p>

<p>Fraudulent sale — Change of possession — Burden of proof — Charge to jury — Consideration illegal in part.</p> <p>1. The burden of proof is upon the vendee to make it appear that the sale was made in good faith and without any intent to defraud the creditors of the vendor, where such sale is not followed by an actual and continued change of possession, and a refusal to so instruct the jury is error. Buhl Iron Works v Teuton, 67 Mich, 623.</p> <p>2. In. replevin by a vendee to recover a stock of goods seized at the suit of the vendor’s creditors, the plaintiff relied upon his bill of sale as evidence of his title, the consideration for which he claimed was two chattel mortgages held by him on the property. The creditors claimed that one of the mortgages was given without any valuable consideration, and that the other was increased in amount, all with intent to defraud them, and with the knowledge of the vendee; and it is held a question for the jury, and, if found in favor of the creditors, the fraud tainted the whole transaction, and prevented a recovery by the plaintiff.</p>

<p>Ejectment — Homestead—Defendants wife a necessary party — Mortgages — Presumption of delivery — Validity—Res judicata— Estoppel.</p> <p>1. Where a mortgage is executed in the absence of the mortgagee, and placed upon record by the mortgagor, and permitted to remain of record as a mortgage, and assumed to be such by all of the parties in interest, want of a manual delivery is of no importance. Jackson v. Cleveland, 15 Mich. 94. Such recording, in the absence of evidence to the contrary, is presumptively a delivery. Patrick v. Howard, 47 Mich. 40-45; Stevens v. Castel, 68 Id. 116, 117; Gage v. Gage, 36 Id. 229.</p> <p>2. Especially is the recording of a deed considered presumptively a delivery of it, as between the grantor and grantee, when the object of the record is to defraud, hinder, or delay creditors. Gage v. Gage, 36 Mich. 229.</p> <p>3. In this case the defendant is held estopped from claiming that two mortgages executed by him for the purpose of preventing the collection of claims by creditors were void for want of consideration and delivery, the same having been recorded, and foreclosed after the death of the mortgagee by his personal representative, who bid in the land for the estate, and thereafter caused it to be sold at administrator’s sale to the plaintiff, an innocent purchaser, who brought ejectment against the mortgagor, who had remained in possession of the premises, and who sought to defeat a recovery on the grounds stated.</p> <p>4. A wife is a necessary party to an action of ejectment involving her homestead rights. Hodson v. Van Fossen, 26 Mich. 68; Cleaver v. Bigelow, 61 Id. 47; Sewing Machine Co. v. Whitney, Id. 518.</p>

<p>Appeal from Yan Burén. (Buck, J.)</p> <p>Bill for partnership accounting. Defendants appeal.</p> <p>The facts are stated in tbe opinion.</p>

<p>Mortgages — Outstanding liens — Right of mortgagee to purchase— Agreement — Equity.</p> <p>A mortgagor assigned, to the mortgagee, as additional security for the • payment of the mortgage debt, a mortgage in process of foreclosure, which was to be completed by the assignee, in whom the title to the mortgaged premises was to be perfected, and who was to hold said premises as additional security for said debt, and for the actual costs of such foreclosure and sale, and for any taxes or assessments levied or assessed upon the mortgaged premises after the assignment, all of which the assignor agreed to pay. It was further provided that in case of his failure to make such payment the assignee might purchase or pay the same, and be repaid therefor on the sale of said assigned mortgage or of the premises covered thereby. Provision was made for the re-assignment of the mortgage, or the conveyance to the assignor of the title secured on such foreclosure sale, on payment of the original mortgage debt, and any costs, taxes, or assessments which the assignee might have paid by virtue of the agreement; and it was expressly provided that the assignee should not be liable for any loss or damage caused by the sale of said premises for the non-payment of taxes or assessments. The assignee completed the foreclosure, and bid in the mortgaged premises, and for the purpose, as claimed, of protecting his mortgage interest- purchased outstanding tax titles, not covered by the agreement, and paid taxes charged against the mortgaged premises at time of the assignment. The original mortgage debt was satisfied by the foreclosure of the original mortgage, and in a suit brought by the assignee to foreclose the agreement contained in said assignment for the foreclosure costs, and for taxes assessed after the making of said agreement, which he had paid, he also sought to recover the money paid for said outstanding tax titles and taxes; and it is held that before such a liability on the part of the assignor could exist, or a lien be created, a special agreement would have to be made, which contract a court of equity cannot create for the parties.</p>

<p>Error to Bay. (Cobb, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Directing verdict — Presumption against contributory negligence — Public highways — User—Estoppel— Fellow-servants.</p> <p>1. Where in a negligence suit there is no eye-witness to the accident it will be presumed, in the absence of any evidence to the contrary, that the deceased used ordinary care and caution, which presumption is sufficient to permit the plaintiff to recover upon showing negligence on the part of the defendant. McWilliams v. Mills Co., 31 Mich. 274; Mynning v. Railroad Co., 59 Id. 257, 64 Id. 102, 67 Id. 680; Kwiotkowski v. Railway Co., 70 Id. 549.</p> <p>2. Where in a negligence case there is a chance upon the facts shown for ordinarily candid and intelligent men to arrive at different conclusions, the question of contributory negligence is to be determined by the jury.</p> <p>3. Public user alone, when sufficiently general and long continued, will constitute an acceptance of a country road.</p> <p>4. Where a corporation has for over 20 years maintained a road across its property, which has been used by the public as a connecting link in a road between two towns, and has laid railroad tracks across said road upon its property, and permitted the public to use the crossing, which it has planked, without any dissent, it is estopped from denying that, so far as said crossing is concerned, it bore the same relation and duty to travelers upon it as if it were in fact a public highway, and is bound to use due care and diligence in running its trains over said crossing to prevent injury to passengers lawfully on the road.</p> <p>5. Where a servant, whose duty it is at any time during working hours when upon the master’s premises to perform the duties incident to his employment, starts to leave the premises on his private business, and is injured by the alleged negligence of the master, while upon the premises, and during working hours, he is at the time in the employment of the master.</p> <p>6. A founder in a blast furnace for the manufacture of pig-iron, who has a separate department, — the inside work of the furnace, — and who has nothing to do with the other departments, except when acting through the general management or the foreman or boss of such departments, is held to be a fellow-servant of an engineer whose business it is to move the cars on the furnace track as desired in the business, and to assume the risk that said cars might be handled negligently by said engineer.</p> <p>[The positions of counsel are stated and discussed, with citation of authorities, in the opinion. — Reporter,.]</p>

(Peck, J.) Bill to secure lien on real estate for moneys advanced. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Pleading — Declaration—Joinder of counts.</p> <p>1. A declaration containing four counts, namely:</p> <p>a — For obstructing a navigable river with saw-logs so that, plaintiff could not make use of it in floating his logs and timber,, and in not making use of any means for the removal of such obstructions;—</p> <p>b — For a like obstruction of the river at another time and place, so as to hinder and delay the plaintiff’s drive unreasonably, by which he lost the sale of his logs at an agreed price,, and was obliged to sell the same at a greatly reduced price;—</p> <p>c — For breaking plaintiff’s booms and chains, and setting his logs adrift, thus subjecting him to large expense in securing them from loss and destruction;—</p> <p>, d — For breaking said booms and chains at another time and place, by means of which plaintiff’s logs went adrift and became mixed with other logs, putting him to large expense in getting them together again, and sorting them from among other logs,—</p> <p>Is not objectionable for a misjoinder of causes of action.</p> <p>3. Giving a statutory right of action different in form from that at the common law for the same grievance, does not abrogate the right to proceed at common law, unless the new remedy is declared to be exclusive.</p> <p>3. How. Stat. | 7759, removes all objection to the joinder of a count in trespass with one in case, in the same declaration, and should be liberally construed by1 the courts.</p>

<p>Appeal from Newaygo. (Palmer, J.)</p> <p>Bill to foreclose a mortgage. Defendant appeals. .</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Ogemaw. (Simpson, J.)</p> <p>Bill to restrain the sale of lands for taxes. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Claim against estate of insolvent. Assignee brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Promissory notes — Indorsers—Joint obligors — Discontinuance,</p> <p>1, Where a note is indorsed prior to its delivery, and the indorsers are not the payees, the contract is in form joint against the makers and indorsers. Weatherwax v. Paine, 2 Mich. 555; Rothschild v. Grix, 31 Id. 150; Herbage v. McEntee, 40 Id. 337; Sibley v. Bank, 41 Id. 196; Moynahan v. Hanaford, 42 Id. 329.</p> <p>2. When an obligation is joint as well as several, all must be proceeded against jointly, or each severally, subject to certain exceptions, as where one is an infant, or has been discharged in bankruptcy.</p> <p>3. Where a suit is brought against the maker and the indorsers of a promissory note, which indorsements were made prior to the delivery of the note, a discontinuance as to the maker operates as a discontinuance against all of the defendants. Winslow v. Herrick, 9 Mich. 380; Anderson v. Robinson, 38 Id. 407; Munn v. Haynes, 46 Id. 140; Post v. Shafer, 63 Id. 85.</p>

(Palmer, J.) Defendant brings error from an order denying his application for leave to appeal from a judgment in justice’s court. The facts are stated in the opinion.

<p>Appeal from Washtenaw. (Kinne, J.)</p> <p>Bill for divorce. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Branch. (Loveridge, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Brevoort, J.) Appeal from allowance of guardian’s final account by circuit court on appeal from probate court. The facts are stated in the opinion.

(Judkins, J., presiding.) Proceedings under mechanics’ lien law of 1887. Defendant brings error. The facts are stated in the opinion.

<p>Error to Menominee. (Grant, J.)</p> <p>Trover. Defendants bring error.</p> <p>The facta are stated in the opinion.</p>

<p>Fraudulent representations — Promissory note — Qualified indorsement —Ignorance of import — Release of right of action — Consideration-Signature obtained by fraud — Pleading —Declaration—Evidence—Charge to fury.</p> <p>1. An arrangement by the receiver of a corporation to pay its outstanding note in lumber amounts to an acceptance of the note to the common understanding.</p> <p>2. To hold that a man cannot be defrauded by false representations because he is presumed to know the law, which presumption is a violent one in most cases, is to place the ignorant and foolish, who are generally the victims of fraud, beyond the protection of the law. Hess v. Culver, 77 Mich. 598 (head-notes 1 and 8).</p> <p>So held, where a plaintiff claimed to have been defrauded in the purchase of the note of an insolvent corporation by representations that its receiver had arranged to pay the note in lumber, which arrangement it was claimed the receiver had no power to make, for which reason the plaintiff had no right to to rely thereon.</p> <p>8. Where, in a suit for damages for alleged fraudulent representations by which plaintiff was induced to purchase a note, the jury find that the fraud was committed as claimed, evidence that the defendant said he would guarantee that the note would be paid is admissible as a part of the transaction, if the jury find that such promise was made to aid in the fraud perpetrated on the plaintiff.</p> <p>4. The law approves of settlements and compromises of disputed claims, and, when deliberately made, the parties are bound by them, and the law will not sanction any interference with them, without the consent of the parties, except upon the ground of fraud or mistake.</p> <p>5. The purchase of property of a wife, at the request of her husband, upon the condition that the husband would sign a release of all of his claims against the vendee, is a sufficient consideration for such release.</p> <p>6. Where, in such a case, the husband was induced to execute such release by fraudulent representations that it was not binding, and would not be used against him, and his wife receives the entire benefits of the transaction, the husband is not estopped from repudiating the release for fraud because of the non-return of such benefits by the wife.</p>

<p>Negligence — Pleadings and proof — Variance—Sufficiency of declaration.</p> <p>1. Where the icy condition of a walk upon which plaintiff fell and sustained injuries, for which she sues, was not the result of neglect to remove naturally-accruing ice and snow, but was caused by the action of the defendant in throwing water on the place where it froze, the case is a proper one for the jury.</p> <p>2. In this case, it is held that there is no variance at all between the case charged and the case made, which distinguishes it from Wilkinson v. Spring Works, 73 Mich. 405, where the declaration charged that a particular ailment was produced by the accident, and the Court held that the plaintiff was confined in his recovery to the scope of his allegations and proof.</p> <p>[The points of counsel are stated in the opinion, with the authorities cited. — Eeporter.]</p>

Mandamus. Relator applied for mandamus to compel respondent, as city treasurer, to allow him to examine, and have access to, certain records in said treasurer’s office. The facts are stated in the ojoinion.

<p>Contract — Construction—Lack of complete performance by plaintiff —Assumpsit— General issue — Election—Laches.</p> <p>Plaintiff transferred to defendant certain land warrants, at 820 per acre, and agreed to use his whole influence and legal ability in securing the location of certain lands thereunder, the application for such entries being contested in the General Land Office, at Washington. In consideration of such services, if successful, he was to receive a deed of an undivided one-eightb interest in the lands when patented to defendant, and if unsuccessful was to receive back the warrants sold defendant, if he so elected, at the same price he sold them for. The contract further provided that a failure to secure patents for the lands should estop plaintiff from demanding compensation for his services in trying to procure such patents. The applications were rejected in April, 1886, and in December, 1886, the defendant sold the warrants at §55 per acre. In July, 1887, plaintiff made a formal demand for the warrants, and a tender of the §20 per acre was waived, and the demand refused, whereupon plaintiff brought suit upon the contract, counting upon the failure of the defendant to return the warrants, at §20 per acre, and recovered a judgment for §85 per acre, the trial court holding the contract divisible, and that the delay of the plaintiff to make an election under the contract to receive the scrip was excused by the action of the defendant in disposing of the warrants. In reversing the judgment the Court hold:</p> <p>1. The contract must be construed as a whole, and the services of the plaintiff in procuring the location of the land were a condition precedent to the return of the warrants.</p> <p>2. The title to the warrants passed to the defendant when he made his purchase, and his contract for a resale is executory; and when a promise rests upon two things to be performed for its consideration, and the promisee desires to enforce it, he can only do so after such performance.</p> <p>8. From the facts disclosed in the testimony, there was a question as to what services plaintiff rendered for the defendant before the land department that should have been submitted to the jury.</p> <p>4. Assuming the Commissioner of the Land Office to be the highest authority having jurisdiction in the matter, the plaintiff should have made his election at once, and notified the defendant; and a fair construction of the contract required such election and notice to have been made and given within a very few days, at most, after the decision of the Commissioner.</p> <p>5. It was of no consequence what defendant had done with the warrants; he should have had an opportunity to have returned them, or to have replaced them with other like scrip.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Certificate of deposit — Fraudulent origin — Good-faith indorser— Subrogation.</p> <p>A bank, issued a certificate of deposit, in part payment for a forged draft, to a person giving his name as O. M. Thurston, who-indorsed it to the order of A. Conover (he assuming both names), and, in order to have it cashed at another bank, after indorsing it as A. Conover, secured the indorsement of a third party, who acted in good faith and without any knowledge of the fraudulent inception of the paper, as did the bank cashing it. The certificate was protested and the indorser duly notified, who paid it with knowledge of the original fraud, and thereupon brought suit against the bank issuing the certificate, and it is held-.</p> <p>a — The certificate was issued to an actual person, who gave-his name as Thurston, and in the transaction, for all purposes, is known, and can be legally held, under that name, as well as any other he may have or may have assumed.</p> <p>b — The certificate is not a forgery or issued to a fictitious person, and the plaintiff had. the right to make the indorsement he did, being ignorant of the fraudulent inception of the paper, and when he made it he assumed the liability of an indorser of commercial paper; and when the certificate was protested that liability was fixed, which was to the bank cashing the paper, and it became his duty to at once pay it, and, on suolx. payment, the law subrogated him to all of the rights of said bank against the drawers and prior indorsers of the certificate, which he had a right to at once enforce.</p> <p>c — The status of the plaintiff when he made the indorsement, and the equities which then controlled and protected his rights, continued until he was fully re-imbursed for the , payment so made, unaffected by any after-acquired knowledge concerning the fraud originally practiced.</p>

<p>Negligence — Pleading—Declaration—Practice in Supreme' Court— Trial — Verdict—Polling jury — Bight of juror to malee statement — Denial of motion for new trial —Not assignable as error.</p> <p>1. This case was not reversed on the former hearing (65 Mich. 10) on the ground that evidence was received concerning the condition of the yard in which the accident happened, and 'the use of it as a place of pastime by children, nor was it held that the error of the court in receiving such testimony was not cured by its being afterwards withdrawn from the consideration of the jury.</p> <p>2. The appellate court does not concern itself with errors claimed to have been committed against the non-appealing party.</p> <p>3. A plaintiff has the right, at least, to attempt to try his case upon his own theory, and to take such steps as are necessary to afford a remedy in case he is not permitted to do so, and the fact that his counsel knows that the trial court will not permit certain qustions to be answered cannot affect his right to asle them, or his good faith in so doing.</p> <p>4. • In a suit by a boy for injuries received, when only five years old, by being thrown under the wheels of defendant’s engine, while riding on the foot-board, in defendant’s railroad-yard, instructions to the jury that, in order to find a verdict for the plaintiff, they must find by a preponderance of evidence,—</p> <p>a — That the boy was on the foot-board, and was seen by the engineer, who, after seeing him there, started the engine without ascertaining whether the boy had got off;—</p> <p>■ b — That the engineer was guilty of gross negligence;—</p> <p>c — That the boy, by reason of his insufficient intelligence, was unable to comprehend the danger, and was not guilty of contributory negligence,—</p> <p>Are not misleading or inconsistent, and sufficiently define the gross negligence referred to.</p> <p>6. Every presumption is in favor of the correctness of a verdict, and when the jury is polled is the time for a juror to speak, if he has anything to say against or in explanation of such verdict.</p> <p>So held, where, after the announcement of a verdict for a plaintiff, defendant’s counsel asked that the jury be polled, whereupon one of the jurors arose and attempted to address the court, but the clerk was directed to proceed with the polling of the jury, and the juror, in answer to the usual question, twice repeated, answered that it was his verdict, and after the court had discharged the jury from the further consideration of the case, but before they had left their seats, the juror again attempted to address the court, but was not allowed to speak, and, in answer to a request of defendant’s counsel that the juror be heard, the court stated that the verdict had been taken in the proper way and the jury discharged, and if the juror had any explanation or complaint to make it was his duty to come and see the court, to which statement an exception was taken by defendant’s counsel; which action of the court is sustained, it not appearing that the juror at any time stated that the verdict was not his, or of his own free will, or that he went to the judge with any complaint or explanation after the jury was discharged.</p> <p>6. A motion for a new trial, with the accompanying affidavits, forms no part of the record, and are not brought up on writ of error (Final v. Backus, 18 Mich. 233); nor can error be assigned in a civil case upon a refusal to grant the motion. Dibble v. Rogers, 2 Mich. 404; Cuddy v. Major, 12 Id. 368; Mining Co. v. Brady, 14 Id. 263; People v. Judge, 20 Id. 222; Jones v. Hobson, 37 Id, 36; Toulman v. Swain, 47 Id. 85; Nelson v. Mining Co., 65 Id. 288.</p>

(O'Hara, J.) Original bill to restrain foreclosure of mortgage, and for accounting of rents and profits had by mortgagee. Cross-bill for foreclosure of mortgage, etc. Original complainants appeal from decree for foreclosure. Amount found due by circuit judge reduced, and decree entered for such reduced amount. The facts are stated in the opinion.

<p>Error to Houghton. (Williams, J.)</p> <p>Assv,m20sit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ingham. . (Peck, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Personal taxes — Action by town treasurer to collect.</p> <p>1. A town treasurer has no authority to bring suit for the collection of a personal tax under section 35 of Act No. 153, Laws of 1885, after his authority to enforce its collection under his original or supplemental warrant has expired, and such suit can only be resorted to when the person assessed has no property that can be reached under said warrants, or when he resides beyond the treasurer’s jurisdiction.</p> <p>2. The authority of the county treasurer to issue a supplemental warrant to a town treasurer for the collection of personal taxes, under section 47 of Act No. 153, Laws of 1885, can only be exercised upon the town treasurer filing with the county treasurer the verified statement provided for by section 44 of said act, which must conform in all respects to the statutory requirements. ^</p>

<p>Water-power — Deed—Construction.</p> <p>The owner of a water-power and adjacent lands conveyed a site for a factory, and also an undivided one-eighth of the land flowed and subject to flowage. The deed further provided that if the undivided one-eighth of the water-power which was intended to be conveyed did not amount to 225 inches of water the grantee should have the right to use enough water from the pond to make up that amount, subject to the reservation by the grantor of the first use of a sufficient amount of water properly used to drive certain specified stones and machinery in his grist-mill, — the grantee to have the next use of the water to the amount specified in the grant. The deed further provided that in case of any break in the dam, or necessary repairs thereto, the grantor should pay seven-eighths, and the grantee one-eighth, of the expense, except such repairs as were needed in the separate races and appurtenances of each property, which were to be made by the owners. The grantor reserved the right to raise the dam two feet. In a suit against claimants under the grantee for an alleged improper use of water under the grant, the deed is construed as follows:</p> <p>a — To convey absolutely one-eighth of all the land flowed, or subject to flowage, including the water on such land.</p> <p>b — Under said deed the grantor parted absolutely with one-eighth of his water-power, and, if the same did not amount to 225 inches of water, the grantee was entitled to the use of enough of the remaining seven-eighths to make up the deficiency, provided the grantor could spare it without interfering with the use of his grist-mill, as specified in the deed.</p> <p>c — The reservation of enough water to operate the grantor’s grist-mill referred to the seven-eighths of the water-power not conveyed by the deed.</p>

Joseph. (Loveridge, J.) 'Assumpsit. Defendant brings error. The facts are stated in the opinion and in the former report .of the case.

<p>Slander of title — Joint liability — Measure of damages — Evidence— Statute of limitations.</p> <p>1. While it is true that two or more persons cannot as a general rule be held jointly liable for a verbal slander, yet, under circumstances where all are jointly concerned and interested, and participate in the general purpose, such concert and co-opera•tion may be shown, although the false and malicious statements may have been made by one alone. Haney Manufacturing Co. v. Perkins, 78 Mich. 1.</p> <p>3. In a suit for defamation of title by the execution of a deed containing a statement that the plaintiff had fraudulently and without consideration obtained possession of the land described in the deed, and that he pretends to own it, etc., which statement is found to have been malicious and upon no foundation •of right: whatever, plaintiff should be allowed to make full proof of the acts and conduct of all of the defendants, — they having all participated and actively engaged in the execution rand delivery of the deed, — in their continued claim of title •under the deed and the recital therein, not only to show their continued claim of pretended rights in ,the premises, but also their motive in inserting the recital in the deed, and in their pretended claims thereunder.</p> <p>•8. The taxable costs awarded to a party in a suit to remove a cloud upon his title caused by the insertion in a deed of a statement that he had fraudulently obtained possession of the land, which lie pretends to own, etc,, are not the measure of his damages in a suit for defamation of title, but he may recover as damages any other reasonable outlay incurred in removing such cloud, — it appearing that the defendants acted maliciously, and under a claim which they knew to be false, for the purpose of harassing the plaintiff and thereby forcing a settlement.</p> <p>4. Whether How. Stat. § 8714, limiting actions for slanderous words to two years after the cause of action accrues, applies to an action for defamation of title by the execution of a deed and inserting therein a statement that the plaintiff had fraudulently obtained possession of the land, etc., query? But, if so, the continued claim of rights under the deed, which were settled adversely to defendants in a suit to remove the cloud thereby created less than two years prior to the commencement of suit, will save the action from the operation of the statute.</p>

<p>Trespass — Partition fences — Ownership of rails.</p> <p>Rails placed in a line fence, but upon tbe land of the adjoining owner, with no intention of leaving them there permanently, are personal property; and in a trespass suit by the grantee of such owner for the removal of such rails, the title to land is not in question, and a plea of the general issue is sufficient.</p>

<p>Negligence — Public highways — Proximate cause of injury — Bridges —Notice of defect to township — Contributory negligence— Charge to jury — Statutory construction.</p> <p>1. Where, by the breaking of a bridge which a township had failed to keep in repair, the water and steam from a boiler attached to an engine which the owner is hauling over the bridge escapes, and injures his horses, the breaking of the bridge is the proximate cause of the escape of the steam and water, and if the township is otherwise liable it is liable for such damage.</p> <p>2. Where, in a suit for damages sustained by reason of the breaking of a bridge-stringer, the jury find that to all outward appearance the stringer was sound, but was-rotten internally, in the absence of personal knowledge on the part of the proper officers of the hidden defect, the question for the jury is whether said officers used due diligence in discovering such defect, and neglected to do that which common prudence and caution required them to do to ascertain the true condition of the stringer. Medina v. Perkins, 48 Mich. 67; Blank v. Livonia, 78 Id. -.</p> <p>3. In charging a jury in a negligence case the court should distinguish between the negligence which caused the injury and that which contributed to it.</p> <p>4. The first clause of section 4 of Act No. 264, Laws of 1887, which provides a remedy for the failure of townshijis to keep highways in repair, limits the right to bring suit under the first and second sections of the act, for personal injury and injury to property, to public highways which have been in use for ten years.</p> <p>5. The duty imposed upon townships by section 3 of Act No. 264, Laws of 1887, to keep their highways in reasonable repair, etc., may be enforced by information or indictment where the highway has not been used as a public highway for ten years, but. . a personal action for damages will not lie in such cases.</p>

<p>Master and servant — Safe place to work — Inspection—Negligence— Fellow-servants — Delegation of master's duty — Respondeat superior — Evidence—Res gestae.</p> <p>1. The duty of inspection, when required by the circumstances of the case, cannot be delegated by the master in such manner as to avoid responsibility.</p> <p>So held, where a firm of lumber-manufacturers, — none of the members of which undertook to personally supervise the manufacture of lumber at the point where the mill was located, and all of whom resided in another county, — employed a general foreman or superintendent who was to look after the sawing of the lumber and in a general way the entire business, who employed competent men to inspect the docks upon which the lumber was placed preparatory to piling, and the posts and stringers supporting the same, one of which docks fell by reason of the breaking of one of said posts, which was weakened where the stringer was mortised in by reason of dry-rot not visible on an outward inspection of the post, — the mortise being covered by a plahk which was not removed at time of inspection, — and injured an employé, who was awarded damages for the injuries thus sustained.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Morse, in which Long, J., concurred:</p> <p>a — The circuit judge was right in instructing the jury that, if the defendants themselves could have discovered the defect in the dock — the fall of which injured plaintiff — by exercising reasonable care and diligence, they were responsible, notwithstanding they had employed skillful and competent persons to look after the docks, and had furnished them with the proper materials for repairing the same.</p> <p>b — It is well settled by all of the authorities that the master must provide his servant with a safe place to work in, and furnish him with suitable machinery and appliances with which to perform such work; and it is his duty to keep such machinery and appliances in good repair. If he cannot do this personally he must provide some other person to take his place in this respect, and the person to whom this duty is delegated,— no matter what his rank or grade, or by what name he may be called, — cannot be a servant in the sense or under the rule applicable to injuries occasioned by fellow-servants.</p> <p>c — In order to keep such machinery and appliances safely in repair, the law makes it the duty of the master to make all needed inspections and examinations; and he cannot escape responsibility by delegating this duty to one who, in other respects, may be a fellow-servant of the person injured by the failure to properly perform this duty. Swoboda v. Ward, 40 Mich. 420; Mining Co. v. Kitts, 42 Id. 39; Parkhurst v. Johnson, 50 Id. 70; Ryan v. Bagaley, Id. 179; Huizega v. Lumber Co., 51 Id. 272; Smith v. Car Works, 60 Id. 502; Marshall v. Furniture Co., 67 Id. 167.</p> <p>d — From all the circumstances of the case, it was for the jury to determine whether the inspection, as made, was made at the particular spot where the post broke, and whether, if made there, it was a sufficient inspection to look at it, or sound it with a hammer or other instrument, without tearing off the plank which was nailed over the mortises and tenons, or without cutting or boring into the wood.</p> <p>e — It was not error for plaintiff to show what wages he commonly earned, but it was not proper to show that he had no other means of support than day-labor, which fact was immaterial to the issue, and an indirect way of bringing the poverty of plaintiff before the jury, which is not permissible in actions of this character, Marsh v. Bristol, 65 Mich. 383.</p> <p>/ — An admission by defendants’ vice-principal of knowledge, before the accident, of the particular defect causing it, made the next day and away from the place where it happened, is inadmissible. Railroad Co. v. Coleman, 28 Mich. 440; Ruggles v. Fay, 31 Id. 141; Mobley v. Kittleberger, 37 Id. 360; Gates v. Boom Co., 70 Id. 309; Patterson v. Railway Co., 54 Id. 92; Stebbins v. Township of Keene, 55 Id. 552; Wormsdorf v. Railway Co., 75 Id. 476.</p>

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

<p>Error to Calhoun. (Hooker, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Clinton. (Smith, J.)</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Belator applied for mandamus to compel the common council of the city of Detroit to observe and carry out the provisions of Act No. 468, Local Acts of 1889, relative to the registration of voters, etc., in the city of Detroit. The facts are stated in the opinion.

<p>Fire insurance — Occupancy of premises.</p> <p>1. The intent of the parties to an insurance policy in respect to occupancy is to be gathered from the usual and ordinary use of the premises for the purposes to which they are devoted. Wood, Ins. 181; Whitney v. Ins. Co., 9 Hun, 37.</p> <p>2. Where at the time of insuring a farm barn it was occupied by a tenant, who lived on another farm, and used the barn for the storage of produce until sold, of which facts the agent of the company had notice, — the application being a verbal one, and the policy being silent as to occupancy, — the cessation of such occupancy by the tenant, after which an agent of the owner of the bam went to the premises frequently to see that the doors were fastened, etc., will not avoid the policy upon the ground that when the policy was issued the premises were occupied in the usual manner by a tenant, and that they became vacant and unoccupied within the meaning of the policy on the cessation of such occupancy.</p>

<p>Error to Emmet. (Ramsdell, J.)</p> <p>Ejectment. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Arrest — Misdemeanor—Warrant—Street walking.</p> <p>1. An arrest, without a warrant, of an alleged prostitute or streetwalker by a police officer, who is authorized by ordinance to arrest, upon view, any person found in the act of committing any offense against the laws of the State, on mere suspicion that she is plying her vocation upon the street, no act being committed in his presence indicating that she is there for that purpose, is illegal.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Long:</p> <p>a — Personal liberty, which is guaranteed to every citizen under our Constitution and laws,' consists of the right of locomotion, — to go where one pleases, -and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all citizens.</p> <p>b — One may travel along the public highways or in public places; and while conducting himself or herself in a decent and orderly manner, disturbing no one, and interfering with the rights of no other citizen, there, they will be protected under the law, not only in their persons, but in thejr safe conduct.</p> <p>c — The Constitution and the laws are framed for the public good, and the protection of all citizens; and no one may be restrained of his liberty, unless he has transgressed some law.</p> <p>d — Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees.</p> <p>& — Suspicion that a party has on a former occasion committed a misdemeanor is no justification for giving him in charge of a constable without a justice’s warrant; and there is no distinction, in this respect, between one kind of misdemeanor and another. 1 Archb. Crim. Pr. & PL 102 (note 1).</p> <p>f — An arrest for misdemeanor, without a. warrant, by one who does not see the offense committed, is illegal.</p>

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

<p>Principal and agent — Payment.</p> <p>1. Where after the purchase from a brick company of the brick upon its yard, burned and unburned, the vendee allows the president of the corporation to manage the yard and sell brick as his agent, and collect the proceeds of such sales, he becomes such an agent that his contracts are binding upon the vendee if made in the due course of the business; and payments made to such agent by a purchaser of brick who had no knowledge of the change of possession under said first-named purchase are binding upon the principal.</p> <p>2. Where, in such a case, the agent at one time agreed to receive wood of a purchaser to apply on the amount due for brick, and directed him to deliver the wood to a specified third party, but before such delivery countermanded the direction, and ordered the purchaser not to make such delivery, which he did notwithstanding such countermand, this cannot be considered as a delivery to the agent, and it is immaterial that the agent did not forbid the third person from taking the wood.</p> <p>[The briefs of counsel are confined to a discussion of the evidence, no authorities being cited. — Reporter.]</p>

<p>Assignment for benefit of creditors — Replevin from assignee.</p> <p>In this case an assignee under an assignment for the benefit of creditors, after having taken possession of the assigned stock of goods, and while engaged in' inventorying and appraising the same, assumed to surrender the actual possession to the holder of a chattel mortgage on the goods made the day prior to the assignment, and by agreement between them the inventory was to be completed, and, after a portion of the goods had been replevied from him and the mortgagee-by creditors, the assignee filed said inventory and appraisal, which included ’ the goods so replevied, and gave the statutory bond for double the appraised value of the. assigned property; and the assignee is held to have been properly made a party defendant in the replevin suit, which was discontinued as to the mortgagee, and prosecuted to judgment against the assignee as sole defendant. Coomer v. Mfg. Uo., 40 Mich. 692.</p>

Mandamus. Delator applied for mandamus to compel respondent to place on the assessment roll of his township certain land alleged by relator to be within the legal boundaries of said township, which remedy is denied as being inapplicable to the case. The facts are stated in the opinion.

<p>Deed — Right of way — Defeasance.</p> <p>A deed of right of way contained the following defeasance clause: “If the said railway company, its successors or assigns, should fail to complete said railway through said premises, and to put the same in operation, within three years from the date hereof, or if, after such railway is completed and put in operation, it should cease to be used and' operated as a railroad, then, in either event, this release shall pease to be operative,, and the right of way granted thereunder shall terminate.”</p> <p>The railway company ceased to use the right of way except for the storage of cars, and it is held that thereupon the deed had no further force or effect.</p>

(Beach, J.)' Bill to enforce' specific performance of a contract for the sale of land. Defendants Burbanks appeal. The facts are stated in the opinion.

(Moore, J., presiding.) Bill to foreclose a mortgage. Complainants Allan Shelden & Co., and defendants Montague and Wheat, appeal from the decree of foreclosure as entered in the lower court. The facts are stated in the opinion.

(Smith, J.) Information in the nature of a quo warranto to test the legality of respondent’s claimed election as a member of the board of school examiners. Respondent brings error. The facts are stated in the opinion.

<p>Appeal from Clinton. (Smith, J.)</p> <p>Bill to remove encroachment from highway. Defendant appeals.</p> <p>The facts ax-e stated in the opinion.</p>

<p>Error to Cheboygan. (Ramsdell, J.)</p> <p>Replevin. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Hosmer, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Error to Wayne. (Brevoort, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion of Sherwood, C. J.</p>

<p>Error to Alpena. (Kelley, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Statute of frauds — Contract for purchase of land.</p> <p>A verbal agreement to purchase laud and convey it to a “ pine-land broker,” in payment of his commissions on a land sale, is void under the statute of frauds.</p>

<p>Master and servant — Negligence—Damages—Evidence.</p> <p>l. If a defendant (in a negligence case), by his own act, has thrown the plaintiff off his guard, and given him reason to believe that vigilance was not needed, its lack on the part of the plaintiff is no bar to his claim. Railroad Co. v. Ogier, 35 Penn. St. 60; Ernst v. Railroad Co., 35 N. Y. 9; Totten v. Phipps, 52 Id. 354; Morrissey v. Ferry Co., 47 Mo. 521.</p> <p>2. In a negligence case, where the injury was permanent in its character, the court, in charging the jury on the question of damages, used the following language, in substance: “ Perhaps a nearer rule — and I do not give it to you as a controlling rule —would be such a sum of money as, put at six per cent, interest, might earn a sum equivalent to the difference in plaintiff’s wages before and after the accident. To illustrate, if he could have earned §600 a year before, and can now only earn §300, a sum of money that, at the ordinary rate of interest, would produce §300 per year would fully compensate him for his loss. Perhaps this would be too large an amount, because you should take into consideration the contingencies of ill health, the inability to secure work, and other contingencies incident to human life.” The court is held to have erred in using the illustration, for if the jury might give an amount which, thus placed at interest, would produce the amount representing the loss in plaintiff’s earning capacity, it would be a perpetuity, which he is not entitled to have.</p> <p>3. Where in a negligence case a witness for the defendant testified that plaintiff told him that he hid not know how he came to be injured, it is error to allow the plaintiff to testify, on rebuttal, that at about the time of the alleged statement he stated his case fully to his attorneys, and substantially as testified to upon the trial, in which testimony he explained fully how the accident happened.</p> <p>4. A statement by an employer, soon after an accident to an employe, “ that he would see him through all right, and not to worry,” is in no sense a confession or admission of liability, and evidence of the making of the same is inadmissible in a suit for damages by the employe.</p> <p>[The opinion states and discusses the points of counsel. —Reporter.]</p>