text:
    RANDA v. DETROIT SCREW WORKS.
    1. Master and Servant — Personal Injuries — Assumption op Risk — Bursting Wheels.
    Where defendant had two machines for running emery wheels, one of which was not adapted to running six-inch wheels, on account of the great number of revolutions per minute, and had also provided wheels suitable for each machine, which were put on the machines by the workmen when needed for use, a workman whose duty it was to keep the machines in repair, and who knew that emery wheels would burst if run at too great velocity, and that it was unusual to run six-inch wheels upon the machine making the greater number of revolutions per minute, assumed the risk of using such a wheel, whether put on by himself or a fellow-workman, or found in place when he used the machine.
    2. Same — Fellow-Servants—Duty of Master — Nature of Act Performed.
    A foreman, in directing a workman to put a six-inch wheel upon the machine making the greater number of revolutions, was acting as a fellow-servant with a workman injured in using the wheel, as the selection of the wheel was an act usually performed by the employés, and was not the duty of-the master to perform.
    Error to Wayne; Carpenter, J.
    Submitted June 2, 1903.
    (Docket No. 1.)
    Decided September 15, 1903.
    Case by Joseph Randa against the Detroit Screw Works for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Orla B. Taylor, for appellant.

      Charles C. Stewart and M. M. Nesbitt, for appellee.
   Hooker, C. J.

The plaintiff recovered a verdict and judgment for $800 for the loss of an eye through the bursting of an emery wheel at which he was at work in the defendant’s factory. There is little dispute upon the facts. Defendant had two machines for running emery wheels for grinding purposes, one geared to a speed of 2,000 revolutions per minute, the other geared to a speed of 5,000 revolutions per minute. Caswell, who was the foreman, under Taylor, who was in charge of the factory as superintendent for the defendant, directed a workman to put a six-inch wheel upon the latter machine, and, when this was done, asked plaintiff to grind a saw upon it, which he proceeded to do. The evidence tends to show that it was negligent to use a six-inch wheel at that speed, and such wheel was not used upon that machine.

The defendant’s counsel claims that the court erred in refusing to direct a verdict for defendant, upon the grounds, first, that Caswell was a fellow-servant, and, second, that the plaintiff assumed the risk and was guilty of contributory negligence; and these are the only questions in the case.

The case is resolved into two questions:

1. Was the negligence of the foreman in directing that the six-inch wheel be put upon the machine the act of the master or of a fellow-servant ?

2. Did the plaintiff assume the risk of its use ?

At the trial the court was in doubt whether the case should not be taken from the jury, in accordance with defendant’s request, but it was not then convenient to have the question argued, and it was decided to submit the case to the jury, with the understanding that if, upon a motion for new trial, he should decide that he ought to have directed a verdict for the defendant, he might then do so. Before the motion could be made and argued, he left the bench, and there was therefore no opportunity to consider the question.

The evidence shows that there were two of these machines for use with emery wheels of various sizes, which were kept on hand, accessible to the men who used them, and who selected and put on the proper wheel whenever called upon to use one of them. The wheels hung upon a post, near the machines, when not in use. The machines were substantially alike, except in regard to the velocity, which differed. The plaintiff had been in defendant’s employ for two years. His business had been to keep the machinery in repair. He was entirely familiar with these machines, had used both, and had put emery wheels upon them every time he used them, and was keeping wheels on the other machine in shape for some boys at the time. He claims that he never put a six-inch wheel upon that machine before, or saw one put on; that, while he never saw a six-inch wheel burst, he said that he had read, and most everybody knew, that emery wheels would burst if run at too great velocity. He saw this wheel put on that day. He knew it was unusual. He knew that this machine ran much faster than the other. Nevertheless, it is claimed that he was ignorant of the impropriety or danger (if there was such) in using that wheel upon that machine.

•It is not for us to express doubts whether it was hazardous to use a six-inch wheel on this machine, in view of the fact that different sized wheels were kept for use upon these machines, according to the work to be done; but it seems unquestionable that the operatives used their own judgment in the selection and use of the wheels, and that this plaintiff was as well qualified to do this understandingly as any person about the premises. _ We think it was not the duty of the master to be present on all occasions, in person or by his representative, and superintend the selection or change of wheels. As well might it be said'that he must select the chisels or augers to be used in mortising or boring machines, or the saws to be put upon a saw arbor. These things must be left to the operative, and each one assumes the risk of using them, whether put on by himself or a fellow-servant, or found in place when he uses the machine.

This being so, it becomes necessary to plaintiff’s recovery to hold that Caswell, the foreman, was the representative of the master in ordering this wheel put on the machine. We have often held that the question whether one is a fellow-servant or not depends upon the nature of the act. If it is one which it is the duty of the master to do, like keeping a machine in repair, the master is responsible for injuries resulting from negligence therein. If it is one usually performed by the employés, and the , master has no duty in the premises, it is the act of a fellow-servant. We are of the opinion that this was the act of a fellow-servant, and that the plaintiff cannot recover. ■

The judgment is reversed, with costs of both courts, there being no occasion for a new trial.

Moore, Grant, and Montgomery, JJ., concurred. Carpenter, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WOLKINS v. KNIGHT.
    1. Statute of Limitations — Concealment of Cause of Action.
    Where a debtor, when applied to by an administratrix for a statement of the account between him and the intestate, exhibited a false account, and falsely claimed to have made a payment, and the administratrix had no knowledge of and no way of ascertaining the true account except from the debtor, the cause of action Was not barred by the statute of limitations until two years after the administratrix ascertained that the payment had not been made. 3 Comp. Laws, § 9739.
    3. Contracts — Actions—Parties.
    Where defendant purchased from plaintiff’s intestate a quantity of apples, in a part of which a third person had an interest, and plaintiff had settled with the third person for his interest before the commencement of suit, the plaintiff was entitled to recover.
    Error to Berrien; Coolidge, J.
    Submitted June 3, 1903.
    (Docket No. 18.)
    Decided September 15, 1903.

      Assumpsit by Frances Wolkins, administratrix of tbe estate of Peter Wolkins, deceased, against David Knight, for goods sold and "delivered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      O'Hara & O'Hara, for appellant.

      Lawrence O. Fyfe, for appellee.
   Moore, J.

The plaintiff is the administratrix of the estate of her deceased husband. She sued to recover an amount due for apples delivered by her husband to defendant in his lifetime. The defendant pleaded the statute of limitations. After the proofs offered on the part of the plaintiff were all in, and before any testimony was offered on the part of defendant, the circuit judge directed a verdict in favor of defendant. The plaintiff has brought the case here by writ of error.

The sole question in the case is whether plaintiff has brought herself within the provisions of section 9739, 3 Comp. Laws, which reads as follows:

‘ ‘ If any person who is liable to any of the actions mentioned in this chapter shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such cause of action, although such action would be otherwise barred by the provisions of this chapter.”

It was the claim of the plaintiff, and she offered proofs tending to show it, that her husband, who was a farmer, sold upwards of $600 worth of apples, the product of eight orchards, to the defendant in the fall of 1889; that he was taken ill with typhoid fever shortly thereafter, and died on the 19th of January, 1890; that she knew her husband had received one payment of $100, but did not know how much was still unpaid; that, after the death of her husband, she sent two persons to see defendant, who lived seven or eight miles away, to learn the condition of the account, who were shown by defendant his book of accounts, which contained an entry of $100 paid on the apples, and another of $500 paid thereon, and that Mr. Knight stated the $500 payment was made' on Thanksgiving day by him to Mr. Wolkins, and that there remained due but $61. Mrs. Wolkins afterwards saw Mr. Knight, who assured her he had paid her husband the $500 on Thanksgiving day, and there was but $61 unpaid, which amount he afterwards paid to her. It was Mrs. Wolkins’ claim, and she so testified, it was not until shortly before this suit was brought she learned Mr. Knight was indebted to her husband at the time of his death in the sum of $561, instead of $61, as represented to her agent and again to her by Mr. Knight. Two witnesses were introduced by her whose testimony, if true, established the indebtedness as being upwards of $500.

Before the court directed a verdict, the attorneys for the plaintiff requested the court to instruct the jury as follows:

“1. If you find from the evidence that defendant was owing Peter Wolkins, at the time of his death, upwards of $500, and you further find that he fraudulently concealed this fact from the plaintiff, and you also find that plaintiff did not know of this fraudulent concealment until July or August, 1901, then I charge you that plaintiff’s right of action is not barred by the statute of limitations.
“ 2. Unless you find that the plaintiff had either actual knowledge, or ought to have had actual knowledge, under the circumstances, by reasonable diligence, then that account is not barred by the statute of limitations, and, if you find the other facts, the plaintiff is entitled to recover.”

We think, under the provisions of the statute, and the testimony offered on the part of the plaintiff, these requests should have been given. The following cases are in point: First Massachusetts Turnpike Corp. v. Field, 3 Mass. 201 (3 Am. Dec. 124); Sherwood v. Sutton, 5 Mason, 143 (Fed. Cas. No. 12,782); Haynie v. Hall’s Ex’r, 5 Humph. 290 (42 Am. Dec. 427); Shannon v. White, 6 Rich. Eq. 96 (60 Am. Dec. 115); Reynolds v. Hennessy, 17 R. I. 169 (20 Atl. 307, 23 Atl. 639); Lieberman v. Bank, 2 Penne. (Del.) 416 (45 Atl. 901, 48 L. R. A. 517, 82 Am. St. Rep. 414); Manufacturers’ Nat. Bank v. Perry, 144 Mass. 313 (11 N. E. 81); O’Dell v. Burnham, 61 Wis. 562 (21 N. W. 635); Marbourg v. McCormick, 23 Kan. 38; Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651); Stebbins v. Patterson, 108 Mich. 537 (66 N. W. 484); Allen v. Conklin, 112 Mich. 74 (70 N. W. 339).

It is suggested that the cause of action cannot be maintained by the plaintiff because Mr. Flowers also' had an interest in the apples. It is true he had an interest in five of the orchards, but the record shows that, as related to Mr. Knight, the transaction was between him and Mr. Wolkins. He paid to the latter the $100, and to hisadministratrix the $61, which he claimed settled the account. It also appears that the administratrix settled with and paid Mr. Flowers, long before, the suit was brought, for the apples in which he had an interest.

It is claimed Mrs. Wolkins had knowledge which ought to have advised her of the true situation. We think the record does not so disclose. It does not appear her husband kept books showing the transaction. She went to the one who knew what the facts were, and who ought to have told her the truth. He cannot be heard to complain because she relied upon what he told her.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, C. J.

text:
    STEVENS v. MICHIGAN SOAP WORKS.
    1. Appeal — Verdict—Weight oe Evidence.
    The verdict of a jury will not be set aside on writ of error on the ground that it is against the weight of the evidence, unless it is clearly against the overwhelming weight of the evidence.
    2. Master and Servant — Wages—Waiver.'
    Plaintiff, who was employed at a salary of $25 per week, and paid $20 per week, the last check reciting that it was in full to its date, did not waive his right to the balance, if he insisted at different times that he was entitled to more, and there was an agreement to hold the question in abeyance, and the check was accepted under a reservation of his right to assert his claim later.
    Error to Wayne; Carpenter, J.
    Submitted June 3, 1903.
    (Docket No. 22.)

    Decided September 15, 1903.

      Assumpsit by William J. Stevens against the Michigan Soap Works for services rendered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Russel & Campbell, for appellant.

      Delbert J. Hinkley, for appellee.
   Hooker, C. J.

The defendant has brought error upon a judgment in favor of the plaintiff, based upon a claim for an unpaid balance for services rendered as a soap maker. The parties agree that plaintiff was' hired by one Brown, at the time manager of defendant’s business of soap making, and there is no dispute over the time that the plaintiff worked, or the amount paid to him. The controversy relates to the weekly wages agreed to be paid; the plaintiff claiming that it was to be $25, while defendant asserts that it was $20, which last amount he has been regularly paid. According to plaintiff’s claim, he began work May 8, 1899, under an oral contract made with Brown in New York. He worked under Brown until the spring of 1901, when a Mr. Henry became connected with the soap works. In July, 1901, Henry was chosen vice-president and manager, and at the next pay-day the plaintiff received the following letter from him, viz.:

“ [Letter-Head of Michigan Soap Works.]
“Detroit, Mich., July 20, 1901.
“ Mr. William J. Stevens.
Dear Sir: At a meeting of the stockholders and directors of the new company, who have taken over the business of the old company, my position as vice-president and general manager was confirmed. I regret that we cannot longer give.you employment, for reasons which need not be named here.
“We inclose you check covering the week, $20.00, although you have been absent five days through illness.
“Writer personally hopes that you will speedily get another position. Yours truly,
“Robert Henry.”

This letter was handed to plaintiff in a sealed envelope, which also contained a check for $20, reading as follows:

“No. 4519. Detroit, Mich., July 19, 1901.
“ The Union National Bank.
“Pay to the order of W. J. Stevens twenty and no/100 dollars.
“Michigan Soap Works.
“C. W. Parsons, Sec.
“ In full to and including 7/20/01. ”

Plaintiff testified that, after reading the letter, he had an interview with Henry, in which he told him that he was entitled, under his contract, to $5 a week for the time he had worked, which had been withheld, and that Henry said—

“He did not doubt it at all whatever, but he said it was a new company, and they had nothing to do with the old company, and that he could not do anything about it until he saw Mr. Brown. He would have to see him first, and he would let me know, and told me to come in later. ”

Plaintiff collected the check. He afterwards called twice, and was put off by the statement that Henry had not seen Brown yet, and on the last occasion he said “the matter had been put in his hands, and, if I wanted to settle, he would give me $40 to settle.” Plaintiff refused to do that, and Henry said “I could take that or nothing; if I did not want to take that I wouldn’t get a cent; I could do what I pleased.” Plaintiff afterwards caused the records to be examined, and ascertained that Mr. Henry did not represent a new or different company, and that the' capital stock of the old had only been increased. It was admitted upon the trial that there was no new company. The court directed the jury to determine whether the agreement was for $20 or $25 a week; also the question whether the plaintiff had waived the $5 per week by his conduct, in case they should find the agreement was for $25. In this connection he said that, if he accepted $20 a week as his weekly pay, he could not recover; but if he insisted at different times that he was entitled to more, and there was an agreement to hold that question in abeyance, such acceptance would not be a waiver. He also instructed the jury that, if he accepted the last check without any statement to defendant of his claim, and cashed the check, it would preclude recovery; but if, on the other hand, the subject was discussed, and a reservation made of his right to assert his claim later, the acceptance and collection of the check would not preclude his asserting his claim.

The testimony in the case shows that, at the time of plaintiff’s employment, he was told that the company had made a lot of soap which had spoiled, and that defendant wanted an assurance that he could make over the spoiled soap into a good article, and plaintiff claimed that the defendant offered $20 a week, and that the parties finally agreed upon $25 a week upon condition that plaintiff should demonstrate his ability to make over the spoiled soap. This he claims to have done later, after which he made claim to $25 a week for the whole period, and the matter was postponed from time to time by Brown. The plaintiff was disputed at all points by Brown and Henry, and defendant’s counsel claim that the effect of all of the plaintiff’s. testimony taken together is to show that he hired at the price of $20 per week, and that an advance was to be the subject of further agreement before he would become entitled to it. It is said that his testimony contained four different versions of the conversations from which the contract resulted. We must admit that there was testimony given by the plaintiff that would have justified the jury in'finding a contract for $20 a week, but, on the other hand, it must be said that there was some testimony indicating an agreement to pay $25 if a test should show that plaintiff could make over the spoiled soap into a merchantable article, which was demonstrated soon after his employment was entered upon. We cannot say that it was error to refuse to direct a verdict for the defendant, for an agreement to pay $25 would' be valid, and the sum collectible upon performance of the condition.

The alleged errors assigned in defendant’s brief are:

(1) The refusal to set aside the verdict as against 'the weight of evidence.

(2) The refusal to set aside the verdict upon the ground that there was no evidence to support it.

(3) The refusal to set aside the verdict upon the ground of waiver.

We are cited to some extreme cases in support of the doctrine that an appellate court should order a new trial when the defendant’s testimony is corroborated, as against the unsupported testimony of the plaintiff. This court has never gone further than to reverse a case where the.verdict is clearly against the overwhelming weight of evidence, and we think that this is not a case for reversal under our precedents. This disposes of the first two points urged.

As to the third, we are of the opinion that there was a question for the jury, for the reasons given by the circuit judge. If the plaintiff’s testimony is true, he never acquiesced in the payment of $20 as his full wages; and, while there was great delay and lack of insistence, his testimony indicates that it was an open matter as long as Brown remained manager. Plaintiff claims that he did not know who was boss for a few weeks after Henry became interested in the company, and that he at once protested to him when Henry asked him to accept a'check in full of account. Under his version, the notice contained in the check was waived by Henry, who agreed to investigate, and after-wards tried to settle with him. Unlike Tanner v. Merrill, 108 Mich. 58 (65 N. W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687), where the employe’s conduct was held to amount to an estoppel, this plaintiff not only did not accept the check as payment, but plainly refused to do so, and the conduct of Mr. Henry, as stated by the plaintiff, showed that he so understood it.

We find no error, and the judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred^ Carpenter, J,, did not sit.


text:
    CONNOR v. CONNOR.
    1- Ejectment — Possession.
    Ejectment cannot be maintained against one who, on notice from plaintiff, vacated the premises, locking one door from the inside, leaving the key in the door, and closing the other door, which was locked behind him with a spring lock; there being nothing to indicate that defendant ever made any claim of title.

      % Same — Claim of Title.
    In such a case, a statement by defendant that plaintiff would get the house when the law gave it to her was not a claim of title.
    Error to Wayne; Rohnert-, J.
    Submitted June 3, 1903.
    (Docket No. 12.)
    Decided September 15, 1903.
    Ejectment by Mary Connor against Martin Connor and Catherine Connor. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.

      Howard B. Bloomer, for appellees.
   Hooker, C. J.

The plaintiff’s aunt, Bridget Mahan, owned the premises, consisting of a parcel of land and two houses. The defendants lived with her in one of the houses at the time of her death, September 24, 1901. Bridget Mahan deeded the premises to the plaintiff, subject to a life estate reserved to herself, by deed acknowledged November 9, 1892. Four days after Bridget’s death, the plaintiff caused notice to vacate to be served upon the defendants, threatening ejectment for noncompliance. No time was stated in the notice. The plaintiff ascertained on November 1st that the defendants had vacated the house. She went to the place, and found it locked up, and the windows fastened. Thereupon her counsel wrote to Mr. Connor, and asked that he deliver the keys to the bearer, or he would be obliged to charge him rent at $25 per month. It does not appear when this letter was served, or what reply was made to it, except the statement by the plaintiff that it was served on the 5th by an officer. On November 7th this action was brought, and on the 9th the plaintiff received a letter from Martin Connor, stating that the keys were left in the house, and that he had no key to the spring lock on one of the doors. There is nothing to indicate that this was not true. He also wrote that plaintiff could easily get into the house, and would find the keys there. Some days later, the plaintiff entered through a second-story window. On the trial defendants’ counsel disclaimed for his clients any title or right of possession, and, after the proofs were closed, moved the court to direct a verdict for the defendants, and offered to waive costs, and the court granted the motion, and a judgment was entered accordingly. The plaintiff has appealed.

The only question in the case is whether the defendants unlawfully withheld the possession of these premises from the plaintiff when the action was begun. It is undisputed that,«in compliance with counsel’s notice, they moved out and vacated the premises, locking one door on the inside, and closing the other door, which was locked behind them by a spring lock. They kept no key. Whatever the plaintiff may have thought, this was an abandonment of possession, as a matter of fact, and there is nothing to indicate that the defendants ever made a claim of title of any kind. The statement that the plaintiff would get the house when the law gave it to her was not a claim of title, when viewed in the light of the undisputed facts. In this respect the case differs from Whiteley v. Whiteley, 110 Mich. 556 (68 N. W. 241). There being no claim of title, and the proof conclusively showing that there was no possession, plaintiff’s case has nothing to rest upon. Apparently, counsel commenced it upon the belief that by retaining the key defendants retained possession. But it turns out that they did not retain the key, and all that is left is the fact that they did not tell the officer so when notified that if the key was not delivered they would be charged rent. Plaintiff and her counsel knew that the house was vacated in compliance with their notice, and they could have entered as easily on the 7th day of November, before bringing suit, as they could afterwards.

The judgment is affirmed.

The other Justices concurred.


text:
    LORD v. NATIONAL PROTECTIVE SOCIETY.

    1. Benefit Societies — Nonpayment of Dues — Waiver.
    The acceptance of a past-due assessment by a benefit society, and its retention until after the commencement of suit, constitute a waiver of the right to assert a forfeiture of the certificate.

      % Amendment of Declaration — Discretion of Court.
    The discretion of the circuit judge in allowing an amendment to a declaration will not be reviewed on error, except'in clear cases of arbitrary and unjust exercise of power.
    .Error to Lapeer; Smith, J.
    Submitted June 3, 1903.
    (Docket No. 17.)
    Decided September 15, 1903.

      Assumpsitbj Leon Lord against the National Protective Society of Bay ■ City on a benefit certificate. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Herbert TV. Smith, for appellant.

      E. L. Campbell and Geer, Williams & Halpin, for appellee.

       Rehearing denied March 15, 1904.

   Hooker, C. J.

This cause has been before us heretofore, and will be found reported in 129 Mich. 335 (88 N. W. 876), where an outline of the facts upon which it rests is stated. Upon the former trial, the court directed a verdict for the defendant, and his judgment was reversed, this court holding that, under the testimony,the court should not have decided that there was no waiver of the provisions of the policy. There was another question relating to damages. While our opinion in that case states that the court erred in directing a verdict for the defendant, it does not say that a verdict for the plaintiff should have been directed; the propriety of which instruction is involved upon this hearing.

It is claimed that the testimony was different upon the ■second trial, in respect to the.tender of dues paid, from what it was on the earlier trial. The testimony showed upon,this trial, as-it did upon the first, that, according tO' the express terms of the certificate, sick benefits did not accrue for sickness suffered at a time when plaintiff had not been a member in good standing for the previous three-months, and that a failure to pay dues at the time fixed for their payment terminated membership, but subject to-reinstatement upon payment of the dues if the member continued in good health. The certificate also plainly stated that one must have been a member in good standing for three months after reinstatement before becoming entitled to sick benefits. Accident benefits were not so limited. The certificate also contained the following provision :

“The observance of the provisions and conditions aforesaid, the strict compliance therewith, and the continuance of this contract are conditions necessary to the insurance, and to its validity and enforcement, and no waiver shall be claimed by reason of the acts of any agent or person, unless such acts shall be specially authorized in writing over the signature of the secretary of the society.”

It is undisputed that the payment which fell due August 1st was not paid at that time; consequently the policy became void, under the provisions of the certificate:

“And it is further provided and understood that this policy shall cease and be void unless the payments required to be made thereunder shall be promptly paid on or before the first day of the month in advance.” •

Nothing more was done until August 25th, when Emma V. Lord, plaintiff’s sister, acting on his behalf, paid $1 for the August 1st payment to Mr. Swan, a local agent of the defendant. She testified that she asked him before making the payment “ if it made any difference paying late in the month, and he said it did not; lots of members paid late.” A day or two later she received the following notice:

“ National Protective Society, Bay City, Mich.
“ Notice of Lapsed Membership.
“Bay City, Mich., Aug. 25, 1899.
Dear Sir: Failure to pay your last premium call has caused your certificate of membership to lapse, and you stand suspended from all benefits of the society. As this may have been caused by negligence or forgetfulness on your part, if not suffering from sickness or accident, be reinstated as per provision of your certificate by paying one dollar to the local secretary of your division or at home office within ten days from date of this notice.
“ Fraternally,
“ F. S. Dewey, Secretary.
“Signed: - Applicant. .
“Witnessed:--Local Secretary.”

She paid no attention to this whatever, relying on Swan’s statement. Mr. Swan paid the money over to the company some time afterward.

The question in the case is one of waiver. It was expressly agreed in the contract, as shown by the certificate, that the local agent could not waive the provision that nonpayment of dues when due would terminate the policy. Hence the payment of the August 1st dues on August 25th to him, and his statement that it was all right, may not have constituted a waiver binding upon the company under the proofs. Nor was it held that it did in our former opinion, where it was expressly avoided. We said:

“Under this condition of things, we do not think it necessary to discuss whether the local agent could waive the time of payment of these dues or not.”

That opinion states that:

‘ ‘ Payments were made to the local secretary for August, September, and October. They were retained by him until he forwarded his October report, when he sent them to the company, including them in his report as dues from Mr. Lord for August, September, and October. The home office did not repudiate his acts, and decline to receive the money as dues, and return it, but, at the time the suit was brought, it retained the money, and still has it. * * * It was one of the things that the home office could waive. The law does not favor forfeitures, and we do not think the home office can receive and retain this money when it was paid as dues, and at the same time claim a forfeiture. ”

Hence the judgment was reversed.

Upon this trial there was testimony that two dollars of the money was tendered back before suit, but not accepted. This did not cover the payment of August 25th, however, as the September and October dues, at least, had then been paid and received as such, as stated in our former opinion, and as indicated by the testimony in this record. We are of the opinion that the proof is not essentially different upon this record from what appeared before, and that the uncontradicted evidence is to the effect that these dues were paid and received by the company as dues seasonably paid, to keep the policy alive and unimpaired. There is nothing to indicate that either party supposed there had been a lapse and reinstatement.

We find no other question of importance, except that relating to the amount of the verdict. Of that it is sufficient to say that the court appears to have been anxious to state the amount correctly, and asked counsel to say whether there was any dispute about the amount, but did not succeed in getting a definite answer as to the amount that they claimed had been shown.

We will not review the discretion of the circuit judge upon the question of amending the declaration. This ■should not be done, except in clear cases of arbitrary and unjust exercise of power.

The judgment is affirmed.

The other Justices concurred.


author: Moobe, J.

text:
      In re HOGA’S ESTATE.
    1. Guardian and Ward — Accounting—Expenditures.
    3 Comp. Laws, § 8705, providing that, where a minor has property which is sufficient for his maintenance and education in a manner more expensive than his father can reasonably afford, the expense thereof may be defrayed out of the income or principal of his own property, as shall be judged reasonable, and shall be directed by the probate judge, does not require an order of record authorizing the expenditures before they are made.
    3. Same — Compensation.
    The compensation due a guardian is a matter appealing to the discretion of the judge who passes upon the account.
    Error to Wayne; Hosmer, J.
    Submitted June 4, 1903.
    (Docket No. 29.)
    Decided September 15, 1903.
    William Look presented his final account as guardian of August Hoga, an infant. The account was disallowed in part in the probate court, and he appealed to the circuit court. From a judgment affirming the order of the probate court on verdict directed by the court, he brings error.
    Reversed.

      William F. Atkinson ( George Gartner, of counsel), for appellant.

      Clark, Durfee & Allor, for appellee.
   Moobe, J.

Prior to November, 1889, August Hoga, then a boy 10 or 11 years old, received an injury resulting in the loss of a leg. His mother, as next friend, sued the railway company, and obtained a judgment against it. In November, 1889, William Look was appointed general guardian of August Hoga, and on the 11th of that month joined the father and mother (the latter also signing as next friend) in giving a receipt to the railway company in settlement of the judgment for the sum of $1,000. It is the claim of Mr. Look that but $900 of this actually came to him; that $100 of it was retained by the mother for board and caring for the boy. After the boy became of age, Mr. Look presented his final account for allowance in the probate court in October, 1899. In this account he made a charge of $450 for services as guardian for the 10 years in which he had acted. He also made a charge of between $200 and $300 paid to the parents of the minor for board, care, and clothing furnished by them; also charges aggregating about $200 for artificial legs purchased for the ward, and many other items, ranging from 50 cents, paid to a dentist, to $19, paid Mabley & Co., for two suits of clothes. The account, as presented, showed a balance of several hundred dollars due the guardian. It is not possible to decide from the record what items were allowed and what were rejected, but a balance was found due from the guardian to the ward of $800. An appeal was taken to the circuit court. The trial was proceeded with before a jury, but a verdict was directed by the judge, who affirmed the action of the probate court.

It was the claim of Mr. Look that the book in which he kept a memorandum of his account with his ward had been taken from his office with other books and papers, but he produced in court receipts for most of the items. His ward, at the time of the trial a young man 23 years old, was sworn on the part of the plaintiff. He identified many of the receipts, and testified that he got all the money for which he gave receipts; that he used it for himself; and that he needed it. When asked if he was not willing Mr. Look should be allowed these sums so received, upon objection of his counsel, and being advised by the judge he could answer or not, as he pleased, he declined to answer the question.

The record- discloses that August Hoga was one of a family of eight or nine children. His father was a common laborer, and his mother went out nearly every day doing washings to help support the family. It also shows they had very little control over the boy, who was wayward, and gave the truant officers much trouble, and was finally sent to the Industrial School. It is the claim of Mr. Look that he not only looked after the property of the boy, but at the request of his parents looked after his person, and after his return from the Industrial School obtained employment for him, which resulted in his learning a good trade; that he was called upon to find him when he ran away, as he did frequently, and looked after purchasing for him the necessaries of life; and that, before making any of these expenditures, he talked the situation over with the judge of probate, who advised him to make the expenditures on behalf of his ward which he did make. No formal petition was presented by the guardian, asking leave to make these expenditures, and no formal order of record was made in relation thereto. The probate judge was sworn as a witness. His recollection of what conversation occurred between him and Mr. Look in relation to making expenditures on behalf of the ward was not at all clear.- He remembered advising the expenditure for the artificial legs, and about advances being made to aid the parents in taking care of a land contract or mortgage affecting the home. On the cross-examination he testified, among other things:

Q. In fixing up this account, you construed the statute strictly against the guardian ?
“A. Yes, sir.
“ Q. And it was on that ground you made your allowance, not because there was any evidence that he had not paid out the money, or anything of that kind ?
“A. Well, I don’t know as I went into that part, because I made my ruling on a strict construction of the statute. It was a question of law that I thought ought to be settled, and I thought it was a good time to settle it.”

There is a very significant bit of evidence as to what occurred between the judge of probate and Mr. Look found in the first annual account filed by Mr. Look. This account was presented to the court June 10, 1891. In it the guardian had credited himself with seven items, aggregating $58.50, for the purchase and repair of artificial legs; with one item June 5, 1890, paid Mrs. Hoga for board, clothing, and maintenance of infant, $20; another like item in October, and one in December. This account was examined, and allowed as charged by the judge, July 7, 1891.

I cannot resist the conclusion from the testimony that Mr. Look understood he was authorized by the judge to make the payments which he made. He testifies that he had no knowledge of the statute referred to by the judge of probate in his testimony. It reads as follows:

“If any minor who has a father living has property which is sufficient for his maintenance and education in a manner more expensive than his father can reasonably afford, regard being had to the situation of the father’s family and to all the circumstances of. the case, the expenses of the education and maintenance of such minor may be defrayed out of the income or principal of his own property, in whole or in part, as shall be judged reasonable, and shall be directed by the probate court, and the charges therefor may be allowed accordingly in the settlement of the accounts of his guardian.” 3 Comp. Laws, § 8705.

The circuit judge followed the judge of probate in construing this statute, and held that, as no order of record had been made authorizing the expenditures before they were made, they should not be allowed in the final account. We think this too narrow a construction to put upon the statute.. It does not, in terms, require an order to be entered. In Gott v. Culp, 45 Mich., at page 373 (7 N. W. 767), it is said:

“A guardian whose ward’s estate is sufficient to furnish an income that will with economy maintain and educate her suitably should not exceed it without adequate reason. But in this country, while it is prudent to obtain leave in advance, it is not necessary, if circumstances justify the excess. But the rule is always to be applied with some discretion. The guardian is justified by the authorities in looking, not merely at present and actual income, but at. future and probable resources. If the income is • narrow, he should also look to the future welfare and standing of his ward, which may in his eyes, as in those of a judicious parent, render it wise to secure desirable results by a sufficient outlay. In many, if not in most, cases in this country, it is not possible to secure a regular and reliable revenue, which will' not at times fail or be delayed; and when the infant’s property is too small for the income to furnish reasonable nurture and support, the principal must necessarily be drawn upon. ”

In Mower's Appeal, 48 Mich. 448 (12 N. W. 646), it is said a guardian’s account is to be dealt with as an equitable proceeding, rather than a legal one.

In Chubb v. Bradley, 58 Mich., at page 271 (25 N. W. 186), it is said:

“As we view the record, the only real question is whether Bradley should repay any or all of the money received by him as the proceeds of the land. The court below held that, having adopted the children, defendant was compelled to support them himself, unless there was an agreement made prior to the adoption, and as a consideration for it, and that any money not paid under such’ a prior arrangement could be recovered back. The charge also seems to confine the amount that could be so agreed upon to the pension money and the rent of the farm, excluding the proceeds of its sale.
‘ ‘ There is no rule of law, in bur judgment, which can sustain these holdings. If it is thought reasonable and proper, in order to give a child more advantages than the income of the estate will furnish, there is no inflexible rule which will prevent resorting to the use of the principal, and it may be true economy and duty to do so. Our statutes provide that the body of a trust fund may, in proper cases, be so applied, and in Gott v. Culp, 45 Mich. 265 (7 N. W. 767), this same doctrine was applied to the ward’s estate in the hands of the guardian. If children have property separate from that of parents, natural or adopted, although it may fairly be expected that the parents shall bring them up if they can at their own expense, in conformity with their means, yet it would be entirely unreasonable to refuse to give them better facilities than the parents themselves could afford, if parents and guardians should think it advisable for them, within reasonable limits.”

In Re Ward’s Estate, 73 Mich., at page 230 (41 N. W. 431), it is said:

“It has been held in this court that an actual and legal father may, in case the welfare of the child demands it, be allowed to have access to the child’s estate to provide for its education and support more generously than he could himself afford. Guardians have been allowed to resort to the principal, as well as the income, if required for the ward’s welfare. Gott v. Culp, 45 Mich. 265 (7 N. W. 767); Moyer v. Fletcher, 56 Mich. 508 (23 N. W. 198); Chubb v. Bradley, 58 Mich. 268 (25 N. W. 186).”

The statute, in terms, provides for the use, not only of the income, but of the principal, if necessary in the judgment of the probate court.

The case we have before us is a very peculiar one. The only property the ward has he obtained as damages for an injury inflicted upon him personally, which made his care a greater burden to his father and mother than it otherwise would have been, and it made him less able to help pay his way when he got old enough to help support himself and the family. It was a very proper case in which to use, in a judicious way, some of his property to supply his needs.

It is urged the circuit judge erred in not allowing the guardian compensation for services, and that the charge of $450 was a reasonable one. This is a matter which appeals to the discretion of the judge who passes upon the account. The record is not so complete as to the extent of these services as to warrant us in giving any directions in relation thereto further than to cite the case of Gott v. Culp, 45 Mich., commencing at page 274 (7 N. W. 767).

Judgment is reversed, and new trial ordered.

The other Justices concurred.


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    OLIVIER v. HOUGHTON COUNTY STREET-RAILWAY CO.
    1. Negligent Injuries — Survival of Actions — Remedies.
    Where a person injured through the negligent act of another lives in an unconscious condition until the following day, an action for damages for the wrongful act must be brought under the “ survival act,” and not under the “ death act.”
    3. Same — Damages.
    In an action under the “survival act” for negligent injuries resulting in death, a recovery may be had for the amount that the deceased could have earned during the period that he would probably have lived but for the injury.
    Error to Houghton; Streeter, J.
    Submitted June 5, 1903.
    (Docket No. 35.)
    Decided September 15, 1903.
    Case by Charles O. Olivier, administrator of the estate ■of Cyrille Boivin, deceased, against the Houghton County Street-Railway Company, for negligent injuries to plaintiff’s intestate, resulting in his death. From a judgment for plaintiff for an alleged insufficient amount, he brings error.
    Reversed.

      W. A. Burritt, for appellant.

      Gray, Haire & Stone, for appellee.
   Hooker, C. J.

The plaintiff’s intestate was injured, while riding in a wagon, through a collision with a street car. He was rendered unconscious, in which condition he remained until his death upon the succeeding day. The declaration contained four counts, two under what has been termed the “Death Act,” and two under the ‘ ‘ Survival Act. ” One of each charged ‘ ‘ gross negligence. ” It was not claimed that the deceased was chargeable with contributory negligence. Upon the undisputed fact that deceased lived until the following day, the court held that the death was not instantaneous, and excluded testimony under the counts based on the death act, and subsequently counsel abandoned the count charging gross negligence under the survival act. A verdict and judgment for the plaintiff for four dollars was rendered, and the plaintiff has brought error.

The appellant’s counsel raises two questions:

1. Whether he was entitled to recover under the death act.

2. Whether the court erred in his instructions upon the measure of damages.

We see no reason for splitting hairs as to what is meant by instantaneous death, though we can appreciate the difference between a continuing injury resulting in drowning, or death by hanging, throwing from a housetop, etc., and one where.a person survives the wrongful act in an injured condition. There is no occasion for saying that one dies instantly because such survival is accompanied by a comatose condition, or unconsciousness, or insanity, or idiocy. The law draws no such distinction between the normal and abnormal, or the rational and irrational. Either has a right of action. In some cases the intervention of a next friend is necessary, but that makes no difference. See 8 Am. & Eng. Enc. Law (2d Ed.), 866; and see, also, Kellow v. Railway Co., 68 Iowa, 470 (23 N. W. 740, 27 N. W. 466, 56 Am. Rep. 858), where it was held that survival of the injury for a moment is sufficient to permit the cause of action to vest and survive. This case is said to overrule the case of Sherman v. Stage Co., 24 Iowa, 515, Cited in our case of Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568). We passed upon the question in the case of Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629). This action survived, and, under that decision, no right of action under the death act accrued.

The court was of the opinion that the damages must be limited to the amount that deceased could have earned during the few hours that he lived after receiving the injury. It is but fair to state that this case was heard before the recent case of Kyes v. Telephone Co., 132 Mich. 281 (93 N. W. 623), was decided. That case settled the rule for this State, which was indicated in the Dolson Case, that, in estimating damages in such a case, it is proper to consider—

“The earning ability of the injured person, and the length of time that he would probably have lived had he not been injured, and the loss he sustained by reason of being deprived, by such injuries, of the ability to labor and earn money during the time he probably would have lived had he not been injured. ”

Counsel for the defendant urge that the damages recoverable in such a case should be only (1) the injury to feelings, pain and anguish, of deceased while he actually lived,- and (2) the loss of earnings during the remainder of the time that he actually lived. This is an unreasonable limitation. We need not discuss the reasoning by which the result is reached. We have long ago held that prospective damages are recoverable. An injured person may recover for loss of earnings for the period during which the evidence fairly shows that he would have lived but for the injury. This rule would apply to one who should live long enough to try his case, though he should die the following day. But defendant’s contention would substitute another rule upon a second trial after his death, should such trial become necessary. Such recovery is based upon the actual damages suffered through the accident. On the first trial the recovery is based upon a probable prospective incapacity for a probable period. After death, such incapacity (and consequent loss) is made certain, where it was only probable before. The period alone remains uncertain. As to pain and mental suffering, it is different. Upon the first trial, the duration of such pain and suffering is uncertain; upon the second, it is definite. As has been already suggested, it is not a new doctrine that prospective damages, when reasonably certain, may be recovered. It is a part of the right that survives under the act, as was held in the Kyes Case. Such a construction removes the only objection that can be urged against the view which we have taken of the death act. It gives to the representative the absolute right to the remedy which his ancestor had, instead of. leaving it to depend upon the accident of his dependency.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    SANITAS NUT FOOD CO. v. CEMER.
    1. Trade Secrets — Disclosure by Employes — Injunction.
    An employer may maintain a bill in equity to restrain an employé from practicing, or divulging to others, secret arts and processes, knowledge of which was acquired by him through his employment.
    2. Same — Parties.
    The persons to whom such arts and processes were disclosed are not necessary parties to the suit.
    Appeal from Calhoun; Winsor, J.
    Submitted June 9, 1903.
    (Docket No. 52.)

    Decided September 15, 1903.
    Bill by the Sanitas Nut Food Company, Limited, against John Cerner, to enjoin the disclosure of trade secrets. From a decree for complainant, defendant appeals.
    Affirmed.

      Mechem & Bailey (Dallas Boudeman, of counsel), for complainant.

      W. S. Powers, for defendant.
   Hooker, C. J.

The complainant filed a bill against defendant and several other persons to restrain the former from practicing, or divulging to the latter or to others, certain secret arts and processes, knowledge of which was ■.acquired by him through his employment by'complainant, and the latter from profiting therefrom by using the same. The bill was voluntarily dismissed as to all but defendant Cerner, and upon a hearing a decree was made in favor of the complainant against'him.

The question is one mainly of fact, and, in our opinion, the testimony warrants the decree rendered by the circuit judge. The case is ruled by O. & W. Thum Co. v. Tloczynski, 114 Mich. 149 (72 N. W. 140, 38 L. R. A. 200, 68 Am. St. Rep. 469).

It is asserted that the dismissal of the hill as to other defendants left complainant without a cause for relief against Cemer under the bill; but we think otherwise. The bill would lie against Cemer alone, and contains alie-' Rations sufficient for the purpose.

It is also urged that the decree is vague and uncertain; but we think it as specific as the nature of the case will permit.

The decree is affirmed, with costs.

The other Justices concurred.


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    ROBSON v. PRICE.
    1. Trial — Findings of Court — Partnership—Written Agreement.
    Where the oral evidence that defendants were partners was contradicted, it cannot be said that the trial court, in finding that they were not partner's, assumed that a written agreement, which was not an agreement for a partnership, contained the entire contract.
    2. Same — Refusal to Find Facts — Contradictory Evidence.
    A refusal to find certain facts is ‘not error where the evidence relating thereto was contradicted.

      3. Same — Immaterial Facts.
    A failure to find facts based upon uncontradicted evidence is not error where such facts would not affect the judgment.
    Error to Eaton; Smith, J.
    Submitted June 9, 1903.
    (Docket No. 47.)
    Decided September 15, 1903.

      Assumpsit by John Robson and Charles Robson, co-partners as Robson Bros., against Fred H. Price, Dwight J. Robson, and Lewis E. Granger, for money loaned and goods sold. Prom a judgment for plaintiffs against defendants Robson and Granger only, plaintiffs bring-error.
    Affirmed.

      Cassius Alexander and J. M. C. Smith (Frank JE. Robson, of counsel), for appellants.

      Clarke & Ratting (Russell C. Ostrander, of counsel), for appellee Price.
   Hooker, C. J.

The defendants in this cause were sued in attachment, upon the theory that they were co-partners in the show business. The cause was appealed to the circuit court, and there tried by the court without a jury, and a judgment in favor of plaintiffs was rendered against defendants Robson and Granger, and against plaintiffs in favor of defendant Price, upon the ground that he was not a copartner. The plaintiffs have brought error upon the judgment. Plaintiffs’ counsel proposed several amendments to the findings, and these were-rejected.

The important points made in plaintiffs’ brief are:

1. That the court erred in assuming that a' writing between the copartners contained their entire and bona fide agreement, and that, when construed in the light of surrounding circumstances, it shows that Price was a copartner.

2. That the court erred in holding that it was not necessary to' find the additional facts proposed, and that he should have included them in the finding, and that they would have established a copartnership had he done so.

The- written agreement was as follows:

“Agreement or Contract.
“This agreement and contract, entered into and made this 10th day of June, 1901, between Fred H. Price, sole owner of Susquehanna sleeping and dining car No. 12, now lettered ‘ Great London Shows,’ ticket wagon, stringer wagon, two baggage wagons loaded with seats, lights, tents, poles, stakes, runs, wardrobe, etc., also lessee of one ■Venice 60-foot flat car, of the first part:
“I, Fred H. Price, agree to lease to D. J. Robson and L. E. Granger, of the second part, who agree to enter into the show business, and it is hereby agreed that said D. J. Robson and. L. E. Granger are to organize, produce, and run the show known as ‘Robson & Granger Railroad Shows,’ and to manage same, and Fred H. Price is to act as front door man, to protect his interests; and, after deducting the legitimate expenses of running the show, Fred H. Price to receive 50 per cent, of the net profits, daily or weekly, as he demands, and D. J. Robson and L. E. Granger to receive 25 per cent, each of the net profits, hire their own help, such as bandmen, actors, workingmen, etc., pay all salaries, transportation for cars, and all claims due for the above shows during the tenting season of 1901, and to turn the above two cars, wagons, and contents over to Fred H. Price, as they received them, at Kingston, Pa., after the tenting season of 1901.
“ Fred H. Price.
“D. J. Robson.
“ L. E. Granger.
“Witnesses:
“C. H. Edwards.
“C. M. Honeywell.
“Earl Van.”

We cannot say that the court assumed that the writing contained the entire and bona fide agreement of the parties, and there is nothing to indicate that he did not construe this writing in the light of such circumstances as he found proved. Price’s testimony contradicted the plaintiffs’, and there is reason to suppose that it was believed. If so, the writing was shown to contain the'entire and bona fide agreement.

The court did Pot err in refusing to incorporate a list of the facts and circumstances suggested by the plaintiffs in the finding. It is true that there was evidence tending to show that the defendants were copartners, notwithstanding the agreement, which upon its face was not an agreement for a copartnership. It was proper for the-court to consider this testimony, as already said, and there-is no reason to believe that he did not. But it was contradicted, and, while some of the facts stated in the proposed amendments were not contradicted, others were. As to-those that were contradicted, the question was for the trial court, not for us; and, if all of the uncontradicted testimony had been incorporated in the finding, it would not justify us in saying that the court had erred in finding that Price was not a copartner. Hence the judgment-should not be reversed upon this ground. In his rejection of the amendments, the court said that he had considered the entire evidence, and from it concluded that Price was-not a copartner, and “that the original findings cover all that is necessary as to the facts sufficient for the disposition of the case.”

Errors were assigned upon the admission of certain-testimony. Apparently, counsel intended to abandon these, but we have examined them, and think that there is nothing in them calling for a reversal of the judgment. It is therefore affirmed.

The other Justices concurred.


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    FERGUSON v. FRINK.
    Guardian and Ward — Settlement—Statute of Limitations.
    It is held in this case that defendant did not conceal a cause of action from plaintiff, and that his settlement as guardian for plaintiff was honest and fair.
    Error to Clinton; Stone, J.
    Submitted June 9, 1903.
    (Docket No. 42.)
    Decided September 15, 1903.

      Assumpsit by Lydia A. Ferguson against Miner R. Frink for an alleged balance due from defendant as guardian of plaintiff. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Norton & Dooling, for appellant.

      H. E. & E. L. Walbridge, for appellee.
   Hooker, C. J.

The plaintiff, a married woman, began this action in assumpsit to recover an alleged balance which she claims that the defendant withheld from her on a settlement of his account as her guardian, made when she reached the age of 21 years, being upwards of 20 years ago. The statute of limitation was pleaded, and the plaintiff sought to avoid its application by reason of a fraudulent concealment of the cause of action. The court directed a verdict for the defendant, upon the ground that there was an entire absence of proof of such concealment. Plaintiff brought error.

Three questions are discussed in plaintiff’s brief, viz.:

I. Did defendant fail to pay to plaintiff her share of the sums that came into his hands as guardian for herself and her brother and sister ?

2. Was the settlement made by him with the plaintiff a just and fair one, and binding on her, in view of the fact that she did not know that it did not include certain amounts to which she was entitled ?

3. Was there any evidence that tended to prove that the defendant had fraudulently concealed the cause of action from the plaintiff ?

The undisputed evidence shows that the defendant is not chargeable with a fraudulent concealment of a cause of action, while it so clearly appears that the settlement was an honest and fair one that we should hesitate to permit a verdict to the contrary to stand were the statute not pleaded.

The judgment is affirmed.

The other Justices concurred.


author: Hookee, C. J.

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    COREY v. CITY OF ANN ARBOR.

    1. Municipal Corporations-^Sidewalks — Notice of Defects.
    The mere fact that a sidewalk was in an icy condition from Monday night to Friday following does not justify a holding that the city officials had knowledge of the defect.
    2. Same — Presumptions.
    Notice to a city that a sidewalk was in an icy condition cannot be inferred from the fact that the president of the council lived on the opposite side of the street, and frequently took a street car in front of his house. <
    3. Same — Highway Officers — City Clerk — Patrolmen.
    Patrolmen and a city clerk are not highway officers, charged with the duty of seeing that sidewalks are kept in a safe condition for public travel, and their knowledge of a defective sidewalk is not notice to the city.
    Error to Washtenaw; Kinne, J.
    Submitted June 9, 1903.
    (Docket No. 40.)
    Decided September 15, 1903.

      Case by Ratie E. Corey against tbe city of Ann Arbor for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Lehmann & Stivers, for appellant.

      O. E. Butterfield (John E. Lawrence, of counsel), for appellee.

       Rehearing denied March 15, 1904.

   Hookee, C. J.

The circuit judge who tried this cause directed a verdict for the defendant, and the plaintiff has brought the case to this court by writ of error. She was injured through a fall upon an icy sidewalk, the ice being occasioned by the freezing of water which flowed upon the sidewalk from a hydrant upon the premises of an adjacent proprietor, according to the plaintiff’s claim. Defendant’s counsel maintain that it was not shown that she fell upon this ice, but we think there was testimony from which it might be inferred. The questions in the case are (1) whether the city is chargeable with notice, and an opportunity to repair, and (2) whether the statute imposes a liability upon a city in such a case.

This is the second appeal; a former opinion being found in 124 Mich. 134 (82 N. W. 804). It was there held that, in the absence of proof that the condition of the walk was notorious, or of proof of actual notice, or that any of the city officers charged with the duty of seeing that the walks were kept in safe condition had been along the street daring such time, the fact that the icy condition of the walk had existed from Tuesday to Friday would not justify an inference of notice which would warrant recovery. We discover no essential difference in the evidence upon the two trials as to the length of time that the ice was upon the walk. The opinion indicates that it was shown on the former trial that the water flowed on the walk and froze.on Tuesday. It is now claimed that it occurred Monday night, and the accident was shown to have happened on Friday night in both trials. The difference is not such as to justify a holding that a presumption of knowledge might be found in one case, and not the other.

The case is said to be different upon this record in relation to notice.- Counsel say that the jury should have been allowed to infer notice of the dangerous condition from the following testimony, viz.: The president of the council lived on the opposite side of the street from the place of the accident, and took a street car frequently in front of his house. Two patrolmen were frequently met and seen on Williams street, the street upon which the accident happened. Glen Y. Mills, the city clerk, was seen to pass over this walk the day before the accident, and his wife was over the walk several times within a day or two before the accident. We have held that knowledge of highway officers, or those having the highways in charge, and upon whom rested the responsibility for their condition, would be a notice to the municipality; but none of the persons named is such an officer, unless it be the president of the council, and, if he was such (which we do not decide), there is no evidence that he knew of the ice. Counsel urge that the jury should have been allowed to infer such knowledge from the fact that he resided, and frequently took the street car, opposite; but we think not. Counsel dwell upon the knowledge of the clerk, and insist that the duties imposed by law to keep the books and act as clerk of the board of public works, etc., make notice to him sufficient. This was passed upon before, as it was then shown that the clerk had been along the street, and it was urged then, as now, that this was notice to the defendant. It was said in the opinion: “ It is not shown that any officer of the city, charged with the duty to see that the sidewalks were kept in safe condition for public travel, had been along this street during that timeand this could not have been said if the clerk was such officer. No such duty or responsibility was shown on either trial. We think the learned circuit judge was right in saying that the testimony was substantially the same as upon the former trial.

The judgment is affirmed.

The other Justices concurred.


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    ATTORNEY GENERAL, ex rel. HURLEY, v. BRIDGMAN.
    Corporations — State Banks — Cumulative Voting Law.
    If the minority stockholders’ cumulative voting law (3 Comp. Laws, § 8553) ever applied to the banks of the State, it was, so far as it applied to banks, repealed by the general banking law of 1887 (3 Comp. Laws, §§ 6101, 6153).

      Quo warranto proceedings by Charles A. Blair, attorney general, on the relation of James J. Hurley, against Charles T. Bridgman and others, to determine the title to the office of director of a bank.
    Submitted June 9, 1903.
    (Docket No. 48.)
    Judgment for respondents on demurrer to the information September 15, 1903.

      Charles A. Blair, Attorney General (Black db Roberts, of counsel), for relator.

      Durand & Carton and Brennan & Cook, for respondents.
   Moore, J.

Mr. Hurley claims to have been elected a director of the Union Trust & Savings Bank of Flint by a vote of the minority of stockholders, voting on the cumulation plan, as provided for by section 8553, 3 Comp. Laws. The respondents claim to be the duly elected directors of said bank, and do not recognize the election of Mr. Hurley.

Counsel are agreed that the only question involved is whether the minority of stockholders law applies to a banking corporation organized under the general banking law of the State. It is the claim of relator that it does apply, in support of which claim counsel cite the statute itself, the case of Attorney General, ex rel. Dusenbury, v. Looker, 111 Mich. 498 (69 N. W. 929), and other cases. It is the claim of the respondents that the law does not apply to banks, first, because article 15, § 2, of the Constitution of the State, provides that “no general banking law shall have effect until the same shall, after its passage, be submitted to a vote of the electors of the State at a general election, and be approved by a majority of the votes cast thereon at such election,” and that the law in question never was approved at a general election by a vote, of the electors, and therefore cannot affect the banking law; and, second, because, if it ever applied to the banks of the State, it was repealed, so far as affecting the banks, by Act No. 205, Pub. Acts 1887.

In our view of the case, it will not be necessary to discuss the first of these contentions. The minority of stockholders law was passed in 1885 (Pub. Acts 1885, Act No. 112), and was amended by Act No. 123, Pub. Acts 1887, which was approved May 23, 1887, and given immediate effect. Act No. 205, Pub. Acts 1887, entitled “An act to revise the laws authorizing the business of banking, and to establish a banking department for the supervision of such business,” was approved June 21, 1887. By its terms it did not become effective until 60 days after it had been adopted by the electors at the next general election. Section 12 of the act (2 Comp. Laws, § 6101) provides for the number of directors a bank shall have, and how they shall be elected, and, among other things, says:

“At a meeting of stockholders for election of directors, each share shall entitle the owner to one vote for each director; but no stockholder shall be entitled to vote who is indebted to the bank upon any obligation past due.”

It is difficult to reconcile this provision with the one in the minority of stockholders law, that a stockholder may multiply his shares of stock by the number of directors to be elected, and cast that number of yotes for one director, as was done by Mr. Hurley and his friends in the case before us. • This section was adopted by the same legislature which passed the minority of stockholders law, and, in addition to the provisions of this section, it was provided by section 64 of the same act (2 Comp. Laws, § 6153) that “ all acts and parts of acts of which this act is amendatory or supplementary, inconsistent with the provisions of this act, are hereby repealed.” It follows, we think, that, if the cumulative voting law ever applied to the election of directors of banks organized under the banking law of 1887, it was repealed by the enactment of that law. See Suth. Stat. Const. §§ 160, 336, and the cases therein cited.

The writ is denied.

The other Justices concurred.


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    DE LAND v. HALL.
    1. Pleadings — Variance—Contract of Employment — Wages.
    Where a declaration counted on a contract of employment at $120 per month, and the bill of particulars claimed $90 per month, testimony showing a contract at “going” wages, which were from • $100 to $120 per month, was not a fatal variance.
    2. Statute of Frauds — Contracts Not to be Performed Within a Year.
    An oral contract of employment of a captain of a vessel for the ensuing season, made on the 14th of November, the day after the close of the current season, is one which may be performed within a year, and not within the operation of the statuté of frauds, although by custom a season begins on the 1st of April and ends the 5th of December.
    3. Compromise Verdicts — Contracts for Wages — Damages.
    Plaintiff testified that he was employed for a season at the “going” wages, which were from $100 to $120 per month, and on cross-examination admitted that he had worked the previous season for $70 per month. Defendant’s testimony-showed that he had been paid $75 per month up to the time he was discharged, and made no claim that he was entitled to more until after his discharge. Held, that a verdict awarding damages at the rate of $75 per month would not be set aside as a compromise verdict.
    Error to St. Clair; Tappan, J.
    Submitted June 10,1903.
    (Docket No. 71.)
    Decided September 15, 1903.

      Assumpsit by Leander S. De Land against Edmund •Hall for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Frederick B. Brown and John B. Mcllwain, for appellee.
   Moore, J.

This is an action for breach of contract. Defendant was the owner of the tug Argyle, and for a portion of the sailing season of 1899 plaintiff was acting as captain of said tug. At the close of his employment that year, he visited the office of the defendant for the purpose of obtaining wages due, and claims he made a contract with the defendant to act as captain of said vessel for the season of 1900. He became master of said vessel on the 7th of April, 1900, and continued in that capacity until the 16th day of May, when he was discharged. Defendant denies any contract for the season was entered into, and claims plaintiff was engaged at a specific rate of wages per month, under contract made at a later date ■with defendant’s superintendent. • The case was tried by a jury, who returned a verdict in favor of the plaintiff for $407.40. A motion was made for a new trial, which motion was overruled. The case is brought here by writ of error.

It is claimed that, because of a variance between the pleadings and proofs, a verdict should have been directed in favor of defendant. The declaration alleged that ‘ ‘ on November 14, 1899, defendant employed plaintiff to act as master of the tug Argyle for the season of 1900, to wit, a period of nine months, for the sum of $120 per month.” The bill of particulars claimed for services from April 7, 1900, to December 12,1900, at $90 per month. When the proofs were all in, plaintiff asked leave to amend his bill ■of particulars. The judge refused to allow him to do so, and instructed the jury that, because of the bill of particulars, plaintiff could recover not to exceed $90 per month. The testimony on the part of the plaintiff tended to show a hiring for the season of 1900 at the going wages, and that the going wages for vessels like the Argyle were from $100 to $120 a month. We do not think that there was any such variance as to take any one by surprise, or to mislead him.

It is said, as the contract could not be performed within a year, it comes within 3 Comp. Laws, § 9515. In the course of the trial, it was agreed between counsel that the meaning of the words ‘ ‘ season of navigation ’’ — the generally accepted meaning — -is, and also by custom, that the season of navigation begins on the 1st day of April and ends on the 5th of December. The testimony also discloses that the season closed with the Argyle the year before on the 13th of November, and the contract, if one was made, was made the day thereafter. We think, in view of this record, it cannot be said it was an ‘ ‘ agreement that by its terms is not to be performed in one year from the making thereof,” within the meaning of the statute. See cases in note to statute. Smalley v. Mitchell, 110 Mich. 650 (68 N. W. 978).

It is claimed the testimony does not establish a contract for the season. There was a conflict in the testimony. The jury evidently believed the plaintiff’s version of it. If true, it showed a hiring for the season of 1900.

It is said the verdict was contrary to the evidence and the charge of the court; that it should have been either in favor of defendant, or for a much larger sum, and shows that it was a compromise verdict; citing Morley v. Insurance Co., 85 Mich. 210 (48 N. W. 502), and other cases. We do not think the cases cited are controlling. In the Morley Case suit was brought upon an insurance policy. If anything was due, it was the sum of $1,533, and interest for three years. The verdict was but $951.29, showing the jury were not governed by the testimony. In the case at bar, it is true, Mr. De Land gave testimony tending to show that the going wages were $100 to $120 a month, but it was drawn out on the cross-examination that he acted as master for the same vessel the fall before at $70 a month, while proof was introduced on the part of, the defendant that, up to the time the plaintiff was discharged, he was paid at the rate of $75 a month, and made no claim he was not being paid enough. A computation shows that, after making the proper deductions, the jury computed the wages at $75 a month. Under these circumstances, we do not think it can be said the verdict was not justified by the evidence, nor that the judge abused his discretion in refusing a new trial.

Judgment is affirmed.

The other Justices concurred.


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    BURBANKS v. LEPOVSKY.
    T. Malicious Prosecution — Advice of Counsel — Question for Jury.
    Where, in an action for malicious prosecution, plaintiff’s testimony showed he was not guilty of the crime for which he had been prosecuted, and that defendant had no reason for believing he was, and defendant’s testimony failed to show that he stated all of the facts to the prosecuting attorney, upon whose advice plaintiff was arrested, plaintiff was entitled to have submitted to the jury the question whether his testimony of the circumstances omitted from defendant’s statement to the prosecutor established such facts.
    2. Same — Bad Faith.
    In an action for malicious prosecution, the advice of counsel is no defense to a person acting in bad faith.
    3. Same — Probable Cause — Failure of Jury to Acquit.
    The failure of the jury to acquit plaintiff of the crime for which he was prosecuted is not conclusive on the subject of probable cause.
    Error to Sanilac; Beach, J.
    Submitted June 10, 1903.
    (Docket No. 60.)
    Decided September 15, 1903.
    Case by Frank E. Burbanks against David Lepovsky and Alexander Lepovsky for false imprisonment and malicious prosecution. From a judgmént for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Wilford Macklem, for appellant.

      W. H. Burgess, for appellees.
   Hooker, C. J.

The testimony in this cause shows that the plaintiff was an insurance agent, and insured the defendants against loss by fire in the sum of $1,000 upon their stock of merchandise at Bad Axe. The premium was $55, $20 of which was paid in cash, and the remainder was applied upon an account due them from the plaintiff. There was an understanding that the defendants expected to soon move their stock to Minden City, and it was agreed that in that event the plaintiff should cancel the policy. pro rata, and issue new insurance to cover the stock in its new location. A short time afterwards the defendants removed to Minden City, and the policy was sent to the plaintiff, with the request that he cancel it, and issue a new policy for $3;500 in the Imperial Insurance Company. Plaintiff testified that David Lepovsky had authorized him to do what was necessary to accomplish the readjustment of the insurance. Accordingly be wrote a receipt for the unearned premium, and signed the Lepovsky firm name to it, and sent it to the company with the first policy. He also sent daily reports to three companies, one ■of which was the Imperial, showing the issue to the defendants of policies amounting to $3,500. He testified that he afterwards saw David Lepovsky, and told him what he had done, and that he seemed satisfied; but that a day or two later he called upon him for the policies, and plaintiff told him that he had not heard from the companies yet, but would in a day or two, and he would then deliver them. Lepovsky replied that he would have them that day or never. He never received them. Subsequently he made complaint against the plaintiff for forgery of the receipt mentioned. A warrant was issued, and the plaintiff was arrested, bound over, and tried at the circuit, whereupon, after a disagreement of the jury, the case was nolle grossed. Subsequently this action was begun for false imprisonment, and upon trial the court directed a verdict for the defendants, and the plaintiff has brought error.

In addition to the facts already stated, the plaintiff produced testimony that one of the defendants had stated to a bank cashier that he “ had Burbanks fast,” and that he “would hang Burbanks higher than the Jews hung Christ;” that the other defendant had said shortly after Burbanks’ arrest that “he would see him in Jackson, or spend a thousand dollars to see him there.” David Lepovsky signed and allowed to be published a statement that the case against Burbanks had been brought on, he had pleaded guilty, and was held to the circuit court. One Yakes had a talk with both defendants about this before such publication, and advised caution about publishing it. The younger Lepovsky (Alex.) stated that “he did not care for that; they had too much money for Burbanks to law them; they would outwind him; they would law him until he could not follow them; they had a thousand dollars they would spend, if it was necessary, to send Bur-banks over the road.” The sheriff testified that on the day of the examination, after plaintiff was bound over, he heard one of the defendants say that “he was going to send him oyer the road,” and that “ he seemed very glad and elated.”

The defendants were not sworn, but called the prosecuting attorney, who testified that one Cox, an insurance ■agent, and Lepovsky came to see him about the charge against Burbanks, and made a statement of the details, showed him the receipt, and some letters. He could not .give the conversations Verbatim, but he had two or three talks about it, and he knew a good deal about it besides what he got from them, and that he directed the defendant David to make the complaint. When asked whether defendant stated any conversation about the return premium, he said:

“ That matter was talked over, I remember; but I can’t remember the exact conversation now, but perhaps you can draw my attention to it; but I can’t give it now, I don’t believe. I can say this: That there was nothing developed in the testimony, either before the justice of on the trial, that was new to me. I conducted the examination as prosecutor before the justice and the trial before this court. My recollection is now — but I am not positive — that I went to Minden, talked with the boys, and made an investigation before the papers were issued.
Q. What did you advise Mr. David Lepovsky to do in the matter ?
“A. If that assumes I went, I wouldn’t want to answer; but I will say this: After I made the investigation, I did •advise Mr. Lepovsky to make that complaint. I think Mr. Dawson came into my office and did the writing in the complaint and warrant, and I dictated it. I had charge of the case from the making of that complaint to the termination of the case. The various steps were taken under the direction of the sheriff and myself. I always •consulted with him in all those matters, and we acted together. My impression is that the adjournments before the justice were made by agreement, and arranged at such times as would be satisfactory to the people’s witnesses and the defendant’s attorney and myself and the sheriff. I understood this man Cox to be an agent or an employe •of the company to which that receipt purported to have been given. I talked with Mr. Cox fully on the matter, and learned all he claimed to know about it. There were' some letters from Mr. Burbanks, and I think there were-what purported to be either press copies or typewritten copies of letters they had written to him. I saw quite a number of letters. I haven’t any of the letters; they were-returned.
Q. Whether or not David Lepovsky informed you before the complaint was made that he did not sign the-receipt that was claimed to have been forged ?
“A. He did tell me that he didn’t sign it.
Q. And the receipt he had at that time in your presence ?
A. I am not going to say that, — whether it was from him or Cox; but I had it before the warrant was made. I am positive that Mr. Lepovsky saw that receipt in my hands, whether he brought it or Cox brought it, before the warrant was made; and denied the signature. In fact, I was somewhat familiar with Mr. Lepovsky’s handwriting. He had written to me in regard to some matters,, as I remember it, and I had seen some of his handwriting, and I had seen some of Mr. Burbanks’ handwriting, and it was not Mr. Lepovsky’s, I didn’t think.
Q. Whether or not at that time he told you that he had not authorized Burbanks to sign the name Alex. Lepovsky & Co.?
‘A. He told me that he did not authorize it.
Q. Whether the young man told you the same thing ?
“A. He did.”

Witness stated, under objection of plaintiff, that “Cox related to me a conversation he had with Burbanks at Minden.” “Mr. Lepovsky told me all about moving his goods from Bad Axe to Minden, and .how he came to require this insurance. I knew all about it anyhow.”

This is the substance of his direct examination. Ou cross-examination he testified:

“ Mr. David Lepovsky was the man that furnished me all the information as to what occurred between him and Mr. Burbanks, and I relied on what he told me.
‘ ‘ Q. Did you base your action on what he stated to you as to what occurred between him and Burbanks ?
“A. I didn’t divide the case. I took together what I got from all.
Q. I ask you whether you had any other source of information as to what occurred personally as to conversations between Lepovsky and Burbanks, other than Lepovsky ?
“A. I answered you twice. I said, only so far as they were corroborated by other circumstances and other things.
‘ ‘ Q. What other information did you have that you ■undertake to say corroborated ?
“A. What I got of Mr. Cox, and what I got from the ■younger Lepovsky, and the letters, and all the information ■together.
Q. Did Mr. Cox claim that he was at Minden at any time, and heard any conversation between Mr. Lepovsky and Mr. Burbanks ?
“A. I can’t say that he did. Mr. Lepovsky did not tell .me that he had requested Mr. Burbanks to cancel that policy, and apply the proceeds on any other insurance; nor did he tell me that he had authorized Mr. Burbanks to take any step necessary to cancel the policy.
“ Q. If he had told you that he had authorized Mr. Burbanks to cancel that policy, and take the money and ■apply it on other insurance for him, and that Mr. Bur-banks had written other insurance and applied on other and different policies for him, would you have ordered the prosecution ?
“A. I don’t think so.
Q. Did Mr. Lepovsky tell you that he had got angry because Mr. Burbanks did not deliver the policies to him when he asked for them ?
“A. No; he did not tell me anything of any conversation that occurred up there at his place as I heard since; there was nothing of that at all.
“ Q. Did Mr. Lepovsky tell you that he had authorized Mr. Burbanks to sign that receipt ?
“A. No, sir; I told you he didn’t.
‘ ‘ Q. Had he told you that he had authorized Mr. Bur-banks to sign that receipt, would you have ordered the prosecution ?
“A. No, sir; decidedly not. No matter what the rest of it was, he wouldn’t have got any complaint or warrant if he had told me that.
Q. And if he had told you he had authorized him to take any steps necessary to draw that money and get it and apply it on other insurance, would you have ordered it then ?
“A. No; I should consider that he told Burbanks to do-whatever Burbanks thought was necessary to do, and whatever Burbanks did was authorized.
Q. If he had told you that he was pushing the matter for personal spite, and was only doing it for personal malice, would you have ordered a complaint ?
“A. No; if I thought it was personal spite, I wouldn’t permit a prosecution anyhow for personal matters.
Q. You stated that you thought you went up there and consulted the boys ?
“A. I know I talked with Lepovsky’s two boys, but I said then, and I say now, that I am not sure whether it was before the complaint was made, or whether it was after the arrest and before the examination. I would not be positive about that.
Q. If you had known, or if Mr. Lepovsky had told you, that when he gave the policy to Mr. Burbanks to be canceled, or had it brought to Mr. Burbanks, he ordered him to write him up $3,500 other-insurance, and to apply the money, would you have ordered a prosecution ?
“A. That is the question you asked me before, practically. I wouldn’t decide on that alone. I don’t think I would have decided on that alone.
Q. Did he so tell you?
“A. No, he did not.
“ Q. You said in your redirect, to Mr. Burgess, that he-told you about moving his goods from Bad Axe. Did he tell you also about his ordering $3,500 insurance of Mr. Burbanks ?
“A. My impression is that it wasn’t spoken of the first time, but, when we learned that would enter in, be told me he had not ordered it. My impression is he didn’t tell' me at first because we didn’t know what the defense-would be, but, when that was put up for a defense, he told me he hadn’t.
“Mr. Gates: We object to that, and ask that it be-stricken out.
The Court: I suppose the term ‘put up’ is not used in an offensive sense ?
Witness: Did I use the words ‘put up?’ I will withdraw that, and substitute the words ‘ defense put forward.’
Q. He didn’t tell you about the $3,500 of insurance?
“A. I understand I first learned of that from the-defense.
Q. He denied that to you ?
‘A. That was always denied by both of them; that is, if you are speaking of the insurance that Mr. Burbanks claimed he put up for them on their order.
Q. I will repeat my question: I ask you again if, in any conversation, Mr.-Lepovsky, either David or Alexander, stated to you that they, or either of them, had ordered $3,500 of insurance through Mr. Burbanks, on their goods, after coming to Minden City ?
“A. If that is the $3,500 insurance mentioned by Bur-banks as being ordered by them to pay that return premium, then that was never mentioned to me by them. If it refers to the insurance that he had upon his goods there, I am inclined to think that at some time in that transaction I did learn that there was some insurance ordered upon the goods there at Minden City after they came there, of Mr. Burbanks, by Mr. Lepovsky. Just the amount of it I cannot remember.”

This was all of defendants’ testimony. The plaintiff had already shown the court proceedings both before the justice and at circuit.

If the evidence adduced by the plaintiff is true, it is manifest that he was not guilty of forgery, and that the defendants had no reason for believing that he was; while the testimony offered by the defendants fails to show conclusively that they stated all of the facts to the prosecuting attorney. On cross-examination that officer admitted that many circumstances which the defendants must have known, if true, were not stated to him, and that he would not have advised a prosecution if they had been. Whether they were true or not was a question of fact for the jury, inasmuch as plaintiff’s testimony tended to prove them. Again, there is proof in this record which entitled the plaintiff to go to the jiiry on the question of defendants’ belief in plaintiff’s guilt. The following cases are in point on these questions: Harris v. Woodford, 98 Mich. 149 (57 N. W. 96), which holds that advice by counsel does not protect one who acts in bad faith. See authorities cited therein; also Bennett v. Eddy, 120 Mich. 309 (79 N. W. 481); Rankin v. Crane, 104 Mich. 9 (61 N. W. 1007).

The fact that plaintiff was required to appear at circuit court, where a jury failed to acquit him, is not conclusive on the subject of probable cause. See Fine v. Navarre, 104 Mich. 94 (62 N. W. 142); Pawlowski v. Jenks, 115 Mich. 275 (73 N. W. 238).

Counsel contends that the disagreement of the jury and subsequent nolle pros, do not establish prima facie want of probable cause. That might be conceded, and, further, that prima facie it showed probable cause; yet the case should have gone to the jury upon the question, because plaintiff’s testimony, if believed, was sufficient to overcome such prima facie case, and establish the want of probable cause.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    WARD v. REED.
    1. Pleading — Appeal from Justice’s Court — Notice of Defense.
    Tlie failure of a defendant to give the notice required by Cir. Ct. Rule 7, sub. c, with his plea filed in the circuit court to a suit begun in justice’s court, will prevent his showing that the signature to the note upon which suit was-brought was obtained by fraud, although, if the plea had been filed in the justice’s court, the defense would have been admissible.
    2. Trial — Remarks of Counsel.
    It is not proper for counsel to interject irrelevant remarks, calculated, if not designed, to prejudice the jury upon the merits of the case.
    Error to Muskegon; Russell, J.
    Submitted June 10, .1903.
    (Docket No. 70.)
    Decided September 15, 1903.

      Assumpsit by Horace Z. Ward against John O. Reed upon a promissory note. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Smedley & Conoin, for appellant.

      Turner & Turner, for appellee.
   Hooker, C. J.

Defendant was sued in an action of assumpsit in justice’s court. Upon the return day the plaintiff declared orally upon a promissory note filed with the court. The defendant appeared specially, and objected to the jurisdiction of the court, and, these objections, being •overruled, took no further part in the proceedings, and plaintiff took judgment. The cause was taken to the circuit by special appeal, and the questions raised by the special appeal were decided against defendant, who thereupon, under leave granted, pleaded the general issue, accompanying the plea with an affidavit denying that he signed or executed the note, or authorized any one to do so in his behalf. Upon the trial a verdict of no cause of action was followed by an appropriate judgment, and plaintiff has brought error.

The defendant was allowed to show against objection that the signature to the note was obtained through fraud and deceit. Had this action been commenced in circuit court, this proof would have been inadmissible for want of a notice of the defense relied on. See Cir. Ct. Rule 7, sub. c. On the other hand, the case was begun in justice’s court, and, had the plea of the general issue been filed there, the defense would have been admissible, although no notice had been attached. See Hubbard v. Freiberger, 133 Mich. 139 (94 N. W. 727). But, although it was commenced in justice’s court, the defendant did- not appear generally there. He did appear in circuit, and filed a plea under leave there given. In such a case we are of the opinion that the statutes cited in Hubbard v. Freiberger do not apply, and he was required to plead in conformity to the rule of the circuit court. The testimony was improperly admitted, and the cause must be reversed for this reason.

Complaint is also made of the remarks of counsel, and, we think, justly. It is not proper to interject irrelevant-remarks, calculated, if not designed, to prejudice the jury upon the merits of the case. A litigant has a right to a fair trial, and such conduct is unfair, and should be promptly suppressed. Nearly every term of court some case is presented where this practice has been indulged in, and we are sometimes forced to think that there is method in it, and that the reluctance of the court to reverse cases, for reasons not clearly shown to have done injury, is presumed upon, though in most cases (as in the present) we are charitable enough to ascribe it to overzeal, heat, or provocation by opposing counsel. The practice is not ethical, and should be avoided.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.