Volume 85 — Michigan Reports

Mandamus. Relator applied for mandamus to compel respondent to submit to him for inspection certain books, records, and files in his office. The facts are stated in the opinion.

<p>Negligence — Pleading—Amendment of declaration — Negligent driving — Requests to charge.</p> <p>1. The declaration in a negligence case averred that plaintiff was. struck by the horses and truck of the defendant, and thereby thrown upon the ground and injured, but failed to aver that, the truck wheel ran over plaintiff’s leg, which fact was shown by the evidence. And it is held that it was the duty of the-court to permit an amendment of the declaration to meet such proof.</p> <p>2. Requests to charge by a defendant, predicated upon isolated. portions of the testimony in support of his theory of the case, and assuming the truth of controverted facts, are properly refused.</p> <p>3. This case is ruled by Boick v. Bissell, 80 Mich. 260, and Lazell v. Kapp, 83 Id. 36; and the question of defendant’s negligence was very properly left to the jury under clear and explicit instructions from the court.</p>

<p>Street-ear companies — Negligence—Passenger riding upon platform of car.</p> <p>It is within the power of street railway companies to prohibit pas. sengers from riding upon the platforms of the cars, or to give notice that those who ride there must do so at their own risk, or to limit the number of passengers which each car shall carry, and require them to ride inside of the cars. Until they adopt some such regulations, and notify the public, it is but reasonable to hold them liable for injuries resulting from their own negligent acts, to their patrons, who are themselves in the exercise of reasonable care, whether riding upon the platforms or within the cars.</p>

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

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

<p>Specific performance — Contract by correspondence — Reasonable time — Tender.</p> <p>1. To complete a contract by correspondence for the purchase of land, the proposed purchaser must within a reasonable time accept the offer of the owner, and perform the conditions imposed; and an answer not in compliance with such offer may be disregarded by the owner without notice to the proposed purchaser.</p> <p>3. The owner of land who, in answer to a letter from a proposed purchaser, makes an offer of sale, is under no legal obligation to withdraw it after the expiration of a reasonable time for its acceptance; nor will a full tender of performance of the terms of such proposed sale, after the expiration of such reasonable time, change the legal rights of the parties. ” •</p>

<p>Attachment — Service—Return—Jurisdiction of justice.</p> <p>The return by an officer to a writ of attachment issued December S, and returnable December 12, which shows that he made no effort after December 5 to secure personal service, but on that day left a copy of the writ and of the inventory with the person in whose possession he found the attached property, confers no jurisdiction upon the justice to proceed to judgment. Withington v. Southworth, 26 Mich. 382; Brown v. Williams, 39 Id. 756; Town v. Tabor, 34 Id. 262.</p>

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

Mandamus. Eelator applied for mandamus to compel respondent to set aside an order denying to relator an allowance out of the estate of her deceased husband pending the settlement of his estate, and to make such order of allowance. The facts are stated in the opinion.

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

Mandamus. Relator applied for mandamus to compel the ¡payment of its portion of a liquor tax. The facts are stated in the opinion.

<p>Evidence — Witnesses—Physicians—Privileged communications.</p> <p>1. Physicians whose sole knowledge of the ailments and. condition of a patient , is acquired in their professional capacity are disqualified under How. Stat. § 7516, from testifying to such condition and ailments. Briesenmeister v. Supreme Lodge, 81 Mich. 525.</p> <p>2. In a suit to recover damages for an alleged assault and battery, the plaintiff called one physician, not a graduate of any regular school of medicine, who testified to her injuries, but failed to produce two other physicians who had been called to treat her both before and after the alleged trouble with the defendant; which neglect is held to be a legitimate fact for the jury to consider in determining the merits of the case, plaintiff having claimed her statutory privilege when they were tendered as witnesses by the defendant.</p>

<p>Land contract — Forfeiture—Bights of co-vendee — Ejectment.</p> <p>1. One of two vendees in a land contract cannot obtain the legal title to the premises, and cut off the rights of his co-vendee, . who is in actual possession under the contract, without notice, or taking some steps to forfeit the contract.</p> <p>2. A land contract provided that, upon the failure of the vendees to make the specified payments, the premises should revert to the vendors, who might peaceably re-enter and take possession, or, at their election, enforce payment of the money due and make conveyance. One of the vendees assigned his interest in the contract, and the assignee at once informed the agent of the vendors that he was ready to pay his portion of the balance due at any time, and was informed that his interests would not be prejudiced without notice; which notice is held a condition precedent to a forfeiture of the assignee’s rights, and to an action of ejectment by the vendors, or by the other vendee, to whom they had conveyed the premises.</p>

<p>Error to Mecosta. (Palmer, J.)</p> <p>Assiompsit. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Payment — Estoppel—Acceptance of order.</p> <p>A contractor who is present when his claim against a city is audited at a specified sum by the council, and the recorder ordered to draw an order for the amount so allowed in full of the account, and makes no objection, and receives the order and draws the money on it, must be held to have acquiesced in the action of the council and in the settlement of his account by them made.1 Perry v. Cheboygan, 55 Mich. 250.</p>

<p>Executors and administrators — Sale—Earnest money — Forfeiture— Mistake.</p> <p>1. Money paid by a bidder at an administrator’s sale, and to be forfeited should he for any cause whatever fail to pay his bid, may be recovered back where the parties learn for the first time after the sale that a building which they believed stood entirely on the land sold is partially upon adjoining land not belonging to the estate; the case being ruled by the principles laid down in Sherwood v. Walker, 66 Mich. 568.</p> <p>"2. It is no defense to an action to recover such money that it has been accounted for by the administrator to the probate court as belonging to the estate, he having been informed before doing so of plaintiff’s claim, who demanded the repayment of the money.</p>

(Lovericlge, J.) Bill to enforce a - vendor’s lien, and to restrain a sale of the premises on execution against the vendee. Defendants appeal. The facts are stated in the opinion.

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

<p>Chattel mortgage — Time of payment — Right of possession — Trover.</p> <p>1. The debt secured by a chattel mortgage is due at once where the mortgage fixes no time when it is to become due and payable. Bearss v. Preston, 66 Mich. 11.</p> <p>2. A stipulation in a chattel mortgage that the mortgagees may take possession of the mortgaged property whenever they consider their claim in jeopardy is equivalent to the usual provision for taking possession when they consider themselves insecure.</p> <p>8. This Court has held that, under similar clauses in chattel mortgages, mortgagees are entitled to possession before condition broken, and they may maintain trover as against those who wrongfully interfere with .their possession. Grove v. Wise, 39 Mich. 161, 163.1</p> <p>4. Plaintiffs held a chattel mortgage on a stock of goods given as security for existing indebtedness, and providing for future advances, and covering after-acquired stock. The mortgage contemplated that the mortgagor should prosecute his business in the usual way. No time for the payment of the debt was fixed in the mortgage, which provided that the mortgagees might take possession whenever they, should deem the claim secured by the mortgage to be in jeopardy. Unsecured creditors attached the whole stock of goods, and the mortgagees placed a man in joint possession with the sheriff, by his consent, while the inventory was being taken, and after its completion demanded full possession under their mortgage, which was refused, the sheriff claiming to hold in defiance of the mortgage. The attachment proceedings were void. And it is held that under these circumstances the mortgagees might well consider their claim in.jeopardy, and proceed under the terms of the mortgage to take possession of the goods, and were entitled to bring an action of replevin or trover against the attaching officer.2</p>

(Edget, J.) Bill to set aside an attempted redemption from mortgage sale. Defendant Osborne Wright appeals. The facts are stated in the opinion.

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

<p>Certiorari to review proceedings resulting in an order for the destruction of gaming apparatus, etc.</p> <p>The facts are stated in the opinion.</p>

<p>Statute of frauds — Promise to pay debt of another.</p> <p>This case is ruled in the main by the former opinion, reported in 64 Mich. 664, and was apparently tried upon the lines there laid down, and in accordance with the views of this Court as therein expressed.</p>

Exceptions before judgment from Mason. (Judkins, J.) Information for selling liquor to a minor. The facts are stated in the opinion.

Exceptions before judgment from Barry. (Hooker, J.) Respondents were convicted of taking fish contrary to the provisions of Act No. 329, Local Acts of 1885. Conviction set aside. The facts are stated in the opinion.

Exceptions before judgment from Lenawee. (Lane, J.) Information for keeping saloon open on Sunday. The facts are stated in the opinion.

(Chambers, J.) Respondent was convicted of fraudulently removing, embezzling, and concealing chattel-mortgaged property, under Act No. 18, Laws of 1889, and sentenced to imprisonment in the Detroit House of Correction for one year. The facts are stated in the opinion.

Exceptions before judgment from Kalamazoo. (Buck, J.) Information for failing to file liquor bond, etc., under section 8 of Act No. 313, Laws of 1887. The faóts are stated in the opinion.

<p>Error to Livingston. (Newton, J.)</p> <p>Information for bigamy.</p> <p>The facts are stated in the opinion.</p>

Gertiorari to recorder’s court of Detroit. (Chambers, J.) Respondent was convicted of maintaining a policy-shop. The facts are stated in the opinion.

Mandamus. Delator applied for mandamus to compel the removal of certain obstructions in an alleged highway in respondent village. The facts are stated in the opinion.

<p>Release of surety — Directing verdict,</p> <p>On the rehearing of this case, it is held that the court erred in directing a verdict for the defendants.</p>

<p> Mandamus.' </p> <p>Relator applied for mandamus to compel respondent to vacate an order quashing an information. The facts are stated in the opinion.</p>

Mandamus. Eelators applied for mandamus to compel respondent -fco vacate an order requiring them to furnish a hill of particulars. The facts are stated in the opinion, and in 78 Mich. 217.

<p>Error to Ingham. (Peck, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Eelators applied for mandamus to compel respondent to dismiss a writ of garnishment. The facts are stated in the opinion.

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

<p>Partnership — Firm debt — Liability of individual partner — Account stated — Consideration.</p> <p>1. An essential element of an account stated is a statement of the account.</p> <p>2. One member of a partnership, .which is indebted to tuio of its four members for money loaned the firm, and agreed to be repaid out of the first net profits realized from the firm business, cannot be held individually liable for a proportionate share of the debt, unless something is done to change its form.</p> <p>8. In such a case a' promise contained in a letter written to one of said two copartners by such member on the sale of his interest in the firm business and assets to a stranger, who takes his place in the firm by consent of his copartners, except as to liability for said debt, that on receiving payment from such purchaser he will pay to said two partners his share of said debt, is wholly without consideration.</p>

. Appeal from Eaton. (Hooker, J.) Bill to restrain defendant from reconstructing a stairway landing in front of the door to“ complainants’ premises. Defendant appeals. The facts are stated in the opinion.

(Reilly, J.) Bill to cancel a subscription to the capital stock of defendant corporation on the ground of fraud. Defendant Hurley appeals. The facts are stated in the opinion.

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

<p>Conditional sale — Breach of condition — Replevin—Rights of parties.</p> <p>A contract of sale provided for the retention of title by the vendor until the property was paid for, and that, in case of the nonpayment of either of the purchase-price notes at maturity, the vendor might take possession of the property, but did not provide that such act should operate as a rescission of the contract, or as a forfeiture of the payments made thereon. On default being made in such payments the vendor replevied the property. And it is held that such action did not entitle the vendee to rescind the contract, or to recover the amount paid thereon, or to a delivery of the unpaid notes, nor did it give him any lien upon the property for the amount of such payments; and that upon the payment of the amount due the vendee would have a right to a return of’tbe property.</p>

(Newton, J.) Administrator brings error from judgment of circuit court allowing claim against estate on appeal. The facts are stated in the opinion.

<p>Appeal from Kent.' (Grove, J.)</p> <p>Bill to set aside a deed on the ground of fraud.</p> <p>The facts are stated in the opinion.</p>

<p>Idbel and slander — Cause of action.</p> <p>The lessee of a stall in a public market, where he was engaged in selling tobacco, cigars, etc., brought an action for libel for the publication of an item stating that the market was not a howling- success, and at no time were there more than a dozen people in the market on Saturday night. And it is held that the apparently harmless item cannot be tortured by inducement, innuendo, or proof into a libel against the plaintiff or his business.</p>

<p>Fire insurance — Pleading—Fraud—Forfeiture— Waiver — Verdict.</p> <p>1. While, under Circuit Court Rule No. 104, the declaration need not set forth the insurance policy declared upon in hcec verba, or according to its legal effect, the rule of evidence is unchanged, and proofs must be made in the same way as if the policy had been fully set forth.</p> <p>2. Under the plea of the general issue to a declaration upon a written contract, the defendant may show, upon the cross-examination of plaintiff’s witnesses or otherwise, a non-compliance with any of the conditions of the contract counted upon which will defeat recovery.</p> <p>3. The trial judge is under no obligation to charge the jury until both parties have rested, and announced the testimony as closed. The defendant may, if he chooses, rest upon the plaintiff’s showing; but until he has so announced to the court, he is not in a position to insist legally upon instruction to the jury.1</p> <p>4. Where the holder of an insurance policy, after revoking an agreement for arbitration, submits proofs of loss, in which he adopts, item by item, the appraisal made by the arbitrators before such revocation, and which contains every article of goods, and the amount of the damage thereto, such appraisal is binding upon him in a suit upon the policy.</p> <p>•5. It is error for the court to instruct the jury that proof of fraud should be of such a character as to be inconsistent with any other view than that the accused party is guilty of the fraud charged.</p> <p>6. The illegal action of a jury in ignoring the charge of the court and the evidence in the case, and agreeing upon a compromise verdict outside of the evidence, should be promptly rebuked by the trial court by setting aside the verdict.</p> <p>7. An insurance policy provided that, in case of the non-agreement of the parties, the amount of sound value, and of the loss or damage, should be determined by arbitration, and that until an award was made the assured should have no right of action upon the policy, which also provided that the company might take the whole or any part of the property at its appraised value. A fire occurred, and the parties entered into an arbitration agreement, which provided that the appraisers were not to take into account or to consider the question of merchandise totally consumed. The arbitrators agreed upon the value of the goods before the fire and the amount of damage, but before they had both signed the award the assured served a notice of revocation upon the company, after which he submitted to an examination under oath on the demand of the company, as provided .for in the policy, made about two months after the revocation. After this, and some five months after such revocation, the assured made an offer in writing to submit the question of loss and damage to arbitration pursuant to the terms and conditions of the policy, he having before that time disposed of the goods, which offer was declined by the company, and thereupon the assignee of the policy brought suit thereon. And it is held:</p> <p>a — That the assured and the company, by the agreement to-arbitrate the damage to the goods which could be identified, •had waived any other arbitration and award provided for by the policy.</p> <p>b — That by his revocation of said agreement the assured lost his right to sue upon the policy, which could only be regained by a seasonable offer to submit the amount of damages to arbitration.</p> <p>c — That the offer to submit to such arbitration came too late, he having disposed of the goods, thereby depriving the company of the valuable right provided by the policy to take them at the appraisal.</p> <p>d — That the silence of the adjuster of the company at the time did not constitute an acquiescence in the revocation, and that after such revocation the company was not called upon to speak or act until some affirmative action was taken by the assured. Lumber Co. v. Insurance Co., 80 Mich. 116.</p> <p>e — That the conduct of the company in subjecting the assured to the additional expense of an examination under oath was entirely inconsistent with the idea that it insisted upon said forfeiture. Marthinson v. Insurance Co., 64 Mich. 372, 383.</p>

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

(Buck, J.) Appeal from order of probate court allowing a claim against the estate of defendant’s decedent. Defendant brings error. The facts are stated in the opinion.

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

(Burlingame, J.) Complainant appeals from an order striking his bill from the files and dismissing it. The facts are stated in the opinion.

(Grove, J.) Bill to declare a certain patent void as a cloud upon complainant's title. Defendants appeal. The facts are stated in the opinion.

(Simpson, J.) Bill to restrain the sale of certain lands for taxes assessed for the year 1885. Complainant appeals. The facts are stated in the opinion.

(Newton, J.) Bill to declare certain chattel mortgages to be in fact an assignment for the benefit of creditors with preferences, and to enforce the trust claimed to have been created thereby. Defendants Berdan & Co. and Seeor, Berdan & Co. appeal. The facts are stated in the opinion

<p>Pleading — Sufficiency of declaration — Waiver—Municipal corporations — Defective cross-walk — Infants—Gontributory negligence.</p> <p>1. The objection that an amended declaration, which was not demurred to, is not sufficiently specific in describing the injury sustained by the plaintiff within the ruling in Shadock v. Plank-road Co., 79 Mich. 7, to which the attention of the counsel for appellant was called after the second trial, is held to come too late, not being raised on either trial or on the motion for a new trial. \</p> <p>2. Where a declaration is amended to meet the case as developed on the first trial, the jury on a second trial are properly instructed that they have nothing to do with what happened on the first trial, but are to try the case upon the amended pleadings, and determine what the facts are from the evidence admitted during the second trial.</p> <p>3. A child less that four years of age cannot be guilty of negligence, and the greater weight of authority in this country is opposed to the contention that the negligence of the parents can be imputed to such a child when the suit is brought in the child’s behalf, and not that of the parents. Battishill v. Humphreys, 64 Mich. 503-511; Westbrook v. Railroad Co., 14 Amer. St. Rep. 587, and note.</p> <p>4. When the authorities of a village or city have seen fit, in the first place, in their plan of improvements, to make a sidewalk and cross-walk meet on a level, and they have been so used by the public, a private citizen has no right to interfere with such plan, and, in remodeling his sidewalk, create a step or fall to the cross-walk. Such a step is an obstruction, which it is the duty of such authorities to remove; and if they fail to do so after notice, the municipality becomes responsible for the obstruction, and for all damages resulting therefrom.</p> <p>[The points of counsel are fully stated in the opinion. —Reporter.]</p>

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

<p>Contract — Sale of lumber — Evidence—Partnership—Bill of exceptions.</p> <p>1. The failure of timber owners who have contracted for its manufacture, and for the delivery of the lumber upon their docks, where the manufacturers’ control over it ends, to make and preserve a tally of the lumber as per their agreement, entitles the manufacturers to introduce any other competent proof of the amount of lumber manufactured.</p> <p>2. Scale-books made by a scaler at the time the scaling was done, from a scale-board, upon which he put down the measurement of each log and the number of feet it contained, and when full transferred sometimes such measurement, and at other times the number of logs and the number of feet they contained, to said scale-books, which he used as memoranda in ' testifying to the number of feet of lumber scaled, are admissible in evidence, within the spirit of the rule adopted in Lumber Co. v. Lumber Co., 79 Mich. 307.</p> <p>3. In a suit in which both plaintiffs and defendants were copartners the defendants offered to show by one of their number" that he had settled with one of the plaintiffs his portion of plaintiffs’ claim, and that this partner had relinquished the same to the witness individually, as an admission of the amount due plaintiffs, and as a dissolution of the partnership; which, proposed testimony is held inadmissible for either purpose.</p> <p>4. The proper practice in making objections is to state briefly the ground thereof. The arguments form no part of the record, and parties should not be put to the expense of having them written out or printed.</p> <p>5. The practice of making a bill of exceptions by taking a complete transcript of the reporter’s minutes, and attaching to it a heading and an ending, cannot be too severely condemned.</p> <p>6. In preparing a bill of exceptions records should be condensed, and only the testimony inserted necessary to raise the questions involved, which, when possible, should be put into a condensed narrative form.1</p>

<p>Easements — Bight of way — Fences—Statutory private road.</p> <p>1. The question involved in this case is the right of the owner of a private road, laid out pursuant to Iiow. Stat. §§ 1388-1398, to fence the right of way, when such fencing is a necessary incident to the reasonable enjoyment of such road, which right is affirmed.</p> <p>2. How. Stat. §§ 1388-1393, providing for laying out private roads, contemplate not only a record of the description and laying out, but an actual opening of the road, involving the taking down of cross-fences, and excluding the presumption that the possession is to remain in the owner of the fee.</p> <p>3. Under the rules laid down by the cases cited, the relative rights of the plaintiff and defendant may be stated as follows:</p> <p>a — Plaintiff is entitled to make use of this way for any and all purposes for which a road may be used.</p> <p>b — The defendant is under no obligation either to improve the bed of the way, or to protect its use.</p> <p>c — Plaintiff is entitled to do any act which may be necessary to promote its beneficial use, to the extent of inclosing it.</p> <p>d — The only limit to the servitude which plaintiff is entitled to impose upon the fee is what may be deemed necessary and essential to her enjoyment of the rights acquired.</p> <p>e — The rights of defendant in this way are subject to plaintiff’s necessities arising from the legitimate use of the road.</p> <p>/ — The necessity and reasonableness of the means made use of to adapt the road to plaintiff’s use are questions of fact, to be determined by the trial court, and its findings in that regard are conclusive upon the appellate court.</p> <p>4. The following general propositions are summarized from the opinion of Mr. Justice McGrath:</p> <p>a — The conveyance of a right of way gives to the grantee not only a right to an unobstructed passage at all times over the grantor’s land, but also such rights as are incident or necessary to the enjoyment of such right of passage; citing Maxwell v. McAtee, 9 B. Mon. 21; Bliss v. Greeley, 45 N. Y. 671; Herman v. Roberts, 119 Id. 37.</p> <p>b — The owner of the way, where its limits are defined, has not only the right of a free passage over the traveled part, but also to a free passage on such portions of the way as he thinks proper or necessary; citing Herman v. Roberts, supra.</p> <p>c — The owner of the fee subject to the easement may rightfully use the land for any purpose not inconsistent with the rights of the owner of the easement; citing Railway Co. v. Telford, 14 S. W. Rep. 776; Herman v. Roberts, supra; Cooley, Const. Lim. 558.</p> <p>d — The rights of the owner of the easement are paramount, to the extent of the grant, to those of the owner of the soil; citing Herman v. Roberts, supra; Railway Co. v. Allen, 22 Kan. 285.</p> <p>e — The owner of the soil is under no obligation to repair the way, as that duty belongs to the party for whose benefit it is constructed; citing Herman v. Roberts, supra.</p> <p>f — What may be considered a proper and reasonable use by the owner of the fee, as distinguished from an unreasonable and improper use, as well as what may be necessary to the beneficial use and. enjoyment of the easement by the owner, are questions of fact, to be determined by the trial court or jury; citing Bakeman v. Talbot, 31 N. Y. 366; Prentice v. Geiger, 74 Id. 341; Herman v. Roberts, supra; Railway Co. v. Allen, supra.</p>

<p>Ejectment — Parties—Occupancy—Husband and wife.</p> <p>Under How. Stat. § 7791, which requires the actual occupant to be made a party defendant in a.n action of ejectment, a husband and wife who occupy premises, owned by either, as their home, should be joined as defendants.</p>

Mandamus. Relators applied for mandamus to compel respondent to reverse his decision in declaring a resolution authorizing the purchase of certain land carried, and to declare it lost. The facts are stated in the opinion.

(Lane, J) Appeal from order of probate court licensing the sale of certain real estate. The facts are stated in the opinion.

<p>Assault — Bight to resist — Evidence—Surrender of lease — Possession.</p> <p>1. In an action for assault and battery all testimony leading up to the assault, which tends to explain the relation or the rights of the parties, is admissible.</p> <p>2. An assault may be entirely lawful, as either excusable or justifiable, and it involves every attempt or oiler, with force and violence, to do a corporal hurt to another. Drew v. Comstock, 57 Mich. 181.</p> <p>3. Upon the termination of a lease the lessor is entitled in law to the possession of the leased premises, and has a right to enter peaceably into such possession, and the lessee has no right to remove him by force, and in so doing commits an unlawful assault, which the lessor has a right to resist by force sufficient to repel it, and, if he confines his resistance within these bounds, he cannot be made liable to the lessee in an action for assault and battery. ’</p>

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

(Buck, J, presiding.) Bill to compel the discharge of certain mortgages. Defendants appeal. The facts are stated in the opinion.

(Reilly, J.) Bill to set aside conveyance of real estate as fraudulent. Complainant appeals. The facts are stated in the opinion.

<p>Negligent driving — Pleading—Charge to jury — Directing verdict— Damages — Attorney and client.</p> <p>1. Instructions to the jury outside of the issues made by the pleadings are improper.</p> <p>2. The defendant in a negligence case is not called upon to come into court prepared to meet a charge of willful, wanton, or reckless negligence unless such charge is contained in the declaration.</p> <p>3. The Court know of no statute regulating the speed at which teams may be driven in the country.</p> <p>4. In actions on the case for negligence the plaintiff is bound to set out in his declaration the combination of the material facts relied on as a cause of action, and to follow up the allegation by evidence pointing out and proving the same combination of circumstances, in order to apprise the parties and the court of the precise subject of the controversy. Batterson v. Railway Co , 49 Mich. 184; Smith v. Holmes, 54 Id. 104.</p> <p>o. The law, as declared in this State, casts the burden of proof upon the plaintiff, when he sues to recover damages for defendant’s negligence, to show not only that the injury was so caused, but also that he himself was not guilty of any negligence which materially contributed to such injury, which facts he must ordinarily allege in his declaration.</p> <p>O. If the plaintiff in a negligence case cannot set up such a combination of facts as show that he is free from negligence on his part, he must by proper allegation charge that the injury was caused by the wanton or willful negligence of the defendant, such as in law amounts to gross negligence, and a reckless disregard of the consequences of his neglect.</p> <p>7. The term “gross negligence,” when referred to as authorizing a recovery for a negligent injury notwithstanding the contributory negligence of the plaintiff, means an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.</p> <p>8. Where gross negligence, as excusing plaintiff’s negligence, has been relied on in this Court, the violation of the duty has been charged in the declaration as having been wanton, willful, and reckless; citing Battishill v. Humphreys, 64 Mich. 514, 519; Bouwmeester v. Railroad Co., 63 Id. 557; Hughes v. Railway Co., 78 Id. 402; Robinson v. Railroad Co., 79 Id. 330. But such violation of duty is sufficiently charged by averring that the defendant saw the plaintiff in or approaching a place of danger, and knew, or had good reason to believe, that he was not aware of the danger, and saw him in such a position in time to x^revent his injury by the use of ordinary care, which he failed to make use of.</p> <p>9. We have held that the mortuary tables of the exxseetaney of life based upon the American experience are competent to be considered by a jury in a proper case in considering the expectancy of life. These tables are embodied in our statutes, and the court can take judicial notice of their contents.1</p> <p>10. The use of such mortuary tables in trials for negligent injuries not causing death requires great caution on the part of the trial court. The expectancy of life in such tables is based upon the lives of healthy persons who are of the ages indicated; and it cannot be said that a person who, prior to the injury complained of, was afflicted with hernia, which had been thereby aggravated, and who was also suffering from internal injuries, as claimed, has an expectancy of life at the age of 52 of 17 or any other number of years. The tables furnish no basis of expectancy of such a life. They do form a basis of the expectancy of life of a healthy person of that age, which is stated to be 19.49 years; but other testimony of experts would be required, in such a case, to show what the plaintiff’s life expectancy would be, taking into consideration his ailments, and the effect they would probably have to shorten such expectancy. Such testimony must necessarily be problematical, but perhaps it is the best that is attainable to establish the probability.</p> <p>11. If a defendant chooses to rely upon a motion to direct a verdict, which amounts to a demurrer to the evidence, he must do so absolutely, and be bound by the disposition which the court makes of the case, and he has no right ^except in the discretion of the court), after a ruling upon the motion, to introduce testimony.2</p> <p>12. How. Stat. § 9004, authorizes a patty to agree with his attorney for compensation, which agreement is. not a material matter to be inquired into upon the trial. If the attorney presents himself as a witness, it might be the subject of inquiry as affecting his credibility on the ground of interest.1</p>

Mandamus. Relator applied for mandamus to compel respondent to set aside an order quashing proceedings in garnishment. The facts are stated in the opinion.

Mandamus. Application for mandamus to compel respondent to allow relator his claim for bounty under Act No. 23, Laws of 1864. The facts are stated in the opinion.

(Cobb, J.) Bill to set aside a partnership settlement and for an accounting. Complainant appeals. The facts are stated in the opinion.

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

<p>Error to Wayne. (Hpsmer, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 76 Mich. 338.</p>

<p> Libel and slander. </p> <p>This case is ruled by McAllister v. Detroit Free Press Co., ante, 453.</p>

<p>Evidence — Testimony to vary writing — Trial—Defective machine— Exhibition to jury.</p> <p>1. An order by a merchant for the shipment to him of a cash register, to be paid for as stated in the order, which provided for the retention of title by the vendor until such payment was made, and which order was filled by the vendor, cannot be modified by evidence of a contemporaneous verbal agreement to the effect that the vendee should receive the machine on five days’ trial, and, if not satisfactory to him at the end of that time, that he might return the machine.</p> <p>2. In a suit to recover the price of a cash register the vendee claimed the right to rescind his order for its shipment because it failed to register correctly, and the agent who took the order was permitted to operate the register before the jury, and explain the principle upon which it worked. And it is held that the court committed no error in permitting the machine, in effect, to be received in evidence, and in allowing the witness to explain the principle upon which it worked, to show the manner in which it registered the cash received; there being testimony in the case tending to show that the register was in the same condition that it was in when returned by the defendant, and also its identity.1</p>

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

<p>Mortgage — Release—Injunction—Parties.</p> <p>1. A grantor who covenants against an outstanding mortgage, which he claims to have subsequently paid, and a subsequent grantee, who, if the mortgage lien is not thus extinguished, has a remedy upon said covenant if obliged to pay the mortgage, are properly joined as complainants in a suit to discharge such lien of record and enjoin the foreclosure of the mortgage.</p> <p>2. In this case it is held that the effect of an arrangement by a mortgagee with a debtor of the mortgagor, who had agreed with the mortgagor to pay the mortgage, by which the mortgagee agreed to look to the debtor for such payment, and extended the time thereof from time to time for twenty years, released the mortgagor and his estate from personal liability for the mortgage debt, and discharged the mortgage lien as to a grantee of the mortgaged premises, to whom they had been conveyed with covenants of warranty, and who had no actual notice of the mortgage. Metz v. Todd, 36 Mich. 473.</p>

All peal from Menominee. (Grant, J.) Respondent appeals from an order directing the payment to petitioner of the amount of his claim from the funds of the estate. The facts are stated in the opinion.

<p>Sale — Principal and agent — Ratification—Estoppel,</p> <p>The question involved in this case is the liability of defendants to plaintiff for supplies shipped to defendants’ logger upon his order, which plaintiff claims was authorized by one of the defendants, or, if not, that he afterwards ratified it. The correspondence between the parties was put in evidence, and is set forth in full in the opinion, from which, and all of the facts in the case, the court left it to the jury to determine whether or not plaintiff elected to hold the logger and release defendants; which action by the trial court is held to have been fully justified, and the judgment in favor of the plaintiff is affirmed.</p>

<p>Appeal from Macomb. (Canfield, J.)</p> <p>Bill to set aside a deed. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

(Buck, J.) Respondents were convicted of a violation of a village ordinance against disorderly persons. The facts are stated in the opinion.

<p>Error to Ionia. (Smith, J.)</p> <p>Assumpsit. Defendants Dwight bring error. Judgment as to appellants set aside. The facts are stated in the opinion.</p>

<p>Error to Cass. (O’Hara, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Master and servant — Defective appliances — Promise to repair— Assumption of risk — Contributory negligence.</p> <p>1. If a servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assur- ■ anees that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good; which assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. Cooley, Torts, 559; Lyttle v. Railway Co., 84 Mich. 289 (head-note 2).</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.1</p> <p>[The points of counsel are stated in the opinion, in. which the authorities are reviewed. — Reporter.]</p>

<p>Error to Macomb. (Canfield, J.)</p> <p>Trespass. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Error to Saginaw. (Edget, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kalamazoo. (Buck, J.)</p> <p>Bill to foreclose two mortgages. Defendant Henry C. Rowland appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Obstruction of water-course — Action — Parties — Venue— Costs — Evidence.</p> <p>Plaintiffs were the owners of undivided interests in a farm of which their father died seised, and had an arrangement with their mother and brothers and sisters, under which they were entitled to the exclusive possession of the land, a portion of which was flooded by means of a dam maintained by defendant on his adjoining land, in another county, in a natural water-course having its rise on plaintiffs’ land, and by means of which flooding plaintiffs’ crops were injured, for which injury plaintiffs sued defendant in an action of trespass on the case in the county in which their land was situated, and also claimed damages in their declaration for injury to said land. The defendant pleaded the general issue, and on the trial the main question litigated was whether or not the building and maintenance of the dam by the defendant interfered or interrupted the natural flow of water in said water-course on the plaintiffs’ land, to their injury; the plaintiffs- affirming that it did, which was denied by the defendant. The court instructed the jury that plaintiffs could not recover for any permanent injury to the land, but that such recovery must be confined to loss of the crops. The jury rendered a verdict of six cents damages, and in affirming the judgment entered thereon the Court hold:</p> <p>a — That costs were properly awarded to the plaintiffs; citing How. Stat. § 8964, subd. 2; Druse v. Wheeler, 22 Mich. 445.</p> <p>b — That the suit was properly commenced in the county in which plaintiffs’ land was situated, and without joining plaintiffs’ co-tenants.</p> <p>c — That the right of the plaintiffs to bring the action did not depend upon their ownership of the fee, the injury complained of, and for which a recovery was limited, being to their possession, so far as the crops were concerned, which possession and the right thereto might be shown by evidence of plaintiffs’ arrangements therefor with their co-heirs, when of age, and with the mother and guardian of'such as were minors.</p>

(Reilly, J.) Bill for partition. Both parties appeal from an allowance of solicitors’ fees to complainant. The facts are stated in the opinion.

<p>Liquor traffio— Action by wife — Unlawful sales — Evidence.</p> <p>1. There can be no recovery under the statute for injuries caused by the sale or furnishing of liquor to another, unless such sale or furnishing is in violation of law. Bell v. Zelmer, 75 Mich. 66.</p> <p>2. Where, in a suit by a wife to recover damages for injuries sus- ' tained by reason of the sale of liquor to her husband, it appears that the defendant sold out his saloon business at a certain date, and that the saloon was thereafter occupied by the vendee, it is error to permit the plaintiff to show the intoxication of her husband after that date, and that he frequented said saloon, unless it is further shown that the defendant contributed to such intoxication by selling or furnishing him liquor.</p>

Mandamus. Relator applied for mandamus to compel the allowance •of his claim for reporting mortgages for assessment purposes. The facts are stated in the opinion.

<p>Log-lien law — Payment—Acceptances—Settlements.</p> <p>1. Act No. 229, Laws of 1S87, known as the log-lien law, is constitutional.-</p> <p>2. The question whether notes or acceptances received on a contract for the manufacture of shingles were taken as payment and discharged the lien of the contractor is held to be a question for the jury, whose finding is conclusive.</p> <p>3. A contractor was paid for manufacturing shingles up to a certain date, after which he received acceptances or notes for balances due, which were not paid. He thereupon sought to enforce his statutory lien upon the shingles of both kinds, which had been mingled, and sales and shipments made from the common mass, oftentimes those last manufactured being the first shipped. And it is held that, under these circumstances, it would not be a reasonable construction of the statute to hold that the lien attached only to the shingles for the manufacture of which payment had not been made.</p> <p>4. Settlements were made with a contractor for the manufacture of shingles upon his rendering semi-monthly statements of the amount due, by notes or acceptances, for which he receipted as received on account. In a suit to, enforce his statutory lien upon the shingles, the acceptances not having been paid, the defendant claimed that .the thirty days within which the contractor was required to file his statement of lien after the completion or last day of labor or services commenced to run from the rendition of each of said statements, and that plaintiff's lien was confined to the last statement so rendered; which construction is rejected.</p>

<p>Error to Branch. (Lane, J., presiding.)</p> <p>Case. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Gogebic. (Daboll, J., presiding.)</p> <p>Bill to declare a forfeiture of a mining lease. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal' from Ionia. (Smith, J.)</p> <p>Bill to foreclose a chattel mortgage. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Case made from Newaygo. (Palmer, J.)</p> <p>Ejectment. Plaintiff assigns error.</p> <p>The facts are stated in the opinion.</p>

(Reilly, J.) Bill to restrain defendants from interfering with the construction of an electric street railway. Defendants appeal. The facts are stated in the opinion.