Volume 97 — Michigan Reports

<p>Sale — Acceptance of offer — Completion of contract.</p> <p>Where am offer to purchase a horse at a price fixed by the owner is accepted by letter upon condition that, if the offerer takes him, the . sale must be closed and the horse taken away at once, the contract is not complete until the condition is accepted by the proposed purchaser.</p>

<p>Pleading — Variance—Rescission of contract — Evidence—Damages —Tender.</p> <p>1. - Where a contract as originally made is correctly set forth in the declaration, an objection- to its admission in evidence because of an alleged variance in a matter not material to the issue involved in the suit, evidenced by a subsequent agreement made and attached to the contract after its execution, is untenable.</p> <p>2. A recovery may be had on the common counts for money paid on a contract into which the plaintiff was induced to enter through the fraudulent representations of the defendant, and the contract is admissible in evidence thereunder; citing Johnson v. Insurance Co., 39 Mich. 33.</p> <p>3. An omnibus proposition, involving the introduction of competent and incompetent testimony,' and of testimony already given by the witness, is properly rejected.</p> <p>4. Where, in a suit involving the alleged fraud of the defendant, the measure of damages cannot be affected by his intent, he cannot be interrogated on that subject; citing Holcomb v. Noble, 69 Mich. 396; Totten v. Burhans, 91 Id. 495.</p> <p>o. An answer to an interrogatory, calling for the names of the prominent members of an association at a given time, that most of the state and city officers at a designated city were members,, and that there were other prominent members in various states, whose names the witness cannot give, is properly excluded, as not responsive to the question.</p> <p>6. Depositing goods in a railroad depot without marking them, or giving orders as to their disposition, is a sufficient tender, where the party to whom it is to be made has left the State, and is informed that the goods , are thus deposited, subject to his order.</p>

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

Exceptions before ¡judgment from Hillsdale. (Lane, J.) Respondent was convicted of a violation of the local option law. The facts are stated in the opinion.

<p>Banks and banking — Collection of draft - Negligence — Pleading— Evidence — Practice in Supreme Court — Costs.</p> <p>1, An allegation in a declaration in a suit against a bank for its alleged negligent failure to collect a draft drawn by the plaintiffs upon a debtor in favor of a collection agency, and by it indorsed to the bank for collection, that the plaintiffs drew the draft, delivered it to the collection agency, procured its indorsement, and caused it to be sent to the bank for collection, with a statement of plaintiffs’ account, is consistent with the claim that the, collection agency merely acted under the direction of the plaintiffs in the transaction'.</p> <p>2. If an agent employs a subagent for his' principal, and by his authority, expressed or implied, the subagent is the' agent of the principal, and directly responsible to the principal for his conduct.</p> <p>3. Where the evidence in a suit against a bank for its alleged negligent and fraudulent failure to collect a draft sent to it for collection shows that the bank, with full knowledge of the situation, and being personally interested to an extent involving the entire property of the debtor, disobeyed the instructions of the creditors to return the draft immediately if not paid, and, when directed to hand ilj to certain attorneys to be put in suit, neglected so to do until it had' secured a mortgage, which practically made such action useless, the case should be submitted to the jury, not only upon the question of negligence as commonly understood, i. e., carelessness, but also upon tbe theory that the delay was intentional, to enable the bank to secure to itself property which the creditors might otherwise have reached.</p> <p>4. Testimony showing the insolvency of the' debtor after the giving of the mortgage, or at least after the seizure of the property thereunder, four days later, and the return of, the draft unpaid, in the absence of any proof on the part of the bank that there was an opportunity to collect it, raises a sufficient presumption of loss to go to the jury, subject to the right of the defendant to show that the loss, if any, was due to other causes.</p> <p>5. The flies and records in attachment suits commenced against the debtor after the suit against the bank was instituted, in which bonds to pay any judgments which might be obtained were given, and the property thereby released, were admissible, as tending to rebut the claim of the inability of the plaintiffs to collect their account.</p> <p>6. An answer by the court to a question of the- jury whether they had any jurisdiction to decide whether or not the draft would have been paid if due diligence had been used in presenting it for payment, that they had nothing to do with that question, it being a side issue, is held to have been misleading.</p> <p>7. The only excuse for incorporating all of the testimony into a bill of exceptions is to enable the Court to determine whether or not the case should have been taken from the jury, and there are comparatively few cases where this question ought to arise.</p> <p>8. This case is held to be a proper one for the application of Supreme Court Rule No. • 59, which provides that whenever any record in a case at law is so prolix as to cause vexation by reason of the multiplicity of frivolous assignments, or by any other abuse, it shall be within the discretion of the Court to grant such costs against the prevailing party, who is responsible for such abuse, as may offset, in whole or in part, the costs to which he would otherwise be entitled; and the judgment is therefore reversed, but without costs.</p>

<p>Partnership — JRailroad companies — Garnishment by creditor of contractor — Labor claims.</p> <p>Grant and Long, JJ., favor an affirmance of the judgment below, in which result Montgomery, J., concurs, and hold:</p> <p>a — That there was evidence justifying a finding that the money sought to be reached by the garnishment proceedings belonged to a partnership of which the principal defendant was a member, and was not subject to garnishment for hi®, individual debt.</p> <p>b — That the garnishee defendant had the right, under How. Stat. § 3423, to withhold the money for the protection of the labor and material men who held claims against the partnership.</p>

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

(Stone, J.) Summary proceedings to recover the possession of land. Defendant brings error. The facts are stated, in the opinion.

(Daboll, J.) Bill to reach property alleged to have been conveyed by decedent in fraud of creditors. Defendant Breckenridge appeals. The facts are stated in the opinion.

<p>Appeal from Macomb. (Canfield, J.)</p> <p>Bill for divorce.</p> <p>The facts are stated in the opinion.</p>

<p>Err-or to Ionia. (Smith, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Sale — Husband and wife — Application of payments.</p> <p>1. A husband can maintain an action in-his own name to recover the value of personal property belonging in whole or in part to his wife, and sold by him to the defendant with her assent.</p> <p>2. Where, in a suit to recover the value of personal property sold to the defendant, the undisputed evidence shows an agreement by the plaintiff to apply upon said claim the value of personal property afterwards purchased by him of the defendant, the jury should be instructed to make such application.</p>

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

<p>Appeal from superior court of Grand Rapids. (Burlingame, J.)</p> <p>Bill to abate a nuisance. Complainant appeals.</p>

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

(Gartner, J.) Judgment creditor’s bill. Defendants appeal from an order appointing a receiver. The facts are stated in the opinion.

<p>Fraud — Evidence—Validity of deed.</p> <p>1. The fact that the execution of a deed is in line with a purpose previously entertained by the grantor, and that its effect is simply to carry out an agreement previously made between the parties, goes far towards negativing alleged fraud on the part of the grantee in securing its execution.</p> <p>2. It has been repeatedly held that the fact that the circuit judge, who saw the witnesses, reached a certain conclusion, is of importance in determining a question of fact in any case where he was afforded a better opportunity for judging of the credibility of the witnesses than that possessed by the appellate court.</p> <p>3. The defendant is held to have met the requirements of the rule which casts upon her the burden of showing her good faith, and to have established the validity of the deed sought to be set aside.</p>

<p>Alteration of graded school-district — Consent of trustees — Evidence. „</p> <p>1. The action of the board of school inspectors of a township in detaching territory from a graded school-district, and attaching it to another district, is void unless the inspectors have ' before them legal evidence .of the consent of a majority of the trustees of the graded school-district to such alteration.</p> <p>2. Such legal consent is not evidenced by a paper, signed by four of said trustees, consenting to the proposed alteration, but failing to show corporate action on their part; nor by a paper signed by the director, purporting to set forth the action taken at a meeting of the trustees; whereby such consent was given, but failing to show that it was given by a majority of said trustees.</p>

(Newton, J.) Appeal from the allowance of a claim in probate court. •Claimant brings error. The facts are stated in the opinion.

<p>Pleading — Breach of contract.</p> <p>Where suit is brought for the breach of a contract, which has been substantially modified by the subsequent agreements of the parties, such agreements should be set out in the declaration, to entitle the plaintiff: to recover special damages for such breach.1</p>

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

<p>Municipal corporations — Defective cross-walks — Liability for injury.</p> <p>1. Cities are not required to keep streets in a condition absolutely safe for travel.</p> <p>2. The construction of a cross-walk in accordance with the requirements of the locality, adopting the usual means, and those best adapted for the convenience of the public, cannot be said to be a negligent construction.</p> <p>3. A cross-walk must be reasonably safe in view of the purpose for which it is constructed, the necessary uses of the street, and all the varying conditions.</p>

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

<p>Error to Wayne., (Hosmer, J.)</p> <p>Case for libel. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 79 Mich, 266.</p>

<p>Appeal from Muskegon. (Dickerman, J.)</p> <p>Bill to dissolve a manufacturing corporation. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Exemptions — Action by wife — Instructions to jury.</p> <p>1. Where there is evidence tending to support the claim of a party litigant, the case should be submitted on his theory, as well as upon that of his opponent: citing Wildey v. Crane, 69 Mich. 17.</p> <p>2. A husband has the right to sell • or - mortgage a span of horses exempt from execution under How. Stat. § 7686, subd. 8, because necessary to enable him to carry on the business in which he is wholly or principally engaged, without the consent of his wife.1</p> <p>3. On the abandonment by a husband of the business in which he is wholly or principally engaged, the property exempt from execution because necessary to enable him to prosecute said business loses its exempt character, and the wife has no interest in it which entitles her to maintain an action for its-possession or value, and possession by the defendant is a complete defense to such an action.1</p>

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

(Hosmer, J.) Assumpsit. Defendant brings error. The-facts are stated in the opinion, and in the former reports of the case.

<p>Sale — Acceptance—Trial of machinery — Practice in circuit court— Costs on appeal.</p> <p>1. Where an objection to a question is sustained, counsel should not be permitted, under objection, to state to the jury what he proposes to prove; citing Clink v. Gunn, 90 Mich. 140; Scripps v. Reilly, 38 Id. 14; Porter v. Throop, 47 Id. 313.</p> <p>2. Where a vendee is given a definite, period in which to test a machine in order to determine whether or not he will accept it, he may at the expiration of that time, or within a reasonable time thereafter, avoid liability by notifying the vendor that he declines to accept the machine, and an acceptance will- be implied from his failure to give such notice. ,</p> <p>3. Where the acceptance of a proposition modifying a prior agreement is disputed, the question of its acceptance is one of fact for the jury.</p> <p>4. Where a vendee agrees to commence the trial of a machine, to determine whether or not he will accept it, “ as soon as possible,” a reasonable- time is meant, having regal'd to the vendee’s situation at the time, and the facilities and material he has to-commence the test; but error cannot be assigned upon the failure of the trial judge so to define the phrase to the jury, and upon his charging them in the language of the agreement, where his attention was not challenged to the subject by the appellant’s counsel, and'a more specific instruction asked for.</p> <p>5. Only one-half of the cost of printing the record is allowed, on account of its unnecessary length, containing, as it does, the entire testimony, including the remarks of counsel and court during the trial.</p>

<p>Error to Oakland. (Moore, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The faots are stated in the opinion.</p>

(Reilly, J.) Bill to enforce a mechanic's lien. Complainant, and defendants Miller and Chamberlain, appeal. The facts are stated -in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to accept relator's bond and the tax for selling intoxicating liquors, and to issue the statutory receipt and card. The-facts are stated in the opinion.

Mandamus. Relators Coffin and Burnett applied for mandamus to compel the first-named respondents to provide means for carrying out the provisions of Act No. 138, Laws of 1893; and relators Kennedy and Potter, to restrain the registration of women thereunder.

Mandamus. Relator applied for mandamus to compel ilie respondent to approve his bond as city counselor. The facts are stated in the opinion.

Mandanms. Relator applied for mandamus to compel respondent to vacate an order granting a rehearing. The facts are stated in the opinion.

(Stone, J.) Bill to restrain defendants from removing or interfering with, certain property. Complainants appeal. The facts are stated in the opinion.

<p>Municipal corporations — Taxes—Assessment roll — Renewal of 'warrant — Evidence—Action to recover tax paid— Overvaluation of property.</p> <p>1. A village council has power under How. Stat. § 2937 (which provides that the president of the village may renew the warrant to the assessment roll from time to time, by order of the council, and for such time as the council shall direct), to order such renewal on the day after the expiration of the time to which the warrant has been renewed, and within the week limited by How:. Stat. § 2941, during which it is the duty of the marshal to make his return to the village treasurer, the warrant and roll being in his hands at the time the latter order of renewal is made.</p> <p>2. "Where under the order of the village council directing the renewal of the warrant to the assessment roll to November 7, 1890, the president of the village, by mistake, inserts October 7, 1890, in his order of renewal, the village may, in a suit brought to recover taxes paid under protest, show by the proceedings of the council the time to which the renewal was in fact made.</p> <p>3. A mill and the adjoining lumber, in the actual occupancy and possession of a corporation, is properly assessed to it, and the tax levied by virtue of such assessment is not void because the corporation is designated on the assessment roll, in the column headed “Owner or Occupant,” by the initial letters of its corporate name.1</p> <p>4 A tax-payer in a village, who appears before the board of review and has a hearing upon his objections to the amount of his assessment, cannot, in a suit to recover the tax, which he paid under protest, raise the objection that the assessor failed to require the tax-payers to make sworn statements of their taxable property, as provided by the general tax law of the State; it appealing that the act under which the assessment was made does not require the assessor to provide himself with blanks for that purpose, nor that they shall be furnished him by the Auditor General or county treasurer, and it not appearing that the plaintiff was in any way injured by the failure of the assessor to require such statements to' be made. 2</p> <p>5. The court is held to have left the question fully to the jury to determine whether there was or was not an overvaluation o£ plaintiff's property by the assessing officer and board of review for the purpose of taxation, and to have directed the jury in that regard substantially as requested by plaintiff’s counsel.3</p>

<p>Negligence — Dangerous premises — Invitation—license—Liability of owner</p> <p>The plaintiff, a teamster, after delivering some merchandise at the back door of defendants’ store, started towards the desk near the middle of the room to get a'receipt, and was injured by falling through a trap-door into the cellar. The evidence did not tend to show an invitation, express or implied, to pass to the desk, there being no act which led the plaintiff to believe that'defendants intended him to go there, and no evidence of acquiescence in such practice: but it did appear that the intention was that the goods should be received by defendants at the door, and there be examined and receipted for, and that the practice was for the truckmen to make their presence known by calling, when no one was at the door. And it is held that the court should have directed a verdict in favor of the defendants.</p>

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

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

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

. (Buck, J., presiding.) Trover. Defendant brings error. On February 21, 1885, the plaintiffs- and one Schultz entered into the following contract: “Articles of agreement, made this 21st day of February, A. D. 1885, between John Schmitz, of the township of Saugatuck, Allegan county, Michigan, of the first part, and John W. Dickey and Addison Lurvey, of Douglas, county and State aforesaid, of the second part, witnessetli as follows: “ The said party of the first part is the…

<p>EVror to Shiawassee. (Newton, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kent. (Grove,. J.)</p> <p>Bill to set aside a sale on execution. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

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

(Person, J.-.) Bill for the specific performance of a contract and the construction of a will. Complainant appeals. The facts are stated in the opinion.

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

<p>Corporations — Creditor's bill.</p> <p>Complainant, a judgment creditor of the defendant corporation, filed a bill to reach certain assets alleged to belong to the corporation, and to have been transferred to the defendant Leitelt, who was its president, and to have been wrongfully disposed of by him. And on a review of the evidence it is held that there is nothing in the case to move the conscience of a court of equity in behalf of complainant. No questions of law are involved.</p>

<p>Error to Kent.. (Grove, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>Tire facts are stated in the opinion.</p>

<p>Fire insurance— Warranty — Keeping watchman.</p> <p>An insurance policy upon a saw-mill contained a warranty that a watchman should be employed about the premises night and t day. The assured was operating another mill near by, there being an open space between the two mills of from 435 to 450 feet, which was used for piling lumber. The foreman of the assured, who had charge of piling the lumber, testified that he watched the miE every day down to the time of the fire, and that the men in the yard under him also watched it. And it is held that if it had been the intention of the parties to employ a watchman on the premises, or to keep him constantly in the mill, night and day, they would so have stipulated in the poEcy, and that there was some testimony to go to the jury upon the question whether the warranty was compHed with.</p>

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

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

<p>Equity pleading — Decree—Waste—Injunction—Trust.</p> <p>1. Where the facts upon which equitable relief is granted are sufficient to justify the decree, it is immaterial that the bill asserts a broader claim than the facts, which are also disclosed in the bill, will justify.</p> <p>2. The cutting of timber not for the purpose of husbandry or clearing, and in denial of the rights of the complainants in a bill filed to restrain the commission of waste on the land, constitutes waste, and is sufficient in itself, in the absence of denial, to justify the inference that the defendant is liable to continue to commit waste, and to authorize the issuance of an injunction to restrain him from so doing.</p> <p>3. Whether a deed to a trustee for the purpose of satisfying the claims of creditors be treated as an irrevocable power to convey and dispose of the land for the purposes of the trust, or as a mortgage, requiring foreclosure proceedings before sale, the grantor and those claiming under him have the right to redeem, and to a reconveyance, before the execution of the trust, upon payment of said claims.</p>

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

(Reilly, J.) Bill to enjoin the payment or negotiation of certain checks, and to compel their surrender to complainant. Defendants Harmon, Potter, Clinton, and Parent appeal. The facts are stated in the opinions.

<p>Sale — Breach of contract — Damages,</p> <p>1. The general rule that the measure of damages for the* breach of a contract to sell and deliver personal property is the difference between the contract price, and the market price at the time and place- of the promised delivery, does not apply -where the article contracted for is not kept for sale in the market, or is prepared for a special purpose.1</p> <p>2. Lumber of a particular grade, cut into strips for a special purpose, cannot be said to have a market price; but its value ought not to be determined by taking lumber of a lower grade, and rejecting- as waste all which does not conform to the required grade.</p> <p>3. The measure of damages for the breach of a contract to sell and deliver 500,000 feet of rock elm strips in sets, consisting of a given number of pieces of prescribed sizes, lengths, and quality, from which to manufacture buggy shafts, is the difference between the contract price and the value of the material not' supplied, the latter to be arrived at, where no substitute was procured, through persons qualified to judge, by determining what strips similar in kind, quality, and amount, cut from the log, would have cost of would have been worth at that time and place.</p>

<p>Fraudulent conveyances — Action by administrator — Judgment— Interest — Practice in Supreme Court.</p> <p>1. An administrator cannot, in an action under How. Stat. § 5884, to recover the value, of goods conveyed by the decedent in fraud of creditors, recover interest thereon from the time of such transfer.</p> <p>2. Where interest is erroneously included in a verdict, and ,the extent to which the error has increased the verdict is ascertainable by computation, the rights of the defendant can be fully protected by an abatement of that sum from the judgment, and the plaintiff will be given leave to remit such , excess, upon which the judgment, as thus corrected, will be affirmed.</p>

Mandamus. Relator applied for mandamus to compel respondent to entertain a complaint and issue a warrant .for an alleged violation of the election law. The facts are stated in the majority opinion.

(Reilly, J.) Appeal by a widow from an order of tbe circuit court reversing an order of the probate court which allowed her dower in certain lands sold by her husband on contract, and not folly paid for during his life-time. The facts are stated in the opinion.

<p>Board of supervisors — Compensation of members.</p> <p>1. How. Slat. § 502, instead of prohibiting a supervisor from receiving pay as a member of a committee while the board of supervisors is in session, fixes the amount of compensation for committee work while the board is actually in session, and prohibits the taking of compensation for such work while the board is not in session.</p> <p>2. The fact that in many of the counties the boards of supervisors have construed this statute as permitting the appointment of committees to act outside of the sessions of the board, and the allowance of compensation for services thus rendered, cannot affect the question of its true construction, as announced in Swing v. Ainger, 96 Mich. 587, which is affirmed.</p>

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

<p>Bills and notes — Possession—Presumption of ownership — Gift— Evidence.</p> <p>1. In trover against an administrator for the conversion of notes claimed to have been given to the plaintiff by the payee shortly before his death, it appeared that the plaintiff had been the housekeeper of the payee for some months prior to his death, he being a childless -widower, and that the notes were found in her hand-satchel in a bureau drawer in the house of the payee, unindorsed by him. And it is held that the title to the notes will be presumed to have remained in the payee, and that a contrary presumption does not arise from . the possession of the plaintiff, she being the proper custodian of the property of the deceased until an administrator was appointed.</p> <p>2. The failure of the plaintiff to assert her ownership of the notes at the time she executed a sworn petition for the appointment of defendant as special administrator, which stated that the notes belonged to the estate, and her statement when the will of the deceased was read, which gave her ample compensation for her services, that it was not what she had expected, and the fact that the deceased, a business man, made no transfer to her of the notes by indorsement or other writing, are held conclusive evidence against plaintiff’s claim.</p>

<p>Garnishment — Payment—Release of debtor.</p> <p>1. If a garnishee wrongfully assumes to be the debtor of the principal defendant, the proceeding will not protect him against his true creditor.</p> <p>So held, where, after notice of the assignment of the claim, the debtor, who was garnished as the debtor of the assignor, paid the debt to the garnishee plaintiff without waiting for the issuance of a summons to show cause, claiming to be in doubt as to the fact of the assignment.</p> <p>2. The proceeding in garnishment being absolutely void, it was immaterial whether notice of the assignment had been given or not; and the mental confusion of the debtor as to the ownership of the claim did not justify him in paying over the money in a void proceeding.1</p>

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

<p>Contract — Time as of essence — Specific performance.</p> <p>"Where the parties to a land contract have not for several years, during which the agreed payments were not made, treated time as of its essence, and the vendor seems to have regarded the matter as an investment, upon which she was satisfied to receive her • interest, a specific performance on her part will be decreed upon payment of the amount due on the contract.</p>

<p> Taxes. </p> <p>These four cases are ruled by Chamberlain v. City of St. Ignace, 92 Mich. 332.</p>

<p>Banks and banking — Garnishment of account — Liability.</p> <p>Where the nominal credit of a depositor at the time Ms hank is garnished as his debtor is more than offset by non-accepted drafts, afterwards returned, which had been drawn by Mm upon his customers, and credited in Ms account, under an arrangement, made when the account was opened, by which the bank was authorized to charge back such of the drafts as were not accepted, and upon Ms agreement that a sum in excess of said nominal credit should at all times be kept on deposit to cover the liability on such non-accepted drafts, the bank cannot be charged as garnishee.</p>

<p>Life insurance — Lapse of policy — Authority of agent — Waiver.</p> <p>The acceptance of a life-insurance policy with knowledge that the agents of' the company are prohibited from waiving forfeitures, and from receiving premiums on lapsed policies, except in connection with an application for revival, which should not become operative until officially accepted by the company at its home office, estops the beneficiary from setting up or relying upon any action on the part of an agent in opposition to such prohibitions.</p>

<p>Error to Sanilac. (Beach, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>The facts are stated in the opinion, and in 84 Mich. 324.</p>

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

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

<p>Pleading — Bill of particulars — Action for goods sold — Statute of frauds — Evidence.</p> <p>1. Where itemized statements of goods sold, showing the balances claimed to be due, are presented monthly, and allowed to pass unquestioned, satisfaction with the same, and acquiescence in the claimed balances, will be implied.</p> <p>2. It is competent for a plaintiff to show his inability to furnish a bill of the items of his demand, and, having done so, it would be a reproach upon the law to deny him relief upon the technical ground that the bill furnished is not specific.</p> <p>3. Where, on the trial of an appeal case, objection is made to the plaintiff’s bill of particulars filed in the circuit court as not sufficiently specific as to items, it is competent, for the plaintiff ' to show that he filed an itemized bill in justice’s court, which is not returned by the justice, nor shown by the return to have been demanded.</p> <p>4. It is competent for the plaintiff, in a suit brought to recover for goods which he claims to have furnished a third party upon the agreement of the defendant to pay for the same, to testify that he never presented a bill to the third party for the goods, or made any claim against him, and that he did not look to him, or hold him responsible in any way, for the goods, as tending to exclude any claim that might be made by the defendant under the statute of frauds.</p> <p>5. Testimony that the defendant gave the third party a pass-book in which to have the purchases from the plaintiff entered, which book bore defendant’s name, is admissible as tending to corroborate plaintiff in the statement that the credit was to be given to the defendant.</p>

<p>Railroad companies — Ejection of passenger — Failure to produce ticket — Damages.</p> <p>1. The rule requiring the production of a ticket as evidence of the right of a passenger to ride upon a railroad train is reasonable, and one with which the traveling public is familiar.</p> <p>2. Plaintiff purchased a ticket entitling him to transportation over defendant’s road from Detroit, via Port Huron, to Trenton, Canada, and return. The conductor of the Detroit and Port Huron division took up the going portion of the ticket, but failed to give plaintiff a check as evidence of his right to ride from Port Huron to Trenton, as required by the rules of the company. Plaintiff refused to pay his fare over the Port Huron and Trenton division. The conductor refused to recognize the return coupon as evidence of such payment, and ejected plaintiff from the train without unnecessary force, and plaintiff sued defendant in case for such ejection. And it is held that it was the duty of plaintiff to leave the train peaceably or pay his fare, and seek his remedy for damages resulting from either necessity as the situation at the time required; and that a recovery was properly limited to the value of the ticket of which he had been wrongfully deprived by the first conductor, it appearing that plaintiff had 'the money with which to pay his fare, and afterwards paid it, and completed his journey by a later train.</p>

<p>Error to Gogebic. (Haire, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinion, and in 76 Mich. 84.</p>

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

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

<p>Municipal corporations — Defective bridge — Injury to traveler— Proximate cause — Evidence—Pleading—Damages—</p> <p> Error without prejudice. </p> <p>1. Where the owner of a horse is injured by the struggles of the animal in attempting to extricate itself from a hole in a township bridge into which it has stepped, the negligence of the township in failing to keep the bridge in repair is the proximate cause of the injury.1</p> <p>2. Proximity of residence on the part of a highway commissioner to a defective bridge is evidence tending to charge the township with notice of its dangerous condition.</p> <p>3. Damages for permanent injury to a horse, as well as for the value of its services while disabled, are recoverable under a declaration averring that the horse was greatly injured and damaged, and became sick, bruised, lame, and injured,.and so remained from thence hitherto, a period of two months, during which time the plaintiff was deprived of its use, to his damage $85.1</p> <p>4. An averment in a declaration in a negligence case that the plaintiff, by reason of the injuries alleged to have been received, became bruised, sick, lame, disordered, and permanently-injured and disabled in his left arm and shoulder, so that he was confined to his house, under the care of a physician, for six weeks, and suffered great pain, and was unable to attend to his accustomed business during all that time, and has lost the use of his said arm and shoulder, and is permanently disabled in the same, is sufficient to support a verdict for injury to the left arm and shoulder, although it does not appear, as alleged in another count, that the arm or wrist was broken or the shoulder dislocated.</p> <p>5. It is error to permit the wife of a plaintiff in a negligence case, who was injured, as he claims, by reason of the struggles of his horse in attempting to extricate itself from a hole in a bridge into which it h^d stepped, to testify that after her husband had released the horse, and started to drive home, he stated to her that the horse had hurt his arm, and that he could not hold the lines in his hand; such statement being hearsay testimony, and not a part of the res gestee, nor an expression of pain or anguish occurring at the time of the injury.</p> <p>6. If the testimony of the plaintiff to the same specific injury is undisputed, the admission of such statement in evidence is non-prejudicial error.</p>

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

<p>Certiorari to review-proceedings resulting in the transfer •of a suit.</p> <p>The facts are stated in the opinion.</p>

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

(Haire, J., presiding.) Bill in aid of execution. Defendants appeal. The facts are sufficiently stated in the opinion. Dunstan & Hanchette, for complainants.

<p>Case made from Bay. (Cobb, J.)</p> <p>Replevin. Defendant assigns error.</p> <p>The facts are stated in 92 Mich. 510.</p>

<p>Corporations — Capital stock — Assessments against stockholders.</p> <p>1. The decisions in Plank Road Co. v. Millerd, 3 Mich. 91; Carson v. Mining Co., 5 Id. 288; and Mining Co. v. Bagley, 14 Id. 501,— settle the rule in this State that the stockholders of a mining and smelting corporation are liable for such assessments upon their stock as may be made to pay the bona fide debts and running expenses of the corporation.</p> <p>2. The sole question presented by the record is the right to enforce such assessment by a personal judgment or decree against the stockholder, which right is affirmed.</p>

<p>Appeal from Wayne. (Gartner, J.)</p> <p>Bill to remove a cloud from title. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relators applied for mandamus to compel the assessment of damages in an action brought by them. The facts are stated in the opinion.

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

<p>Corporations — False representations — Evidence—Notice—Laches.</p> <p>1. Where in a suit against a corporation to recover moneys which the plaintiff claims he was induced to invest in its capital stock on the false representations of its officers that the corporation was in a prosperous condition, earning from 30 to 40 per cent, dividends, and that $300,000 had been paid in and the stock taken, and they were going to issue more stock in order to let friends have some, it appears that the plaintiff received a letter from one of the officers a few days before his purchase, and soon after the representations are alleged to have been made, stating that the profits of the corporation for the current<year would be at least 30 per cent., divided among the present shareholders, and applied on their stock, bringing it up to par value with what they had already paid in in cash, the jury are properly instructed that the letter was notice to the plaintiff that the $300,000 had not been paid in, and that the application of the previous year’s dividends would be required to make the stock par.</p> <p>3. Testimony showing the making of like representations to other parties by the same officers as to the amount of stock paid in, and at about the same time, is immaterial in view of such actual notice to the plaintiff, even if competent under the circumstances.</p> <p>3. It appeared that the plaintiff was repeatedly at the city where-the home office of the corporation was located, during the two years next after his purchase, to see about dividends, but received none, and that none were ever p*aid after his purchase, yet he delayed bringing suit for 17 years. And it is. held that, being a stockholder, plaintiff had ample opportunity to examine the books of the corporation, and could have insisted upon his right to such examination, and that there was not such a concealment of the fraud, if one had been pei-petrated,. as excused the delay in bringing the suit.</p> <p>4. The question whether the action can be maintained against the corporation upon false, representations made by its officers is not discussed, it having been left to the jury, and the defendant not being injured by the verdict.1</p>

(Burlingame, J.) Respondent was convicted of the crime of rape, and sentenced to State prison for 30 years. The facts are stated in the opinion.

(Smith, J.) Respondent was convicted of robbery from the person, and sentenced to State prison for two years and six months. The facts are stated in the opinion.

Mandamus. Relator was sued in justice’s court in an action of assumpsit, and from a judgment in bis favor for costs plaintiffs appealed to the circuit, and upon' tbe trial voluntarily submitted to a nonsuit, whereupon a judgment for costs was entered in favor of relator. The costs, as taxed by the clerk, included a trial fee of $15. Plaintiffs appealed from the taxation, claiming this item to be excessive and unauthorized, and respondent struck the same from the taxed bill.

<p>Fire insurance — Terms of contract — Witness—Impeachment— Charge to jury. .</p> <p>1. The opinions in Michigan Pipe Co. v. Insurance Co., 92 Mich. 482, dispose of several of the questions raised in this case.</p> <p>2. The contention of the defendant that there is no evidence to support a contract of insurance to begin at a future date is without force, the testimony tending to show that plaintiff’s agent ordered the agent who wrote -the policy sued upon to write up an aggregate amount of insurance, no particular -companies being mentioned, and was informed by the agent that he desired to place the insurance in companies which he represented; that some of his lines' were full, but that some of the existing policies would expire at a given date, and that he expected to secure the agency for- .other companies, and to place a portion of the insurance in said companies; and that, on account of its being so near the end of the month (two days), he wished to get the insurance, into his next month’s reports, and would not write any until the first of the month; which insurance was written on the 2d, 3d, and 5th of said month.</p> <p>3. Neither is the contention tenable that the rate of. premium and the term of. the policy were not fixed, it appearing that the rate was a fixed annual rate for that class of property, the location and description of which was given, and that plaintiff’s agent knew the rate of premium, and that the usual term was one year, and that he had for five years prior to that time dealt with the insurance agent for the parties interested in the plaintiff company, and had insured with him for them to the extent of from $50,000 to $100,000 annually.</p> <p>4. The credit of a witness may be impeached by exhibiting the .improbabilities of his story on cross-examination, or by showing conduct inconsistent therewith, or by showing statements made by the witness inconsistent with his testimony, or by direct testimony affecting his reputation for veracity.</p> <p>5. Where a party avails himself of all of these modes of impeachment, the credit to be given to the' witness depends upon a consideration of the entire testimony on that subject; and it is error to instruct the jury that if, after considering the testimony of the impeaching witnesses, and of those who have been brought to contradict them, they do not believe that the general reputation of the witness in the community is that of an untruthful man, they should dismiss the whole attempted impeachment from their minds.</p>

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

(Daboll, J.) Bill to determine the amount upon which a dividend shall be paid to the several creditors secured by trust mortgages. Defendants Pratt and American Wheel Company appeal. The facts are stated in the opinion.

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

<p>Motion by plaintiff for rehearing of case reported in 96 Mich. 558.</p>

<p>Husband and wife — Agency—Payments—Application.</p> <p>1. " Where, in a chancery case, a statement and discussion of the facts will be of no benefit as a guide in future cases, it is unnecessary thus to amplify the record.</p> <p>2. Where in a suit involving the validity of a chattel mortgage executed by a wife pursuant to negotiations by her husband as her agent, as‘claimed by the mortgagees, it appears that at the time of the execution of the mortgage she was acting for herself, and had full information, what her husband had previously done becomes immaterial, and the question of his agency is of no consequence.</p> <p>3. Under the facts in these cases, the complainants had the right to apply the money received on the foreclosure of their chattel mortgage, first, in payment of the debts alone secured by the chattel mortgage, and, second, upon debts otherwise secured.</p>

<p>Sale — Construction of contract — Principal and agent.</p> <p>Plaintiff appointed defendant its agent for the sale of its machines, to be shipped to him on his order at stated prices. Defendant agreed to pay for the machines' ordered in four months, and give his notes for the same if requested.. And it is held that the contract was one of purchase, and not of agency, as to the goods ordered, notwithstanding the contract contained other undertakings relating to the agency.</p>

(Gartner, J.) Appeal from the allowance of a claim by commissioners in probate court. The estate brings error. The facts are stated in the opinion.

(Gartner, J.) Appeal from the allowance of a claim by commissioners in probate court. The estate brings error. The facts are stated in the opinion.

Exceptions before judgment from superior court of Grand Rapids. (Burlingame, J.) Respondent was convicted of keeping his saloon open after hours. The facts are stated in the opinion.

<p>Municipal corporations — Taxes—Action to collect.</p> <p>1. How. Stat. § 2939, which provides that, in case any person shall refuse to pay any (village) tax imposed upon his real or personal property, the marshal shall levy the same by distress and sale of the goods and chattels of such' person, and that for such purpose, and for the collection of such tax, the marshal may bring suit therefor, confers a right of action for the collection of real . and personal taxes during the lifetime of the tax warrant.</p> <p>2. How. Stat. § 2952, which provides that, whenever any tax assessed upon personal property in any village shall be returned by the marshal for non-payment, he may bring suit in the name of the village for the recovery thereof against the person or persons against whom the tax is assessed, is intended to authorize actions after the return of the tax warrant, and applies only to personal taxes.</p>

Mandamus. Relator applied for mandamus to compel respondent to set aside, an order restraining the issuance of orders, warrants, etc. The facts are stated in the opinion.

<p>Fraud — Question for jury — Landlord and tenant — Sale of growing crop — Statute of frauds — Parol lease — Tenancy at will.</p> <p>1. Where the alleged fraudulent intent of a vendor is not admitted, nor deducible from conceded facts, the question of its existence is one of fact for the jury, under How. Stat. § 6206.</p> <p>2. Where a tenant, while in possession of land under a lease which gives him the right to reap as well as to sow a crop of wheat, sells the crop before default or forfeiture, his subsequent default will not defeat the title of the vendee; citing Nye v. Patterson, 35 Mich. 413; Dayton v. Vandoozer, 39 Id. 749; Miller v. Havens, 51 Id. 482.</p> <p>3. The right to enter and reap a crop of wheat after the expiration of a parol lease of land is an interest in land.</p> <p>4. A parol lease of land for one year, coupled with a verbal agreement that the tenant may sow the land to wheat, will not give him the right, to re-enter after the expiration of the year, and harvest the wheat.</p>

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

Mandamus. Relator applied for mandamus to compel respondent to vacate an order dismissing an appeal from probate court. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to vacate an order setting aside a default. The facts are stated in the opinion.

<p>Carriers — Ejection of passenger — Fragment of ticket.</p> <p>A passenger, on paying the required fare, was entitled to transportation over the lines of two street railway companies. For the purposes of this traffic, a ticket of a peculiar color and print was used, consisting of two parts, separated by a perforated line. The lower part contained the evidence of the passenger’s right to ride over the road of the company to which the fare was paid, and it was the duty of its conductor to deliver to the passenger the upper part of the ticket, which contained the evidence of his right to ride over the other road. By mistake, the .conductor so separated the parts as to leave a' portion of the upper part upon the lower part of the ticket, and delivered the remainder of the upper part of the ticket to the passenger. The conductor on the other road refused to accept ’ this fragment, and, on the refusal of the passenger to pay his fare, ejected him from the car. And it is held, as a matter of law, that the conductor was bound to know that the fragment was a portion of a genuino ticket used upon his line, which, if whole, would have entitled the'passenger to a ride over said line.1</p>

Information in the nature of a quo warranto to test the title of respondent to the office of clerk of Wayne county. The facts are stated in the opinion.

<p>Mates of deceased persons — Claims—Action against heir.</p> <p>1. How. Stat. chap. 229, provides the only methods by which claims against the estates of deceased persons, and the expenses of administration, can be allowed and collected.</p> <p>2. Purchasers of land from heirs before the estate is closed take it subject to the debts and expenses of administration, and the heirs are not liable to refund the money received on such sales to satisfy such claims.</p>

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

Complainant applied for a mandamus to compel Judge Frazer, of the Wayne circuit, to vacate an order dissolving a temporary injunction obtained against defendants. Relator subsequently applied for an order of contempt for the violation of said restraining order. Respondents discharged upon the hearing.

Mandamus. Relator applied for mandamus to compel the respondent to vacate an order fixing a time for hearing a motion to-ascertain the amount due a defendant in an action of ejectment for taxes and improvements, the tax deed under which he claimed the land having been adjudged invalid in said action. The facts are stated in the opinion.

Petition for leave to file an information in the nature of a quo warranto to ascertain by what authority respondent claims the right to maintain its road and collect tolls thereon. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to spread certain school taxes upon his roll. The facts are stated in the opinion.

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

Mandamus. Relators, the defendants in a judgment creditor’s bill, applied for mandamus to'compel the respondents to vacate orders appointing a receiver, and requiring them to appear before a circuit court commissioner for examination. For a full statement .of facts, see Dutton v. Thomas, 97 Mich. 93.

<p>Voluntary associations — Election of officers — Notice—Term of office.</p> <p>An election of officers by a board of directors of an unincorporated organization, held before the terms of office of the members of the board have commenced, and without giving notice to all of the directors, is illegal.</p>

Mandamus. Section 4, chap. 3, of the revised charter of the city of •Jackson (Act No. 414, Local Acts of 1889), provides that “all appointments to office shall be made only upon the nomination of the mayor, by and with the concurrence of a majority of the members elect of the council.” Belator; .a member of the council, was nominated by the mayor as .a member of the board of public works of the city, under -section 1, chap. 25, of the charter.

Mandamus. Relators, who were committed for trial upon a charge of murder, applied fon mandamus to compel the respondent sheriff to bring them before a certain circuit court commissioner, to the end that they might be admitted to bail.

<p>Habeas corpus proceedings.</p> <p>The petitioner was discharged on habeas corpus from imprisonment under a commitment issued by a justice of the peace on his failure to comply with an order to furnish sureties to keep the peace. . The order of discharge was made without prejudice to the right of the justice to issue a second commitment, if he had the statutory right so to do; and, before the expiration of the 10 days allowed for appeal, the justice issued a second commitment, upon which petitioner was arrested and imprisoned. A second writ of habeas corpus was issued, and, upon a hearing, the circuit judge who discharged the petitioner on the former writ remanded him to jail, holding that the justice had authority to recommit in the same cause; and thereupon this application was made.</p>

Mandamus. Relator, who was the defendant in a suit in the circuit court of Muskegon county, recovered a judgment therein.

Mandamus. Relator appeared specially in a suit commenced against him by a non-resident plaintiff by declaration, and moved to strike the declaration from the files for the reason that security for costs had not' been indorsed, as required by the statute. The motion was denied upon plaintiff’s filing security for costs. Thirty days had elapsed since the declaration was served, but proof of service was filed on the day the motion was denied.

Mandamus. Relator commenced a suit by attachment in the circuit court for Macomb county. The attachment was dissolved by a circuit court commissioner, and relator appealed. The attorneys of record for relator in the attachment suit appeared and defended in the dissolution proceeding, and one of them made the affidavit for appeal, which stated that he was one of the attornej^s for the relator in said proceeding, and made the affidavit for and in his behalf.

Mandamus. On November 16, 1892, a mandamus was granted, upon the petition of the relator, requiring the respondent to assess upon the taxable property of the township of Roscommon the amount then due for principal and interest upon certain bonds issued by the township and owned by the relator.

Mandamus. Relator- sued out of respondent’s court a writ- of attachment, and sought to levy it upon certain shares of stock issued by a Michigan corporation to defendant’s manager as trustee, defendant being a foreign corporation. Defendant claimed a beneficial interest in the stock, but its name did not appear upon the corporate books or stock certificate, and the legal title to the stock was vested in the trustee at the time of the attempted attachment.

.The petitioner was arrested upon a warrant charging him -with the crime of rape, and, on being brought before the justice of the peace ivho issued the warrant, made an affidavit that the justice was a material witness in his behalf.

Motion by plaintiff for retaxation of costs. Act No. 214, Laws of 1887 (3 How.