text:
    FLAMMER v. CULLEN.
    1. Equity — Specific Performance — Jurisdiction — Estates of Decedents.
    The court of equity has jurisdiction to decree specific performance of a land contract and to make a division of the balance of the purchase price, which was paid into court, where the vendors, husband and wife, had both died, and the representatives of their estates were in disagreement as to the division of the fund.
    2. Same — Probate Courts — Estates of Decedents.
    The probate court has concurrent jurisdiction with the chancery court to enforce the contract, and complainants had the right to elect in which court they would proceed, but the probate court has sole jurisdiction to determine how much one estate is indebted to the other. Act No. 314, chaps. 51, 60, Pub. Acts 1915 (3 Comp. Laws 1915, § 14038 et seq.).

      3. Same — Jurisdiction—Accounting—Estates of Decedents.
    While under section 9383, 3 Comp. Laws, 3 Comp. Laws 1915, § 13880, an administrator may bring an action against a person for an accounting and such person may set off any demand he may have against the estate, it does not authorize a suit by him against an estate for an accounting, and, since the chancery court has no jurisdiction to allow a claim against an estate, in a suit by third parties against the administrators of two estates, the chancellor properly refused an accounting between the estates.
    Appeal from Wayne; Codd, J.
    Submitted June 26, 1916.
    (Docket No. 116.)
    Decided March 29, 1917.
    Bill by Frank Flammer and another against James Cullen, special administrator of the estate of George Flammer, deceased, and Samuel J. Hunter and Frank Flammer, executors of the will of Kresenz Flammer, deceased, for specific performance of a land contract, for an accounting and other relief. From a decree for complainants, defendants Hunter and Flammer appeal.
    Affirmed.

      F. Henry Wurzer, for complainants.

      Walker & Spalding, for defendants Hunter and Flammer.
   Bird, J.

Plaintiffs show by their bill that on September 23, 1911, George Flammer and his wife, Kresenz Flammer, sold to them on land contract a parcel of land situate in the city of Detroit, and described as lots 2, 3, and 4 of the subdivision of lot 4 of Edwin Jerome’s survey, etc., for the sum of $3,500. $1,000 was paid when the contract was executed, and $700 subsequently thereto; that the balance, amounting to $1,800 and accrued interest, is now due, and they are ^desirous of paying the same and getting a conveyance thereof; that in March, 1913, Kresenz Flammer died, and defendants, Hunter and Flammer, were duly appointed as executors to represent her estate, and in May, 1914, the said George Flammer died, and his estate is now represented by the defendant Cullen, as special administrator. Plaintiffs further show that they are unable to obtain a conveyance of said premises from either the representatives or heirs of said estate, because they are unable to agree among themselves in what proportion the fund, which is tendered into court, shall be divided between them. The representatives of George Flammer’s estate insist upon a division of the fund in the same proportion that George and Kresenz owned the premises when the contract was made. This would result in a division approximately in the proportion of one-fifth to the estate of George and four-fifths to the estate of Kresenz. The representatives of Kresenz’s estate insist that they are entitled to the entire fund paid into court because the previous amounts paid upon the contract were paid to George Flammer, and Kresenz’s share was never fully paid over to her. They further insist that they are entitled to an accounting to determine how much of the purchase money which was paid directly to George was still in his hands at the date of his decease. The chancellor ordered the contract enforced and the fund tendered into court divided in the proportion of the respective interests of George and Kresenz in the premises at the date of the contract, but refused to order an accounting on the ground that he had no jurisdiction to allow a claim against the estate of George Flammer; that being a matter within the jurisdiction of the probate court.

Without doubt, the-chancellor had the authority to decree the performance of the contract and to make a division of the fund which was paid into court, and we think he was right in holding that the settlement of the joint account between the parties for moneys which went into it while'they were living was a question for the probate court. The probate court had jurisdiction of both estates when this litigation began, and plaintiffs had the right to elect in which court they would proceed. Act No. 314, chap. 60, Pub. Acts 1915 (3 Comp. Laws 1915, § 14038 et seq.). The probate court has concurrent jurisdiction with the chancery court to enforce the contract (Id.), but it has sole jurisdiction to determine how much one estate is indebted to the other. Act No. 314, chap. 51, Pub. Acts 1915 (3 Comp. Laws 1915, § 13764 et seq.).

Our attention has been called to the case of Yalomstein v. Yalomstein, 190 Mich. 615 (157 N. W. 372), in which this court approved the action of the chancery court in allowing an account owing from one 'estate to another, and it is argued that that case is authority for what is asked here. There are differences which make the present case easily distinguishable from the one cited. In the Yalomstein Case the amount of the claim was agreed upon, whereas in the present case the question as to how much there is due is contested. Another point of difference is that in the case cited the allowance of the claim was a question incidental to the main question, which was a charge of fraud. In the instant case the question as to how much is due, if anything, is the gist of the controversy. The court indicated in the Yalomstein Case that had the question not been one that was incidental to the main question it would not have been approved.

Counsel make the further point in support of their contention that the chancery court has jurisdiction to entertain a suit commenced by an administrator. True, the statute gives this right (3 Comp. Laws, § 9383 [3 Comp. Laws 1915, § 13880]), and the following section provides that when the administrator commences an action against a person, that person may set off any demand he may have against the claim of the estate, but these statutes are not helpful in the present suit because it was not begun by the administrator of either estate, but by third parties under a special statute. Section 9883 would undoubtedly authorize the administrator to commence an action against a person for an accounting, but it would hardly be contended that it was authority for a suit by an administrator against an estate for an accounting.

The decree made by the trial court was the proper one, and will be affirmed. Complainants will recover their costs in this court.

Kuhn, C. J., and Stone, Moore, and Brooke, JJ., concurred with Bird, J. Ostrander and Steere, JJ., concurred in the result. Person, J., took no part in the decision.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    BLAKE v. FARMERS’ MUTUAL LIGHTNING PROTECTED FIRE INSURANCE CO. OF MICHIGAN.
    1. Insurance — False Statements in Application — Notice to Agent — Waiver.
    Knowledge of the agent of an insurance company that the statement in an application for insurance that all of the chimneys were constructed of brick or cement was false must be regarded as the knowledge of the company, and cannot be made the basis of avoiding liability on the policy.

    2. Same — Principal and Agent.
    An agent of an insurance company aiithorized to take applications for insurance, receive the premium, and receipt therefor, is the agent of the insurer and not of the insured.
    3. Same — Mutual Insurance Companies — Liability eor Agent’s Acts.
    There is no distinction between mutual and stock companies as to their responsibility for the acts of their agents in taking applications for insurance.
    •4. Same — Knowledge of Agent — Fraud—Estoppel.
    Where it is conceded that the agent filled up the application with knowledge that the statement as to the chimneys was false, that the insured signed the application without reading it, and when the receipt was handed to him he called the agent’s attention to the statement therein that all chimneys must be of brick or cement, and the agent replied that it was all right, it was safe, the company is estopped from avoiding liability on the ground of fraud.
    5. Same — Arbitration — Action — Compliance with By-Laws — Estoppel.
    Where the by-laws of a mutual fire insurance company provided that after being notified of a loss the company should notify insured to appear before the arbitration committee, and the company failed to do this, but instead wrote plaintiff a letter denying liability, it cannot avoid liability on the ground that insured should have resorted to arbitration.

    Error to Sanilac; Beach, J.
    Submitted June 13, 1916.
    (Docket No. 63.)
    Decided March 29, 1917.
    Assumpsit by Ira Blake against the Farmers’ Mutual Lightning Protected Fire Insurance Company of Michigan, Ltd., upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clarence A. Cameron (Farley & Selby, of counsel), for appellant.

      C. F. Gates, for appellee.

       As to the effect of knowledge by insurer’s agent of falsity of statements in application see note in 16 L. R. A. 33.

       On the question of arbitration as condition precedent to action on insurance policy see notes in 15 L. R. A. (N. S.) 1055; 28 L. R. A. (N. S.) 104.

   Bird, J.

Plaintiff recovered a judgment of $500 against defendant on a fire insurance policy by direction of the court, and defendant assigns error.

The conceded facts appear to be that in August, 1910, plaintiff applied to one Sheldon, the local agent of defendant, for insurance on his farm dwelling and barn, situate in Sanilac county. The agent, being familiar with the premises, advised plaintiff that he could insure the barn, but not the house, .because it was not provided with lightning rods. Sheldon, being also an agent for the sale of lightning rods, was engaged by plaintiff to rod the house. The day on which Sheldon finished rodding the house he filled up a blank application for insurance on the house and barn, and plaintiff signed it without reading it or having it read to him. At the same time he paid for the policy and was given a receipt, upon which he noticed it stated that chimneys should be of brick or cement. This led him to ask Sheldon about the chimney on his summer kitchen, which was provided with a Dutch chimney, that is, an iron smokestack, the lower part of which fitted on to the roof like a saddle. Sheldon replied that the chimney was all right, it was safe. Upwards of four years thereafter a fire occurred in the upright of the house, and the company refused to pay the loss. Its refusal was based upon the following question and answer in the application:

“Q. Are all buildings in which fires are built equipped with safe brick or cement chimneys, at least 4 inches in thickness?
“A. Yes.”

—and upon section 9 of the policy, which prohibited the use of chimneys unless constructed of brick or cement. The defendant rested its case upon these propositions and the further one that plaintiff should have settled his differences with the company by arbitration instead of a suit at law, in compliance with section 5 of the by-laws.

The use of the Dutch chimney in the summer months after the policy was taken out appears to have been in violation of section 9 of the by-laws, and the representation in the application with reference to the chimneys was untrue, at least in part, as the chimney on the summer kitchen was neither brick nor cement. On the main building, or upright, the chimney was of brick. It appears, without dispute, that Sheldon was a regularly appointed agent of the company, and that he was informed that the chimney on the summer kitchen was a Dutch chimney. This is shown by the fact that when attaching the lightning rods to the house he attached some portion thereof to the Dutch chimney, and by the further fact that when the statement on the receipt was called to his attention he replied that the chimney was all right; it was safe. It, therefore, appears that while the statement was untrue, the agent was fully informed that it was untrue, and his knowledge must be regarded as the knowledge of the company. Power v. Insurance Co., 121 Mich. 364 (80 N. W. 111); Steele v. Insurance Co., 93 Mich. 81 (53 N. W. 514, 18 L. R. A. 85).

But it is argued that Sheldon was merely a soliciting agent, and had no authority to issue policies, and therefore his knowledge was not the knowledge of the company. The record shows that Sheldon was appointed the local agent of the company, with power to represent it in taking applications for insurance; that he did take them, and received the premium and receipted therefor. Under such authority the agent is generally held to be the agent of the insurer and not of the assured. 19 Cyc. p. 826, and cases. Steele v. Insurance Co., supra.

The further point is made that this rule does not apply to mutual insurance companies. The case of Russell v. Insurance Co., 80 Mich. 407 (45 N. W. 356), disposes of this argument adversely to defendant’s contention, where it is said:

“It seems to be settled by the weight of authority that there is no distinction between mutual and stock companies as to their responsibility for the acts of their agents in taking applications for insurance; and, upon principle, there is no good reason why there should be any. The assured does not become a member of the mutual company until he receives his policy, and there is generally no acquaintance upon his part with the charter or.by-laws of the corporation when he makes his application. * * * Therefore, if there is no limitation of the agent’s authority brought home to the assured, the agent receiving the application must be considered the agent of the insurer, and not of the assured, and his acts will be held the acts, of the company, and his knowledge the knowledge of the company.”

There being no contradiction of plaintiff’s testimony in regard to what took place at the time the application was made, we must conclude that Sheldon, the agent, was fully informed of the misrepresentation in the application, and that his knowledge was the knowledge of the company, and that the company is now estopped from avoiding payment on the ground of fraud. Russell v. Insurance Co., supra; Gristock v. Insurance Co., 84 Mich. 161 (47 N. W. 549); Power v. Insurance Co., supra; Simpson v. Insurance Co., 184 Mich. 547 (151 N. W. 610); Simmons v. Insurance Co., 187 Mich. 551 (153 N. W. 696).

The cases counsel rely upon to support their contention are cases where misstatements were made and relied upon by the insurer as the facts with no knowledge that they were misstatements. This distinction will be found pointed out in Simpson v. Insurance Co., supra.

2. Upon the following by-law defendant bases its proposition that plaintiff should have resorted to arbitration for the purpose of settling his difficulties with the company:

“In case of disagreement with the loser of property .insured, regarding any matter pertaining to said loss or damage or the payment thereof, said matter in difference shall be determined by arbitration; and in case of such disagreement the secretary shall notify said loser of property and give him an opportunity to appear before the arbitration committee within fifteen days and present such evidence as he may have to establish the justness and validity of such claim, and said committee shall hear, try and decide upon all matters pertaining to said claim or the payment thereof, and such decision shall be final and binding upon said claimant and the company, and no suit in law or equity shall be commenced or maintained by any such loser or beneficiary to determine such matter in difference.”

After the fire the officers of the company were notified, and they made an investigation and wrote plaintiff a letter denying all liability and refusing to pay the loss. This by-law, fairly construed, places the duty upon the defendant to initiate the arbitration proceedings by giving claimant the notice required therein. The company having failed to give this notice, the by-law cannot now be used to defeat this proceeding.

At the conclusion of the proofs the trial court was requested by both parties to dispose of the case as a question of law. He did so by holding that Act No. 128, Pub. Acts 1911 (2 Comp. Laws 1915, § 9481), applied. By reason of the view which we have taken of the case it will be unnecessary to consider that question, as the same result is reached. The trial court reached the right conclusion, and the judgment will be affirmed.

Kuhn, C. J.s and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., took no part in the decision.


text:
    MURPHY v. MANISTEE RAILWAY CO.
    1. Carriers — Negligence—Riding on Running Board — Personal Injuries.
    In an action for personal injuries received by plaintiff by coming in contact with a pole in close proximity to tbe track, while riding upon tbe running board of defendant’s street car, with defendant’s consent, because of tbe crowded condition of tbe car, defendant was under tbe legal duty of operating its car with a high degree of care to avoid injuring plaintiff while in that position.

    2. Same — Warning—Evidence—Question for Jury.
    So where plaintiff was struck and injured by a pole in close proximity to the track, caused, as he alleged, by tbe swaying motion of tbe car, induced by tbe bigb speed at which it was run, tbe question as to whether defendant was negligent in operating its car at tbe speed at which it was run, without at least warning plaintiff of tbe danger, was a question for tbe jury.
    3. Same — Contributory Negligence — Notice.
    Where defendant contended that plaintiff bad ridden over tbe line many times during tbe summer, and bad bad an opportunity to observe tbe proximity of tbe poles to tbe track, and bad be been exercising due care be would not have been injured, tbe question of his contributory negligence was a question of fact for the jury.
    4. Appeal and Error — Evidence—Admissibility.
    Where testimony is generally inadmissible, but may be admissible for a particular purpose, which counsel failed to state to the court, he cannot complain to this court because of its rejection.
    5. Trial — Evidence—Cross-Examination.
    Where defendant’s manager had testified on bis direct examination that changes bad been made in tbe running boards, that they had been removed from one side of the cars, it was not error to permit him, on cross-examination, to answer why they were removed.

      6. Appeal and Error — Motion—Evidence.
    Where a question was answered before objection, and nu motion to strike was made, it was not error to permit it to remain in the case.
    7. Trial — Conduct oe Court.
    Where no injury to defendant is apparent from collisions between court and counsel, over what the court termed wasting time on trivial matters, showing some slight irritation, held, not to be error.
    8. Same — Argument oe Counsel.
    Where counsel, in his argument to the jury, said: “This jury can do something to help this boy bear his infirmities,” under plaintiff’s theory that defendant was responsible for plaintiff’s condition, the appeal was one for compensation, and was not objectionable as an appeal for charity.
    9. Appeal and Error — Saving Question eor Review.
    Where no objection or ruling was made to argument of counsel, the question is not open to review in this court.
    10. Trial — Special Questions.
    Refusal to submit special questions which are ambiguous and not single, or which, if answered favorably, would not have been controlling of the general verdict, was not error.
    Per Stone, Moore, and Bird, JJ. Kuhn, C. J., and Ostrander, Steere, and Brooke, JJ., concurred in the result.
    Error to Manistee; Withey, J.
    Submitted June 16, 1916.
    (Docket No. 28.)
    Decided March 29, 1917.
    Case by Ronald L. Murphy, by next friend, against the Manistee Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      P. T. Glassmire {Max E. Neal, of counsel), for appellant.

      Charles N. Belcher (Thos. Smurthwaite, of counsel), for appellee.

       On the duty of street car company to passenger on running board see note in 18 L. R. A. (N. S.) 160.
      On whether riding on platform or running board of street car is negligence see notes in 49 L. R. A. (N. S.) 135; L. R. A. 1915B, 166.
      On the duty as to condition of platform or running board of street car see note in 45 L. R. A. (N. S.) 969.

   Bird, J.

Defendant operates a street railway in the city of Manistee. It also operates in the summer months an electric railway from the city to Orchard Beach, an amusement park, which lies two miles north of the city on Lake Michigan. This railway has a single track, and is constructed on the east side of the public highway, and the trolley poles are placed on the east side of the track. The cars operated thereon are of the summer type with seats extending crosswise. They are entered from running boards extending along the sides of the cap, and grab handles are provided on each stanchion to assist the passengers in boarding and alighting therefrom. Two cars are operated together, a motor car and a trailer.

Late in the afternoon of July 26, 1914, plaintiff, a boy of 18 years, and two male companions boarded one of the cars in the park to return to the city. They took seats in the front end of the car. Before leaving the park the car filled rapidly, and plaintiff surrendered his seat to a lady and stood on the running board on the east side of the car facing his companions. The car appears to have been well under way when it reached the straight track in the highway. While plaintiff stood facing and conversing with his companions he was swept off from the car by contact with one of the trolley poles and injured.

The negligence which he relied upon for recovery was the roughness of the track, the close proximity of the trolley poles to the track, the excessive speed of the car, and the failure to warn him of the danger. The defendant denied that 'it was negligent in any of these respects, and asked for a directed verdict, on the ground that no negligence had been shown on the part of the defendant, and on the further ground that plaintiff’s negligence was apparent from his own testimony. The court denied the motion and submitted the case to the jury, which rendered a verdict of $1,500.

Was defendant negligent? It appears to be conceded that passengers were permitted to ride upon the running boards of the cars whether the cars were filled or not, but it appears in the instant case that plaintiff was riding thereon because of the crowded condition of the car. We must assume, therefore, that plaintiff was riding there with the permission and consent of the defendant. This being so, defendant was under the legal duty of operating its car with a high degree of care cso as not to injure him while in that position. Upham v. Railway Co., 85 Mich. 12 (48 N. W. 199, 12 L. R. A. 129); Larskowski v. Railway, 193 Mich. 409 (159 N. W. 530). See, also, Noble v. Railway Co., 98 Mich. 249 (57 N. W. 126); Pomaski v. Grant, 119 Mich. 675 (78 N. W. 891); Dupuis v. Traction Co., 146 Mich. 152 (109 N. W. 413).

The charge is made in the declaration, and the proofs tend to support it, that the pole in question was only 15 inches from the running board, and that it inclined to the west, thereby bringing the upper portion thereof nearer the track; that the track was crooked, rough, and uneven; that the car was driven at a high rate of speed; and that by reason thereof it caused a lateral movement of the car as well as an up and down motion, which brought the plaintiff in contact with the pole. It was further shown that no warning was given him of the danger.

Whether it was negligent to operate the car at the speed it was going'over this track, considering its condition and its close proximity to the pole, without at least warning plaintiff of the danger, was a question of fact to be determined by the jury.

Was plaintiff guilty of contributory negligence? Under the proofs he was not guilty of negligence per se in riding upon the running board. Upham v. Railway Co., supra. It is urged that plaintiff was familiar with the location of the poles; that he had an opportunity to observe their proximity to the track on the day in question as well as at other times during the summer and previous summers. That the poles were in plain view, and had he been exercising the care he should have exercised to avoid coming in contact with them, as did others who were riding on the running board, he would not have been injured. On the other hand, plaintiff insists that, while he had been out to the park many times, his attention had never been challenged to the nearness of the poles nor of this particular pole; that when the accident occurred he was riding in the usual way holding onto the stanchion with both hands. He concedes that he was not looking in the direction in which the car was going, and was not looking at the poles, but that he had no reason to believe that the clearances of the track were not sufficient to permit of his riding where passengers were accustomed to ride, and he further insists that he would not have come in contact with the pole had the car been operated consistently with the condition of the track and the nearness of the pole. These respective contentions likewise raised a question of fact for the jury.

Dr. Robinson, who testified in behalf of plaintiff, was asked the following question upon cross-examination :

“Mr. Neal: Doctor, the evidence shows that you have presented a bill for $150 for your professional services in doctoring Mr. Murphy. Has any part of that bill been paid?
“Mr. Smurthwaite: I object to that as immaterial and irrelevant.
“The Court: The objection is sustained. (Exception noted for defendant.)”

Counsel now makes the point that it was error to exclude the answer to the question because if the bill were not paid it would have a tendency to show the interest of the witness in the litigation. In support of this contention the following authorities are cited: Lack Malleable Iron Co. v. Graham, 147 Ky. 161 (143 S. W. 1016); Kingston v. Roberts, 175 Mo. App. 69 (157 S. W. 1042).

As a general proposition any question upon cross-examination which will develop the interest or bias of the witness is admissible (Geary v. People, 22 Mich. 220; Swift Electric Light Co. v. Grant, 90 Mich. 469, 475 [51 N. W. 539]), and I am of the opinion that this testimony was competent, but, independently of the question whether it was competent or not, counsel is in no position to complain of the error. Had he stated to the trial court his reason for desiring its admission, it is more than probable that the court would have admitted it. Where testimony is generally inadmissible, but may be admissible for some particular purpose, it is not quite fair to the trial court to refrain from stating the particular purpose and after an adverse ruling complain to this court because of its rejection.

Chas. Kresler, manager of the defendant railway, was asked upon cross-examination the following question:

“Q. Why did you make the change in the running board?
“A. Made this year so we would not have a repetition of what we had last year — people getting on that running board and getting injured.”

Counsel argue that the changes made in the running board after the accident was immaterial, and therefore its admission was error under the rule laid down in Moon v. Railroad Co., 143 Mich. 125 (106 N. W. 715, 108 N. W. 78), and many other cases. Plaintiff concedes the rule as stated by counsel, but he seeks to avoid its application in this instance by showing that this witness and another testified on direct examination that changes had been made in the running boards; that they had been removed from one side of the cars. In view of this we see no error in permitting the witness to answer why they were removed. It further appears that the question was answered before objection was made, and that no motion was made to strike out the answer. Permitting it to remain in the case, therefore, was not error.

At the conclusion of the testimony of a witness who had given cumulative evidence, the following colloquy took place:

“The Court: How many more witnesses? I don’t want any more witnesses on the same subject in concurrence or along the same lines testified concerning. * * *
“Mr. Neal: What is that?
“The Court: You need not put on any more witnesses on the same line and character like those you have sworn on the subject. We have enough. None of them changed the aspect of anything, and there is no use of multiplying it.
“Mr. Neal: I take an exception to the remarks of the court.
“The Court: If you have anything new all right; I will hear it.
“Mr. Neal: I also take exception to that remark of the court.
“The Court: All right; take all the exceptions you want to. (Exception for the defendant.)”

Later in the trial defendant’s counsel offered the subpoena of one of his witnesses in evidence, but at the time it did not appear to be disputed that the witness had been subpoenaed. The court remarked:

“Oh, don’t waste time over such trivial matters as that.
“Mr. Neal: Give me an exception, please, to the remark of the court.
“The Court: Take all exceptions you want.
“Mr. Neal: And give me also an exception to this remark, please.
“Q. I now ask you if that was the subpoena served upon you?
“A. It was not. This was.
“Q. You received a copy of it, did you?
“A. Yes.
“Mr. Smurthwaite: We are not raising any question on the witness’ subpoena.
“Mr. Neal: Your questions have been insinuating, as the remark here shows, and I. object to the remarks of the court because they are prejudicial.
“The Court: That is the third objection you have taken. Do you want another one?
“Mr. Neal: I also object to those remarks.
“The Court:- Go on and take them.”

It is argued that the judgment should be reversed and a new trial ordered because of these colloquys. These collisions between court and counsel, when reduced to print, give one the impression that counsel was oversensitive concerning the court’s suggestions about wasting time over immaterial matters, and they show a slight irritation upon the part of the trial court. If it be conceded that both were in fault, how does it appear that the result of these controversies was harmful to defendant? In jury trials where much is at stake such collisions not infrequently occur. They are well understood by the public, juries are used to them, and bystanders attend with expectation of hearing them. Because this is so, it does not necessarily follow that they are injurious to either of the parties litigant. No injury to defendant is apparent in the verdict and none has been pointed out; therefore the incidents will not be held error.

In his address to the jury plaintiff’s counsel made use of the following language:

‘'Mr. Beleher: This jury can do something, gentlemen, to help this boy bear his infirmities. (Objected to. Overruled. Exception noted for defendant.)
“Mr. Beleher: Each one of you gentlemen should place yourself in the boy’s position.”

The first statement is said to be error because it was an appeal to the jury to bestow charity. If we were to assume that defendant was not responsible for plaintiff’s infirmities, we could then agree with counsel, but under plaintiff’s theory defendant was responsible therefor, and from this view counsel’s appeal was one merely for compensation and not for charity.

To the second statement no objection nor ruling was made. Consequently we do not consider it.

Request was made by the defendant to have the following special questions submitted to the jury:

_ No. 1. At the time and place that plaintiff received his alleged injuries was'defendant running its said cars Nos. 1026 and 1032 at an excessive rate of speed?

_ No. 2. At the time and place that plaintiff received his alleged injuries was he leaning out from said car far enough to hit the trolley pole and beyond the other passengers standing on the running board with him on said car?

No. 3. At the time and place that plaintiff received his alleged injuries, was there any defect in defendant’s car tracks which caused said cars to bound and lurch beyond the usual and reasonable operation of its cars?

Question 2 was properly rejected because it was ambiguous and not single. Question 1, standing alone, would not have been controlling of the general verdict had it been answered in the negative. The same can be said of question 3. Had both been answered in the negative, they would have had some force, but such a finding would not have been controlling, because the jury might have concluded that the sole cause of the injury was the nearness of the pole to the track. The court was not in error in refusing to submit them.

The remaining errors assigned, including those affecting the charge of the court, have been examined, but we find them without merit.

The judgment of the trial court is affirmed.

Stone and Moore, JJ., concurred with Bird, J.

Kuhn, C. J., and Ostrander, Steere, and Brooke, JJ., concurred in the result. Person, J., took no part in the decision.


text:
    DRAFT v. HESSELSWEET.
    1. Vendor and Purchaser — Real Property — Fraud—Waiver.
    Where the purchaser of land made payments on the purchase price and continued in possession after he discovered the fraudulent nature of the representations which induced him to buy, he is held to have waived the fraud, and his representative cannot urge it to defeat the foreclosure of a mortgage for the balance of the purchase price.
    2. Same — Matter of Opinion — Rescission.
    Representation to the purchaser of land that the fruit thereon would pay for it the first year was not a representation concerning a present existing fact, and must therefore be regarded as a matter of opinion, the falsity of which would not justify rescission on the ground of fraud.

    Appeal from Oceana; Sullivan, J.
    Submitted June 23, 1916.
    (Docket No. 81.)
    Decided March 29, 1917.
    Bill by Louis Draft against Francis Hesselsweet. ' administrator of the estate of Oscar Klotter, and others, to foreclose a mortgage. Defendants filed an an.'swer in the nature of a cross-bill asking for rescission of the contract. From a decree for defendants canceling the mortgage, plaintiff appeals.
    Reversed.

      A. S. Hinds (F. E. Wetmore, of counsel), for appellant.

      S. Wesselius (Maynard & Chase and Paul H. Cunningham, of counsel), for appellees.

       On the expression of opinion as fraud see note in 35 L. R. A. 417, particularly as to statements regarding the future see pp. 420 and 437 of same note.

   Bird, J.

This bill is filed to foreclose a purchase-price mortgage on an 80-acre fruit farm in Oceana county, upon which there is claimed to be due upwards of $3,900. The mortgagor, Oscar Klotter, and his wife, Katherine, filed their answer and cross-bill, charging that they were induced by the fraudulent representations of complainant and his agent to purchase the premises, and that they were thereby defrauded. They prayed for a rescission of the contract. The other parties defendant were interested in the premises as mortgagees. The chancellor refused to grant complainant any relief and refused to grant defendant Klotter the particular relief prayed for, but gave him other relief by ordering the mortgage canceled on the ground that what he had already paid on the purchase price was a fair value for the farm.

Prior to making this purchase, the defendant Oscar Klotter was a meat inspector in the city of Cincinnati. Through an advertisement he got into correspondence with L. H. Kennedy, a real estate agent, with whom the complainant had listed his farm for sale. In the latter part of May, 1911, Mr. Klotter came to Michigan and examined the farm, which was shown to him by Mr. Kennedy. Mr. Klotter returned to his home, but kept up negotiations until June 29, 1911, when he purchased the premises for $6,500. He paid $3,000 in cash and gave a mortgage thereon for $3,500 to secure seven notes of $500 each, one note being due and payable each year thereafter. Soon after this he moved on to the premises and at the end of the first year paid the $500 note due on the 29th of June, 1912. He refused to pay the note due June 29, 1913, and plaintiff exercised his election authorized by the mortgage to declare the whole sum due.

The representations which defendant claims he relied upon jn making the purchase of the premises are contained in the following letter:

“Rothbury, Oceana County, 5/25/11.
“Mr. Oscar Klotter,
“Cleveland, Ohio.
“Dear Sir:
“Yours of the 23d just received and contents noted. Now if you would like to buy a fruit farm you had better come at once and look them over as we are selling them very fast. The fruit prospects here could not be any better. If No. 16 does not suit you we have a number of others. The soil is No. 1 here for all kinds of fruit, sandy loam, some farms very level, others rolling. This is a great fruit country, none better. The buildings on No. 16 are fine, in good repair, the fruit trees 7 years old, well cared for, no mortgage on farm, buildings insured for $2,600.00. Have fine 80 acre fruit farm, fine house, new large barn, all painted, windmill, 4,000 peach trees, 7 years old; 300 cherry trees, 7 years old; 150 apple trees, 10 years old; 2 acres of red raspberries, 1 acre gooseberries; the price is $7,000.00, $3,000.00 cash, the balance on easy payments. The fruit on this farm will pay for the farm this year. Two miles to village and depot, good roads, fine location, either of these farms are a big bargain. If you should come to Rothbury, by Grand Rapids; and when-you get to Rothbury, go in the store and telephone me and I will show you farms.
“Yours truly,
“L. H. Kennedy,
“Agent for E. A. Strout Co.”

The items of fraud which defendant relies upon are:

(1) That instead of there being 4,000 peach trees, 300 cherry trees, and 150 apple trees, there were only 2,279 peach trees, 110 apple trees, and 116 cherry trees.

(2) That plaintiff intentionally concealed from him the fact that the peach orchard was affected with an insidious disease, known as the “yellows,” which is fatal to peach trees within four years after becoming infected.

(3) The representation that the fruit on the farm would pay for it in the first year.

The defendant Klotter was without experience in either farming or horticulture at the time the deal was consummated, and we think it is a reasonable inference from the testimony that he relied upon the representations in the letter and afterwards reiterated in part by plaintiff and his agent, and that by so relying upon the statements he may have been overreached in the deal and agreed to pay something more than a fair price for the farm. But if we assume that he was defrauded as to the value of the premises and that he had a right under the law to rescind the transaction as soon as he learned of the fraud, we think he has waived that right by his subsequent conduct. With reference to the first ground of complaint, it can be said that Mr. Klotter was capable, although unskilled in farming and horticulture, of determining that the representation as to the number of trees was untrue, and, in fact, he did determine that it was untrue, the first year that he lived on the place. As to the second ground of complaint, the record shows he learned within the first year that the peach trees were infected, and that it meant their destruction, as the public authorities condemned 317 of them and ordered them cut down. He also learned from other sources that they were infected with a fatal malady. The third ground of complaint was not a representation concerning a present existing fact, and therefore must be régarded as a matter of opinion.

This court has said again and again that if one has been defrauded he must complain of it promptly after discovering the fraud. Jones v. Disbrow, Har. Ch. (Mich.) 102; Street v. Dow, Har. Ch. (Mich.) 427; Galloway v. Holmes, 1 Doug. (Mich.) 330; Craig v. Bradley, 26 Mich. 353; Hubbarston Lumber Co. v. Bates, 31 Mich. 158; Dunks v. Fuller, 32 Mich. 242; Farrington v. Smith, 77 Mich. 550 (43 N. W. 927); Dailey v. King, 79 Mich. 568, 573 (44 N. W. 959); Condon v. Hughes, 92 Mich. 367 (52 N. W. 638); Wylie v. Gamble, 95 Mich. 564, 575 (55 N. W. 377); Bedier v. Fuller, 106 Mich. 342 (64 N. W. 331); Warnes v. Brubaker, 107 Mich. 440 (65 N. W. 276); Reed v. Ismond, 110 Mich. 16 (67 N. W. 912); Bennett v. Hickey, 112 Mich. 379, 383 (70 N. W. 900); Speicher v. Thompson, 141 Mich. 654 (104 N. W. 1104); Hakes v. Macklin, 170 Mich. 228, 233 (136 N. W. 509).

Notwithstanding Mr. Klotter was fully informed before the end of the first year of the fraud which had been practiced upon him, he paid plaintiff the $500 note which fell due June 29, 1912, with only a mild protest to the banker, with whom it had been left for collection, that he did not think he ought to pay it, and on September 21st of the same year he placed a second mortgage on the premises running to his sisters, and also made permanent improvements upon the premises. As to his knowledge of the fraud when he did these things, his own testimony will disclose:

“Q. Now, at the time you paid the note on June 29, 1912, you knew just as much about that proposition of being defrauded then, as you have since, isn’t that so?
“A. Yes, sir.
“Q. And therefore you knew all about it in 1912, when you paid the $500, didn’t you?
“A. Yes, sir.
“Q. And you knew all about it when you made the mortgage of $3,800, which is as to this 80 a second mortgage, on the 21st day of September, 1912, didn’t you?
“A. Yes, sir.”

It does appear that on several occasions defendant expressed some dissatisfaction to the plaintiff concerning his purchase, and on one occasion he told plaintiff that he ought to make good the trees which had been condemned by the public in 1912, but plaintiff did not do so, and no steps were taken by defendant looking toward a rescission of his purchase until the present suit was started in August, 1913, to foreclose the mortgage. If defendant was desirous of rescinding the deal prior to the suit, his conduct was very much at. variance with his wishes. His acts indicated that he intended to retain the premises and abide by his purchase, notwithstanding the fraud. He continued to live upon and operate the farm and to take the avails thereof. He made improvements on the buildings and paid an installment on .the purchase price in 1912, and we think his testimony fairly shows that he would have paid the second note in 1913 had it not been for the lack of funds. Under these circumstances, he must be deemed to have waived whatever right he had to complain of the fraud. State Bank of Iowa Falls v. Brown, 142 Iowa, 190 (119 N. W. 81, 134 Am. St. Rep. 412); Ruhl v. Mott, 120 Cal. 668 (53 Pac. 304); Lee v. McClelland, 120 Cal. 147 (52 Pac. 300); Annis v. Ferguson, 84 S. W. 553 (27 Ky. Law Rep. 56); Hurt v. Miller, 95 Va. 32 (27 S. E. 831); McQueen v. Burhans, 77 Minn. 382 (80 N. W. 201); Bennett v. Hickey, 112 Mich. 379, 382 (70 N. W. 900); Speicher v. Thompson, 141 Mich. 654 (104 N. W. 1104); Parkyn v. Ford, ante, 184 (160 N. W. 531).

The decree of the trial court must be reversed, and one made providing for a foreclosure of the mortgage as prayed. Plaintiff will recover his costs in this court.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., took no part in the decision.


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    BENNETT v. DENTON.
    1. Brokers — Commissions—Frauds, Statute of — New Trial,
    In a suit for broker’s commission under an oral contract for the sale of a farm, valid if made before Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), which made such contracts void unless in writing, took effect, where plaintiff made a case which entitled him to recover, the statute not having been interposed on the trial, a verdict in his favor was properly directed, and it was too late to raise it on motion for new trial.

    2. Appeal and Error — Frauds, Statute of — Defenses.
    The defense of the statute of frauds cannot be first raised in this court.
    3. Trial — Adjournment—Parties, Absence of — Discretion.
    Where both defendant and his counsel knew that the case was coming on, and counsel entered on the trial without objection, knowing that their client was absent from the city, it was not an abuse of the discretion of the trial court to refuse an adjournment to the following morning, in the absence of positive assurance from counsel that defendant would arrive at a definite time.
    4. Appeal and Error — New Trial — Review.
    Assignments of error based upon refusal to grant a new trial cannot be considered where the reasons for the court’s ■ refusal do not appear in the record, and it does not appear that a timely request -was made therefor.
    Error to Chippewa; Fead, J.
    Submitted October 18, 1916.
    (Docket No. 32.)
    Decided March 29, 1917.
    Assumpsit by James T. Bennett against William L. Denton for broker’s commissions. Judgment for plaintiff on a directed verdict. Defendant brings, error.
    Affirmed.

      Davidson & Hudson, for appellant.

      M. M. Larmouth, for appellee.

       As to the necessity that agent’s authority to purchase or sell real property be in writing to enable him to recover compensation for his services, see note in 9 L. R. A. (N. S.) 933.
      On the necessity of securing written contract from purchaser to entitle real estate broker to commission, see notes in 44 L. R. A. 605; 46 L. R. A. (N. S.) 129.

   Bird, J.

The defendant listed his farm for sale in plaintiffs real estate agency at Sault Ste. Marie in the summer of 1918. Subsequently plaintiff found him -a buyer who purchased the farm. It was the claim of plaintiff that he was entitled to an agreed commission thereon of $600. The case was called in the circuit court, and the trial, proceeded upon the expectation by defendant’s counsel that defendant, who was absent from the city, would return in season to testify in his own behalf. He failed to return before the testimony was concluded, and the trial court directed a verdict for the plaintiff for the amount of his claim. Exception was taken by defendant to the direction of a verdict, and the question is now raised that:

“The court erred in directing a verdict for plaintiff, as there was. no evidence before the court as a basis for the judgment. The alleged verbal contract was void under the statute of frauds.”

The particular section of the statute of frauds referred to is Act No. 238, Pub. Acts 1913 (3 Comp.. Laws 1915, § 11981), which made contracts for commissions for the sale of real estate void unless in writing. That law took effect August 14,1913. Plaintiff’s; testimony does not make it clear whether his agreement with defendant was made before or after that date. His precise language was:

“In the summer of 1913, I think, I talked with Mr. Denton relative to the sale of his farm at Pickford, and he listed it with me to sell.”

It appeared that the contract was an oral one. This being so if it were made prior to August 14th, it would be valid. If it were made after that date, it would be void because not in writing. This testimony came in without objection. Counsel objected and excepted to-the action of the trial court in directing a verdict, but they did not base their objection upon the statute. In fact, no reference appears to have been made to the statute until they filed their motion for a new trial. Had objection been made to the testimony when it was offered, or the court’s attention called to it when a verdict was about to be directed, the testimony would probably have been made certain as to whether the oral agreement was made before or after the. law took effect. But for this provision of the statute the plaintiff made a case which entitled him to recover. The statute not having been interposed on the trial, it was too late to raise it on a motion for a new trial. See Selby v. Railway, 122 Mich. 311 (81 N. W. 106); Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780).

Neither can the defense of the statute of frauds be first raised in this court. Beld v. Darst, 146 Mich. 143 (109 N. W. 275); 2 Standard Enc. Prac. 241-242.

Error is assigned on the refusal of the court to take a recess and await the arrival of the defendant. It appears that the case was concluded, save defendant’s testimony, before the noon recess on Friday. At the opening of the afternoon session counsel requested the court to hold the matter open until evening or Saturday morning, at the same time stating he expected his client would arrive with a carload of horses on a train which usually arrived at 4 o’clock in the afternoon, but on that particular day was two hours late. Upon being questioned by the court as to the certainty of defendant’s arrival, at that time, counsel could give no assurance that the defendant was with the car of horses, or that he would arrive at any particular time, whereupon their request was denied. Both client and counsel knew that the case was coming on. The absent party was not a witness, but one of the parties, and counsel entered on the trial of the case without objection, knowing that their client was absent from the city. The situation was one which called for the exercise of the discretion of the trial court, and we are not persuaded that the discretion was abused.

The assignments of error based upon the refusal to grant a new trial cannot be considered, because the reasons for the court’s refusal do not appear in the record. Neither does it appear that a timely request was made therefor. Toban v. Modern Woodmen, 126 Mich. 161 (85 N. W. 472); Gillett v. Burns, 131 Mich. 616 (92 N. W. 104); Wilbur v. Railroad Co., 145 Mich. 344 (108 N. W. 713); Bass v. Railway Co., 142 Mich. 177 (105 N. W. 151, 2 L. R. A. [N. S.] 875, 7 Am. & Eng. Ann. Cas. 718).

As no reversible error appears of record, the judgment must be affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    LUDWIG v. AMERICAN CAR & FOUNDRY CO.
    1. Master and Servant — Workmen’s Compensation Law — Dependency oe Wipe Living Apart erom Husband.
    Where claimant wife was living in Austria, had not lived with deceased for nearly two years, and it appears that he had sent her no money during that time, in the absence of testimony that they were living apart in pursuance of some arrangement by which she had a right to, and did, expect assistance, she was not entitled to compensation under the workmen’s compensation law (Act No. 10, pt. 2, § 6, Extra Session 1912, 2 Comp. Laws 1915, § 5436).

    ■ 2. Same — Husband and Wife — Inferences.
    In the absence of testimony establishing as a matter of fact the dependency of said wife living apart from. her husband, such dependency cannot be inferred, and the award of compensation by the industrial accident board is vacated and set aside.
    Certiorari to Industrial Accident Board.
    Submitted October 3, 1916.
    (Docket No. 8.)
    Decided March 29, 1917.
    Ernest Ludwig, attorney in fact of Saveta Stojkovich, presented her claim for compensation against the American Car & Foundry Company for the death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      Angelí, Bodman & Turner, for appellant.

      Thomas A. Lawler, John F. Berry and Leopold Koscinski, for appellee.

       On workmen’s compensation acts generally see extensive note in L. R. A. 1916A, 23.
      As to wben husband and wife are living together within the meaning of the compensation acts, see note in L. R. A. 1916A, 370.

   Bird, J.

While in the employ of defendant as an assistant foreman, Nicholas Stojkovich, a subject of Austria-Hungary, received an injury which caused his death in January, 1913. Ludwig, the Austrian consul, acting officially, presented a claim to the board of arbitration in behalf of the wife, Saveta. A death award was made by the committee of arbitration and afterwards approved by the board. Not content with the conclusions of the board, defendant has removed the proceedings to this court for review. Its propositions are:

(1) That there is no evidence that Saveta Stojkovich was dependent for support upon Nicholas Stojkovich within the meaning of Act No. 10, pt. 2, §§ 5, 6, Extra Session 1912, and that therefore no recovery-can be had by her or for her.

(2) That the said Ernest Ludwig, as consul for Austria-Hungary, had no power of attorney or any authority whatsoever to act on behalf of Saveta Stojkovich and institute proceedings in this case, and had no authority by virtue of his office as consul to bring this action under the compensation act.

There are two ways under the compensation act in which the wife can establish her dependency and thereby her right to an award: (a) By showing that she is the wife of the injured party, and that she was living with him at the date of the accident; (6) by showing facts from which her dependency upon the injured party at the date of the accident may be inferred. Part 2, § 6, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5486).

(a) Under the first method suggested, when she shows that she was the wife of the injured party and was living with him at the date of the accident, she has made her case, and the law will then conclusively presume that she was dependent upon him. In the present case it sufficiently appears that Saveta was the wife-of the injured party, but it does not satisfactorily appear that she was living with him at the time he was injured. The record discloses that after being in this country for a time Nicholas returned to Austria-Hungary and married Saveta, took her to his father’s home, and lived with her for three or four months, when he returned to this country without her, and that he was not injured for nearly two years thereafter. It appears that he sent her no money after returning to this country, and that she never came to this country. The young brother of Nicholas testified that:

“His brother said that he is going to take him along to Detroit and get him a job in the same shop, where he used to be a foreman, and then when they have enough money together then they going to get their family over here.”

Further than this their relations do not appear, although it is intimated by the testimony of one witness that Saveta remarried after Nicholas came away. It, therefore, appears from the testimony that Saveta was not actually living with Nicholas at the date of the accident, and had not since he returned to this country,, and there is not enough in the testimony to furnish a fair inference that she was. living apart from him in pursuance of some arrangement by which she had a. right to, and did, expect assistance from him. Finn v. Railway, 190 Mich. 112 (155 N. W. 721), L. R. A. 1916C, 1142); Roberts v. Whaley, 192 Mich. 133 (158 N. W. 209).

(5) We are likewise of the opinion that there was no testimony to establish the dependency of Saveta as a matter of fact. The record fails to disclose that Nicholas ever supported her, either in Austria-Hungary or in the United States. The brother testified that Nicholas was married to Saveta and took her to his father’s home where they lived until he returned to this country. The record fails to disclose whether she continued to live with the father after Nicholas came away, but it does show that he sent her no money after returning to this country. Much importance is placed upon the brother’s statement that they were going to save their money, and when they had sufficient, they were going to bring their family to this country. The word “family,” as used by him in this connection, might or might not have included Saveta. The inference is that even this resolution was abandoned, as it would not have required nearly two years for an assistant foreman of defendant company, together with what the brother could earn, to accumulate funds sufficient to bring his wife and father’s family from Austria-Hungary, and this is especially true since the transportation usually purchased by that class of travelers is of the less expensive kind.

We have been somewhat liberal in dealing with this class of cases in accordance with the spirit of the compensation act, but we cannot approve a finding which is not supported by at least a reasonable inference from the testimony. The record fails to establish her right to the award under either theory, and the conclusion of the board of arbitration must be set aside and vacated. In view of this conclusion it will be unnecessary to consider the other question raised by counsel.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    SWARTZ v. SWARTZ.
    1. Mortgages — Discharge—Contracts—Equity.
    In equity proceedings by a father against bis son to discharge certain mortgages on the father’s farm, which he claimed were placed there to raise funds to defend the son on a murder charge and which the latter agreed to pay, but which, after securing assignments thereof to himself, he refused to discharge, denying the contract, evidence held, to sustain said agreement, and decree granting relief is affirmed.
    2. Same — Parties—Pudading—Amendment.
    Where the agreement sought to be enforced was made with the father alone, although the mortgaged premises were held by the entireties, after the wife’s death, vesting the title in him, the father could enforce the contract.

      Appeal from Kalamazoo; Weimer, J.
    Submitted October 12, 1916.
    (Docket No. 139.)
    Decided March 29, 1917.
    Bill by George Swartz against Adelbert D. Swartz and another for the discharge of certain mortgages. From a decree for plaintiff, defendant Swartz appeals.
    Affirmed.

      Robert L. Campbell {Leland, H. Sabin, of counsel), for appellant.

      Harry C. Howard {Alfred J. Mills, of counsel), for appellee.
   Bird, J.

The testimony in this case was taken before Hon. George V. Weimer, sitting upon the chancery side of the court in the Kalamazoo circuit. After hearing the testimony he rendered the following opinion:

“The bill of complaint seeks the discharge of two mortgages. Complainant is the father of defendant Swartz. The latter was convicted of murder in May, 1895, and sentenced to Jackson prison for life. In 1898 the conviction was sustained by the Supreme Court. January 1, 1900, defendant Swartz was pardoned by Gov. Pingree.
“There is no serious controversy as to most of the facts in evidence. For the purpose of this case defendant Swartz was guilty of murder, and from the time of his conviction until his release from Jackson through the exercise of the pardoning power the only prospect was a life in prison. Without regard as to whom suspicion may have been attached at the time of the arrest of several of the Swartz family in 1894, or 1895, there can be no question under the evidence that the defendant Swartz was the only one in whose defense it was necessary to spend any money, and that large sums were in fact required and spent by his •father, the complainant, from the time of his arrest to his release from prison. Neither is there any question that the defendant’s resources were entirely inadequate for the purpose. It is also conceded that complainant’s farm at the beginning of this trouble was free from debt and that he had some cash on hand. At the end of those several years of trouble complainant’s cash was gone and his farm mortgaged for $1,400. Much stress is laid upon the claim that the father believed in his son’s innocence. What does it matter whether he did or not? Indeed, it would not be strange if the father did so believe, but whether he did or not does not seem of any particular significance to me. The emotions that may prompt a father or mother or both to stand by a son in trouble, especially such serious trouble, are not to be measured by any very fixed or practical standard. Most parents will defend their children, whether right or wrong, against a prosecution under the criminal laws.
“If, notwithstanding the conviction of the son of the crime of murder and the affirmance thereof by the Supreme Court, the father still believes in his son, then the father can hardly be said to be entirely the sort of man to commit wilful and deliberate perjury in this cause, and I am frank to say I am impressed with the truthfulness of his testimony. The fact remains that the son was guilty of murder and was doomed to pass the remainder of his days behind prison walls. He had everything to gain and nothing to lose. It is highly probable that a man in that position would. beg and plead with his own family, who were then certainly very friendly with him, to do everything possible to obtain his release, and it is also highly probable that he would then agree to any sort of demand that might have been made in the event of his release. Due to the efforts of defendant’s family and his parents’ money, taken from the earnings and savings of a lifetime, he served only six years instead of life. The result of those efforts and the expenditure of that money required of defendant the utmost good faith thereafter.
“It seems to me that under the proofs it is ridiculous to say that the amount of these two mortgages was borrowed and used without the defendant’s knowledge or consent, and that it was not done at his request. Both parties agree that immediately upon his release he returned to the old homestead; that he cleared some of the land and for so doing was allowed five crops therefrom; and that from those crops and his other earnings he soon had money enough to pay off and did pay off both mortgages. He returned to his home as one of the family without paying any board. He was allowed to go back on the farm, which had been mortgaged for his sole use and benefit, work the farm, and derive further use and benefit from the very substance, a portion of which had already been consumed that he might regain his liberty. The relations between him and his family seem to have been satisfactory during the first few years after his return, and in fact until or about the time it became known to his father that he had purchased one of these mortgages and taken an assignment thereof. Then it appears that trouble arose between father and son, and the son left. The one assignment of which the father had knowledge was recorded; the other was not. The father claims that the son agreed to work the farm, and out of his share of the proceeds pay and secure a discharge of the mortgages. The son claims that he was to work the farm; and out of his share of the proceeds buy the mortgages and hold them until after the death of his parents. The son disappeared in February, 1906. The father filed his bill in April following.
“The complainant claims that a contract was made. The defendant denies that that contract was made, and also that, if made, it is sufficient to justify the court in granting the relief prayed. However, the defendant does not hesitate to set up in his answer a contract which is substantially the same as that claimed by the complainant, excepting only as to his contention that he was to take an assignment of the mortgages and hold them as a claim against his parents’ estate, instead of discharging them. If the contract alleged by defendant can be said to be valid and binding, it is difficult for me to see why complainant’s alleged contract is not equally so.
“In view of the death of defendant’s mother prior to the filing of the answers, and the further admitted fact that the father is the sole owner of the property, as survivor, it seems to me of little importance now whether the father originally owned the farm individually, or both parents as tenants by the entireties. Neither can I see how it is very material now whether the father made the agreement alone with his son or induced the mother to join, or whether the mother was the moving party and induced the father to join in executing the mortgages in reliance upon the assur-, anee that the son, if released, would pay off and secure their discharge. The facts are that the father, now the sole owner, without any change of title, mortgaged his farm for the sole benefit of the defendant, upon the latter’s assurance that, if released from prison, he would pay off and discharge the mortgage. We are not concerned with a possible situation that might have arisen if the mother had survived. The facts and the equities are strongly with the complainant. There is not one bit of tangible evidence to show thati any money whatever was required for any other member of the Swartz family than the defendant. It is undisputed that $350 was borrowed in May, 1895, the very time the defendant was tried and convicted; that at least a sufficient further sum to make the whole amount to $1,000, was borrowed in October, 1896, and the further sum of $400, in May, 1897. These loans were all made prior to the disposition of the defendant’s case in the Supreme Court. Defendant admits that there was an agreement and understanding and a contract between him and his parents, and he seeks to stand upon that agreement. The sole question is: Was the agreement made as claimed by him or as claimed by his father? I have no difficulty in finding, under all the facts and circumstances in evidence, that the agreement claimed by the father is the one that was actually made. I attach no importance to the question of laches except in so far as the delay of the defendant may properly be considered upon the question of credibility. His delay is one of the_ circumstances which I deem it proper to consider in determining whose version of this transaction and agreement is the true and correct one. While the amendment to the bill of complaint suggested in complainant’s brief would not appear to be necessary, still, if the complainant is advised that it is proper and expedient for his protection, the amendment may be allowed upon such terms as may appear just to the court. The relief prayed in the bill of complaint ought to be granted and the complainant may have a decree in accordance therewith.”

The views expressed in the foregoing opinion reflect so nearly the views entertained by this court, after an examination of the record, that we adopt them as the opinion in the case. We think no amendment of the bill was necessary, inasmuch as the testimony shows that the agreement which is sought to be enforced was made between plaintiff and defendant, and that plaintiff’s wife was not a party thereto.

The decree will be affirmed, with costs of both courts to plaintiff.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred.- Person, J., did not sit.


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    ALPENA POWER CO. v. CALEDONIA TOWNSHIP.
    Taxation — Valuation—Surroundings—Actual Cash Value.
    Where plaintiff owned and operated a power plant and dam in the city of Alpena, and also owned 31 acres in defendant township on which was erected a dam which it used -in connection with said power plant, the nearness of said dam to the power plant below was properly taken into consideration in fixing its value for purposes of taxation, under Article 10, § 7, Const., and sections 3825, 3850, 1 Comp. Laws (1 Comp. Laws 1915, §§ 3996, 4021), which should be its actual cash value, hence, in a suit to recover excess tax paid under protest because so valued, a verdict was properly directed for defendant.
    Error to Aleona; Widdis, J.
    Submitted October 20, 1916.
    (Docket No. 25.)
    Decided March 29, 1917.

      Assumpsit by the Alpena Power Company, Ltd., against the township of Caledonia for the recovery of taxes paid under protest. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Henry & Henry, for appellant.

      Joseph H. Cobb, for appellee.
   Bird, J.

This proceeding is one in assumpsit to recover certain taxes paid by the plaintiff to the defendant township under protest in 1914. The proofs made an issue of law, and a verdict was directed in favor of defendant.

' The plaintiff owns and operates a power plant and dam on Thunder Bay river in the city of Alpena. It is also the owner of 31 acres of land in defendant township in Alcona county situated on a tributary to Thunder Bay river. This tributary is the outlet of Hubbard Lake, a body of water having an area of 14 square miles. A dam has been erected on this tract which is capable of holding back the water in Hubbard Lake to a height of five feet above the normal level. When the water is low in Thunder Bay river this water is released, with the effect that it produces a uniformity in the volume of water which reaches the plaintiff’s plant, and also an intervening one, owned by the Fletcher Paper Company. In 1914 the assessment was fixed at $6,000.- It appeared that the land and dam, if valued independently of their use, location, or natural advantages, were not worth to exceed $2,000. Appellant states its position as follows:

“The reservoir dam and'lot upon which it is situated in Caledonia township should be assessed at its actual physical value only. In using the phrase ‘actual physical'value’ we mean fair cash value of the land in lot 2 and the fair cash value of the structure which comprises the dam, apart from the added benefit to the power plant in Alpena. An assessment, taking into consideration such added benefits and the increased value to the power plant in Alpena, is illegal.”

The premises assessed are real property, and are situate in defendant township, and therefore should be assessed therein (1 Comp. Laws, § 3826 [1 Comp. Laws. 1915, § 3997]), and should include:

“All buildings and fixtures thereon, and appurtenances thereto, except such as are expressly exempted by law.” 1 Comp. Laws, § 3825 (1 Comp. Laws 1915, § 3996).

And the premises should be assessed at their actual cash value. Constitution of Michigan, art. 10, § 7.

The legislature has aided the assessing officer by-indicating some of the elements which may be taken into consideration in arriving at values for the purpose of taxation:

“The words 'cash value,’ whenever used in this act, shall be held to mean the usual selling price at the place where the property to which the terms applied shall be at the time of assessment, being the price which could be obtained therefor at private sale, and not at forced or auction sale. In determining the value the assessor shall also consider the advantages and disadvantages of location, the quality of soil, quantity and value of standing timber, water power and privileges, mines, minerals, quarries or other valuable deposits known to be available therein and their value.” 1 Comp. Laws, § 3850 (1 Comp. Laws. 1915, § 4021).

Applying these statutory rules to the facts in the case, we have little difficulty in reaching the conclusion that the assessment should be sustained.

The supervisor testified that in his opinion the property was. worth more and would sell for more than $6,000. He concedes, however, that in determining the value he took into consideration the benefit derived from the nearness of the power plants below. He had a right to consider this, as it was helpful in determining its earning power — an essential element always taken into consideration in arriving at the selling price. He had a right to take into consideration the fact that these premises were utilized to create a reservoir of Hubbard Lake, and to thereby imprison 2,000,000,000 cubic feet of water in excess of its natural capacity, and he had a right to take into consideration the proximity of this reservoir to the power plants below and the advantages resulting therefrom. If these premises were owned by a third party and were for sale, there is no reasonable probability under the proofs that the power plants down stream would permit them to pass to other hands for a sum less than $6,000.

The supervisor’s judgment that the premises were worth $6,000 was approved by the board of review, and plaintiff’s counsel admitted in open court that their client would not part with the title thereto for a consideration of $10,000, but counsel explain that its value lies in the added water power which is furnished to the plaintiff’s plant at Alpena; that the water has no value until it is converted into power, and the power is not created until the water reaches the water wheels at the plant in Alpena. We think it is unnecessary in this proceeding to determine whether the value of the water power should be attached to the Hubbard Lake dam or to the power plant at Alpena, or whether it should be apportioned to each upon some reasonable basis. The testimony does not indicate that the supervisor has included the value of the water power in his determination. He appears to have considered the physical value of the real estate and dam in connection with their surroundings as he is enjoined to do by the statute, and has concluded that the value thereof was $6,000. There is nothing in the record to indicate that the assessment upon this basis is too high, but there is much in the record to indicate that its real value is much beyond the sum fixed by the supervisor. For a similar case on the facts supporting this view, see Pingree v. County Commissioners, 102 Mass. 76.

The view taken by the trial court was the proper one, and the judgment will be affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred; Person, J., did not sit.


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    OPITZ v. HOERTZ.
    Master and Servant — Workmen’s Compensation Law — Independent Contractor.
    Under an unambiguous written contract whereby a contractor agreed to superintend certain clearing work and erection of new buildings, to co-operate in purchasing material and employing men and teams, to furnish the necessary tools, to do the work according to the wishes of the owner, and to accept as compensation therefor 10 per cent, of the net cost, said contractor was an agent of the owner and not an independent contractor, and the owner and not the contractor was liable under the workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.) for injuries to employees engaged in such work.

    Certiorari to Industrial Accident Board.
    Submitted October 11, 1916.
    (Docket Nos. 116, 117, 118, 119, 120, 121.)
    Decided March 29, 1917.
    Rehearing denied September 28, 1917.

      Frieda Opitz, Frances May, Theodore Blaszak, Theresa Richter, Vernon Griffin, and Mrs. Charles Lynd presented their claims for compensation against Charles Hoertz and William C. Hoertz, copartners as Charles Hoertz & Son, and the Southwestern Surety Insurance Company, insurer, and Brown & Sehler Company for the death of certain workmen in the employ of defendants. By stipulation the claims were heard as one. From an order awarding compensation as against defendants Hoertz & Son and the Southwestern Surety Insurance Company, said defendants bring certiorari.
    Award set aside as to Hoertz & Son, and remanded to Industrial Accident Board for further proceedings.

      Warren, Cady, Ladd, & Hill (Lombard, Hext & Washburn and Carl V. Essery, of counsel), for appellants.

      Ellis & Ellis, for appellee Opitz.

      Thompson & Temple, for appellee May.

      Boland J. Cleland (Earl F. Phelps, of counsel), for defendant Brown & Sehler Co.

       On workmen’s compensation acts generally see extensive note in L. R. A. 1916A, 23.

   Bird, J.

The manufacturing plant of Brown & Sehler Co., of Grand Rapids, was destroyed by fire on January 15, 1915. Soon thereafter Mr. Brown, of Brown & Sehler Co., had some conversation with Wm. Hoertz of Charles Hoertz & Son, contractors, about clearing the site and the erection of new buildings. As a result of this conversation a written proposition by Hoertz & Son was submitted to Brown & Sehler Co. as follows:

“We hereby propose to superintend and furnish a superintendent for the clearing of your site, and any new buildings you will build immediately for ten per cent, of the actual cost of the labor and new material required in construction. It is the understanding that we are to co-operate with you in the purchase of any new materials and work in accordance with your wishes, or the hiring of teams and men. This proposition carries with it that Hoertz & Son will furnish all of the necessary tools required to carry on this work in first class shape, and that the owner pay the bills and that the ten per cent, is figured from the net cost price.”

The proposition was accepted by telephone and the work of clearing away the débris commenced on the morning of February 1, 1915. The work had progressed only a few hours when a portion of one of the walls collapsed, killing and injuring several workmen. The several claimants named in this proceeding filed claims with the board of arbitration, and by stipulation of counsel it was agreed that the proofs taken should be applied to all of the claims.

The right of claimants to an award does not seem to have been questioned before the board. The question contested was as to which defendant was liable. Defendant Brown & Sehler Co. took the position that Hoertz & Son stood in the relation to them of independent contractors and were the employers of the men, and therefore liable. 'Hoertz & Son combated this theory, and insisted that Brown & Sehler Co. was the employer, and that they were its servants and agents. After hearing the testimony the board of arbitration to which an appeal was taken decided that Charles Hoertz & Son were independent contractors, and therefore fixed the liability upon them. This presents the sole question in the case.

The written proposition heretofore referred to is plain and unambiguous, and embodies the entire contract between the parties. It is therefore this contract which must determine the relation of parties. Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495); Larsen v. Telephone Co., 164 Mich. 295, 299 (129 N. W. 894); Ripley v. Priest, 169 Mich. 383 (135 N. W. 258); Bissell v. Ford, 176 Mich. 75 (141 N. W. 860); Tuttle v. Lumber Co., 192 Mich. 385 (158 N. W. 875). An independent contractor is defined as:

“One who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.” 26 Cyc. p. 1546.

By the contract between the parties Charles Hoertz & Son agreed:

(а) To superintend the work of clearing the site and erecting new buildings.

(б) To co-operate with Brown & Sehler Co. in purchasing material and employing men and teams.

(c) To furnish the necessary tools to properly carry on the work.

(d) To do the work in accordance with the wishes of Brown & Sehler Co.

(e) To accept as compensation therefor 10 per cent, of the net cost of labor and materials.

This left the reserved power in Brown & Sehler Co. to determine when the work should begin, how rapidly it should progress, and to stop the work at any stage if they chose to do so. It was left with Brown & Sehler Co. to determine what buildings should be erected, whether they should be large or small, how much they should cost, of what material they should be constructed, and when once decided, to purchase the materials therefor. It was left to Brown & Sehler Co. to employ the men and teams if they chose, and to agree with the men on a price to be paid for their labor and to pay them. Under this division of authority and responsibility only one conclusion can be arrived at, and that is that Charles Hoertz & Son were the agents and servants of Brown & Sehler Co. When we apply the foregoing test as to what constitutes an independent contractor, we find nothing in the obligations of Charles Hoertz & Son as defined by the contract which would characterize them as independent contractors. Their contract did not authorize them to do the work according to their own methods, but instead obligated them to do it in accordance with the wishes of Brown & Sehler Co. Their contract did not leave them free .to select the means by which the work should be accomplished ; neither were they obligated to bring about any specific results.

Considerable stress is laid upon the fact that Charles. Hoertz & Son actually employed the labor and directed it, and that before commencing the work they posted the notice which the compensation act requires. If the contract between the parties were in doubt or was ambiguous, these acts would be helpful in determining what their agreement was, but no such doubt exists here. Brown & Sehler Co. reserved the right to employ the laborers, and at any stage of the work they could have discharged the laborers employed by Hoertz & Son and employed labor of their own selection. They reserved the right to control that question, and as was said in Tuttle v. Lumber Co., supra:

“It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between independent contractor and a servant or agent.”

The conclusions reached by the board of arbitration must give way to this construction. The awards against Charles Hoertz & Son. must be set aside with the right to tax their costs against the defendant Brown & Sehler Co.

'he case will be remanded to the industrial accident board for further proceedings.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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    HOGENDYK v. CONSUMERS’ ICE CO.
    1. Negligence — Collision—Question eor Jury — Directed Verdict.
    In an action for damages to plaintiff, caused by a collision with defendant’s wagon in a public street, the disputed question as to whether defendant’s horse suddenly turned toward the curb, and thus caused the accident, should have been submitted to the jury, and the court below was in error in directing a verdict for defendant.
    2. Contributory Negligence — Collision—Highways and Streets.
    Ordinarily one would not be guilty of contributory negligence, as a matter of law, in driving between another wagon and the curb, where he was three or four feet from the wagon and eight or ten feet from the curb.
    3. Same — Notice.
    Nor could he be charged, under ordinary circumstances, with knowledge that the horse was likely to make a sharp turn toward the curb before the wagons had cleared, because that does not usually happen.
    4. Same — Collision—Reasonable Care — Question eor Jury.
    Where defendant’s horse was apparently unattended, the questions as to whether plaintiff should have exercised greater care and driven closer to the curb, or watched the .final clearance of the wagons more closely, being ones about which reasonable minds might differ, the question whether plaintiff exercised such .care as he should, under all the circumstances of the case, was one for the jury.
    Error to Kent; Brown, J.
    Submitted October 26, 1916.
    (Docket No. 175.)
    Decided March 29, 1917.
    Case by Martin Hogendyk against the Consumers’ Ice Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      McKenna & Herman, for appellant.

      Corwin & Nor cross, for appellee.
   Bird, J.

As plaintiff was driving south on Jefferson avenue near Wealthy avenue, in the city of Grand Rapids, with a horse and light wagon, he overtook and passed one of defendant’s ice wagons. He passed some distance beyond and turned up to the west curb in front of one of the business places in that vicinity. His children, who were riding with him, alighted, and he then swung to the left, crossing the street to the east curb, and turned to go back north. As he did so, he noticed that the ice wagon was coming toward him, and, when he had made the turn and was facing north, the horses’ heads were nearly opposite each other. The distance between the ice wagon and the east curb was at least 16 feet, and the clearance between the wagons was between 3 and 4 feet. The passage was made in safety until plaintiff’s wagon passed the horse attached to the ice wagon, when he turned toward the east curb, thereby bringing the rear inside wheels of the wagons in collision. Plaintiff’s wagon was upset and he was thrown out. He insisted that defendant was at fault, and he brought this suit to recover his damages. The case was tried and submitted to the jury, and after deliberating for several hours they were recalled and a verdict directed for defendant on the grounds that defendant was free from negligence and plaintiff was guilty of contributory negligence.

Was defendant free from negligence? It was claimed by plaintiff that defendant’s horse was proceeding without a driver when the collision occurred. It is claimed by defendant that the driver was on the rear step of the ice wagon. If the horse turned to the east before the wagons had passed each other, and in consequence thereof a collision occurred, the defendant would be guilty of negligence, and this would be true whether the horse was going of his own accord or whether he was being driven. But defendant insists that its horse did not turn toward the curb and cause the collision, but kept on in a straight line. This, then, makes a question of fact for a jury to determine.

Was plaintiff guilty of contributory negligence? Plaintiff’s proofs tend to show that, after he effected the turn and started north, he was on a line 3 or 4 feet from the ice wagon and 8 or 10 feet from the east curb. Ordinarily, one would not be guilty of negligence as a matter of law in driving that distance from another wagon on a city street, and under ordinary circumstances we think he could not be chargeable with knowledge that the horse was likely to make a sharp turn toward the curb before the wagons had cleared, because that thing does not usually happen. But whether, in view of the fact that the horse was apparently going unattended, plaintiff should have exercised greater care and driven closer to the east curb, or watched the final clearance of the wagons more closely, are questions about which reasonable minds might differ. Therefore we are of the opinion that the question whether plaintiff exercised such care as he should have exercised under all the circumstances of the case was one for the jury.

In view of these conclusions, the judgment must be reversed, and a new trial ordered, with costs to the plaintiff.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


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      In re STROEBEL. APPEAL OF RUNGE.
    1. Insane Persons — Discharge of Guardian — Evidence—Directed Verdict.
    On appeal by a daughter of petitioner to the circuit court from an order of the probate court discharging petitioner, who had previously been adjudged an incompetent, from guardianship, held, the testimony justified the direction of a verdict for petitioner.
    2. Same — Evidence—Opinion Evidence.
    Where a grandson of petitioner, who had formerly lived in her family, was asked whether he deemed her mentally competent to have charge of her affairs, the answer was properly excluded where the witness had detailed nothing upon which he could base an opinion that she was not mentally competent.
    3. Appeal and Error — Insane Persons — Review—Writ of Error.
    On appeal to the circuit court from an order of the probate court discharging petitioner, who had previously been adjudged an incompetent, from guardianship, the issues of fact are triable by a jury, and the proceedings therein, being in conformity with the rules of the common law, are reviewable in this court by writ of error.
    Error to Berrien; Bridgman, J.
    Submitted October 23, 1916.
    (Docket No. 64.)
    Decided March 29, 1917.
    ■Petition in probate court by Maria Ann Stroebel praying to be relieved of guardianship. From an order granting the prayer of the petition Josephine Runge, daughter of petitioner, appealed to the circuit court. Judgment for petitioner on a directed verdict. Contestant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      O’Hara, & O’Hara, for appellee.
   Bird, J.

Maria Ann Stroebel, the petitioner, who is now 83 years of age, was adjudged incompetent in the year 1909 by the probate court for Berrien county to have the care and management of her person and estate, and a guardian was appointed. In December, 1912, she filed her petition praying to be relieved of guardianship, and an order was made by the probate court granting her prayer and discharging the guardian. One of her daughters, Josephine Runge, feeling herself aggrieved at the order, appealed therefrom to the circuit court. At the conclusion of the testimony the trial court was of the opinion that there was no case for the jury, and a verdict was directed in behalf of the petitioner. The proceedings are here upon writ of error.

Did the court err in directing a verdict in behalf of the petitioner? It appears that the petitioner was born in Germany, and came to New York when she was 11 years of age. She worked as a domestic until she met and wed Mr. Stroebel. Soon thereafter they came to Michigan and settled near Niles. Together they made a valuable farm of the land which they purchased. She did not have the opportunity of an early education. Like many German women, ' she worked in and out of doors. She gave birth to eight children, four of whom are now living, three girls and one boy. The boy, Joe, is with her on the farm, and the girls are married and away. Joe and the girls are not on good terms. The record rather suggests that the cause of the trouble is that Joe wants all of the farm and the girls are afraid he will get it, and not a little of the testimony relates to their .troubles. Whether or not this is the “fly in the ointment,” the mother should not be made the victim of their selfish quarrels. After examining the testimony with much care, we are convinced that it convicts the petitioner of nothing but the fact of being old, physically infirm, and not as tidy about her person and home as the present standard of living would suggest. Her testimony was somewhat remarkable for a woman of her age in remembering names, dates, and events, both recent and of long ago. In but one way does her testimony suggest the abnormal. She appears to have developed an unfriendly attitude toward her daughters. This seems to have been engendered in part by the' failure of the girls to give her the help and attention which she thought she ought to have, and a disappointment because all three girls married Protestant husbands, and because one of them gave birth to a child before she was married by a man who afterwards married her sister, and for the further reason that two' of them assisted in having a guardian appointed for' her in 1909. Whether these and other troubles were adequate to cool the average mother’s affection for her own daughters, it evidently affected her in that way, and explains what, if unexplained, might be some evidence of an abnormal state of mind. So far as the testimony goes, she appears to be as competent mentally as she was years ago when she was helping to earn the property. We are of the opinion that the trial court took a proper view of it.

Contestant inquired of Joe Davis, the grandson of respondent, who formerly lived in petitioner’s family, whether he deemed her mentally competent to have the charge of her affairs. The answer to the question was excluded on the ground that no foundation had been laid. We have read the testimony of this witness, and are impressed that the answer was properly excluded, as he detailed nothing upon which he could base an opinion that she was not mentally competent to have charge of her affairs.

It is suggested by petitioner’s counsel that these proceedings are not according to the course of the common law, and therefore not reviewable by writ of error. The phrase “proceedings according to the course of common law” is said to mean:

“That the right of a person to his life, liberty, or property shall not be divested, except by a judicial determination, after due notice, in pursuance of a general law.” Mason v. Messenger & May, 17 Iowa, 261.

Proceedings under the statute can be set in motion only after due notice to the alleged incompetent and those whose interest would be affected thereby. 3 Comp. Laws, § 8709 (3 Comp. Laws 1915, § 13951); North v. Joslin, 59 Mich. 624, 646 (26 N. W. 810). When an order is made therein, any person aggrieved may appeal therefrom to the circuit court (1 Comp. Laws, § 669 [3 Comp. Laws 1915, § 14145]), and notice thereof shall be given to the adverse party (1 Comp. Laws, § 671 [3 Comp. Laws 1915, § 14153]). And if there is an issue of fact involved a jury may be summoned (1 Comp. Laws, § 673 [3 Comp. Laws 1915, § 14155]), and the trial in the circuit court shall proceed “according to the rules of law” (1 Comp. Laws, § 673), and section 10484, 3 Comp. Laws, provides that:

“Writs of error in civil and criminal cases, upon any final judgment or determination, may issue of course, out of the Supreme Court. * * *.” (3 Comp. Laws 1915, § 13736.)

The several steps necessary in these proceedings appear to meet and satisfy the foregoing definition of a proceeding according to the course of the common law, at least where an issue of fact is involved.. But, whatever view may be entertained as to the proceedings' in the probate court when they reach the circuit court, where issues of fact may be tried by a jury, the proceedings are then in conformity with the rules of the common law. See Parker v. Copland, 4 Mich. 528. Indeed, if such proceedings could not be removed to this court by writ of error, it would be very difficult to review the charge of the court as a writ of certiorari inquires only as to whether the procedure has been, according to law.

The case of American Baptist, etc., Union v. Peck, 9 Mich. 445, appears to furnish a reason why we should hold that a writ of error was the proper remedy in these cases. It was there held that:

“Where an appeal has been taken to the circuit court from the decree of the probate court allowing or disallowing a will, and a trial is had, error lies to remove” the case into this court.

It was further said:

“Substantial issues of this kind, when tried in the circuit court, upon pleadings framed in the usual way, are governed by all the analogies attending common-law trials of other civil actions.”

Inasmuch as the same issue is involved in these proceedings as is frequently raised in will cases, viz., the mental competency of the alleged incompetent, we think it should be held that the proceedings are analogous to those of the common law.

An examination of the cases will disclose that proceedings similar to these have been removed to this court by both methods, viz., by writ of error and writ of certiorari, but the writ of certiorari has been more often used where the jurisdiction of the probate court has been questioned. We are of the opinion that the case is properly here upon writ of error.

Some other questions are raised concerning the admission and. rejection of testimony, but we find nothing in them which merits a reversal of the case.

The judgment of the trial court is affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.