Volume 92 — Michigan Reports

<p>Deed — Construction—Description—Recital as to intention.</p> <p>Where a general description in a deed is followed by a clause summing up the intention of the parties as to the premises conveyed, such clause will have a controlling effect upon all prior phrases used in the description.</p>

(Hosmer, J.) Bill to set aside certain deeds because of the mental incompetency of the grantor. Defendants appeal. The facts are stated in the opinion.

' (Chambers, J.) Respondent was convicted of the crime of burglary,, and sentenced to imprisonment in the Detroit House of Correction for five years. The facts are stated in the opinion in People v. Shaughnessy, 89 Mich. 130.

Exceptions before judgment from .Jackson. (Peck, J.) Eespondent ¡was convicted,of conveying into the State-prison a disguise, with intent to facilitate the escape of a prisorier, etc. The facts are stated in the opinion.

(Chambers, J.) Respondent was convicted of murder in the second degree, and sentenced to imprisonment in the State prison for 20 years. The facts are stated in the opinion.

<p>Railroad companies — Injury at junction — Contributory negligence of engineer.</p> <p>I. An engineer is reckless who, with knowledge that there are no semaphores, flagman, or gates at a railroad crossing, a view of which is obstructed, attempts to make the crossing without seeing that the way is clear for so doing.</p> <p>3. A compliance with the duty of giving the statutory signals before crossing another road will not relieve a railroad engineer from the duty of keeping his train under such control as to enable him to stop it in time to avoid a collision with another train at the crossing, and his failure so to do is not excused by reason of the greater rate of speed at which the other train is being run, which constitutes the only difference in the negligent conduct of the two engineers.</p>

<p>Landlord and tenant — Lease—Option of renewal.</p> <p>A firm leased a hotel for seven months, “with the first privilege to keep said building for a longer term, or to give it up, as they see fit, without notice.” In February one of the partners notified the landlord that the firm did not intend to keep the premises after the expiration of the seven months, whereupon the landlord advertised the hotel for rent, of which fact both of the partners had notice, and in March the same partner repeated the determination of the firm not to rent for a longer term. The landlord thereupon filled the ice-house, and on April 4 he was again notified by the same partner that they did not want the premises after April 30, when the seven months expired, and thereupon he purchased a stock of goods for the hotel, and took out a liquor license, and with the knowledge and consent of the tenants placed the goods in the store-room on the premises. And it is held that the tenants made their election prior to April 80, and that a notice given on that day that they would keep the premises did not bind the landlord.</p>

<p>Real-estate agent — Contract of purchase — Public policy.</p> <p>An agent for a land-owner owes to him the duty of securing the best price obtainable for the land, and he cannot obtain a valid contract of purchase to which he himself is secretly a party, such dealing being against public policy; citing Scribner v. Collar, 40 Mich. 376,</p>

<p>Bills and notes — Pleading—Amendment—Accommodation paper.</p> <p>1. Where a note given to one member of a firm is described in the declaration in a suit thereon as- payable to the firm, in whose name he has indorsed it, and the variance is not discovered until after the note is received in evidence, it is within the power of the trial court to permit an amendment, and, as the defendant could not have been surprised by the course which the testimony took, the amendment will be treated as having been made; citing Smith v. Pinney, 86 Mich. 484; Enright v. Insurance Co., 91 Id. 238.</p> <p>2. An indorsement of a note, payable to one member of a firm, by him in the firm name, is sufficient to transfer the title.</p> <p>8. An accommodation maker of a negotiable note, which has been discounted by the payee, who received the money upon it, is liable in a suit by a subsequent holder, who became the owner of the note after its maturity, in the absence of proof that the note has been paid.</p>

(Gartner, J.) Proceedings to condemn land for union depot purposes, under Act No. 244, Laws of 1881 (How. Stat. chap. 93). Petitioner appeals from an award of $96,143 in favor of respondents. Award set aside, and the question of damages ordered submitted to a new jury, to be impaneled according to the statute before the Wayne circuit court. The facts are stated in the opinion.

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

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

<p>Error to Kent. (Adsit, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Opening street — Public necessity — Damages—Evidence—Special questions.</p> <p>1. The statements in Detroit v. Daly, 68 Mich. 503, 507, that, “if the general and local benefits [in a street-opening case] do not equal the value of the property taken, it cannot be taken,” and that the theory of street opening is that “no street shall be opened unless the benefit to the public is equal to the value of the property taken,” refer to the cost of the compensation awarded to the land-owners, and not the cost of the whole work of making the street passable or convenient for travel.</p> <p>2. It is admissible to show in a street-opening case what other lots in the immediate vicinity are held at by the owners, as tending to show the value of the lots directly affected by the improvement.</p> <p>3. Where in a street-opening case witnesses place the damage to each land-owner below the amount awarded, it cannot he said that the jury ignored all of the testimony as to the value of the property taken and the injury to that which is left.</p> <p>A. It is not error to refuse to submit special questions to the jury in a condemnation case; citing Railroad- Co. v. Campau, 83 Mich. 31.</p>

<p>Appeal from Wayne. (Reilly, J.)</p> <p>Bill for redemption and an accounting. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

(O’Hara, J.) Bill for divorce. Complainant appeals. but case remanded, with directions to take proofs as to the value of complainant’s and defendant’s property, and that complainant be allowed alimony and expenses. The facts are stated in the opinion.

(Hosmer, J.) Appeal from an order of the probate court providing for an allowance to the widow of deceased, and approving her final account as administratrix. Judgment of circuit court, affirming that of probate court, The facts are stated in the opinion.

(Buck, J.) Bill to cancel a deed and agreement for life-support. Defendants appeal. The facts are stated in the opinion.

(Loveridge, J.) Bill to set aside a deed executed in consideration of life-support to be furnished the complainants. Defendants appeal. The facts are stated in the opinion.

<p>Fraud — Fictitious partnership — Loss of execution — Parol evidence.</p> <p>1. Upon proof of the loss of an execution, under which the defendant seeks to justify the seizure of property, he may show by oral testimony that the execution was properly issued and levied upon the property, and that notices of sale were duly posted according to law.</p> <p>2. It is held that there was a scintilla of evidence, upon which the jury were properly permitted to pass, and which, if believed, tended to show that the property in dispute belonged to the execution debtor, who had caused the formation of the partnership of which plaintiffs claimed to be members for the purpose of defrauding his creditors.</p>

<p>Principal and agent — Ratification—Evidence.</p> <p>1. Evidence that a clerk kept his private account with his employers on their ledger for six or seven years, and that one of the firm examined the accounts appearing on the ledger almost every day, justifies the jury in finding that the employers had knowledge of the account of the clerk, and how it was made up; it appearing that the clerk was paid from month to month, and that the only account he was entitled to have with them should appear upon the time-book.</p> <p>2. The employers cannot be said to have acquiesced in an arrangement whereby goods sold to a customer were charged by the clerk to himself in said ledger account until they had some notice or knowledge of the manner in which his account was kept.</p>

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

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

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to quiet title. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

(Grove, J.) Bill to obtain a reassignment of'a life insurance policy on payment of the amount due the assignee and secured by the assignment. Defendant McBrien appeals. The facts are stated in- the opinion.

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

(Daboll, J., presiding.) Respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment in the State prison at Marquette for eight years. The facts are stated in the opinion.

(Adsit, J.) Kespondent was convicted of carnally knowing a female child under the age of 14 years, and sentenced to imprisonment in the State prison for five years. The facts are stated in the opinion.

<p>Divorce — Evidence.</p> <p>The decree below, dismissing complainant’s bill and defendant’s cross-bill on the ground that neither had made a case for a divorce, is affirmed.</p>

(O’Hara, J.) Bill to annul a trust deed, and perpetually enjoin an action of ejectment brought to recover the land. Complainant appeals. and one entered granting the relief prayed. The facts are stated in the opinion.

(Person, J.) Petition to determine the dower rights of defendant in certain royalties. Petitioner appeals. The facts are stated in the opinion.

<p>Municipal caiporations — Defective sidewalk — Pleading—Damages— Evidence.</p> <p>1. The provision of section four of Act No. 364, Laws of 1887, which limits the liability created thereby for injuries sustained by reason of defective highways to those which have been in. use for ten years, applies only to public highways in townships.</p> <p>2. Under a declaration in a negligence case, which contains no averment of the aggravation of existing physical ailments by the injury complained of, it is error to allow damages therefor.</p> <p>2. The answer of an expert witness to a hypothetical question must be given upon the basis of the facts therein stated, and without recourse to other facts within his own knowledge.</p> <p>4. A plaintiff in a negligence case, who was injured in the evening while walking on a sidewalk, was permitted to testify to an examination of the walk the next forenoon, between 9 and 11 o’clock, and to finding the board broken upon which she stepped when she received the injury complained of, but which seemed to be in its place; which evidence, unless rebutted, is held to raise the presumption that plaintiff found the plank in the same condition in which she left it the evening before.</p> <p>5. Actual notice of the general broken and unsafe condition of a piece of sidewalk is sufficient to charge a municipality with negligence in not repairing the walk, although not shown to have had notice or knowledge of the particular defect which caused the injury complained of.</p>

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

<p>.Executors and administrators — General and special bonds — Res judicata — Principal and surety.</p> <p>1. The bond given by an administrator on the sale of real estate . is only an additional security for the moneys coming into his hands, and does not supersede his general bond or affect it in any way; and the representatives of the estate are entitled to recover upon both bonds, subject to the limitation that the entire recovery cannot exceed the whole amount due from the administrator, and that no greater sum can be recovered in the suit upon the special bond than was realized from the sale of the real estate.</p> <p>'2. The sureties upon a bond given by an administrator on the sale of real estate cannot complain because in a suit upon his general bond a recovery was had for a portion of the money realized from such sale, as their liability is lessened by such judgment.</p> <p>3. In a suit upon the general bond of an administrator, the penalty of which was $1,000, it appeared that on an accounting a balance was found due the estate of $1,648.72, and that the administrator included in his account the sum of $830, realized from the sale of real estate, and judgment was rendered for the penalty of the bond. Suit was then brought upon the bond given on the salé of the real estate, and the finding on the accounting was introduced in evidence, as also the proceedings had on the sale of the real estate, and the files and papers relating to the accounting. And it is held that the fact that there was no special accounting as to the money realized from the sale of the real estate cuts no figure in the case, as the amount is ascertainable from the evidence, and that as, owing to the amount of the penalty of the general bond, a full recovery could not be had in the suit on that bond, there is no reason why a suit upon the special bond should not be maintainable, even if a portion of the money ■ recoverable therein has been accounted for and included in the judgment upon the general bond.</p>

<p>Appeal from Osceola. (Judkins, J.)</p> <p>Bill to foreclose a mortgage. Defendants Monfort and Bowers appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Arrest — False imprisonment — Probable cause.</p> <p>1. A private person has a right to make an arrest on suspicion of felony, but, if it appears that the wrong man is thus imprisoned, he must be prepared to show in justification:</p> <p>a — That a felony has been committed.</p> <p>b — That the circumstances under which he acted were such that any reasonable person, acting without passion or prejudice, would have fairly suspected that the plaintiff committed the felony, or was implicated in it.</p> <p>2. An agent for a steamboat line, without asking or knowing the name or residence of a foreigner (of his own nationality), with whom he had talked about purchasing tickets, came into the room where the foreigner was, accompanied by a policeman, and beckoned to the foreigner to come foreward, saying that the policeman wished to talk with him, and on his doing so the policeman arrested him. The prisoner inquired of the agent what was the matter, and was told to go with the officer, and an interpreter would come when he wanted him. The prisoner was imprisoned for a time, and discharged on his examination, it being a case of mistaken identity. While in jail the agent asked the prisoner what his name was, and it was told him, and he told the prisoner, if he was not the man wanted, not to pay any money to lawyers and not to sign any papers. And it is held that the agent was the procuring cause of the arrest and impfisonment, and that, too, without probable cause, as he failed to make the inquiry demanded under the circumstances, before pointing the prisoner out and beckoning him to come to the police officer, and that he was liable for the consequent damage in an action for false imprisonment.</p>

(Buck, J.) Bill to cancel a deed given in consideration of a life-support, etc. Defendants appeal. The facts are stated in the opinion.

<p>Assault — Trespasser—Damages.</p> <p>1. In a civil suit for assault and battery brought by a plaintiff who had conveyed his farm to the defendant in consideration of a life-support agreed to be furnished by the grantee, which deed the plaintiff was attempting to set aside, and to that end had left the premises where he had been living with the defendant under such agreement, but returned to procure his personal effects, among which was a plane, of which he had secured peaceable possession, and which assault was committed, if at all, while the parties were struggling over the possession of the plane, the defendant claiming that it belonged to him. under the arrangement between the parties, which the plaintiff denied, it is competent for the plaintiff, as bearing upon that issue, to go into said arrangement, and to show that the title to the personal property never passed to the defendant.</p> <p>2. This Court has never held that a defendant should be compelled to pay “smart money” as exemplary damages, or any damages, by way of punishment merely.</p> <p>8. It is reversible error so to charge a jury in a suit for assault and battery as to give them to understand that they had the right, if they found that the defendant had acted wantonly and maliciously, to punish him in their discretion, and make him “smart” for his illegal, wanton, and malicious conduct.</p>

<p>Error to Wayne. (Hosmer, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 84 Mich. 676.</p>

(Newton, J.) Certiorari from circuit court to review proceedings of drain commissioner. The facts are stated in the opinion.

<p>Error to Marquette. (Stone, J.)</p> <p>Summary proceedings to recover possession of land. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Iron. (Stone, J.)</p> <p>Trover. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Malieious prosecution of attachment — Action by individual partner —Conspiracy—Damages—Evidence.</p> <p>1. Plaintiff, who was worth §30,000, purchased the interest of one of several partners in the firm property and business, and entered into articles of copartnership with the remaining members of the old firm, which was insolvent. Defendant, who was aware of the situation, and was a creditor of the old firm, signed an agreement to take the five-year paper of the new firm in payment of his debt, which he did, as did other creditors. Some of the creditors who failed to sign the agreement began to press their claims, and plaintiff attempted to negotiate a loan on the'firm property of defendant to satisfy ■ such claims. Defendant declined to make the loan, and it was secured from other creditors, who took mortgages on the real and personal property, and who, after deducting the amount of their claim, and paying defendant a mortgage due him, paid, the remainder of the loan to one of plaintiff’s copartners. Defendant was aware of all of these transactions, and his attorney delivered up the five-year note, and secured from said copartner, who was pecuniarily irresponsible, without plaintiff’s knowledge, a new note, payable on demand, for the amount of the prior note, and defendant at once commenced an attachment suit to recover on the demand note, swearing in the affidavit for attachment that the new firm, and also each member, had made a fraudulent disposition of their property with intent to defraud their creditors. The attachment was levied not only upon the firm property, but upon plaintiff’s individual property. Other attachments followed, and the holders of the chattel mortgage seized the firm property, and as a final result plaintiff lost heavily in his property, and his credit was injured. He brought a suit against the defendant for maliciously suing out the writ of attachment, alleging the falsity of the allegations in the affidavit, and that the giving of the demand note and bringing the attachment suit were collusive acts between plaintiff’s copartner and the defendant, and that the effect was a personal and special injury to the plaintiff. The plaintiff introduced abundant testimony to establish the aforesaid facts, and recovered a verdict against the defendant of §4,500. And in affirming the judgment entered thereon the Court hold:</p> <p>a — The action was properly brought in plaintiff’s individual name.</p> <p>b — It was competent for plaintiff to show the subsequent attachments and the foreclosure of the chattel mortgage, it being left for the jury to say whether such acts resulted from defendant’s suing out his attachment.</p> <p>2. The following propositions are summarized from the opinion:</p> <p>a — A partnership has no such separate or ideal existence as will permit a recovery in the firm name in • an action sounding in tort for a wrong committed by the defendant acting in concert with a member of the firm.</p> <p>b — In a suit for maliciously suing out a writ of attachment against a firm, it is competent to show the condition of the firm business, and the assets and credit of the firm, at the time the affidavit was made, for the purpose of showing the want of probable cause for taking out the writ, and the availability of the business for the purpose of carrying, and eventually paying, the firm debts.</p> <p>o — The measure of damages in a suit for maliciously suing out a writ of attachment is full compensation for all losses sustained, including expenses incurred in and about the suit, and injury to or destruction of business or credit.</p> <p>d — Where a plaintiff has been injured in his person or property by the wrongful act of the defendant, the fact that a third party by his wrong contributed to the injury does not relieve the defendant from liability.</p> <p>e — While the culpable act of a third party may have been the immediate cause of an injury, an earlier act of the defendant may have contributed so effectually to it as to be regarded as the efficient, or, at least, concurrent and responsible, cause.</p>

(Gartner/ J.) Bill to restrain the collection of street-opening tax. Complainant appeals. The facts are stated in the opinion.

<p>Error to Wayne. (Hosmer, J.)</p> <p>Proceedings to settle a guardian’s account. Both parties bring error.</p> <p>The facts are stated in the opinion.</p>

(Aldrich, J.) Bill to restrain the use of certain highway taxes, and for an accounting, and the return of the money to the tax-payers. Complainant appeals. with leave to answer, and case remanded for further pro-ceedings. The facts are stated in the opinion.

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

Mandamus. Delator applied for mandamus to set aside an ordei' allowing an amendment to a judgment creditor's bill. The facts are stated in the opinion.

Mandamus. Kelator applied for mandamus to compel respondent to vacate an order setting aside the service of a writ of attachment. The facts are stated in the opinion.

Mandamus. Kelator applied for mandamus to compel respondent to hear proofs on his appeal from an order laying out a highway. ' The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to settle a bill of exceptions. The facts are stated in the ©pinion.

<p>Appeal — Final order — Notice of perfection of appeal.</p> <p>1. An order denying a petition to correct a final decree in a foreclosure suit, made after the time for appealing from the decree’ has expired and after the refusal of the circuit judge to extendi the time for taking such appeal, is a final and appealableorder.</p> <p>2. A delay of 7 days after the expiration of the 20 days limited by Supreme Court Rule No. 14 in serving notice of the perfection of an appeal is not a sufficient reason, in and of itself, for dismissing the appeal, where the opposite party has not been damaged by such delay.</p>

Mandamus. Eelator applied for mandamus to compel his release under the poor debtors’ act. The facts are stated in the opinion.

<p>Action on the case — Pleading—Breach of contract — Loss of profits —Damages.</p> <p>1. The contract, the substance of which is set forth in the opinion, cannot be construed as creating partnership relations between the parties.</p> <p>2. A series of wrongful acts, all aimed at a single result and contributing to the injury complained of, to wit, the destruction of one’s business, credit, and reputation, may be counted upon collectively, as producing that result, in an action on the case.</p> <p>3. A fraud upon one’s rights is actionable as such, notwithstanding those rights may depend in a measure upon contract relations between the same parties.</p> <p>4. An act innocent and lawful in itself becomes tortious when associated with tortious conduct in a scheme to accomplish an unlawful purpose, and there is no reason why the same rule should not apply to conduct which operates as a breach of' a contract.</p> <p>5. A party cannot be allowed to use a violation of contract obligations as an instrument of oppression to accomplish an ulterior purpose, and then plead the contract as a limitation of his liability.</p> <p>6. Words spoken or written, injurious to a person in his business, and false and malicious, are actionable per se, and special j, damages need not be proved; citing Manufacturing Co. v. Perkins, 78 Mich. 1; Weiss v. Whittemore, 28 Id. 366.</p> <p>7. Where in an action on the case involving the wrongful breach of a contract for tho manufacture by the defendants of certain machines, to be sold by the plaintiff at a price fixed by the defendants, with an agreed discount therefrom to the plaintiff on machines sold, it appears that a large number of orders for machines were on hand and unfilled at the time of the breach, and a number were received after that date, and that neither the expense of the then growing business nor the amount realized for the machines was a matter of uncertainty, and that it was not improbable that the sales for the period to which the court limited the inquiry would at least equal the average sales for a given time preceding the breach, the defendants cannot complain of an instruction that the jury might allow the plaintiff as damages the profits of the business for the time that would elapse after the breach and before the contract could be legally terminated, and base their estimate upon the actual average profits for the 10 months preceding the breach.</p>

<p>Criminal law — Seduction—Question for jury — Evidence—Credibility of witness.</p> <p>1. It is not the province of the Supreme Court to determine questions of fact in criminal cases, where there is any conflict of evidence,</p> <p>2. Only when the facts are undisputed should the court say that, under the law, no crime has been committed.</p> <p>3. When the general charge covers all the law applicable to the case, it is not error to refuse special requests to charge.</p> <p>4. Where, in a criminal prosecution for seduction, the conviction of the respondent depends almost entirely upon the testimony of the prosecutrix, who admits that she has sworn falsely in certain respects, it is error to refuse to instruct the jury that, in determining what credit should be given to her testimony, it is their duty to consider her contradictory statements upon the stand, and her testimony that she had knowingly sworn falsely, and if, after such consideration, they have a reasonable doubt of the truth of her testimony in relation to respondent’s promise of marriage, or her yielding to him in consequence thereof, they must acquit the respondent, such request not being fully covered by the general charge.</p> <p>5. In a criminal prosecution for seduction it is competent for the prosecution to show:</p> <p>a — Previous familiarities, protestations of affection, and conversations about marriage; citing People v. Gibbs, 70 Mich. 425.</p> <p>b — The continued friendly and intimate relations of the parties for a month after the alleged seduction, during which time the prosecutrix remained in the place where she claimed to have been seduced, after which she returned to her home.</p> <p>c — Conversations with the respondent after his arrest for bastardy, tending to show the act of sexual intercourse, and to some extent, also, the charge of seduction.</p> <p>d — That the father of the prosecutrix applied to the prosecuting attorney, before the bastardy proceedings were instituted, and sought to have the respondent arrested for the alleged seduction, for the purpose- of rebutting an inference, which might be drawn from the circumstances and other evidence in the case, that the criminal prosecution was an afterthought, and instituted for the purpose of extorting money from the respondent, which claim was made by the respondent’s counsel on the trial and in the Supreme Court.</p>

(Chambers, J.) Respondent was convicted of obtaining money under false pretenses, and sentenced to State prison for five years. and respondent discharged. The facts are stated in the opinion.

(Pailthorp, J.) Assumpsit. Defendant brings error. and judgment entered in favor of defendant. The facts are stated in the opinion.

' (Grove, J.) Bill to set aside a deed for failure of consideration. Defendants appeal. The facts are stated in the opinion.

<p>Mortgage — Agreement for partial release.</p> <p>An agreement to release from the operation of a mortgage covering soveral parcels of land any of them, upon payment to the mortgagee at any time “ of a sum equal to the amount of the value of such piece or parcel of land so released or discharged,” is construed to mean the value of such parcel at the time of its release.</p>

(G-artner, J.) Petition for allowance of claim against the estate of an insolvent corporation under Act No. 94, Laws of 1887. The receivers appeal from an order allowing the claim. The facts are stated in the opinion.

(Gartner, J.) Petition for allowance of claim against the estate of an insolvent corporation under Act No. 94, Laws of 1887. The receivers appeal from an order allowing the claim. The facts are stated in the opinion.

<p>Partnership — Gontract—Parol evidence.</p> <p>1. An independent undertaking by one partner to repay to his copartner a sum of money advanced to him for the purpose of furnishing a portion of the capital stock may be sued upon at law; citing Kinney v. Robison, 52 Mich. 393; Kinney v. Tabor, 62 Id. 517.</p> <p>2. The owners of an hotel agreed to sell a one-third interest therein, and in its furniture and fixtures, to a third party for $4.,000, payable on or before three years from the date of the agreement. The agreement further provided that the vendors and vendee were to move the hotel to another 'place, and rebuild it, and own and operate it jointly as copartners. And it is held that there is no ambiguity in the contract, so far as it provides for the payment of the $4,000, and that it is incompetent for the vendee to show by parol, in a suit brought to recover said sum, that after the agreement was prepared, and before it was signed, it was verbally agreed that the $4,000 might be paid and' should be retained out of the share of the vendee in the profits which might arise out of the partnership business during the three years, coupled with proof that his share of said profits have amounted to more-than enough to make such payment.</p>

<p>Married women — Liability for goods sold husband.</p> <p>1. In a suit upon a note given by a married woman in part payment for liquors, which the plaintiff claims she purchased and agreed to pay for, it is competent for her to show that the Saloon business, for which the liquors were purchased, belonged solely to her husband, and that the plaintiff had knowledge of such ownership.</p> <p>8. A married woman is not liable upon a note given in part payment for liquors purchased for and used in a saloon business owned solely by her husband, or by the two jointly, unless the plaintiff shows an agreement upon the part of the wife to pay for the liquors, and his belief that she was the sole owner of the business when he sold and delivered the liquors, formed from the acts or declarations of the wife which gave him reasonable cause for such belief, and that he looked to her alone, for payment, in which case a recovery may be had.1</p>

(Hart, J.) Assumpsit. Defendants bring error. and judgment entered for defendants. The facts are stated in the opinion. . Russell é Sheldon, for appellants, contended for the doctrine of the opinion.

<p>Error to Iosco. (Simpson, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in tbe opinion.</p>

Mandamus. Relator applied for mandamus to compel the respondent to impanel a new jury in proceedings under the drain law, on the discharge of the original jury because unable to agree. The facts are stated in the opinion.

Mandamus. Eelators applied for mandamus to compel respondent to give notice of the election of electors of President and Vice President in the manner provided by How. Stat. § 240. The facts are stated in the opinion.

<p>Error to Kent. (Grove, J.)</p> <p>Eeplevin. Plaintiffs bring error.</p> <p>The facts axe stated in the opinion.</p>

<p>Beat-estate agent — Commission—Writ of error.</p> <p>.1. In a suit to recover commission for securing a purchaser for certain city lots, the plaintiff claimed that the defendant agreed to pay him for securing a purchaser, and defendant claimed that the agreement related to the sale of sand, and not of the lots, which belonged to the estate of his deceased wife, and were sold by him as administrator. And it is held that the contract claimed by the plaintiff was defendant’s personal engagement, by which he was bound, even though the lots belonged to his wife’s estate; but that evidence of such latter fact was admissible on the part of the defendant for the purpose of showing the probability of the theory of the defense.</p> <p>2. Assignments of error based on a refusal to grant a new trial, and the affirmation by the trial court on appeal of the clerk’s taxation of costs, cannot be considered upon writ of error to review the judgment rendered in the case.</p>

<p>Street railways — Transfer tickets — Limitation as to time for using..</p> <p>1. This case is ruled by Frederick v. Railroad Co., 87 Mich. 342,. and is much stronger, because here there is no question that the conductor gave plaintiff the right ticket, the same given to others, and which was good, if used according to its terms- and conditions.</p> <p>2. There is nothing unreasonable in a requirement that a transfer ticket from one route of a street railway to another shall not be honored unless used within 15 minutes after its delivery to-the passenger, in the absence of any obligation on the part of the company by charter, ordinance, or contract to make such transfer, and carry the passenger over both routes for a single-fare.</p> <p>8. It is the duty of a passenger receiving such a transfer ticket to-read it, and his failure to do so cannot give him any rights against the company which he would not have had had he read it, and thus been advised by the limitation as to the time-within which it could be used.</p> <p>4. If the passenger takes the first car which passes the point of transfer after alighting from the one on which he originally took passage, even though the time within which the ticket is receivable by the conductor by the limitation on its face has-expired, the passenger may have an action against the company for being ejected from the latter car by the conductor on refusing to pay a second fare; but no such state of facts is averred in the declaration in this case.</p>

(Reilly, J.) Negligence case. Defendant brings error. The facts are stated in the opinion, 'William, Stacey, for plaintiff, contended for the doctrine of the opinion.

(Grove, J.) Bill to foreclose a mortgage. Defendants Denison appeal. and one entered in accordance with the opinion. The facts are stated in the opinion.

(O’Hara, J.) Petition for the removal of an administratrix. Petitioner brings error from order of circuit court, affirming the order of the probate court, denying the petition, and discharging the administratrix and her bondsmen as on a full accounting. and case ordered to be certified to the probate court, with directions to proceed upon the petition, to the end that sale may be made of real estate to pay the debts of the estate. The facts are stated in the opinion. ■

<p>Judgment — Summons—Mistake in return — Execution — Married women — Estoppel—Homestead.</p> <p>1. A mistake in an officer’s return by which a summons issued March 2, 1888, and returnable March 10,1888, is shown to have been served March 8, 1886, corrects itself, and will not void an ex parte judgment based thereon.</p> <p>8. A levy of an execution made after the. return-day is void.</p> <p>8. Where, after personal service of summons, a married woman allows a judgment to be taken against her ex parte upon a note signed by herself and husband, she cannot, in a suit in equity brought to set aside a levy made under an execution issued on the judgment, attack the judgment as invalid as to her because the consideration of the note was not for her individual benefit or for the benefit of her estate, it being her duty to have made her defense in the original suit.</p> <p>4. A married woman and her daughter owned a lot on which there were two houses, both of which were rented at the time of the levy of an execution issued on a judgment rendered against the mother and her husband, and had been for some time prior thereto in a condition for occupancy, the husband and wife residing elsewhere. And it is held that the mother cannot change the character of the property to a homestead by saying that she intended at some future time to occupy it as a home.</p>

<p>Stenographer’s minutes — Evidence—Cross-examination—Fraudulent conveyances — Charge to jury,</p> <p>1. The testimony of a witness taken on a former trial may be read to him to refresh his memory; and it is error to exclude such reading for that purpose, on the ground that the attorney requesting it at first stated that his object was to impeach the witness.</p> <p>2. Where, in a suit involving the alleged fraudulent sale of property, one of the vendors is sworn as a witness on behalf of the vendee and plaintiff, it is competent for the defendant on cross-examination to draw out any material fact tending to show that the sale was fraudulent as to creditors.</p> <p>3. Where in such a case the defendant is obliged, under the ruling of the court excluding such cross-examination, to call the vendor as his own witness, he may contradict his testimony by other witnesses; citing Snell v. Gregory, 37 Mich. 500.</p> <p>4. The declaration of one of the vendors to a sale alleged to be in fraud of creditors, made in a kitchen attached to the store in which the goods were kept, and immediately after the attachment of the property by creditors, that she claimed to be in possession of the goods, cannot be used in a suit by the vendee against the attaching officer, the vendee not being bound by such declaration.</p> <p>5. The right to assign errors on the charge of the court without exceptions, under Act No. 101, Laws of 1885 (3 How. Stat. § 76216), does not apply to an abstract statement of the law in relation to fraud, the correctness of which, as a general proposition, the appellant does not impeach, and of which he asked no modification to fit the case in hand, or to the failure of the court to go into detail as to the facts and circumstances tending to show the alleged fraud, the attention of the court not being challenged by proper requests to such facts and circumstances.1</p>

<p>Contributory negligence — Questions for jury.</p> <p>The only contention arising on the record on the second hearing of this case is whether there was any evidence to go to the jury upon the question of contributory negligence, and the Court, being satisfied that there was, affirm the judgment.</p>

(Arnold, J.) Bill to declare valid an executor's deed, and, if held invalid, to reinstate a mortgage in satisfaction of which the deed was executed. Defendant Carpenter appeals. The facts are «stated in the opinion.

(Gartner, J.) Appeal of defendant from an order of the probate court refusing to confirm the election by the guardian of an incompetent widow to take under the statute rather than the will of her husband, and assigning the residue of the testator's estate. Plaintiffs bring error. The facts are stated in the opinion, and in 87 Mich. 167.

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

<p>Justices’ courts — Pleading—Failure to file bill of particulars — Discontinuance of suit.</p> <p>1. Where a plaintiff refuses to comply with the order of the justice to file a bill of particulars where properly demandable, the justice may exclude all testimony on his part and dismiss the case, such refusal being a virtual discontinuance of the suit; citing How. Stat. § 6880; Peterson v. Tilden, 44 Mich. 169.</p> <p>2. Where in such a case a motion to dismiss is refused, the consent of the defendant to an adjournment, and his pleading to the declaration and joining in striking a jury, will not preclude him from objecting to the reception of any evidence on the trial.</p> <p>3. An oral declaration in justice’s court upon the common counts, and especially upon a certain contract to rent a house by which the plaintiff agreed to execute and the defendant to accept a lease for one year, at the annual rental of $120, payable in monthly installments of $10 each, which lease was ready and willing to be executed by the plaintiff, and which the defendant refused to accept, contains no intelligent or proper statement of the eause of action on the agreement, it not appearing what property the lease was to cover, which the defendant was entitled to know in order to make his defense; and, if not stated in a bill of particulars, the declaration should be amended so as to apprise the defendant of the precise claim against him.</p>

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

(Hosmer, J.) Case. Plaintiff brings error. from order sustaining demurrer. Judgment vacated and case remanded by stipulation, with leave to amend declaration, the proceedings thereafter to be under the rules. The facts are stated in the opinion.

<p>Recording laws — Bona fide purchaser — Quitclaim deed.</p> <p>This case involves the question of the relative rights of the defendant corporation, a bona fide purchaser of a tract of land conveyed to it by warranty deed, and whose grantors derived their title through a quitclaim deed from the widow and sole executrix and legatee of the owner of the' land, and of the complainant, claiming , under an unrecorded conveyance executed by such owner in his life-time, and of which the purchasers from the widow had no actual notice at the time of their purchase and of the conveyance of the land to them. Questions of fact are largely involved, and an examination of the opinions is essential to an understanding of the case.</p>

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

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

<p>Sale of timber — Time for .removal — Reversion.</p> <p>A contract for the sale of all the white pine and Norway timber standing, lying, or being on certain land reserved the title in the vendor until the purchase price was paid, and gave the vendee five years in which to cut and remove the timber, and provided that whatever timber remained upon the land after the limit of the aforesaid five years should revert and become the property of the vendor. And it is held that, even if the conditions of the contract had otherwise been performed, all timber remaining upon the land at the expiration of the five years, whether cut or uncut, reverted to the vendor.</p>

(Hosmer, J.) Claim against estate of decedent. Claimants and the defendant bring error from the judgment of the circuit court for an amount less than that claimed in probate court. The facts are stated in the opinion.

(Hosmer, J.) Information in the nature of a quo warranto to exclude the respondent from laying its tracks upon a certain street. Relators appeal. The facts are stated in the opinion.

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

<p>Master and servant — Injury to employé — Proximate cause— Contributory negligence.</p> <p>Plaintiffs intestate was a brakeman on one of defendant’s logging trains, and had the entire charge of the train, and was responsible for the manner in which the cars were loaded. A dead tree stood near to and inclining over the track, and, on the day of the accident resulting in decedent’s death, was grazed by a passing load of logs, and decedent called the attention of defendant’s foreman to the fact. The testimony is conflicting as to whether the foreman promised to have the tree cut down or told decedent to cut it down, but it was standing when decedent passed it 10 minutes before the accident. As he was starting on his next trip to the river his attention was directed to the projecting end of a log, and he replied, “ Let her go to hell.” The log struck the dead tree, causing a piece to fall therefrom, which struck the decedent, and produced injuries causing his death. And it is held that, admitting that there were two concurrent causes, viz., the tree standing too near the track and the improper loading, yet the fact remains that the decedent knew of the former, and his clear duty was so to load his train as to avoid the danger, which defective loading, for which decedent was alone responsible, was the proximate and dominant cause of the injury.</p>

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

(Hart, J.) Attachment proceedings under log-lien law. Defendant company brings error. The facts are stated in the opinion.

<p>Error to Hillsdale. (Lane, J.)</p> <p>Summary proceedings to recover possession of lands. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

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

(Hart, J.) Attachment proceedings under log-lien law. Defendant company brings error. The facts are stated in the opinion.

(Grove, J.) Bill to enjoin the use of a decree, frairdulently and collusively obtained, to the injury of complainant. Complainant appeals from decree dismissing bill on demurrer. with leave to answer. The facts are stated in the opinion.

(Burlingame, J.) Bill to set aside a sale of complainant’s property for an assessment for opening a street. Complainant appeals. The facts are stated in the opinion.

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to quiet title. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>JEjectment — Title to support — Boundary lines.</p> <p>1. A plaintiff in ejectment who shows title running back for a long time, through a series of conveyances from persons in possession as owners, is presumed to hold by direct chain of title from the government, unless the defendant claims under some one who was in a position to disturb that presumption; citing Steinhauser v. Kuhn, 50 Mich, 367.</p> <p>2. Where a plaintiff in ejectment and the person under whom the defendant claims possession derived title from the same source, further proof of title by the plaintiff is unnecessary; citing Johnstone v. Scott, 11 Mich. 232; Cronin v. Core, 38 Id. 381; Eames v. McGregor, 48 Id. 818; Van DenBrooks v. Correon, 48 Id. 388.</p> <p>8, Boundary lines cannot be tried in a proceeding before a circuit court commissioner, ejectment being the proper remedy; citing Bennett v. Robinson, 37 Mich. 36; Foss v. Van Driele, 47 Id. 201; Bill v. Olin, 82 Id. 648.</p>

(Grove, J.) Bill of interpleader. The defendant O’Brien appeals. and case remanded to take further proofs as to the amount due appellant, and for an accounting, and distribution of the fund between her and the heirs of the insured. The facts are stated in the opinion.

<p>Fire: insurance — Pleading—Incendiarism.—Fraud—Evidence.</p> <p>1. The burden of proof is upon the defendant in a suit upon a fire insurance policy to establish the defense that the assured caused the destruction of the insured property, notice of which defense must be given.</p> <p>2. An averment in a declaration on a fire insurance policy, that the property was destroyed by fire without any fraud, negligence, procurement, or privity of the assured, will not change the rule requiring notice of a defense that the assured caused the destruction of the insured property.</p> <p>3. Evidence that the assured was doiDg a losing business, and could not pay his gas bills, is too remote to be introduced in support of a claim of fraud on his part in making false statements as to the goods destroyed, and in producing fraudulent bills of goods, which he claimed to have purchased and placed in stock.</p>

<p>Fire insurance — Michigan standard policy — Measure of damages.</p> <p>Under the Michigan standard fire insurance policy, which limits the liability of the insurer in case of a total loss to what it would then cost the insured to replace the insured property with material of like kind and quality, the insured can recover the market value of the property at the date of the fire.</p> <p>So held, where the property was lumber, and the insured were the owners,at the time of the fire, of standing timber, from which could be taken a sufficient quantity, of like kind and quality as that from which the lumber was manufactured, to replace the same, and from which timber the insured continued to manufacture lumber after the fire.</p>

<p>Assault — Levy on exempt property — Liability of creditor.</p> <p>Plaintiff recovered a judgment against the defendants for an assault and battery committed by defendant Fairfield on plaintiff’» wife while she was resisting him in the removal of certain exempt property, which he claimed to have seized under a. writ of attachment in favor of his co-defendant and against the plaintiff, but had not removed from plaintiff’s premises. And it is held that the question whether such attempted removal of the property was made under the direction of defendant Morehouse should, under the testimony, have been submitted to the jury.</p>

<p>Contract — Damages—Evidence—Account stated — Pleading.</p> <p>1. A sewer contractor who sublets a portion of the work, for which he is to furnish the necessary material, cannot escape liability for his delay in so doing on the ground that it was caused by the failure of another subcontractor to deliver material, and the rejection of a portion of that delivered by the sewer inspector.</p> <p>2. The questions whether the probability of such delay was not talked over when the contract was made, there being some testimony tending to establish that fact, and whether such delay was beyond that contemplated or unreasonable, are for the jury.</p> <p>8. Testimony as to the per diem value of the use of machinery necessary to the performance of the work during the term of such delay is inadmissible, in the absence of proof that the plaintiff had an opportunity to use it elsewhere, and was necessarily prevented from so doing by such delay,</p> <p>4. The defense that, by stating the account under the contract, the plaintiff is estopped from adding a claim for loss of time caused by such delay, must be specially pleaded.</p>

<p>Municipal eoiporations — Defective sidewalks — Evidence.</p> <p>1. Evidence of complaints of present suffering, made some time after an injury, is admissible; citing Johnson v. McKee, 27 Mich. 471; Elliott v. Van Buren, 33 Id. 49; Maclean v. Scripps, 52 Id. 239; Mayo v. Wright, 63 Id. 40.</p> <p>2. Where there is no difficulty in laying before the jury all of the facts relative to the condition of a sidewalk, the defects in which are patent, the opinion of witnesses whether the walk is in a condition of reasonable repair and reasonably safe for public travel is properly excluded; citing Smead v. Railway Co., 58 Mich. 202; Smith v. Township of Sherwood, 62 Id. 159; Harris v. Township of Clinton, 64 Id. 447.</p> <p>3. By consenting to the use of testimony taken out of court pending the trial, the consenting party waives any objection to the ruling of the court allowing such testimony to ,be taken.</p> <p>4. Where the defect in a sidewalk which occasions an injury arises from a cause which naturally affects the entire walk, as where it is occasioned by age and consequent decay, the indications of the existence and operation of that cause, which appear upon the surface at other points, are competent, as bearing upon the general condition of the walk and the operation of the same cause elsewhere, and are admissible as notice of the probable condition of the walk at the point of the accident.</p>

<p>Justices' courts — Jurisdiction—Appearance by plaintiff.</p> <p>.1. Justices’ courts possess the same general powers for the exercise of jurisdiction as do courts of record, except the power of setting aside verdicts and arresting judgments; citing Hodges v. 'Bagg, 81 Mich. 248.</p> <p>2. A written request by the plaintiff or his attorney that a case be adjourned or held open is an appearance by the plaintiff, and gives the justice jurisdiction to act, if presented to him within one hour after the return hour of the process by which the suit is commenced.</p>

<p>Appeal from Oakland. (Moore, J.)</p> <p>Partnership accounting. Defendant appeals.</p> <p>The facts are stated in the opinion, and in 68 Mich. 106.</p>

<p>Trial — Postponement—Discretion of court.</p> <p>The question whether defendant should have been compelled to go to trial was within the discretion of the trial court, which discretion is held not to have been abused.</p>

■ (Palmer, J.) Petition so to revise a decree for divorce as to give to the complainant the care, custody, and control of her infant daughter. Complainant appeals. and one entered in accordance with the opinion, in which the facts are stated.

<p>Certiorari to review the judgment of the circuit court of Sanilac county, reversing the order of the circuit court commissioner dissolving an attachment. (Beach, J.)</p> <p>The facts are stated in the opinion.</p>

<p>Bailment — Pleading—Breach of contract.</p> <p>A bailor cannot recover for a breach of the contract of bailment under a count for money had and received.</p> <p>So held, where a debtor gave an absolute bill of sale of certain cedar posts to a creditor, and it was agreed that the creditor should sell the posts, and, after paying his' debt and certain other debts of the debtor, pay the balance of the money received for the posts to the debtor, who was allowed to recover a judgment against the creditor under a common-count declaration, upon the theory that the creditor had sold the posts at a price legs than that agreed upon by the parties.</p>

Mandamus. Relator applied for mandamus to compel the respondent to receive a complaint and issue a warrant for a violation of the liquor law. The facts are stated in the opinion.

Mandamus. Relators applied for mandamus to compel the respondents to vacate a certain rule and order relating to the pensions of inmates of the Soldiers’ Home. The facts are stated in the opinion.

Mandamus. . Relator applied for mandamus to compel the respondent to give notice of the election of two Representatives from the county of Houghton, regardless of the division of the county by the apportionment act of 1891. The facts are stated in the opinions.