Volume 94 — Michigan Reports

<p>Capias ad respondendum — Validity of xurit — Order to hold to bail —Jurisdiction of court — False imprisonment.</p> <p>1. An order to hold to bail, granted by a circuit judge upon an affidavit setting forth facts indicating fraud or breach of trust, protects the party making the affidavit and applying for the issuance of the capias, when no malice or want of probable cause is averred or shown.</p> <p>2. When an application is made to a circuit judge to hold to bail, it is his duty to hear and investigate; and if the affidavit sets up facts and circumstances tending to show fraud or breach of trust, thus bringing the case within the exceptions of the Constitution, authority to act depends upon the facts, and the determination of the judge has all of the qualities of a judicial decision, and as such protects the judge, the officer, and the party.</p>

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

(Daboll, J.) Appeal by heirs from an order of the probate court allowing the final account of the administratrix. The facts are stated in the opinion.

<p>Attachment — Dissolution by certiorari — Replevin—Fraudulent conveyances — Question for jury.</p> <p>1. The effect of suing out a writ of certiorari by a defendant to review a justice’s judgment in an attachment suit, and of giving the statutory bond for the payment of any' judgment that may be rendered in the circuit court, is to dissolve the attachment; citing Bushey v. Baths, 45 Mich. 185.</p> <p>2. Where, in replevin for attached property, there is evidence tending to show its purchase in good faith by the plaintiff from the attachment debtor before the levy of the attachment, the defendant can only justify his holding on the ground that the transfer was fraudulent as to creditors, and this is a question for the jury.</p>

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

<p>Soclomy — Sufficiency of evidence.</p> <p>Emission is necessary to the consummation of the offense of sodomy, and, while it may be inferred from proof of penetration and the other circumstances of the case, it is a fact which the prosecution must establish before a conviction can be claimed.</p>

<p>Contract — Sale on commission — Estoppel.</p> <p>1. Where a traveling salesman is entitled to receive the excess on sales above the list price of the goods, the consent of his employer to his making sales at less than the list price will not imply an agreement to pay him the discount thus made to effect a sale.</p> <p>2. A claim made by the salesman for credit for such discount, on reporting the sales, will not affect the right of the employer to fill the orders at the reduced price, and thus secure the benefit of the trade, he allowing the salesman the agreed commission for making them.</p>

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

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

<p>Contract of sale — Evidence.</p> <p>Plaintiff sued to recover $100, which he claimed defendant agreed to pay him, in addition to surrendering his note for $1,200, as the purchase price of certain property sold defendant. The only dispute was as to the agreement to pay the $100. And it is held that it was competent for plaintiff to show that the value of the property was largely in excess of the note, as a circumstance which the jury might consider in determining which of the parties was entitled to belief as to the agreement to pay the $100.</p>

<p>Jury — Challenge for cause — Municipal corporations — Defective sidewalks — Evidence.</p> <p>1. Error cannot be assigned upon the ruling of the court sustaining a challenge to a juror upon the regular panel on the ground that he is over the statutory age; and especially is this so where the appellant expresses himself as satisfied with the jury as finally made up, and goes to trial before it without exhausting his peremptory challenges.</p> <p>2. It is not competent for the plaintiff in a negligence case, who was injured by falling on a defective sidewalk by reason of the tipping up of a loose plank, to show that others fell upon the same walk three or four days after the accident to the plaintiff.</p> <p>3. It is competent in such a case, to rebut the theory of the plaintiff that the defect in the walk caused by the loose plank had existed so long, and that the walk was in such a bad state of repair, as to charge the city with notice of the particular defect complained of, for the defendant to show, by-witnesses who testify to having frequently piassed over the walk without noticing the defect, that if there had been a loose plank they would have noticed it.</p> <p>4. Notice to the proper officers of a city that a sidewalk is out of repair cannot be inferred unless the defect is open and notorious, of long standing, and of such a character as would naturally arrest the attention of passers-by; and the burden of proof to establish these facts is upon the party coinx>laining of the non-repair; citing Tice v. Bay City, 84 Mich. 465.</p> <p>5. Where, in a negligence case, it appears that the sidewalk inspector, some 10 days before the accident, went over the walk upon which plaintiff was injured by reason of the tix>ping ux3 of a loose plank therein, tested the plank at the ends, and, finding some of them loose, nailed them down, and left the walk in a condition reasonably safe for public travel, in order to charge the city with such constructive notice as to render it liable for any after defect developing in the walk it must have been of such a character as naturally to arrest the attention of a passer-by, and the city must have had reasonable time, after such defect was noticeable, to repair it.</p>

<p>Divorce — Evidence—Improper methods of procuring testimony.</p> <p>1. The principle of the maxim, falsus in uno, falsus in omnibus, may be extended to. the entire testimony offered in behalf of a litigant who is shown to have been guilty of corrupt practices in procuring the testimony, or any part of it.</p> <p>3. A party coming into a court of equity, and asking to be released from the bonds of matrimony and its obligations, must come with clean hands, and must keep them clean, so far as relates to the procurement of testimony to make out his case.</p>

(Moore, j.) Petition for an order directing a receiver to pay a certain claim in full. The facts are stated in the ojiinion.

<p>Mechanic’s lien — Failure to complete contract.</p> <p>1. The rights of a material-man at the time he files his lien cannot . be other or greater than would be those of the contractor in a different action.</p> <p>2. A bill to enforce the lien of a material-man will be dismissed when it appears that the value of the work done on the building at the time the lien was filed was less than the sum before then paid to the contractor, and that the necessary cost of completing the building will exceed the unpaid portion of the contract price.</p>

<p> Accounting. </p> <p>This case involves questions of fact arising on an accounting.</p>

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

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

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

<p>Libel and slander — Damages.</p> <p>1. Any printed publication, the natural result of which is to bring ridicule or contempt upon the plaintiff, is, if untrue, libelous; citing Tryon v. Evening News, 39 Mich. 636.</p> <p>2. Where, in a suit for libel, it appears that information of the falsity of the statements contained in the article was brought home to the reporter of the defendant newspaper before the article was published, the jury may properly award exemplary damages.</p>

<p>Behearing, upon application of defendant, of case reported ante, 114.</p>

(Palmer, J.) Bill to compel tbe specific performance of an oral agreement for tlie conveyance of land. Defendants appeal. Tbe facts are stated in the opinion.

<p>Chattel mortgage — Failure to file — Validity as against creditors.</p> <p>An unfiled bona fide chattel mortgage is valid as against creditors whose claims accrued prior to its execution, but not as against creditors who became such during the time between the execution of the mortgage and its filing, without knowledge of its existence; citing IMtauer v. Houck, 92 Mich. 162; Brown v. Brabb, 67 Id. 17.</p>

<p>Sale — When title passes.</p> <p>1. Under a contract for tlie purchase at an agreed price per thousand feet of all of certain grades of lumber which the vendor can manufacture from a specified class of logs, which lumber is to be paid for after its inspection by an inspector agreed upon by the parties, and its shipment, such inspection, in the absence of evidence showing a contrary intention by the parties, is a condition precedent to the passing of title.</p> <p>B. In view of the conflict of testimony as to the contract of sale; of the manner in which the vendees treated the lumber after it was piled; what they said in regard to its ownership; the payment by them of $2,000 upon it; their direction to the vendor to ship the unburned though damaged lumber; and all of the other surrounding circumstances, — the question whether the title to the lumber passed before its inspection should have been left to the jury.</p>

<p>■Common carriers — Liability as loarehousemen — Goods expressed C. O. L.</p> <p>1. Where goods are expressed O. O. D., the liability of the express company as a common carrier terminates upon the safe carriage of the goods to their place of destination, notice to the consignee of their arrival, and an offer to deliver upon payment of the amount charged against them.</p> <p>'2. In case the consignee is not ready to receive and pay for the goods, it is the duty of the company to safely store and care for them, and to hold them for a reasonable time to enable the consignee to make such payment, and to notify the consignor, and the liability of the company meanwhile is that of a warehouseman.</p> <p>A Plaintiffs expressed three packages of goods O. O. D., and on their arrival at their place of destination two of the packages were taken to the houses of the consignees, who were absent, but who afterwards called at the office of the express company, and requested it to hold the goods for six days, when they would receive and pay for them. A notice was mailed to the third consignee, whose place of residence was unknown to the company, but he never responded to the notice. The goods were safely stored in the company’s warehouse, and notice sent to plaintiffs of what had been done. The goods were destroyed by fire, without the fault of the company, on the evening of the day the notices were mailed to plaintiffs, and before they were received by them. And it is held that the defendant is not liable for the loss of the goods.</p>

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

<p>Sale — Option to return goods — Acceptance—Breach of warranty.</p> <p>Where a number of cheeses are purchased by sample, with the right to return them if, after the lapse of 10 days in which to examine them, the vendee determines to do so, and complaint is made to him within the 10 days of the quality of some of the cheeses, which are returned to him, but he continues making sales for 16 days thereafter without notice to the vendor, he must be considered as having accepted the cheeses, and cannot set up a warranty and its breach; citing Farrington v. Smith, 77 Mich. 550; Ghilds v. O’Donnell, 84 Id: 588.</p>

<p>Railroad companies — Negligence—Defective walk across track at street crossing — Contributory negligence— Excessive damages.</p> <p>1. Where a railroad, company, acting under a notification from the common council of a village, constructs a sidewalk across its right of way at a street crossing, and for years assumes to keep the walk in repair, it becomes its duty to keep the walk in a reasonably safe condition for public travel; citing Stewart v. Railway Co, 89 Mich. 315.</p> <p>2. The testimony is held sufficient to authorize a finding by the jury that, though the defendant had no actual notice of the hole in the walk in which plaintiff’s foot was caught, it had existed long enough to charge the defendant -with such knowledge.</p> <p>3. The question of plaintiff’s contributory negligence in returning to the crossing in face of the approaching train, which was nearly 600 feet away when he stepped upon the track, is held to have been properly left to the jury.</p> <p>4. It cannot be said that a person traveling along a way must at all times look where he steps or be charged with negligence as matter of law, it being a question for the jury under all of the testimony.</p> <p>5. A judgment for $30,000 in a negligence case, as compensation for the pain and suffering endured by the plaintiff, and the loss to him for the remainder of his life of both feet, will not be reversed upon the ground that the damages awarded are excessive.</p>

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

(Person, J.) Information in the nature of quo warranto to test the= right of respondent to hold the office of county commissioner of schools for Livingston county. The facts are stated in the opinion.

<p>Real-estate brokers — Agent for both parties — Commissions.</p> <p>1. This case was reversed on the former hearing upon the sole ground that a part of the contract relied upon by plaintiff was void under the statute of frauds, and the question now raised was not discussed or passed upon.</p> <p>2. A land broker who negotiates a sale under an arrangement with the purchaser, which is unknown to the land-owner, that he is to have a commission on the sale, and who also receives a commission from the land-owner, which fact he conceals from the purchaser, cannot recover the agreed commission, it appearing that both parties relied to some extent upon his judgment as to the amount of timber on the land, and its value.1</p>

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

(Hart, J.) Petition for the sale of lands delinquent for taxes under Act No. 195, Laws of 1889. Petitioner appeals. The facts are stated in the opinion.

(Simpson, J.) ■ Petition for the sale of lands delinquent for taxes under Act No. 195, Laws of 1889. Defendants appeal. The facts are stated in the opinion.

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

Mandamus. Relators applied for mandamus to compel respondent to list and assess certain personal property. Tbe facts are stated in tbe opinion.

<p>Attorney and client — Notice—Execution sale — Bona fide purchaser-—Conclusiveness of officer's return.</p> <p>1. While it is true that notice to the agent is notice to the principal, yet the knowledge of the principal cannot be imputed to> the agent with respect to a matter in which the latter is acting in his own interest.</p> <p>2. The return of a sheriff of the levy of an execution on reali estate, for want of goods or chattels whereof the damages and costs could be made, cannot be questioned in an action of' ejectment brought by a purchaser at the execution sale, for-value and without notice, against a prior grantee of the execution debtor, whose deed was not recorded until after the-sale.</p>

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

<p>Taxes — Failure of board of review to meet — Validity of tax— Curative provisions of law — Jurisdiction.</p> <p>1. The curative provisions of the tax law do not apply to jurisdictional defects in the tax proceedings.</p> <p>:2. The provision of the tax law requiring the board of review of a township to meet upon certain specified days for the purpose of reviewing and correcting the assessment roll is mandatory.</p> <p>3. A tax-payer has the right to assume that the board of review will remain in session the full statutory time, and to arrange to be present on any day he may choose; and if, by reason of the failure of the board to perform this statutory duty, he is prevented from appearing and objecting to his assessment, the tax levied against him thereon is void.</p> <p>4. The board of review is a tribunal provided by law, in which the tax-payer may appear to contest an unequal or excessive assessment; and his failure so to appear estops him from assailing the assessment afterwards; citing Bank ■ v. St. Joseph, 46 Mich. 526; Williams v. Saginaw, 51 Id. 120; Comstock v. Grand Rapids, 54 Id. 641; Lumber Co. v. Crystal Falls, 60 Id. 510.</p> <p>¡5. The question whether an assessment is excessive or not is not for the courts to try, the board of review being the only tribunal having jurisdiction of that question; citing Williams' v. Saginaw, 51 Mich. 120.</p>

<p>Error to Ingham. (Person, J.)</p> <p>Negligence cash Plaintiff brings error.</p> <p>The: facts are stated in the opinion.</p>

<p>Practice in Supreme Court — Findings of trial judge.</p> <p>This case is ruled by Haines v. Saviers, 93 Mich. 440.</p>

<p>Set-off — Withdrawal of part of plaintiff’s demand — Bes judicata —Statute of limitations.</p> <p>1. 3 How. Stat. § 7370a, which provides that where the defendant has given notice of set-off the plaintiff shall not be allowed to discontinue his suit or submit to a nonsuit, does not prevent the plaintiff from withdrawing certain items of his claim from the consideration of the court and jury.</p> <p>'3. Where in such a case the parties proceed to trial upon the remaining items of plaintiff’s claim and the items of defendant’s set-off, and a judgment is rendered in favor of the defendant, the items so withdrawn are not res judicata, but may be set off by the plaintiff in a suit pending against him in favor of the defendant at the time of such withdrawal, if a proper subject of set-off.</p> <p>3. While the statute of limitations should be construed according to its terms, it is not proper to give it a construction so technical in its character as to deprive a party of a legal right, which the terms of his contract plainly give to him.</p> <p>4. 3 How. Stat. § 7370a, which forbids a discontinuance or submission to a nonsuit by a plaintiff where the defendant has given notice of set-off, is construed as follows:</p> <p>a — The object of the statute is to enable the defendant to proceed and prove his set-off in the case begun against him, and not to permit the plaintiff, at his own convenience or desire, to discontinue the suit, and thus deprive the defendant of a right which he acquires as soon as he submits his demand by way of set-off to adjudication in said suit.</p> <p>b — This right is to be determined by the conditions existing at the tune the notice of set-off is given; and, if at that time the defendant’s demand is of such a character that it can be legally set off, he is entitled to remain in court in that suit until an adjudication is had upon said demand, and if he establishes it he is entitled to a judgment for all exceeding the claim the plaintiff may prove against him in the case, which right remains, regardless of the fact that the plaintiff proves or does not prove any claim against him, and regardless of whether or not the plaintiff withdraws any portion of his claim, from consideration in "the case, or whether or not he offers, any proof at all in his behalf.</p>

(Beach, J.) Bill to dissolve a copartnership, for the appointment of a receiver, and for an accounting. Complainants appeal.. The facts are stated in the opinion.

<p>jRes judicata — Right of way — Abandonment—Intention—Evidence-</p> <p>1. It is a well-settled rule that courts will not review former' decisions made by the same court in the same cause, and on the same state of facts.</p> <p>2. Where a railroad company ceases to run cars over a portion of its road for 12 years, the question of abandonment is one to be-determined from the facts, and not from testimony as to the-intention of the officers of the. railroad company either at the. outset or during such period.</p>

(Gage, J.) Bill to restrain defendants from executing and negotiating certain bonds. Complainant appeals. The facts are stated in the opinion.

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

<p>Execution — Alias writ — Replevin—Justification of officer — Fraudulent conveyances — Evidence.</p> <p>1. Where an officer seeks to justify under an alias execution issued after the return-day of the original writ, and while it is in the-officer’s hands with a return nulla bona indorsed thereon after the release of a levy upon real estate which was found not to-belong to the judgment debtor, it is in the power of the court to direct a return of the original execution nunc pro tunc, and thus cure the irregularity in the issuance of the alias writ.</p> <p>2. An objection to an officer’s justifying his seizure of property under an execution, because no notice of such defense has been-given, is waived if not made in the trial court; citing Franleelv. Coote, 41 Mich. 75.</p> <p>8. When a debtor undertakes to assign and convey his property in recognition of an indebtedness to his wife, originating 25 years before, no account of which has been kept, no evidence of the-debt given, and no interest or principal paid or requested, the-financial condition of both parties for the entire period is a-proper subject of inquiry, and the broadest latitude should be-allowed to the judgment creditor.</p>

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

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

<p>Insurance — Conditions of policy — Limitation of time for bringing action.</p> <p>Where an accident insurance policy provides that no suit shall be-brought, or arbitration required, to recover any sum, unless commenced within one year after the injury, and more than five months elapse, after the assured is fully advised that the company refuses to pay or arbitrate the claim, before the-expiration of the year, a suit thereafter brought is barred by the-provision cited, unless it has been waived by the company;, citing McIntyre v. Insurance Co., 52 Mich. 189; Gould v.. Insurance Co., 90 Id. 302; Voorheis v. Society, 91 Id. 469;. Steele v. Insurance Co., 93 Id. 81.</p>

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

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

<p>Fraudulent conveyances — Husband and wife — Homestead,</p> <p>1. Where in a suit brought to set aside a deed from a husband to-his wife, charged to have been given in fraud of creditors, the-complainant relies upon the testimony of the husband and wife to mate out his case, he cannot discriminate between favorable- and unfavorable testimony, where it is all equally probable,, merely on suspicion that the unfavorable testimony is false;, citing Darling v. Hurst, 39 Mich. 765.</p> <p>2. A husband conveyed 80 acres of land, including his homestead,. to his wife, in payment of abona fide indebtedness amounting,, with the homestead exemption, to the value of the entire land, which conveyance is sustained as within the decision in Brig- ■ ham v. Fawcett, 42 Mich. 542. ,</p>

<p>Master and servant — Injury to employé — Contributory negligence— Defective appliances.</p> <p>1. Where an employé is familiar with a freight elevator, its construction, and use, and knows that, unless the brake is properly set and locked, a weight placed upon the car will cause it to descend, and that the brake must be set according to the weight of the material placed upon it for carriage, it is his duty to see that the brake is properly set and locked before using the elevator.</p> <p>2. The sudden breaking or giving way of a piece of machinery,. properly constructed, is not sufficient to justify the conclusion of negligence.</p>

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill to enforce a mechanic’s lien. Defendants Moshier appéal.</p> <p>Tbe facts ■are stated in tbe opinion.</p>

(Gartner, J.) Petition, by an beir alleged to have been unintentionally omitted from the will, for the assignment to her of an interest in the testator’s estate. The executor brings certiorari. The facts are stated in the opinion.

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

<p>Corporations — Fraud of director — Action at law by minority stockholder.</p> <p>1. The general rule is that a stockholder’s suit must be brought in a court of equity, but there are exceptions to this rule; citing Kimmell v. Geeting, 2 Grant, Cas. 125; Kimmel v. Stoner, IS Penn. St. 155.</p> <p>2. The right of the directors of a corporation to execute a mortgage to secure its indebtedness does not include the right of a member of that corporation, who is under obligations to carry the corporation paper, to introduce a dummy into the board of directors, and, confederating with him, direct the execution of a mortgage to another confederate, to whom the paper has been assigned for the purpose of avoiding these obligations, wrecking the corporation, and appropriating its assets; nor' does the right of a creditor to foreclose include the right of such confederate fraudulently to obtain the security for the purpose named, and to foreclose it in furtherance of that purpose.</p>

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

<p>Appeal from St. Joseph. (Loveridge, J.)</p> <p>Bill to set aside a discharge of mortgage. Complainant .appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Defective streets — Contributory negligence-—Driving on street railway track.</p> <p>'The primary purpose of a street-ear track is not travel by the general public, but use by the street-railway company, and a person •driving upon it must be deemed to have assumed the ordinary risks attending such use, one of which is held to be the dropping of a wheel into a rut outside the rail, worn by such frequent dropping of wheels.1</p>

<p>Sale — Contract—Authority of agent — Custom—Evidence—Damages.</p> <p>1. The procurement by a traveling agent of an order for goods, signed by the orderer, in which the prices and date of shipment are specified, supplemented by a paper signed by the agent and delivered to the orderer, acknowledging the ordering of the goods, describing them, and giving prices and time of shipment the same as in the order, creates • a contract for the sale of the goods.</p> <p>2. Parties dealing with an agent have a right to presume that his agency is general; citing Methuen Co. v. Hayes, 33 Me. 169; Trainer v. Morison, 78 Id. 160.</p> <p>3. The presumption is that one known to be an agent is acting within the scope of his authority; citing Inglish v. Ayer, 79 Mich. 516.</p> <p>4. Evidence of persons who have dealt with the principal through the agent is competent to show the character of the agency; citing Heffron v. Armsby, 61 Mich. 505; Haughton v. Maurer, 55 Id. 323; Gallinger v. Traffic Co., 67 Wis. 529.</p> <p>5. The authority of the agent must depend, so far as it involves the rights of innocent third persons who have relied thereon, upon the character bestowed, rather than the instructions given; citing 1 Amer. Lead. Cas. 567, 568; Griggs v. Selden, 58 Vt. 561; Insurance Co. v. Pierce, 75 111. 426; Packet Co. v. Parker, 59 Id. 23; Inglish v. Ayer, 79 Mich. 516.</p> <p>;G. Whatever attributes properly belong to the character bestowed upon an agent will be presumed to exist, and they cannot be cut off by private instructions of which those who deal with the agent are ignorant; and among those attributes is the power to do all that is usual and necessary to accomplish the object for which the agency was created; citing Mechem, Ag. § 347; Tobacco Co. v. Jenison, 48 Mich. 459, 462.</p> <p>7. Agents sent out by manufacturers to solicit orders are held out to the trade as having authority to act according to the general usage, practice, and course of business conducted by such manufacturers through such agents; and the question of what is usual or necessary to be done by such agents is ordinarily for the jury.</p> <p>■8. A general custom, so well settled and notorious as to raise the presumption that it was known to buyer and seller, cannot be rebutted by the testimony of the seller that he was not aware of its existence; distinguishing Pennell v. Transportation Co., 94 Mich. 247, where the custom sought to be shown was confined to a particular locality.</p> <p>:9. The general rule is that the measure of damages for the breach of a contract to sell and deliver personal property, when the purchase price has not been paid, is the difference between the contract price and the market price at the time and place of the promised delivery; citing Haskell v. Hunter, 23 Mich. 805; 2 Suth. Dam. 365.</p> <p>10. A question calling for the name of an association, to which the witness has referred in a letter written by him, does not necessarily call for the contents of a written instrument.</p>

<p>Fraudulent conveyances — Husband and wife — Evidence—Vendor's lien — Subrogation,</p> <p>1. An alleged course of dealing between a husband and wife, by which he becomes indebted to her for moneys advanced and loaned by her from time to time, the aggregate amount claimed to be due being the various sums originally advanced, with interest, without any deduction whatever on any account, is so against common experience as to call for a very careful scrutiny of the testimony by the court.</p> <p>2. The court is not precluded from construing the testimony of a husband and wife, when called as witnesses for the complainant, in a suit brought to set aside a deed executed by the husband to the wife as fraudulent as to his creditors.1</p> <p>3. In this cause the Court find that it was the intent of the husband to sell the land to his wife at an agreed price of $10,000, which it is found to have been worth, and that from mistake, or for other reason, she failed to pay him the full consideration price, his indebtedness to her, which was the sole consideration paid, being $2,169 less than the $10,000 and the value of certain personal property received by her; and the land is subjected to a vendor’s lien for $2,169 in favor of the husband, to which lien the complainant, who is an execution creditor of the husband, is subrogated.2</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Claim against the estate of an insolvent. Claimant brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Husband and wife — Joint lease — Right of action for trespass— Estoppel.</p> <p>1. The married woman’s act was passed for the protection of married women, and its purpose was to enlarge their rights, not to contract them, and it was not meant to deprive them of the right, either acting alone or jointly with others, of protecting their interests in property, either real or personal.</p> <p>2. A lessor who executes a lease to a husband and wife, and insists that the wife shall be a party thereto, and puts the lessees jointly into possession of the leased premises under the lease, is estopped from claiming that they have no right to join in a sujt against him when he unlawfully disturbs them in that possession, and they sustain damage by reason of such disturbance.1</p>

<p>Appeal from Wayne. (Gartner, J.)</p> <p>Bill to enforce a trust in lands.</p> <p>Tbe facts are stated in the opinion.</p>

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

Mandamus. Delator applied for mandamus to compel respondents to spread upon the assessment rolls of their several townships the county tax as apportioned for 1891. The facts are stated in the majority opinion.

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

<p>Burden of proof — Instructions to jury — Requests to charge — Evidence — Bill of particulars — Error withqut prejudice.</p> <p>1. Jurors generally understand that the burden of proof is upon the plaintiff in all cases, and it is reversible error to refuse to instruct them, in a case involving that question, when, and under what circumstances, the burden shifts to the defendant.</p> <p>2. While a party is ordinarily entitled to have his proper requests to charge given as proposed by him, or nearly so, yet, if they are substantially given in the general charge, even though in somewhat different language, error cannot be properly claimed.</p> <p>8. The admission in evidence of plaintiff’s bill cf particulars, against his objection, is held to have been non-prejudicial error, if error at all, the Court failing to see how such admission could have influenced the jury against the plaintiff, and the defendants having the right to read and comment upon the bill of particulars to the jury, or in their presence, even though not in evidence.</p>

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

<p>Banks and tanking — Overdrafts—Unauthorized payment — Partnership — Limitation upon authority of memters.</p> <p>1. Either member of a copartnership has the power to protect himself by stipulating that the other member shall not have authority to bind the firm by signing checks,' if notice is given to the bank which is the depository of the firm.</p> <p>2. Where, in a suit by a bank against copartners to recover for overdrafts paid on the defendants’ checks, it appears from the plaintiff’s own testimony that it had been instructed by the defendants to pay no checks not countersigned by their bookkeeper, and that the checks in suit were not so countersigned, the plaintiff, in order to recover, must show that the firm received the benefit of the money so paid, and it has the burden of making such showing.</p> <p>S. In a suit by a bank to recover for overdrafts paid on the defendants’ checks in violation of their instructions to the bank, the defendants are not estopped from relying upon such fact as a defense on the ground that it was their duty to examine the checks when returned to them, and notify the bank of its violation of said instructions.</p> <p>4. Testimony objected to as “incompetent” is properly admitted if competent for any purpose.</p> <p>5. One partner drew his individual check, payable to the order of the bookkeeper of the firm, for the firm. The bookkeeper indorsed the check, and deposited it to the credit of the firm in the bank where it kept its account. The check, not being paid, was charged back in the firm account. And it is held that recovery can be had on the check in a suit brought by the bank against the firm to recover for overdrafts paid on the firm checks, it having been sent as a firm asset, and received and deposited as such to the knowledge of the drawer; citing Bank v. Morgan, 117 U. S. 96.</p>

(Smith, J.) Kespondent was convicted in justice’s court of the crime of larceny, which conviction was affirmed in the circuit court on certiorari. Conviction reversed, and respondent ■discharged. The facts are stated in the opinion.

Quo warranto. Information in the nature of quo warranto to test the tight of respondent to hold the office of township clerk of the township of Ecorse, Wayne county. The facts are stated in the opinion.

<p>Pleading — Amendment—Privity of contract — Right of action.</p> <p>1. Where a widow sues in her ’ individual capacity to recover a demand belonging to her husband’s estate, but which she ■ claims as her own, evidence that she is administratrix and sole heir of the estate is properly excluded, no amendment being asked permitting her to maintain the suit as administratrix.</p> <p>8. A husband bought án interest in a celery farm, and agreed to live on and work the farm. The vendor agreed that, if the husband became unable to attend to the business before his interest was paid for, he would refund the money paid, and pay him a fair compensation for his services, and, in case of his death, he would make such payment to the vendee’s wife. The husband died while living on the farm, and the wife brought suit in her individual capacity to recover the moneys paid and for the services rendered by the husband. And it is held that the case comes within the general rule that a promise made by one person to another for the benefit of a third person, who is a stranger to the consideration, will not support an action by the latter; citing Pipp v. Reynolds, 20 Mich. 88; Sunt v. Strew, 39 Id. 368; Sidden v. Chappel, 48 Id. 527; Edwards v. Clement, 81 Id. 513.</p>

Mandamus. Eelator applied for mandamus to compel respondent to order a recount in certain precincts of Manistee county for the office of State Senator. The facts are stated in the opinion.

Mandamus. Belator applied for mandamus to compel respondent to reassemble, and make a full and detailed report of all ballots claimed to bave been improperly counted for his opponent, and of those in his favor rejected by said board, and for an order to count certain ballots and reject others. The facts are stated in the opinion.

Mandamus. Relator, who was candidate for sheriff of Manistee county at the last general election, applied for mandamus to compel respondent to reassemble, and to count certain ballots-for himself, and to reject others counted for his opponent.

Mandamus. Delator applied for 'mandamus to compel respondent to ■execute,and deliver certain bonds. The facts are stated in ■the opinion.

Mandamus. Relator applied for an order to show cause why mandamus should not issue compelling respondent to grant relator a recount of the ballots cast for Justice of the Supreme Court. The facts are stated in the opinion.

Mandamus. Delator applied for mandamus to coifipel respondent to vacate an order quashing an information. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to allow his claim for compensation as street commissioner* The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel a recount of the votes cast at the November election for the office of county treasurer. The facts are stated in the opinion.

Mandamus. Delator applied for mandamus to compel respondent to enter an order for the payment of certain witness fees. The facts are stated in the opinion.

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

<p>Nuisance — Landlord and tenant — Evidence.</p> <p>Where, for 10 or 11 years after the filling up of an old well under a dwelling-house, the premises are continuously occupied, and no complaint is made to the landlord that, through the settling of the filling and the accumulation of water, the well has become a cesspool, or that disagreeable odors exist on the premises, he is not chargeable with such negligent ignorance as is equivalent to actual knowledge of such facts.</p>

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

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

(Gartner, J) Appeal by an heir and residuary legatee from an order of the circuit court, affirming the order of the probate court, allowing a special administrator with general powers to mortgage real estate to pay a mortgage thereon. The facts are stated in the opinion.

<p>Highways — Establishment—Notice.</p> <p>Failure to serve notice of an application to lay out a highway upon the occupant, who is a tenant of the owner of a life-estate in the land through which the highway is to run, is fatal to the proceedings; citing 3 How. Stat. § 1298; Dixon v. Commissioner, 75 Mich. 225.1</p>

<p>Execution against the person — Bond for jail limits — Poor debtors' act.</p> <p>Chapter 309, How. Stat., which provides for the release of poor debtors from imprisonment, does not apply to a debtor who has given a bond for the jail limits; citing Miller v. Strabbing, 92 Mich. 300.</p>

<p>Contract of employment — Discharge for incompetency — Evidence— Tender.</p> <p>1. A contract by which an employer agreed to pay an employé, who entered his service on June 2, 1890, $35 per week, and in January, 1891, $100 as extra pay, and, furthermore, for the year 1891 said salary and 5 per cent, of the net profits of the department of the business in which he was' employed, is held to have covered all of the year 1891.</p> <p>2. Where an employé agrees that his work shall be done to the satisfaction of his employer, a letter received from a customer for whcm the employé has done a piece of work is not admissible to show the employer’s dissatisfaction, or that the work was not well done, in the absence of proof that a conversation occurred between the employer and employé about it.</p> <p>3. Evidence that the same fur cutters were employed while a furrier was working for the common employer as before, and that before his employment the work had been good, has no tendency to show that the furrier was an incompetent workman.</p> <p>4. A tender in bank notes is good, unless objected to on the ground that they are not legal tender; citing Eosdiek v. Van Susan, 31 Mich, 576; Lacy v. Wilson, 34 Id. 479; Beebe v. Knapp, 38 Id. 70.</p> <p>5. An impeaching question which fails to include the time and place of an alleged conversation, or the circumstances under which it took place, is insufficient, it not satisfactorily appearing that the witness identified the occasion.</p> <p>6. Where a person contracts to do work to the satisfaction of his employer, the employer is the judge, and the question of the reasonableness of his judgment is not for the jury.</p> <p>7. The employer is not obliged in such a case to take advantage of the first infraction of the contract.</p>

<p>Appeal from Bay. (Cobb, J.)</p> <p>Bill for specific performance of contract. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondent to reconvene, and direct the issuance to him of a certificate of election. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to reconvene, and canvass the votes cast for the office of Representative in Congress from the Fifth district according to the original returns, respondent having assumed, upon the application of relator’s Opponent, George F. Richardson, to recount the ballots under the provisions of Act No. 208, Laws of 1887. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order allowing an appeal from probate court •after the expiration of the statutory time therefor. The facts are stated in the opinion.

(Grove, J.) Bill to set aside a mortgage foreclosure, and for the discharge of the mortgage lien. Complainant appeals. The facts are stated in the opinion.

(Newton, J.) Complainant appeals from an order of the court below, denying her application for leave to record the decree herein upon the ground of a tender having been made of the amount due defendant thereunder. Reversed, and order entered in this Court for complainant. The facts are stated in the opinion.

<p>Intoxicating liquors — Sale to minor — Action by parent — Damages —Evidence—Remarks of court — Instructions.</p> <p>1. Proof of the furnishing of intoxicating liquors to a minor is sufficient to warrant a recovery by the father of at least $50 'damages, under section 20 of Act No. 313, Laws of 1887, ■which makes any person who sells or furnishes intoxicating .liquors to a minor liable for both actual and exemplary damages therefor, to the father or mother, in such sum, not less than $50 in each case, as the court or jury shall determine.1</p> <p>2. It is error to instruct the jury that, if they discredit one of the plaintiff’s witnesses, their verdict must be for the defendant, where there is other competent testimony before them to support the averments of the declaration.</p> <p>3. Counsel can be usually safely trusted to pass such criticisms upon witnesses as the occasion demands, and the circuit judge should avoid anything calculated to impress the jury with his own views as to the facts; citing Railroad Co. v. Kirkwood, 45 Mich. 51; Wright v. Towle, 67 Id. 255; Lovejoy v. Miehels, 88 Id. 15.</p> <p>4. Where the jury have apparently accepted and acted upon an erroneous instruction of the circuit judge given on his own motion, the error is none the less damaging because the instruction was accompanied by an opposing one, given on the request of one of the parties.</p>

<p>Justices' courts — Return of officer — Impeachment—Costs.</p> <p>1. A defendant in justice’s court may show by affidavit, in support of a motion to dismiss the suit, that the summons was served more than 12 days before the return-day.</p> <p>2. How. Stat. § 6940, which provides that “ whenever a judgment shall be rendered by any justice of the peace against any party, unless otherwise herein provided, it shall be with costs of suit,” applies to a judgment dismissing a suit upon motion of the defendant, supported by affidavit showing that the summons was served more than 12 days before the return-day.</p>

<p>Libel and slander — Words injurious to a person in his business— Pleading — Damages.</p> <p>1. Words, spoken or written, injurious to a person in his business, which are false and malicious, are actionable per se, and special damages need not be alleged or proved; citing Manufacturing Go. v. Perkins, 78 Mich. 1; Oliver v. Perkins, 92 Id. 304</p> <p>2. Plaintiffs’ declaration is held to state a cause of action for slander upon their business of keeping the stallion named therein for breeding purposes, for gain and reward.</p>

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

<p>Evidence — Value of household goods — Exemptions—Removal of debtor from State.</p> <p>1. Householders must be presumed to have such knowledge on the subject so as to render them competent to testify as to the. value of articles of household furniture owned by them, such as housekeepers are accustomed to buy; citing Printz v. People, 42 Mich. 144; Ritter v. Daniels, 47 Id. 617; Rowers v. Horen, 93 Id. 420; Tubbs v. Garrison, 68 Iowa, 44; Storage Co. v. Rogers, 52 N. W. Rep. 826.</p> <p>2. Temporary residence in another state, caused by the unlawful seizure of household goods, will not subject the goods to attachment at the suit of the party guilty of the original trespass, on the ground that the owner is a non-resident of this State, and not a householder therein.</p>

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

<p>Error to Gogebic. (Daboll, J.,' presiding.)</p> <p>Assumpsit. Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

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

<p>Certiorari to review proceedings organizing a township.</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal from Monroe. (Kinne, J.)</p> <p>Bill to set aside certain deeds. Complainant appeals.</p> <p>Tbe facts are stated in tbe opinion.</p>

Joseph. (Loveridge, J.) Appeal from the disallowance of a claim by commissioners on claims. Claimant brings error. The facts are stated in the opinion.

<p>Justices' courts — Docket entry — Jurisdiction—Return to certiorari.</p> <p>The docket entry of a justice of the peace of the date when a judgment was rendered cannot be changed by his return to a writ of certiorari, so as to show that he was out of the State on the day named, and that the judgment was actually rendered the day previous, when he was within his jurisdiction, and erroneously entered on his docket as of the following date; citing Weaver v. Lammon, 62 Mich. 366.1</p>

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

<p>Error to Lenawee. (Lane, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>Th& facts are stated in tbe opinion.</p>

<p>Bills and notes — Payment—Collateral security.</p> <p>This case involves the question whether stock was taken as collateral security to, or in payment of, the nctes sued upon. And it is held that the circuit judge erred in submitting the question to the jury, the evidence showing conclusively that the stock was taken as security, and not as payment.</p>

<p>Former decision — Res judicata.</p> <p>A rule of law, as laid down by the Court in the decision of a cause, is to be applied, upon the same state of facts, in all subsequent proceedings in that cause.</p>

<p>Deed — Construction—Bes judicata — Parol testimony — Assignment for benefit of creditors — Bona fide purchaser.</p> <p>1. The fact that the permanent and exclusive use of the land is essential to the enjoyment of a right granted therein will not operate to convey the fee.</p> <p>2. A deed by which the grantor, after reciting his ownership in fee Of a certain parcel of land, grants, bargains, sells, and quitclaims to the grantee, his heirs and assigns, forever, “ the right to build and use a dock upon the front of ” a certain portion of the land, only conveys the right to use the portion designated for the purpose mentioned in the granting clause.</p> <p>3. Parol testimony is admissible to show that the merits of the case were not decided in a former suit, pleaded in bar; citing Dyman v. Becannon, 29 Mich. 466; Franks v. Fecheimer, 44 Id. 177.</p> <p>4. A bona fide purchaser for value from the grantee of the assignee of an insolvent debtor, who executed his trust without filing the required statutory bond, and without objection from the assignor and the creditors on that ground, will be protected as against a deed executed by the assignor before the assignment, but not recorded until after the execution of the deed to the purchaser; citing Fuller v. Hasbrouclc, 46 Mich. 78; Butler v. Wendell, 57 Id. 62; Abbott v. Chaffee, 83 Id. 256.</p>

<p>Municipal corporations — Negligence—Construction of market building.</p> <p>Where a city erects a market building under a provision of its charter authorizing, but not requiring, it to erect and maintain market houses, it will be held to the same degree of care, not only in the construction, but in the plan of the construction itself, as a private corporation or an individual.</p>

<p>Evidence — Order of proof — Principal and agent — Negligence— Instructions to jury — Fellozv-servants.</p> <p>1. The error, if any, in admitting testimony of the statements of an agent as binding upon the principal, is cured, if the principal seeks to impeach such testimony by that of the agent, who denies that such statements were made.</p> <p>2. A charge from which the jury must have understood that, inasmuch as men of equal candor might differ on the subject as to whether the plaintiff was in the exercise of due care, the question being one where different views might reasonably be taken, it was the special province of the jury to determine it, as a question of fact, is not open to objection.</p> <p>3. Where a negligence case is tried upon the theory that the machinery by which plaintiff was injured was dangerous if uncovered, which fact the undisputed evidence tends to prove, the defendant cannot assign as error that the court in his charge assumed the existence of such fact, it being disputed for the first time by such assignment, except as questioned by a general request to direct a verdict for the defendant.</p> <p>4. A foreman in a mill, whose duty it is to see that certain machinery, which is dangerous to employés working around it if uncovered, is covered, is not a fellow-servant of such employés in that regard, but represents the master, who is liable to an employé who is injured by reason of the non-performance of said duty; citing SadowsM v. Car Co., 84 Mich. 100.</p>

<p>Error to Newaygo. (Palmer, J.)</p> <p>Trover.- Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Appeal from Newaygo. (Palmer, J.)</p> <p>Bill to enjoin foreclosure proceedings. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

(Brevoort, J.) ■ Bill to quiet title. Defendant Duncan McLeod appeals from an order denying his motion to set aside an order pro confesso. The facts are stated in the opinion, and in 86 Mich. 290.

Exceptions before judgment from Saginaw. (Gage, J.) Respondent was convicted of making an indecent assault upon the person of his daughter, a girl of nine years of age. The facts are stated in the opinion.

(Kinne, J.) Bespondent was convicted under 3 How. Stat. § 9314a, of carnally knowing a girl of tbe statutory age, theretofore chaste, with her consent, and sentenced to imprisonment in the State prison for five years. The facts are stated in the opinion.

(Buck, J.) Respondent was convicted of breaking and entering a flouring-mill in the night-time, with intent to commit the crime of larceny, and sentenced to imprisonment in the State prison for 5 years. The facts are stated in the opinion.

<p>Criminal law — Practice—Receiving stolen property — Punishment-Information — Restitution to owner.</p> <p>1. It is not necessary in an information for receiving stolen property to allege the time and place of the theft; citing People v. Goldberg, 39 Mich. 545; and, if it were, the objection should be taken by demurrer or motion to quash; citing People v. Schulte, 85 Mich. 114.</p> <p>2. How. Stat. § 9142, which provides for a greater maximiun punishment for receiving stolen property than for the larceny itself, does not authorize cruel and unusual punishment.</p> <p>3. A receiver of stolen property, in order to avoid imprisonment in the State prison under How. Stat. § 9143, must make a showing to the court before sentence that it is his first offense, and that he has made satisfaction to the injured party; citing People v. Bhibbard, 86 Mich. 440.</p>