Volume 88 — Michigan Reports

(Grove, J.) Bill to reach assets in the hands of an alleged fraudulent holder. Defendants Converse and Fletcher appeal from decree overruling joint general demurrer. The facts are stated in the opinion.

<p>Re-issue of note — Payment—Bona fide holder.</p> <p>1. Upon a re-examination of the record and of the questions involved, the Court finds no reason for changing its former opinion, reported in 86 Mich. 305.</p> <p>2. The following general propositions are summarized from the opinion of Mr. Justice McGrath:</p> <p>a — A single promisor may re-issue his own note, and cannot be allowed to set up a prior payment as a defense.</p> <p>b — An indorser who is not directly liable may take up and re-issue a note, the promisor not being in such case prejudiced.</p> <p>c — When a note is paid by one of two joint promisors, who is directly liable thereon for its whole amount, the prior contract cannot be revived against his co-signers; citing Hopkins v.. Farwell, 32 N. H. 429; Patch v. King, 29 Me. 448; and it has been held to be immaterial whether the re-issue is made before or after the maturity of the note; citing Gordon v. Wansey, 21 Cal. 77.</p>

<p>Sale — Combination to control prices — Public policy — Action for goods sold — Market price.</p> <p>1. Plaintiffs were manufacturers of machine knives, and shipped to the defendant upon his written order, but without any agreement as to price, two sets of hoop knives, charging him therefor the price fixed by an association embracing- in its membership all of the knife-makers in the United States. One of the principal objects of the association was to keep up prices, and each member was obligated, under a penalty of S100, to sell only at the prices so fixed, which were subject to change without notice. The defendant had purchased knives of another manufacturer during the two previous years at a lower price, which had been advanced by the association without notice to customers, and which advanced price was charged for the knives ordered by the defendant. The case was submitted to the jury upon the theory that a combination to fix prices was not unlawful if its purpose was to fix reasonable prices, and when the defendant sought to show that the price fixed in this case was not a fair market price, but above the market value, the court refused to permit such showing, and restricted the defendant to the market price. The plaintiffs recovered a judgment, in the reversal of which all of the Justices concur.</p> <p>2. Mr. Justice McGrath filed an opinion, in which Morse, J., concurred, holding:</p> <p>a — In Richardson v. Buhl, 77 Mich. 632, it was held that any combination to control prices was unlawful, as against public policy.</p> <p>5 — Independently of the unlawful character Oí a combination of manufacturers to fix prices, such a price is no better evidence of value than one fixed by any vendor upon his wares, and is not a market price, within the contemplation of the law.</p> <p>c — The market price of an article manufactured by a number of different persons is a price fixed by buyer and seller in an open market, in the usual and ordinary course of lawful trade and competition.</p> <p>d — In the absence of an agreement, a price fixed by a combination of dealers does not bind the purchaser, nor will the law so far countenance such combinations as to regard prices fixed by them as even evidence of value.</p> <p>3. Chief Justice Chahplin filed an opinion, holding:</p> <p>a — In executed contracts of sale upon credit, rihere the price is not agreed upon at the time of the sale, the law implies an understanding to pay what the commodity is reasonably worth; citing Benj. Sales, 85; Acebal v. Levy, 10 Bing. 376.</p> <p>b — A price arbitrarily fixed by a combination of manufacturers or dealers is not competent evidence to show a reasonable price for goods sold by members of the combination.</p> <p>a — Such combinations are intended to stifle competition, which is a stimulus of commercial transactions, and to substitute that of unconscionable gain, whereby the participants become enriched at the expense of the consumer, beyond what he ought legitimately to pay under a healthy spirit of competition in the business community.</p> <p>d — The effect of such combinations is the same as that of contracts in restraint of trade, and public policy places its reprobation alike upon both.</p> <p>e — Combinations to control prices are against public policy, and void, because they have a mischievous tendency, and are injxxrious to the best interests of the State, which require that all legitimate business shall be open to competition; that the current prices of commodities shall be contx-olled by the law of supply and demand; that the laws of commerce shall flow in their accustomed channels, and not be diverted by combinations to control prices fixed by the arbitrary decision of interested parties.</p> <p>/ — In executory contracts of sale, where the goods have not been accepted, prices so fixed cannot be recovered; nor are they a criterion of the market value or current price in an action brought for goods sold and delivered without an agreement as to price.</p> <p>g — If there is no market value of manufactured goods, the evidence to establish their reasonable worth must necessarily be the cost of production, which includes the cost of labor and material, and a reasonable profit thereon.</p> <p>4. Mr. Justice Grant filed an opinion, concurred in by LONG, J., holding:</p> <p>a — Associations of manufacturers are not necessarily unlawful, but may be entirely lawful, while an arbitrary price fixed by them will not bind a purchaser who has not expressly agreed to pay it.</p> <p>b — The price of commodities, bought and sold may be fixed by express agreement, by the market, or by the actual value; and this rule applies to daily commercial transactions between buyer and seller, where one orders, and the other completes the transaction by delivering the goods. If there is no express agreement and no market price, the contract is to pay what the commodity is reasonably worth.</p> <p>c — A market price is one fixed by fair and open competition in an open market, where seller and buyer stand upon an equal footing.</p> <p>d — If there be a “ fair market price,” distinguishable in law from the “market price,” then there is no such thing as a “market price,” binding upon sellers and buyers, unless they contract with express reference to it, but it' must be left to a jury in each case to determine what is a fair market value. But a price fixed by a combination of sellers or of buyers is not a market price, and binds no one.</p>

<p>Accounting — Equity jurisdiction — Remedy at law — Statute of frauds.</p> <p>Complainant held a verbal option under which he had the right to purchase certain tracts of pine land, mills, and a lumbering outfit within a given time and at a stated price, or secure a purchaser therefor. Not having sufficient means to make the purchase, he applied to the defendant, who agreed to pay one-half of the expense of examining the timber, and, if such examination proved satisfactory, to furnish the money with which to purchase the land and other property, and to give to complainant one-third of the net profits resulting from the transaction; in consideration of which complainant agreed to pay the remainder of the expense of such examination, and to' give to defendant the sole opportunity to make the purchase, and to contribute his services in carrying out the enterprise. The purchase was made at a cost of $769,000, and the title taken in defendant’s name, who, with complainant’s assistance, sold enough of the lands to amount to over $778,000, and contracted for the manufacture of the remainder of the timber, one-half of the gross receipts of which he was to receive, the value of which timber was estimated at over $300,000. After the defendant had received over $150,000 of such receipts, and on his refusal to account with the complainant for his share of the net profits as per his said agreement, complainant filed a'bill for such accounting. And it is held that the duty of the defendant to keep and render to the complainant an account of the whole transaction is clear, complainant having a special interest in the profits; and that his bill is properly filed, and that he should not be remitted to a court of law to recover his share of said profits.</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 Shiawassee. (Newton, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Garnishment. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

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

(Grove, J.) Negligence case. Defendant brings error. The facts are stated in the opinion, and in the former report of the case, in 82 Mich. 374.

(Loveridge, J., presiding.) Bill to set aside a mortgage foreclosure by advertisement. Defendant Tomlinson appeals. The facts are stated in the opinion.

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

<p>Behearing, upon application of complainants, of case reported in 83 Mich, 301.</p> <p>The facts are stated in the opinions.</p>

(Daboll, J.) Bill to remove cloud from title. Complainants and defendant William N. McBoberts appeal. The facts are stated in the opinion.

<p>Rehearings, upon application of complainants, of cases reported in 83 Mich. 310.</p>

<p>Replevin — Bond—Judgment for return — Liability of surety.</p> <p>A surety in a replevin bond, who acted as agent for the plaintiff in the issuance of the writ by the justice, and in the seizure of the property, which was delivered to the plaintiff, cannot escape liability in a suit on the bond for a failure to return the property pursuant to a judgment for such return by showing that no affidavit was filed with the justice before the writ was issued. Jennison v. Saire, 29 Mich. 207.</p>

<p>Mortgage foreclosure — Assignment—Recording latos — Tenancy in-common — Chattel mortgage.</p> <p>1. An assignment of mortgage executed in Kansas, and acknowledged before a notary public, is not entitled to record in Michigan unless the official character of the notary and the genuineness of his signature, and the fact that the assignment is executed and acknowledged according to the laws of Kansas, are certified to by the clerk or other proper certifying officer of a court of record, as required by How. Stat. § 5660;1 citing Buell ^. Irwin, 24 Mich. 145; Reynolds v. McMullen, 55 Id-577; Miller v. Clark, 56 Id. 840.</p> <p>2. Where, after an agreement between a mortgagor and mortgagee that a chattel mortgage on machinery in a flouring-mill shall be ignored and canceled, and the mortgaged property treated as a part of the realty (which was covered by a real-estate mortgage given at the same time as the chattel mortgage, and securing the same debt), the mortgagee sells the machinery under the chattel mortgage, such sale is void.</p> <p>3. A foreclosure by advertisement by an assignee of a mortgage, the assignment of which was executed in another state, and not so certified as to entitle it to be recorded in this State, although recorded therein, is void.</p> <p>4. Equity will not permit one tenant in common, in the possession of property, for the use of which he is bound to account to his co-owner, to foreclose by separate advertisements three mortgages which he holds upon his co-tenant’s interest, all of which are past due.</p>

<p>Contract by correspondence — Incomplete negotiations.</p> <p>The letters and telegrams set forth in the opinion are held not to have made a completed contract for the sale by defendant to' plaintiffs of 100 shares of mining stock, the manner and place of delivery being left open for future negotiation between the-parties.</p>

(Reilly, J.) Appeal from, order of circuit court affirming order of probate court granting a license to sell real estate. The facts are stated in the opinion.

<p>Jury — Right of peremptory challenge.</p> <p>After the parties have announced themselves satisfied with the jury, and they are sworn, neither party can peremptorily challenge a juror, against the objection of the opposite party.</p>

Gertiorari to review proceedings of highway commissioner in opening a private road. The facts are stated in the opinion.

<p>Error to Chippewa. (Steere, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in tbe opinion.</p>

Mandamus. Relators apply for manJamus to compel respondents to place the names of certain candidates upon the ballot to be used at a municipal election. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel respondents to place his name upon the official ballot as a candidate for alderman on the “ Citizens* Committee's Independent Ticket. The facts are sufficiently stated in the opinion.

<p>Principal and agent — Withdrawal of authority — Notice.</p> <p>Where, pending negotiations by wire and mail for the purchase of cedar posts, the vendor wrote to the vendee that if certain posts were not sold he could have them at a stated price, and that he would know by a certain date if the posts were sold, such letter amounted in law to a withdrawal of said posts from sale until the date named, and was a sufficient notice to the vendee that he must deal with the vendor personally; and a sale by an agent in charge of the posts, made after such date, is held not binding upon the principal.</p>

<p>Appeal from Chippewa. (Steere, J.)</p> <p>Bill to declare a trust in lands. Defendant appeals.</p> <p>The facts are stated in the opinions.</p>

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

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

<p>Negligence — Parent placing air-gun in hands of child.</p> <p>An air-gun is not so obviously and intrinsically dangerous as to - charge a father with Negligence in placing it in the hands of his nine-year-old son, and make him liable for injuries sustained by reason of its use by another boy, not a member of his family, to whom it is delivered by his wife, in his absence and without his knowledge or consent.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

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

Mandamus. Kelator applied for mandamus to compel respondent to set aside an order granting a special appeal. The facts are sufficiently stated in the opinion.

Mandamus. Eelator, as county drain commissioner, constructed a drain in tbe township of Casco, under application made therefor. The special assessment roll for the expense of such construction was laid before the respondent, who refused to order the same spread upon the township assessment roll, for the following reasons: 1.

Mandamus. Eelators applied for mandamus to compel respondents to -recognize them as justices of the peace of the township of Seney, and, as such, entitled to seats as members -of the township board. The facts are sufficiently stated in the opinion.

(Dickerman, J.) Respondent was convicted of larceny, and sentenced under Act No. 228, Laws of 1889, to the State House of Correction and Reformatory, at Ionia, not less than two, nor more than four, years. Sentence vacated for all over two years. 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>

Exceptions before judgment from Macomb. (Canfield, J. ) Information under Act No. 9, Laws of 1887, for giving a false pedigree of a horse, with intent to defraud. Conviction set aside. The facts are stated in the opinion.

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

<p>Principal and agent — Employment of attorneys — Estoppel—Evidence — Conduct of counsel.</p> <p>1. The questions involved in this case are the authority of the defendant’s book-keeper to employ plaintiffs to defend garnishment proceedings prosecuted against the defendant, and its knowledge that plaintiffs were conducting such suit in its behalf; upon both of which it is held there was testimony warranting the charge of the court, and sufficient to go to the-jury.</p> <p>2. It was reversible error to refuse to permit defendant’s president to testify why he did not employ counsel in the suit after being advised of its progress, and of the appearance of plaintiffs as attorneys for defendant therein.</p> <p>3. The remark of one of the plaintiffs in his argument to the jury, that he “could point to some other cases where the defendant had captured men’s logs and never paid for them,” was improper, and should have been rebuked by the court; but the Court are not prepared to hold that it is reversible error.</p>

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

(Gage, J., presiding.) Bill to set aside a deed because of mental incompetency and undue influence. Complainants appeal. The facts are stated in the opinion.

<p>Factors and brokers — Right to commission on sale of real estate— Practice in circuit court — Directing verdict.</p> <p>1. A defendant who has not rested his case cannot except to tha refusal of the court to direct a verdict in his favor; citing Clow v. Plummer, 85 Mich. 550. and cases cited.</p> <p>2. The question whether plaintiff was the procuring cause of the sale on account of which he seeks to recover a commission of $100, which he claims the defendant agreed to pay him if he found a purchaser, is held to have been, under the evidence, a question of fact for .the jury.</p>

<p>Case made from Huron. (Beach, J.).</p> <p>Assumpsit. Plaintiff assigns error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Contract — Action—Quantum meruit — Evidence.</p> <p>1. Where suit is brought to recover for labor performed under an express contract, and the parties differ only as to the price agreed to be paid, the plaintiff cannot abandon the contract, and recover what the labor was reasonably worth.</p> <p>2. Where, in such a case, the plaintiff is informed by the defendant, on making the first monthly payment, that he claims that the labor is to be performed at a less price than that claimed by the plaintiff, plaintiff cannot go on with the performance of the work on the theory that there is no contract, and that he is entitled to recover its reasonable worth.</p>

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

<p>School-districts — Issue of bonds — Bona fide purchaser.</p> <p>1. The purchaser of a school-district bond need look no further back than its face for the facts which show a compliance with the statute under which it is issued.</p> <p>2. The failure of the director of a school-district to keep a record of the order of the district board directing him and the moderator to issue a school-district bond will not affect the title of a bona fide holder of the bond, where the fact of the making of said order is recited upon the face of the bond.</p> <p>%. Where the statute makes the district board, who are empowered to issue the bond, the body to determine when the statutory facts authorizing its issuance exist, which facts appear upon the face of the bond issued by their direction, the district cannot defend as against a bona fide holder upon the ground that the law was not complied with previous to the determination of the district board to issue the bond.</p>

<p>Surveys — Lost section corners.</p> <p>The Court adhere to the law laid down in the opinion reported in 73 Mich. 259, which governs the method of ascertaining and relocating lost section corners on township lines.</p>

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

(Reilly, J.) Bill to restrain the sale of property for taxes, and to vacate an assessment. Defendants appeal. The facts are stated in the opinion.

<p>Certiorari to review proceedings in .justice’s court.</p> <p>The facts are stated in the opinion.</p>

<p> Certiorari, </p> <p>■ This case is ruled by White v. Boyce, ante, 349.</p>

<p>Error to Alpena. (Simpson, J., presiding.)</p> <p>Debt. Defendants bring error’.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondent to vacate an order arresting judgment and discharging a prisoner, and to proceed to judgment. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to-quash a writ of attachment. The facts are stated in the-opinion.

Mandamus. Relator applied for mandamus to compel respondent to quash a writ of attachment. The facts are stated in the opinion, and in Howell v. Muskegon Circuit Judge, ante, 361.

Mandamus. Belator applied for mandamus to compel respondent to rescind its action in adopting a certain text-book for use in tbe public schools. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to pay an order for teacher’s wages. The facts are stated in the opinion.

(Aldrich., J.) Bill to restrain waste upon lands upon which taxes are unpaid, under Act No. 223, Laws of 1889. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

<p>Error to St. Joseph. (Loveridge, J.)</p> <p>Respondents were convicted of violating Act No. 512, Local Acts of 1887.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondent to assess certain land for school purposes. The facts are stated in the opinion.

Mandamus. Kelator applied for mandamus to compel respondent to set aside an order assigning real estate to devisees, and to make an allowance to relator. The facts are stated in the opinion.

<p>Contract — Mutuality—Measure of damages — Loss of profits— Evidence.</p> <p>1. The measure of damages for the breach of a contract by which the plaintiff was made sole agent in certain territory for the sale of mineral water of which the defendant was the sole proprietor, and which it agreed to furnish to the plaintiff at an agreed price, is the profits which the plaintiff might have realized on sales if the defendant had performed the contract; citing Loud v. Campbell, 26 Mich. 239; Leonard v. Beaudry, 68 Id. 312.</p> <p>2. Evidence of the amount of water sold by a firm to whom the defendant transferred the agency in violation of the contract is competent to go to the jury on the question of damages.</p> <p>3. Such a contract is not void for want of mutuality because it does not expressly provide that the agent shall hold out the goods to the public, and further the interests of the principal; such agreement being implied, from the acceptance of the agency and entering upon the same.</p>

<p>Principal and agent — Evidence—Promissory note — Bona fióle purchaser — Fraud.</p> <p>1. Agency cannot be established .by testimony as to the statements of the alleged agent relating to the fact, or to the possession of any of the indicia, of agency.</p> <p>2. It cannot be assumed that the sale of a patent is fraudulent, or that, because it afterwards turns out to be of little or no value, that fact alone indicates fraudulent intent in the vendor.</p> <p>3. While it is true- that fraud need not be shown by direct proof, and may be, and generally is, proven by inference from facts and circumstances, yet it cannot be presumed from mere suspicion, nor from facts or circumstances which are entirely consistent with an honest purpose.</p> <p>4. The evidence in this case is held insufficient to support the finding of the court that the plaintiff was not a bona fide purchaser of the note sued upon; there being no competent testimony to support the further necessary finding that plaintiff’s alleged agent had possession of plaintiff’s stock at the time of the sale of certain other stock to the defendant, or during the negotiations which led up to its sale, and the giving of the note in payment for the same.</p>

(Judkins, J.) Bill to restrain tbe collection of special assessments, and to remove the lien created thereby. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Practice in circuit court — Opening case to jury — Special questions —Fraudulent purchase — Rescission—Good-faith mortgagees —Right of possession — Equity jurisdiction.</p> <p>1. In opening a case to the jury, counsel should not enter into a detailed statement of the testimony by which he expects to substantiate the facts of his case, but only call attention to the salient points, without repeating the evidence by which he expects to prove them; the object being to assist the jury to understand the testimony as introduced, and its bearing upon the issues involved; citing Fosdick v. Van Arsdale, 74 Mich. 304, 305.1</p> <p>2. There is no rule of practice prohibiting an attorney from requesting a witness to repeat on cross-examination his direct testimony upon a particular point; nor is it a sufficient reason for refusing to permit cross-examination respecting what has been testified to that the witness has already testified upon that subject.</p> <p>8. How. Stat. § 7606, as amended by Act No. 15, Laws of 1885, providing for the submission of special questions to the jury, is construed as follows:</p> <p>a — It is error to refuse to submit such questions if proper in form and substance.</p> <p>b — There can be no objection to the submission of the questions by the court to the opposite counsel for inspection, who has the right to frame questions, and to have the jury instructed to answer them if they find a general verdict against his client.</p> <p>e — Counsel are not obliged to furnish special questions until after the arguments are closed, but if they do so there is no reason why the questions should not be discussed to the jury if they relate to the merits of the controversy.1</p> <p>4. The failure of a vendee who knows that he is insolvent to disclose that fact to the vendor will not make the purchase fraudulent, unless coupled with an intent at the time of the purchase not to pay for the goods; citing Shipman v. Seymour, 40 Mich. 274, 283; Garbutt v. Bank, 22 Wis. 384; Nichols v. Pinner, 18 N. Y. 295.</p> <p>5. Representations made by a merchant to a commercial agency as to the amount of his indebtedness, but not as to his assets, and not shown by any competent testimony to have been communicated to or relied on by vendors from whom he orders goods five months afterwards, have no tendency to prove an intention on his part not to pay for the goods at the time he gave the order.</p> <p>6. Under the circumstances of this case, the request of the defendants’ counsel that “fraud is not presumed, but must be proved, and the burden of proving fraud is upon the person charging it,” should have been given to the jury. ,</p> <p>7. After the commencement of proceedings to foreclose a chattel mortgage, the consideration for which was in part pre-existing indebtedness due the mortgagees and their promise to pay certain notes on which they were liable contingently as indorsers, and in part cash advanced at the time of the execution of the mortgage, certain of the mortgagor’s vendors replevied a small portion of the mortgaged goods, claiming to rescind the contract of sale because of the alleged fraud of the mortgagor in making the purchase, and recovered judgment. It was conceded on the trial that the mortgagees had no notice or knowledge of the alleged fraud, and that the consideration for their mortgage was bona fide. And in reversing the judgment the Court hold:</p> <p>a — Where a debtor, for a new and valuable consideration, mortgages goods in his possession, which he has obtained under ■a contract of sale induced by his fraudulent practices, to a party who is ignorant of such fraud, and who acts in good faith, relying upon the ostensible ownership of the goods by the mortgagor before the defrauded vendor has rescinded the contract, the mortgagee may hold the goods against the title of the vendor, upon the equitable doctrine that, where one of two innocent parties must suffer by the wrongful act or default of another1, the loss must fall upon him thx-ough whose act or neglect the third pax-ty was enabled to commit the wrong.</p> <p>b — The doctrine is an equitable one, and extends no further than is necessai-y to protect the innocent party in whose favor it is invoked, and in this case only protects the mortgagees to the extent of the cash, advanced to the mortgagor; they being already liable on the notes contingently as indorsers, and an executory promise, not changing their situation for the worse, not being such a consideration as will bring them within the protection of bona fide mortgagees or purchasers; citing Dixon v. Sill, 5 Mich. 404; Warner v. Whittaker, 6 Id. 133; Blan■ehard v. Tyler, 12 Id. 339, 342; Stone v. Welling, 14 Id. 514, 525.</p> <p>c — It being conceded that the rights of the mortgagees up to the amount of cash advanced were superior to those of the vendors, and they having taken possession of the entire property under their mortgage, which possession was lawful between them and the vendors, if their superior rights could be terminated by after payment, which is not conceded, such payment not having been made, the vendors wex-e not entitled to the possession of the goods at the time they brought suit.</p> <p>d — It is not clearly seen how the x-ights of the vendors could be worked out and protected in a suit at law, and equity would seem to be the px-oper forum in which to adjudicate upon and protect the rights of the parties, under whose guidance the goods claimed by the vendors may be identified, separated, and applied to the discharge of the debt, namely, the new consideration for which they were security, and the surplus handed over to the owners, in case the whole security should be more than sufficient to discharge the debt for which it was pledged.</p> <p>e — It is possible that in some cases, where the new consideration is inconsiderable in comparison with the value of the goods out of which the owner was defrauded, and was money advanced, the defrauded vendor might, by tendering such new consideration to the mortgagee, relieve the property from the operation of the rule before referred to, and entitle him to bring his action therefor in a court of law.</p>

<p>Landlord and tenant — Tenancy at ivill — Notice—Pleading,</p> <p>1. In a suit to recover rent, it was admitted that a fixed rental was agreed upon, payable monthly, but the parties differed as to the term of the lease, the lessor testifying that it was for one year, and the lessee that no definite time was agreed upon. The lessee further testified that he told the lessor that he could not tell how long he would keep the house, as he did not know himself, but, if it suited him, and nothing occurred, he would probably stay in that locality three or four years, as he wished his children to attend a school near by. And it is held that the lessee was, upon his own showing, a tenant at will, paying rent monthly, and that he could not vacate the premises without a month’s notice, as provided by 3 How. Stat. § 5774.</p> <p>2. Notice must be given of a defense of non-tenantability in a suit to recover rent for the use of a dwelling-house.</p> <p>3. Such a defense is not made out where the lessor had no notice that the house was claimed to be untenantable, and the tenant assigned other reasons for leaving the premises in his notice of removal, and, while testifying to the presence of bad odors, arising from the alleged want of repairs, did not testify that he left the house on that account.</p>

<p>Constitutional law — State troops — Exemption from jury duty.</p> <p>Act No. 150, Laws of 1881 (How. Stat. § 978), entitled “An act to-provide for the enrollment of contributing members in each company and battery of State troops,” and which exempts such members from jury duty, is constitutional.</p>

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

Exceptions before judgment from Muskegon. (Dicker-man, J.) Respondent was convicted of cruelly mutilating a horse. The facts are stated in the opinion..

Exceptions before judgment from Jackson. (Peck, J.) Eespondent was convicted of assault with intent to do great bodily harm less than the crime of murder. The facts are .stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to quash a writ of garnishment, and to set aside an order for the examination of its officers, agents, etc., before-the respondent touching its liability as garnishee. The-facts are stated in the opinion.

(Reilly, J.) Bill to restrain the defendants from using any combination of the names Farrand and Williams as part of' their firm name. Complainants appeal. The facts are stated in the opinions.

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

<p>Municipal corporations — Grading contract — Delay in performance —Diability of city — Ultra vires — Pleading.</p> <p>1. Where, in a suit by contractors against a city to recover damages for being delayed in the performance of the contract, the declaration sets forth the contract in full, but not the specifications, which are referred to in the contract, and made a part thereof, it is proper pleading for the defendant to attach to its demurrer a copy of the specifications, and thus exhibit the entire contract to the court.</p> <p>' 2. A contractor cannot recover damages of a city for being delayed in the performance of a contract for grading a street in such a manner as necessarily to cause the embankment to rest partially upon the lands of abutting owners, one of whom enjoins the performance of the contract, thereby causing the delay complained of, it appearing that both parties acted in good faith, and under the misapprehension that the city had a right so to use the abutting property as a. natural and necessary incident to the improvement of the street, and without compensation to or the consent of the abutting owners; such compensation being afterwards made, and the contract performed, and the contractor paid the contract price in full.</p> <p>'3. A request by the board of public works of the city that the contractors desist from work in front of the land of other abutting owners in like manner affected pending such litigation is unimportant, as a compliance therewith would not make the city liable for the resulting damages.</p>

<p>Error to Wayne. (Hosmer, J.)</p> <p>Appeal from disallowance of probate of will.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill in aid of execution. Complainants appeal.</p> <p>The facts axe stated in the opinion.</p>

<p>Municipal corporations — Defective cross-wallc — Trial—Statements of counsel — Evidence—Hearsay—Expert testimony — Hypothetical questions.</p> <p>1. A physician cannot testify to exclamations of pain of an injured' person during an examination made in contemplation of a suit to recover damages for the injury, he being employed to make such examination to enable him to be a witness in said case, nor can he testify to exclamations and statements made upon . an examination had after the commencement of said suit for a like purpose; citing Railroad Go. v. Huntley, 38 Mich. 514.</p> <p>'2.' It is not competent for a physician to testify to what the plaintiff in a negligence case told him as to how the injury was received for which suit is brought; citing Dundas v. City of Lansing, 75 Mich. 499; Merlcle v. Bennington Tp., 58 Id. 156.</p> <p>3. In a suit to recover damages for injuries caused by a defective ' cross-walk, plaintiffs attorney offered to show the general unsafe condition of the walks of the village, and coupled the offer with the statement that the walks right along the street-where the accident happened, for 80 rods, were not safe for a man who was in any way infirm, or for a lady, to pass along there, at night without being injured or tripped up half a dozen times, which proposed testimony was objected to and excluded, but nothing was said by the court to the jury to correct the error in practice thus committed, which offer and statement are held reversible error; citing Dundas v. City of Lansing, 75 Mich. 499; Tice v. - Bay .City, 78 Id. 209.</p> <p>4. It vras held in Mayo v. Wright, 63 Mich. 32, that a question to an expert witness is not objectionable on account of its length, but that it should be reduced to writing, and embrace the whole question in a connected manner.</p> <p>5. It is error to permit a witness to testify to his conclusion based upon facts in evidence before the jury from which they are as-competent to draw a conclusion as is the witness.</p>

(Reilly, J.) Bill by an executrix for an accounting and division of statutory commissions. Complainant appeals. The facts are stated in the opinion.

<p>Highways — Encroachment—Trespass.</p> <p>In an action of trespass against a commissioner of highways for removing a fence which he claimed was an encroachment upon a regularly laid section-line highway, and so described it in the order for removal, the commissioner can only justify by showing that the highway is located upon the section line, and a contrary finding by the jury entitles the plaintiff to a verdict.</p>

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

<p>Negligence — Setting fires — Operation of steam craft — Pleading.</p> <p>1. While negligence in providing proper means for the prevention of fires and in the management of the apparatus and fires may he inferred from the size and quantity of sparks or cinders emitted, when those things are shown, it will not in any case be presumed from the mere fact of a fire, where the testimony as to its cause is purely circumstantial.</p> <p>2. Negligence in the conduct of a steam-tug is the failure to use the care ordinarily used by careful men; and, it being well known that the escape of sparks cannot be absolutely prevented by the use of any appliance yet invented, the owner cannot be held responsible upon the ground of negligence for not doing what it is practically impossible to do; citing Railroad Co. v. Burroios, 33 Mich. 6; Batterson v. Railway Co., 49 Id. 184.</p> <p>3. Science has as yet been able to reduce the danger in the use of steam as a motive power to the minimum only; and when a party so using it has availed himself of the means generally used for the protection of property, he cannot be held liable because such means are not always effective or adequate.</p> <p>4. An allegation in a declaration in a negligence case that defendant willfully left the spark-arrester of his steam-tug open, and thereby allowed sparks to escape and be carried by the wind upon plaintiffs’ docks, and set fire to them, implies that the act was done with a set purpose to accomplish the results which followed, and involves more than , negligence, and implies malice.</p> <p>5. It is a matter of common knowledge that draught is essential to the operation of a steam craft; that so far it has been found practically impossible to arrest the emission of all sparks, and at the same time preserve the necessary draught; that sparks will escape, and fires will occasionally occur; and it is only when the want of ordinary care is shown in the selection, care, and operation of appliances or in the management of fires on such craft, or where the absence of proper appliances or neglect in their management or ip the management of the fires can be inferred from peculiar circumstances, that the-owners and operators of such craft can be made liable.</p>

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

<p>Attachment — Log-lien proceedings — Service—Jurisdiction.</p> <p>1. Substituted service in an attachment suit is only permitted in case the defendant cannot be found, and the officer must certify to such fact before making such service.</p> <p>2. Service on January 29 of a writ of attachment in a log-lien suit returnable February 4 confers no jurisdiction on the justice issuing it; citing Isabelle v. Iron Cliffs Co., 57 Mich. 120.</p> <p>3. A certificate by a sheriff that he used due diligence in trying to get service of a writ of attachment upon the defendant is not equal to a certificate that the defendant eould not be-found, and courts are not justified in drawing that inference from such a certificate.</p> <p>4. Where substituted service is made in an attachment suit, in order to give the justice jurisdiction, the return -must show that the officer served the writ by leaving a copy thereof and of the inventory, certified by him, with the person in whose possession he found the property, it appearing therefrom that he was unable to find any last place of residence of the defendant; which condition is not fulfilled by a statement that the property was not, of his knowledge, in the possession of any person at time of its seizure.</p> <p>5. Personal service of a justice’s writ of attachment, unless accompanied by the statutory inventory duly certified, is insufficient to give the court jurisdiction; citing Langtry v. Circuit Judges, 68 Mich. 451.</p>

(Eeilly, J.) Bill to set aside a deed, and confirm the title to the-land in complainant. Complainant appeals. The facts are stated in the opinion.

Quo warranto. Information in the nature of a quo warranto to test the right of respondent to exercise the franchises of a municipal corporation. The facts are stated in the ■opinion.