author: Long, J.

text:
    SNEDICOR v. CITIZENS’ INSURANCE CO.
    1. Fire Insurance — Cancellation of Policy — Authority or Broker.
    Authority to procure insurance does not imply authority to receive notice of cancellation of the policy.
    2. Same.
    An insurance broker agreed to place a certain amount of fire insurance for plaintiff at a.specified rate. The policies were accordingly procured, and delivered to plaintiff. One of tha companies thereafter reduced the amount of its policy, and the broker thereupon obtained a policy from defendant, and delivered it to plaintiff, taking up the canceled policy. Held, that notice of cancellation given to the broker by defendant, with knowledge of the circumstances, did not bind plaintiff.
    Error to Wayne; Frazer, J.
    Submitted June 8, 1895.
    Decided July 2, 1895.

      Assumpsit by Clarkson M. Snedicor against the Citizens' Insurance Company on a fire-insurance policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Wilkinson & Post, for appellant.

      Charles S. McDonald (Elbridge F. Bacon, of counsel), for appellee.
   Long, J.

This is an action brought by the plaintiff against the defendant to recover on a policy of insurance issued by the defendant to the plaintiff. The defendant pleaded the general issue, and gave notice that the policy was canceled before the fire. The case was tried before a jury, and a verdict directed by the circuit court in favor of the plaintiff for $1,598.02.

It appears from the undisputed testimony in the ease that on the 9th day of March, 1893, defendant issued to plaintiff its policy of insurance, by which it insured the plaintiff’s stock of boots and shoes, etc., in the city of Detroit, in the sum of $1,500, for one year from the date of the policy. On March 26, 1893, the property insured was totally destroyed by fire. Proofs of loss were duly made' and delivered to the insurance company, and payment of the amount of the policy demanded, which was refused by the insurance company, on the ground that the policy had been canceled. It also appears that credit was given for the premium, and that the amount of the premium had not been paid -at the time of the fire, but was tendered shortly afterwards. On the trial the’ defense as to the want of the payment of the premium by plaintiff was abandoned by the defendant, and is not insisted upon in this court. It was not disputed that the property insured was a total loss, and that the value of the property burned was in the neighborhood of $90,000, and that the total insurance on the property amounted to $45,500.

At the time the policy was issued, John W. Fox, who signed the policy, was one of the agents of defendant in the city of Detroit, but he testifies that he had no personal dealings with the plaintiff, and never saw him until after the fire. One Arthur Langguth, who was a real estate and insurance agent, had an office in the same building in which Mr. Fox had his office. He did not represent any companies himself, but did his insurance business through other agents; that is, he solicited insurance, and got it placed in different companies, where-ever he could. A short time before this policy was issued, Langguth went to the plaintiff, and made arrangements with him to place $10,000 worth of fire insurance, at $1.05 por $100. At first he procured $5,000 in the Manchester, of England, and $5,000 in the Palatine, of Manchester. The Manchester company reduced its policy on plaintiff’s stock to $2,500, and Langguth went to defendant’s agent, who issued and delivered to Langguth two policies, one in the Grand Eapids company for $1,000, and the policy in question for $1,500. On the day these policies were issued, Langguth delivered them to the plaintiff, and took up the policy which had been canceled in the Manchester.

About the 1.7th day of March, 1893, John W. Fox, the defendant's agent, received the following telegram:

“Pittsburg, Pa., March 17,1893.
“John W. Fox:
“Cancel 2130. Full line assured through agency.
“Citizens' Insurance Com rant.”

On the 18th day of March, Fox handed the telegram to Langguth, and asked him if he would get the policy back, and he said he would. It is not claimed by the defendant that the plaintiff ever had any knowlege of this telegram, or of the action of the company in ordering the policy canceled, until after the fire. Langguth testifies that he told Mr. Snedicor that the policy was canceled the morning after the fire, and that he had not notified him before that. Mr. Fox testifies that the first conversation he had with Mr. Snedicor was on the morning after the fire, and that he then told him that the policy was canceled, and that that was the first time he had notified him of the cancellation.

The defendant assigns two errors: First, that the court should have instructed the jury “that, under the evidence, the policy in suit was canceled more than five days before the fire, and was not in force at the time of the fire, and that' the plaintiff was not entitled to recover;” and, second, that the court erred in directing a verdict for the plaintiff.

The only question raised is whether the notice of cancellation of the policy given to Langguth was a sufficient notice, under the facts, to bind the plaintiff. If the notice had been given to the plaintiff, it is' conceded that it would have been sufficient to cancel the policy, and no recovery could be had. We do not think, however, that Langguth sustained such a relation to the plaintiff as to bind the plaintiff by the notice given. Mr. Fox, the agent of the company at Detroit, knew the relation between plaintiff and Langguth. He knew that Langguth was an insurance solicitor, and that he made the application in the present case for the plaintiff; and that the policy had been delivered by Langguth to the plaintiff, and that, at the time of notice of cancellation, it was in the plaintiff’s possession. He made no effort to notify the plaintiff of the cancellation except to state to Langguth that he had received the telegram from the company to cancel it. By its terms, the policy provided that it could be canceled at any time at the request of the insured, or by the company by giving five days’ notice. This notice was to be given to the insured or to some one authorized to receive it. Langguth was not the general agent of the plaintiff, and there were no business relations between them, except in the procuring of this policy in place of the one that had before existed. The mere fact that Langguth procured the policy for plaintiff would not make him his agent to receive notice of the cancellation of the policy. In Buick v. Insurance Co., 103 Mich. 75, 79, it was said:

“It is unnecessary to cite authorities to the proposition that authority to procure insurance does not imply authority to consent to cancellation, so as to bind the insured.”

See, also, Grace v. Insurance Co., 109 U. S. 278; Body v. Insurance Co., 63 Wis. 157; East Texas Fire Ins. Co. v. Blum, 76 Tex. 653.

Counsel for defendant contend that the case is ruled by Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502. The present case differs*essentially from that. In that case it appears that Kirchhofer, the agent of the company, had an arrangement with Reynolds by which Reynolds, in consideration of dealing with Kirchhofer, was to have an abatement of 5 per cent, out of the premiums, to be allowed out of Kirchhoferis commissions; that there was a further arrangement with Kirchhofer by which he looked after the insurance for Reynolds, and saw to the renewal of the policies; that Reynolds left the care and custody of them with Kirchhofer, and never informed himself, except through Kirchhofer, concerning the risks; also, that Reynolds had an account with Kirchhofer for the premiums, and paid them art such times as Kirchhofer needed them. It was also left with Kirchhofer,to decide as to the responsibility of the companies, and where the insurance should be placed. It also appeared that the policy in question was ordered by the company to be canceled in May, 1874, and was returned to it by Kirchhofer, who had countersigned the policy, but had kept it in his custody for Reynolds. The fire occurred in August, and at the time of the fire the company had the policy in its possession. Under these facts, it was held by the court that Kirchhofer was the agent of Reynolds to receive notice of the cancellation of the policy, and that notice to him was binding upon Reynolds.

The judgment below must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    BETZ v. BRENNER.

    1. Exemptions — Principal Business op Debtor — Abandonment— Execution Sale — Rights op Wipe.
    The exemption of $350 given by 2 How. Stat. § 7686, .subd. 8, to enable one to carry on the business in which he is wholly or principally engaged, is beyond the control of the debtor’s wife, and therefore the wife of a merchant who has abandoned his business, with which she has no connection, cannot maintain an action against an execution creditor of the husband for the value of an exemption in the stock, under-2 How. Stat. § 6297.
    2. Same.
    An insolvent merchant, having stated that he would return to his home within a few hours, left for parts unknown. Three days after his departure, his stock was attached. Although no claim of exemption was made, the officer set aside goods to the value of $350 as exempt under 3 How. Stat. § 7686, subd. 8. Four months thereafter, the goods so selected, having in the meantime remained unclaimed, were seized and sold under execution, and the debtor’s wife brought trover for their value. Nothing had been heard from the debtor at the time of the trial, which occurred eight months after his departure. Held, that the debtor had abandoned his business, and hence lost his exemption right, and that verdict should have been directed for defendant.
    Error to Washtenaw; Ivinne, J.
    Submitted June 6, 1895.
    Decided July 2, 1895.
    Trover by Lydia Betz against Michael Brenner for property seized by defendant on execution against plaintiff’s husband, and alleged by her to be exempt. From a judgment for plaintiff, defendant brings error.
    Reversed, and judgment for defendant.
    Louis Betz, the husband of plaintiff, was engaged in the saloon and grocery business in the city of Ann Arbor. His stock was of the value of about $1,100. He became insolvent, and on July 23, 1893, left his home, saying that he was going to Whitmore Lake, a small summer resort 10 miles from Ann Arbor, to engage rooms for himself and his wife, and would return in a few hours to take his wife there. He did not go to Whitmore Lake, but absconded, and at the time this case was tried, in March, 1894, had not been heard from. He had two clerks, who remained in charge of the business. Plaintiff had nothing to do with the business, and her home was not in the same building. July 26th several of his creditors commenced attachment suits, which were placed in the hands of the defendant, the sheriff of the county, for service. Upon the assumption that Mr. Betz was entitled to an exemption of goods to the value of $250, the defendant selected and set aside goods to that amount, although no one appeared for him and asked it. Whether they were left in the saloon or were placed elsewhere does not appear. It does appear, however, that neither Mr. Betz nor any one for him appeared to claim the exemption or the property so selected, and it was not levied upon until November 25, 1893, when the defendant seized it under a subsequent execution, and sold it December 2d. Plaintiff!, after making demand, brought this action of trover to recover the value of the exemption. The court directed a verdict for the plaintiff.

      J. W. Bennett, for appellant.

      Lehman Bros., for appellee.

       Rehearing denied December 17, 1895.

   Grant, J.

(after stating the facts). We think it conclusively appears that .Mr. Betz had abandoned his business. He had absconded under false statements, and if is apparent that he did not intend to return to continue his business or to demand any exemption in the goods. The object of the exemption of stock in trade is wel! stated in Harris v. Haynes, 30 Mich. 140. It was held in Charpentier v. Bresnahan, 62 Mich. 362, that the husband might sell, mortgage, or release to the execution creditor, his right to this exemption. It is vested solely in the husband, and he may use or dispose of it as he sees fif. Under a similar state of facts it was held that where a farmer had abandoned farming, and absconded, his team ceased to be exempt. Miller v. Miller, 97 Mich. 151. In that case neither the husband nor wife lived upon the farm. It was not a case where the wife lived with her husband upon the farm and assisted in carrying it on. If the husband may sell, mortgage, or release without his wife’s assent, he may likewise abandon his exemption, and where such abandonment is conclusively shown the court should direct a verdict for the defendant.

Judgment reversed, and entered in this court for the defendant, with the costs of both courts.

The other Justices concurred.


author: Hooker, J.

text:
    ST. JOHNS MANUFACTURING CO. v. MUNGER.
    Corporations — Action on Stock Subscription — False Representations op Promoters.
    One who has united with others in an agreement to form a corporation, and pursuant thereto has joined in the execution of articles of association, cannot defend an action upon his stock subscription on the ground that it was procured by the false representations of some of his associates in the enterprise, made while they were acting as a soliciting committee appointed at a preliminary public meeting. Such a case is not within the rule that a principal, by accepting the benefits of an unauthorized contract made by an agent, assumes the incident obligations.
    Error to Clinton; Dodds, J., presiding.
    Submitted June 6, 1895.
    Decided July 2, 1895.

      Assumpsit by tbe St. Johns Manufacturing Company against Orrin W. Munger upon a subscription to the capital stock of the plaintiff. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fedewa & Wabridge, for appellant.

      Spaulding, Norton & Weimer, for appellee.
   Hooker, J.

The plaintiff recovered a judgment against the defendant upon an assessment on the capital stock of the corporation, to which the defendant was a subscriber. Upon the trial the plaintiff’s counsel objected to evidence in support of the notice accompanying the plea, which objection was sustained, and the case turns upon the sufficiency of the facts stated in the notice as a defense. These facts are substantially as follows: Prior to January 1, 1892, R. M. Steel, of St. Johns, and others, had been carrying on a manufacturing business in that city, under the name of the St. Johns Manufacturing Company. Some time before the date mentioned, a proposition had been made by Steel to a number of the citizens of St. Johns to incorporate said business with a capital of $300,000, of which $200,000 was to be preferred stock, and $100,000 common stock; and some time in 1891 the defendant subscribed for 50 shares of common stock by signing an agreement of which the following is a copy, viz.:

“Whereas, The St. Johns Manufacturing Company is to be incorporated as a stock company, with a capital stock of $300,000, we do each of us severally subscribe and agree to pay for the number of shares of said stock set opposite our respective names, the par value of said shares to be $10 each. The stock hereby subscribed to be paid in 20 equal monthly installments, commencing October 20,1891, with 7 per cent, interest on unpaid portions after January 1, 1892, or all or any part in excess thereof may be paid at any time at the option of the subscriber.”

Prior to said subscription, the defendant had no knowledge of the extent or profits of said business carried on by Steel and others. Prior to the time that the defendant subscribed as aforesaid, a meeting was held at St. Johns, which was attended by Steel and a great number of citizens of the place, for the purpose of considering the advisability of forming a corporation to carry on said business, and a committee was appointed by said meeting for the purpose of soliciting subscriptions for stock in the proposed corporation. Said committee consisted of citizens of St. Johns, Avho proposed to and did subscribe for part of the stock of said company. Said committee, “in order to induce” defendant to subscribe for stock, represented to him that the said business had for a series of years been a very prosperous and money-making one, and that during the period it had manufactured tables it had never paid less than 10 per cent, a year on capital invested of $300,000, and had paid as high as 17 or 18 per cent, a year on said amount of capital. Said committee further represented to the defendant that the business was to be capitalized in the sum of $300,000, of which $200,000 was to be preferred stock, and $100,000 common stock; that the former was to be paid an annual dividend of 6 per cent, from the earnings of the company, and the common stock was to be paid the balance of the profits, which would be at least 10 to 20 per cent, per year. The machinery was to be invoiced and appraised at its cash value by disinterested persons, and turned in as part of the capital, and the common stock was to have “such representation on the board of directors so that they could protect their interests.” It was further stated that the practice of the former company of issuing to its workmen and others coupons payable at the St. Johns Mercantile Company (an institution in which said Steel had a large interest) should be discontinued, and that such coupons •should thereafter be made payable at all the stores in St. Johns. The notice alleges, further, that the defendant “relied upon” each of such representations, and was thereby induced to subscribe for such stock. The notice states that preferred stock to the amount of $199,000 is owned by Steel; that the new company has continued to issue coupons payable as before, and not at the stores of St. Johns generally; that Steel’s stock was paid for by him by turning over to the new company the plant, machinery, stock, and material connected with the business before the incorporation of plaintiff; that such property was not invoiced and appraised by disinterested persons, but was turned in at more than its cash value; and that each representation made by said committee to the defendant, and by which he was induced to subscribe for said stock, was untrue, and that he had no knowledge of its falsity, either at the time he subscribed or at the time of his payment of $100 upon said subscription. The notice asserts, further, that the by-laws adopted by said corporation are antagonistic to the rights of the holders of the common stock, and unjustly prefer the holders of the preferred stock, to an extent that renders the common stock worthless, and that such by-laws were adopted by the votes of the holders of the preferred stock, to the detriment of'the holders of the common stock, and against the protest of some of the latter.; that the majority of the directors have been selected by the holders of the preferred stock, and the board has ignored the interests of the holders of the common stock. It is further alleged that the plant has been used for many other purposes than those represented to be contemplated, and for some unauthorized purposes. The foregoing comprises the essential allegations of the defendant’s notice, and, if it states a sufficient defense, the judgment must be reversed; but, if it does not, it was proper to sustain the objection made by the plaintiff’s counsel, and the judgment should be affirmed. Spicer v. Bonker, 45 Mich. 630,

Counsel for the defendant say that the plaintiff company is bound by the representations of the citizens’ committee which procured the defendant’s subscription by misstatements, the benefit of which it cannot receive and retain without assuming responsibility for the representations. This is an attempted application of the rule that, by accepting the benefits of a contract made by an agent, the principal is bound by the undertakings and promises of the agent. A number of cases are cited to sustain this contention, which, manifestly, must rest upon the proposition that the citizens’ committee was an agent of the company which its efforts created. Among the cases cited are many which support the general rul(! above stated, viz., that a principal must assume the obligations, if he wishes the benefits, of an unauthorized contract made by an agent. As stated by Paley:

“Contracts made for the benefit of another, but without his privity or direction, may be rejected or affirmed at his election. But, by making the election to affirm il, he adopts the agency altogether, as well that which is detrimental as that which is for his benefit. But, in seeking to enforce contracts entered into by agents, the principal is subject to have them impeached by any conduct of his agent which would have had that effect if proceeding from himself. Every species of fraud, misrepresentation. or concealment, therefore, in the agent, affects the principal’s right to recover.” Paley, Ag. 324; Hitchcock v. Griffin & Skelley Co., 99 Mich. 451.

This doctrine was applied in the case of Crump v. Mining Co., 7 Grat. 352; but in that case there was no question of the existence of the relation of principal and agent, and contract relations between the parties. Crump was a purchaser of stock from the pre-existing corporation, through its representative, authorized by the corporation to sell the stock.

Most of the cases cited by counsel relate to contracts made with, or services performed by, promoters, previous to the organization of the corporation, upon an understanding with the prospective stockholders or some of them. It is uniformly held that such arrangements may be ratified by the corporation after organization. Wilson v. Railroad Co., 114 N. Y. 487; Bommer v. Manufacturing Co., 81 N. Y. 468; Rockford, etc., R. Co. v. Sage, 65 Ill. 328; Low v. Railroad Co., 45 N. H. 370; Stanton v. Railway Co., 59 Conn. 272; Reichwald v. Hotel Co., 106 Ill. 439; Whitney v. Wyman, 101 U. S. 392; Battelle v. Pavement Co., 37 Minn. 89; New York, etc., R. Co. v. Ketchum, 27 Conn. 170. But in the case of Rockford, etc., R. Co. v. Sage, supra, while admitting the doctrine of ratification, the court say that, “in the absence of an express promise, no promise to pay will be implied from the fact that the company, when organized, accepts and receives the benefit of the same;” and “a right of recovery against a corporation for anything done before it has a proper existence does not appear to rest upon any satisfactory legal principle. It is soon enough for such corporate bodies to enter into contracts incumbering their property when they are duly organized according to their charters, and have their chosen and impartial directors to conduct their business.” In Battelle v. Pavement Co., supra, the court recognize this doctrine, saying that, “while a corporation is not bound by engagements made on its behalf by its promoters before it is organized, it may after organization adopt them.” In New York, etc., R. Co. v. Ketchum the supreme court of Connecticut reaches the same conclusion. The same is unqualifiedly held in Indiana. See Fox v. Turnpike Co., 46 Ind. 36; Miller v. Gravel Road Co., 57 Ind. 244.

In the present case the defendant united with others to form a corporation, a preliminary subscription being obtained by a citizens’ committee, chosen at a public meeting, all of the members of which became subscribers. The subscription was followed by the adoption and signing of articles of association. The corporation thereby became an entity, and those who subscribed the articles became stockholders. The proposition that such stockholder could charge the association with fraud because he was misled by the fraud of interested persons is suggestive of troublesome results. If this can be done, and the stockholder thereby escape payment for his stock, other stockholders, innocent of the fraud, would find their responsibilities proportionately increased, and the burdens of the concern would be shifted upon those members who were unable to show that they became such through the fraud of others. There would be little stability to corporations, and little safety to stockholders, if this doctrine should be sustained. In this case there not only was not a corporation in existence to be a principal, but the facts set up in the notice do not show that there was an agent of a corporation. The promoters were persons who represented the meeting, or possibly themselves, or some prospective stockholder, who, for purposes of his own, desired to see the corporation organized. They cannot be said to be agents of the corporation in any sense. These subscribers contracted with each other to form a corporation, which they did. If one was guilty of fraud upon the others in procuring their subscriptions, a remedy should exist against such person. Doubtless, a subscriber who is induced by fraud to agree to join in the organization of a corporation may refuse to do so on discovering fraud; but, by carrying out his agreement and uniting with, others, he has assumed new relations with them and the public, after which his remedy is restricted to action against the wrong-doers. See 4 Am. & Eng. Enc. Law, p. 201, and notes ; Carmody v. Powers, 60 Mich. 26.

We think the judgment should be affirmed. Ordered accordingly.

The other Justices concurred.


text:
    JOHNSTON v. FARMERS’ FIRE INSURANCE CO.
    1. Fire Insurance — Limitation of Time for Bringing Suit— Amendment of Declaration — New Cause of Action.
    A declaration upon a fire-insurance policy requiring action to be commenced within 12 months after’ loss may be amended after the expiration of that period by averring the performance by the insured of the conditions precedent contained in the policy. Such an amendment does not introduce a new cause of action.
    2. Trial — Amendment of Declaration.
    Where, upon objection being raised to the introduction of evidence under the declaration, the court announced that he would permit. an amendment, and stated of what it should consist, to which plaintiff's counsel assented, it is immaterial that the amendment was not in fact made.
    3. Trial — Exclusion of Witnesses From Court-Room.
    The exclusion of witnesses from the court-room is a matter-within the discretion of the trial court. So held where, on the trial of a suit upon a fire-insurance policy, the court permitted plaintiff's assignors to remain, after having made an order excluding witnesses,
    4. Fire Insurance — Proof of Value of Property Destroyed.
    In an action upon a fire-insurance policy covering certain drug-store fixtures, evidence of the cost and condition of the property several years previous to the fire is admissible if supplemented by proof that it had not since deteriorated in value.

      5. Opinion Evidence — Competency op Witness.
    A witness who testifies that he knows very nearly what soda-water fountains are worth is competent to testify as to the value of a fountaia with which he is acquainted.
    6. Witnesses — Cross-Examination.
    Cross-examination of a witness with reference to his habits is competent in the discretion of the court. So held where a witness was questioned in relation to his use of intoxicating liquors. , i

      7. Witnesses — Refreshing Recollection.
    A witness may refresh his memory as to articles comprised in a stock of goods that he formerly owned by referring to memoranda made by him from recollection shortly before .the trial.
    8. Fire Insurance — Proofs of Loss — Inventory.
    An insurance policy provided that in case of fire the insured should forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and render a sworn statement to the company, containing, among other things, the cash value of each item of property, and the amount of loss thereon. Held, that no inventory was required in case of a total destruction of the property.
    9. Fire Insurance — Instructions—Measure of Damages.
    Instructions to the jury examined, and held not to be misleading as permitting a recovery for more than the actual value of the property destroyed.
    10. Fire Insurance — Loss Payable to' Mortgagee — Identity of Incumbrance.
    A fire-insurance policy provided that it should be void if the insured had misrepresented any material fact, or if his interest was not truly stated in the policy, or in case of any false swearing by the insured, or, unless otherwise provided, if the property was or should become incumbered by a chattel mortgage. Held, that a policy making the loss, if any, payable to J., as his chattel-mortgage interest might appear, was not invalidated because the mortgage was in fact made to D., the note which it secured having been indorsed to J., who was recognized by all parties to be the owner of the mortgage.
    11. Fire Insurance — Misrepresentations by Insured.
    Where a fire-insurance policy describes the property insured as contained in a “corrugated ironclad building,” testimony that the structure was of brick, given in reply to a query as to whether it was a frame building, is no evidence of misrepresentation by the insured. '
    Error to Wayne; Hosmer, J.
    Submitted June 7, 1895.
    Decided July 2, 1895.

      Assumpsit by Cyrus Johnston against the Farmers’ Fire Insurance Company of York, Pa., upon an insurance policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      E. T. Wood (Willis G. Clarke, of counsel), for appellant.

      S. E. Engle, for appellee.
   Hooker, J.

Upon the trial of this cause the defendant’s counsel objected to the introduction of evidence under the declaration, upon the ground that it failed to allege the performance of conditions precedent contained in the policy of insurance upon which the action was brought. The court held the declaration to be deficient, but permitted an amendment, and admitted the testimony offered. The policy contained a clause requiring action to be commenced within 12 months after the fire, and, this amendment being permitted after the expiration of that period, it was objected to as stating a cause of action that was barred by the terms of the policy, and therefore no more permissible than the introduction by amendment of a cause of action barred by the statute of limitations, —a practice condemned by several Michigan cases. Gorman v. Newaygo Circuit Judge, 27 Mich. 138; Michigan Central R. Co. v. Kalamazoo Circuit Judge, 35 Mich. 227; Connecticut Fire Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231; Nugent v. Kent Circuit Judge, 93 Mich. 462. All of these cases rest upon the introduction of another and different cause of action. When this is not the effect, there is no obstacle to an amendment. Here there is nothing of the kind, the only change in the declaration being an allegation of performance of the contract theretofore declared upon. Wilcox v. Kassick, 2 Mich. 165.

It is insisted that the declaration was not in fact amended; but the court permitted the trial to proceed, after stating what the amendment should be, to which counsel for the plaintiff assented. We think this sufficient, as it all appears upon the record.

An order was made excluding witnesses from the courtroom, but the court permitted the plaintiff’s assignors to remain. This was a matter of discretion. People v. Hall, 48 Mich. 487; People v. Burns, 67 Mich. 537.

Part of the property destroyed consisted of counters, shelving, prescription cases, and other fixtures of a drug store, that were constructed for a store in Detroit, from the owners of which the plaintiff’s assignors had bought it. Upon plaintiff’s undertaking to show that it had not deteriorated in value, he was permitted to prove its condition and value some years before by the owner and the mechanic who made the articles. It is contended that this was error. Evidence of value must usually be confined to a period reasonably near to the time of conversion or destruction, and especially is this so where the property consists of perishable articles, or goods having market values subject to fluctuations. French v. Fitch, 67 Mich. 492; Showman v. Lee, 79 Mich. 654. But there -is much property that has no settled market value subject to quotation. Furniture, machinery, wagons, and innumerable articles in daily use may be of more intrinsic value than the amounts they would sell for. They cannot always be duplicated in the market, and greater latitude in proving value is permitted than in other cases. These fixtures were property of this class, and it was proper to show the cost and condition, that the jury might determine the reasonable worth at the time and place of their destruction. Continental Ins. Co. v. Horton, 28 Mich. 173; Denton v. Smith. 61 Mich. 431; Ruppel v. Manufacturing Co. 96 Mich. 455.

The witness Bischoff, who testified that he knew very near what soda fountains were worth, was competent to express an opinion upon the value of the one in question.

We think it within the discretion of the trial court to permit cross-examination in relation to the habits of a witness.

A former owner of the property destroyed was allowed to testify to the number and kind of shelf bottles sold by him to the plaintiff’s assignors, being those subsequently destroyed. He refreshed his memory from a list which he had made from recollection a short time before the trial. This was competent. It is different from a statement of a transaction or conversation, in that it adds nothing to the force of the statement of the witness, and was not claimed to do so.

The policy provided that—

“If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and within 60 days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof, and the amount of loss thereon,” etc.

Proofs of loss upon the blanks of the company won furnished. It is now contended that this requires 11k insured to furnish an inventory of each item of all prop erty destroyed. We think otherwise, and that the clause has reference to damaged and undamaged property. Id this case the property was totally destroyed, and such property is not within the letter of the policy requiring an inventory.

The court instructed the jury that—

“If they have honestly overvalued their property, it will not defeat insurance, because value is a matter largely of opinion. They will be entitled to recover on those several items what you think they are entitled to recover.”

This is the charge as quoted in the brief of counsel, and is a most unfair statement of it. It is apparently intended to convey the impression that the two sentences were consecutive, but in the charge they were not, as will appear from the following correct statement of the charge:

“It is insisted in this case that there was an overvaluation on the part of the Cartwright Brothers. If they have honestly overvalued their property, it will not defeat insurance, because value is a matter largely of opinion; and if they honestly believe, in making their representations in the proof of loss, or at the time of issuing the policy, that the stock was worth — that the stock, fixtures, and soda fountain were worth — the sum for which they were insured, then it will not defeat the recovery. If, however, after the loss, they have attempted to claim a larger sum on those items than they actually believe was due, if they have attempted to claim more than they really knew it was worth, — in other words, if they had been guilty of fraud in that respect, — it will bar." their recovery. If you find that they have acted honestly in this regard, they will be entitled to recover on those several items what you think they are entitled to recover; they will be entitled to recover, that is, not exceeding the amount at whidli they were valued.”

There is little excuse for defendant’s contention in the face of this charge, or occasion for discussing it further..

The point raised in relation to incumbrances is about as trivial. The policy provides that “loss, if any, payable to Cyrus Johnston, as his chattel-mortgage interest may appear.” This mortgage was given to one Dehn, with a promissory note which it secured. It was transferred to Johnston by indorsement of the note. The agent who insured the property was Johnston’s brother-in-law, and the evidence of the adjuster shows that Johnston was recognized and understood by all to be the owner of the mortgage. As to the mortgage of $175, the court excluded the testimony.

Counsel also claim that there was evidence of misrepresentation by the insured. They deduce it from the facts that the policy describes the stock insured as contained in a “corrugated iron-clad building, with steel roof,” and that one of the witnesses testified as follows: “Q. Mr. Cartwright, what was that, a frame building? A. No, a brick building.” Discussion is unnecessary.

We see no reason for disturbing the judgment of the circuit court. It will therefore be affirmed.

McGrath, C. J., Long and Montgomery, JJ., concurred. Grant, J., did mot sit.


text:
    REISER v. PORTERE.
    1. Evidence — Admissions on Former Trial — Cross-Examination.
    Where a witness testifies to certain admissions made by a party to the action when sworn upon a prior trial, the latter is entitled, upon cross-examination, to elicit all of his testimony then given which may tend to explain the statements which he is claimed to have made.
    2. Evidence — Admissions Against Interest.
    Statements of a party litigant adverse to his own claim are always admissible, and it is immaterial that the examination with reference thereto is not conducted with the particularity required in cases of attempted impeachment.
    3. Partnership — Payment—Request to Charge.
    An action for lumber sold was defended upon the ground that plaintiff and another, as copartners, had agreed to furnish the lumber and build a house for defendant for a gross sum, which had been paid. Held, that it was proper to refuse an instruction that the plaintiff was entitled to recover if the defendant bargained for the lumber, and if it was used in his house, and had not been paid for, as the request eliminated defendant’s theory.

      4. Credibility or Witness — Instructions to Jury.
    The fact that a witness testifies to matters to which he did not testify when sworn upon a former trial of the case does not call for an instruction cautioning the jury* as to his credibility, where he explains that he was not questioned regarding such matters upon the previous trial. .
    5. Instructions to Jury — Irrelevant Statements.
    Charge of the court examined, and held to have submitted the issue involved so clearly as not to warrant a reversal because of the inclusion of remarks which might with pro-, priety have been omitted.
    Error to Wayne; Brevoort. J.
    Submitted June 7,1895.
    Decided July 2, 1895.

      Assumpsit by Anthony Beiser against Edward Portere lor goods sold. Defendant died pending an appeal from justice’s court, and the case was revived in the name of his administratrix, Jane Portere. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      B. T. Prentis, for appellant.

      Samuel W. Burroughs, for appellee.
   Grant, J.

Plaintiff sued Edward Portere in justice’s court to recover a balance of $153.67 for lumber alleged' to have been sold by plaintiff to him, and used in the construction of a house for Mr. Portere. Mr. Portere died after ain appeal had been taken to the circuit court. The defense was that Mr. Portere made a contract with plaintiff and one Krebs by which they agreed to furnish the material and build the house for $455, and that he had paid the contract price. Plaintiff gave evidence tending to show that he sold the lumber to Mr. Portere; that he was not in partnership with Krebs; and that Mr. Portere had paid him $100. The defendant gave evidence tending to support her theory. Verdict and judgment were for the defendant.

The justice of the peace before whom the case was tried (a witness for the plaintiff) testified that Mr. Portere testified upon the trial before him that he knew the lumber belonged to plaintiff; that he hauled part and plaintiff hauled part of it; that he paid plaintiff $50 at one time, and $50 at another time, for which he took receipts. On cross-examination, the witness was permitted to testify, under objection, that Portere testified that he had paid the entire bill for building the house, that he let the entire job — work and materials — to Krebs, and supposed that plaintiff was in partnership with him. We find no error in this. The defendant was entitled to the entire statement made by Portere in the trial before the justice, and to show what he said in explanation of his payments to plaintiff. The fact that Portere knew that the lumber came from plaintiff’s yard, and that he (Portere) hauled part of it, was as consistent with the defendant’s as with the plaintiff’s theory.

Plaintiff was asked upon cross-examination if he had not stated to certain persons, naming them, that he was in partnership with Krebs in the building of Portere’s house. These persons were produced, and testified that plaintiff made such statements to them. It is insisted that these were impeaching questions, and that the time and place were not fixed. Counsel seems to have forgotten the rule that the statements of a party litigant adverse to his own claim and interest are always admissible.

Complaint is made of the refusal of the court to instruct the jury that—

“If you find that deceased, Edward Portere, bargained for this lumber, and received it from plaintiff, and used it or had it used in his house, he is bound to pay for it; and, if it has not been paid for, plaintiff is entitled to recover.”

The objection to this request is that it eliminates the theory of the defendant. Mr. Portere did bargain for this lumber, and it was used in his house. He claimed to have paid Krebs and plaintiff for it. This request, if given without explanation, would have made him liable, notwithstanding the partnership or the fact that P ortere had paid Krebs the full amount.

Complaint is also made of the refusal to give the following request:

“If a witness who was sworn and testified in justice’s coutd testifies differently on the trial in this court, the jury may take that fact into (consideration in determining what credit is to be given to that witness* under all the circumstances.”

There was no witness to whom this language could apply. Plaintiff insists that it is applicable to one Josie Portere, who was a witness in both courts, and who in the circuit court testified to a conversation with plaintiff to which she did not testify on the trial before the justice. She frankly admitted this, and said that the reason she did not then testify to it was because the question was not asked her. This did not create any reflection upon the credibility of the witness, nor justify the instruction requested.

Complaint is made of the oral charge of the court, in that he referred to certain things which were not in the case, and that he gave undue prominence to the testimony on the part of the defendant. Some portions of the charge may be justly criticised, but, at the close, he instructed the jury as follows:

“If you find that there was an agreement by the plaintiff to sell this to the defendant in his lifetime, and that the plaintiff did not enter into an agreement with Mr. Krebs as a partner, whereby they were to divide the profits, then your verdict will be for the plaintiff. If, on the other hand, you believe that he did not sell this lumber to Mr. Portere, that it was to go to Mr. Krebs, and that Mr. Krebs was to build and deliver this house, and turn it over to Mr. Portere for $455, then your verdict, under the law, must be for the defendant. Weigh the evidence carefully, do what is right under the premises, and bring in a verdict in accordance with the law and evidence in this case.”

The issue in this case is so simple, the testimony is so brief, and the merits of the case so clear, that we do not think there is room to hold that the jury were misled by the remarks of the judge, which he might properly have omitted.

The judgment is affirmed.

The other Justices concurred.


author: McGrath, C. J.

text:
    RASCH v. BISSELL.
    Justice’s Judgment — Docket Entries — Jurisdiction—Evidence.
    To establish a valid judgment, the docket of a justice of the peace, or, instead, the minutes of the proceedings made and filed by him, must affirmatively show that he acquired and retained jurisdiction, and any omission in this regard cannot be supplied by reference to the files in the case. So held where the docket contained merely a memorandum of rendition of judgment, and the minutes of the justice, indorsed upon the file wrapper, mentioned no year, except as given in the date line immediately preceding the justice’s signature.
    Error to Wayne; Carpenter, J.
    Submitted June 7,1895.
    Decided July 2, 1895.

      Assumpsit by Edwin A. Easch and another against Edward W. Bissell upon a justice’s judgment. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      B. T. Prentis, for appellant.

      Bowen, Douglas & 'Whiting, for appellees.
   McGrath, C. J.

This is a suit upon a judgment rendered by a justice of the peace in the city of Detroit. The only docket entries, after the title of the cause and the statement of the nature of the action, are as follows:

“July 27. Judgment favor of pltf. by default for 76.25 damages, 3.50 costs.
“Stay of execution put in. See files.
“Charles H. Borgman,
“Justice of the Peace.”

To support the docket, plaintiffs, after proof of the handwriting and signature of the justice, introduced the minutes upon the file wrapper, which, after giving the title, were as follows:

“Action of assumpsit.
“Return day, July 16th, 9 a. m.
“At 9 o’clock in the forenoon case was called, and parties appeared; and then, by consent, cause was adjourned to July 27th, at 9 a. m. At this time case was called, and pltfs. appeared in person and by their attorney, J. W. Donovan, who declared orally against defendant in an action of assumpsit on all common counts, and for goods sold and delivered, and claimed damages $300. The defendant did not appear, and after waiting one hour his default was noted, on behalf of pltfs.
“Henry Kiesling was sworn and testified, and thereupon I rendered judgment in favor of the plaintiffs and > against the defendant for the sum of seventy-six and 25-100 dollars damages, and for $3.50 costs of suit. Damages, $76.25; costs, $3.50.
“July 27, 1883.”

It will be noticed that these minutes are, in themselves, incomplete. No year is mentioned, except that given just before the signature of the justice. They must necessarily be supported by inferences, or by reference to the files. There is no statute requiring these minutes to be kept, or the files to be preserved. The docket or the minutes of a justice must show affirmatively not only that he acquired jurisdiction, but that he retained it. Plaintiffs, to supply the omission, introduced the files. The rule laid down in Hickey v. Hinsdale, 8 Mich. 267, cannot be thus extended. In that case, as well as in Saunders v. 21 Manufacturing Co., 27 Mich. 520, the rendition of the judgment was shown by the justice. It is but another step from tlxe production of the files to parol proof, to supply substantial omissions.

It is unnecessary to discuss the other questions raised.

The judgment is reversed.

The other Justices concurred.


author: Montgomery, J.

text:
    LOOK v. McCAHILL.
    Interpleader — Payment Into Court — Default.
    Where, upon a bill of interpleader, it is ordered that the complainant pay the fund into court for distribution pursuant to the terms of the decree, and, in default, that the bill be dismissed with costs to defendants, it is the complainant’s duty to comply with the order, and he cannot excuse his failure to do so upon the ground that one of the defendants has threatened to appeal.
    Appeal from Wayne; Moore, J., presiding upon original hearing, Carpenter, J., upon supplemental application.
    Submitted June 7, 1895.
    Decided July 2, 1895.
    Bill of interpleader by William Look against John K. McCahill, as administrator of the estate of James R. McCahill, deceased, and William W. Chapin. Complainant appeals from a decree dismissing his bill.
    Affirmed.

      Ira G. Humphrey, for complainant:
    The bill was properly filed. Sprague v. Soule, 35 Mich. 35; Moore v. Barnheisel, 45 Mich. 500; Bank v. Look, 95 Mich. 7.

      Ed. E. Kane, for defendant McCahill:
    Complainant should have complied with the terms of the decree by paying the money into court. Bechtel v. Sheafer, 117 Pa. St. 555; Atkinson v. Monks, 1 Cow. 691;
      Blue v. Watson, 59 Miss. 619; Meux v. Bell, 6 Sim. 175; St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 23 Minn. 7; Cullen v. Dawson, 24 Minn. 66; Bank v. Look, 95 Mich. 7; Farley v. Blood, 30 N. H. 354.
    The decree, whether right or wrong, cannot be disturbed at the instance of complainant. Atkinson v. Flannigan, 70 Mich. 639.
   Montgomery, J.

This is a bill of interpleader, which sets out that in 1890 defendant McCahill’s child was injured through the negligence of the Detroit City Railway Company, from which injuries the child afterwards died, and McCahill was appointed administrator of his estate. Defendant Chapin was retained as an attorney to represent the administrator. The first trial resulted in a verdict against the plaintiff. After the trial the complainant was retained to remove the case to this court, and a substitution of attorneys took place. There was an agreement between complainant and McCahill that out of the damages recovered in the suit McCahill should first receive the amount of any advances in the suit for expenses, and the remainder should be divided equally between complainant and McCahill. The case was finally tried in the circuit, and there was realized upon the judgment and costs $586.80, which amount came into the hands of the complainant. Defendant Chapin thereupon served upon complainant a claim of lien upon the judgment or fund in his hands, with a notice not to pay over any sum to McCahill. McCahill, on the other hand, made a demand upon complainant for $384.90, and threatened to bring suit unless the sum was immediately paid. Complainant thereupon filed this bill of interpleader, and offered to pay the fund to such of the defendants as the court should find entitled to the same, and also offered to pay the same into court. Both defendants answered the bill, and the case came on to be heard, and a decree was entered finding that the bill was properly filed, and ordering that within one week from the date of said decree the complainant pay unto the register of the court the sum of $294.80, and that upon such payment he be released and discharged from all claims and demands of said McCahill, as administrator, upon him, so far as said sum of $294.80 was concerned, and further ordering that complainant have costs to be taxed, and that such costs be paid out of said fund by the register of said court, and that the balance of said fund be paid to the defendant McCahill or his solicitor. The decree further provides that—

“In case said complainant refuses or neglects to pay said money into the registry of this court, a-s hereby ordered, the bill of complaint herein be dismissed, and in such case said defendant McCahill recover of said complainant his costs in this case to be taxed, and have execution therefor,”

Complainant failed to pay the money into court within the timé ñxed by the order, and an "order was issued requiring complainant to show cause why a decree should not be entered dismissing the bill with costs to defendant McCahill, as provided in the original decree, and subsequently, after hearing upon this order to show cause, a decree was entered, dismissing the bill with costs, and providing for an execution for their collection. Complainant appealed to this court.

The complainant, it will be observed, concedes that he did not comply with the first decretal order, and excuses his failure to do so by the statement that there was a threat of appeal made by defendant Chapin, and that this threat made it unsafe for complainant to comply with the terms of the order. But we think the complainant was too apprehensive. It is common practice for the payment of money into court to accompany the filing of the bill. See 2 Daniell, Ch. Prac. 1563, and cases cited. And when the order was made requiring him to make payment into court, it became his duty to comply with it, and, in complying, he would be fully protected, if the case was a proper one for interpleader, and this certainly the complainant cannot deny.

The decree will be affirmed, with costs.

The other Justices concurred.


author: Montgomery, J:

text:
    HOFFMAN v. ADAMS.

    1. Injury to Servant — Negligence op Master — Unsafe Horse— Defective Harness — Question for Jury.
    In an action by a servant against' his master for injuries received by the running away of a horse attached to a delivery wagon which he had been engaged to drive, it appeared that plaintiff was but 18 years old, and had recently been ill; that the horse was nervous and high-spirited, and “ready to spring and go ” if another rig should come up behind; that defendant had driven the horse for some time prior to the accident; that the harness was without a check-rein; that plaintiff had never before driven the animal, and was given no warning. Held, that whether the defendant was negligent in intrusting the horse to the plaintiff, and in furnishing an insufficient harness, was a question for the jury.
    2. Same — Cause of Accident.
    Whether an injury from the kick of a horse .while driving it was due to the absence of a check-rein is for the jury to determine.
    3. Action for Personal Injuries — Trial — Statements op Counsel.
    In an- action by an employé for personal injuries, a statement' by plaintiff’s counsel in his opening to the jury that he' proposed to prove that defendant did not go near plaintiff after the accident, as bearing on the measure of damages, and a subsequent offer of testimony to that effect, are not reversible error, where the court in both instances promptly held the proposed testimony to be incompetent, and nothing appears to show that counsel did not act in good faith.

      4. Trial — Credibility of Witness — Evidence.
    One of the parties to a suit having denied on cross-examination that he had stated to S. that his witness O. had stolen from him, and that he was going to have C. arrested, and hold it over him until the suit was decided, S. was called to contradict him, and, against objection, testified to the charge of theft, but denied the making of any threats. Held, that while the testimony of S., standing alone, was immaterial, it would have been competent if connected with the further statements, and that, counsel having acted in good faith, and no motion having been made to strike out the testimony, the case would not be reversed in the absence-of a showing of prejudice.
    5. Same — Error Without Prejudice.
    A party to an action who has himself testified on cross-examination, without objection, that one of his witnesses had stolen certain articles from him when in his employ, is not prejudiced by the admission of testimony to the effect that he had accused such witness of taking other articles of like-character.
    Error to Wayne; Lilli bridge, J.
    Submitted June 7, 1895.
    Decided July 2, 1895.
    Case by Augustus Hoffman, by Victoria Hoffman, his next friend, against Michael A. Adams, for personal injuries. From a judgment for plaintiff, defendant brings-error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Seth E. Engle, for appellee.

       Rehearing denied September 26, 1895.

   Montgomery, J:

This is an action brought by the plaintiff against the defendant to recover damages for an injury received by reason of a horse which he was driving for the defendant having run away, and become unmanageable, and having kicked the plaintiff, breaking his leg. The declaration alleges that the horse wa-s a vicious, high-spirited, dangerous, biting, and kicking animal, wholly unfit and unsafe to be used by a stranger,. and in a new business to which she was not accustomed, and that the vicious, dangerous, biting, and kicking characteristics of the horse were well known to the defendant, and that he knew that she was wild, spirited, and was liable and inclined to run away at the first opportunity, and that he knew that she was an unsafe animal, for the reasons aforesaid, to be used in the delivering of goods. The declaration also alleged that the harness used upon, the horse was too small, and unfit to be used with her; that the terret or ring on one side of the harness had been lost or broken; that the line swung loose, without anything to guide or hold the same, from the bit of the horse to the hand of the driver; that there was no check-rein to the head-stall, nor anything to keep the animal’s head up. Plaintiff was at the time of receiving the injuries about 18 years of age, and had just recovered from an illness, and applied to the defendant for a position. , Defendant employed him to drive a delivery wagon. The first day and part of the next he used a small pony called “Jimmie.” On the afternoon, of the second day, defendant ordered the horse in question to be hitched up, and ordered the old harness to be put on the horse. Plaintiff testified that there was no check-rein to the head-stall, and that there was no ring on the saddle for the line to go through, and that the harness was too small for the horse. During that afternoon the plaintiff received his injuries.

Plaintiff called as a witness C. F. Copland, who testified that he worked next door to the plaintiff; that he saw the horse the afternoon that it was hitched up, and had seen her in the use of defendant before that time; that he did not know of her having been used to deliver goods before that time; that the mare was of a very nervous disposition; that he had noticed that, in hitching up, Mr. Adams would do- the handling of the mare, — he would be there to see to the hitching up of the mare-that he also noticed on the occasion in question that the horse had no check. Plaintiff also called as a witness Mr. La Flamboy, who had known the mare before she was bought by the defendant, and who testified that she was owned by witness’ partner, and sold by him to Mr. Adams ;that she was a high-spirited animal, and a nice driver; that if she was ever driven along, and another rig came up behind, she was ready to spring and go; that sometimes he had seen mud fly from the wheel, and strike her, and she would jump. “You had to attend to your driving.” Plaintiff also called a witness who testified that after the accident defendant said that he was sorry he had hired the plaintiff; that he should have known better than to hire him; that he was no good, and had just come out of the hospital, and been there eight or ten weeks. Defendant testified that he did not tell Hoffman that the horse was a high-lived horse; that he did not think that the horse was high-lived; did not tell him any such thing; did not think it was necessary; did not give them any warning; they were hired for that purpose.

It is strenuously insisted that there was no evidence to go -to the jury, but we think, with the inferences which the jury were justified in drawing from the evidence, that it became a question for them whether, in view of the plaintiff’s age and condition, the defendant was in the exercise of due care in intrusting, and particularly without warning, this horse to his care. It was open to the jury to find that the defendant had knowledge of the characteristics of the horse, as he had driven her for some time before the accident; and we think it was also for the jury to say whether the defendant was in fault in permitting plaintiff to use her with the harness which he furnished, with no means of checking the animal. It is true there was a conflict in the testimony as to defendant’s knowledge, but we are not prepared to say that there was no evidence on this point for the jury. The circuit judge submitted the question to the jury, with a fair charge, in which he stated:

“The question for you in this case is not whether the horse ran away and injured this plaintiff, but the question is, did the owner of that horse, the defendant in this case, know, or have reasonable cause to know, that that horse was unsafe to be driven on this delivery wagon by this plaintiff? That is the leading question in this case.”

He further said to the jury:

“If you find that the defendant was negligent, that the horse was unsafe, and was known to him to be unsafe, pr that by reasonable care he should have known it was unsafe, or, in other words, he had reasonable cause to know it was unsafe, and that the harness was not in a reasonably safe and proper condition to be driven upon the horse, then your verdict should be for the plaintiff.”

This latter portion of the charge is criticised on the ground that there is no evidence that the accident was caused by reason of the defective harness. But, as the injury resulted from a kick of the horse, we think the jury mig'ht have drawn the inference that, had the horse been checked, it would not have been so likely to occur.

Error is also assigned on the statement made by plaintiff’s counsel, in opening the case to the jury, that he expected to prove that defendant did not go near plaintiff after the accident. When objection was made to the statement, the court promptly ruled that the proposed testimony was incompetent, and excluded the testimony when offered. Plaintiff’s counsel stated, in connection with the statement, that he offered it as bearing upon the measure of damages, claiming that such testimony might tend to show that he was entitled to exemplary damages. We have no reason to doubt the good faith of counsel in making this proposition, and, under the circumstances, we do not think, in view of the prompt ruling of the court, the offer can be said to have prejudiced the jury.

One Cole had been in the employ of defendant, and was a witness on the trial. When defendant was on the stand, he was asked whether Cole had not stolen from him when in his employ, and whether he had not said to one Spring that Cole had stolen a chamber set, and that he (defendant) was going to have Cole arrested, and hold it over him until this suit was decided. He denied having made these statements, and Spring was called to contradict him. The witness was asked whether defendant had told him that Cole had stolen chamber sets. This was objected to. Error is assigned upon the admission of the testimony, on the ground that it related to an immaterial issue. Standing by itself, this testimony was immaterial, but, as offered in connection with the purpose to show that the defendant had made the other statements in regard to holding the matter over the witness Cole pending the trial of the case, it would have been competent. The witness Spring, however, testified that defendant did not make the statements implied in the question put to the defendant. We assume that counsel was acting in good faith in opening up this inquiry, and, as there was no motion to strike out the testimony thereafter, we think the case should not be reversed on this ground, unless it is apparent that the error was damaging to defendant’s case. It is quite evident that it was not, as its only effect was as it bore upon the credibility of the witness Cole; and the defendant was himself permitted to testify, apparently without objection, that the witness Cole had been guilty of stealing some small items from his store. It could not be very mal erial, as bearing upon his credibility, whether the articles which he stole were lamp chimneys or butter knives.

We think no error was committed on the trial which worked a prejudice to the defendant.

The judgment will be affirmed, with costs.

The other Justices concurred.


text:
    DRENNAN v. COMMON COUNCIL OF WYANDOTTE.
    Elections — Recount op Votes — Delay op Petitioner.
    Under 3 How. Stat. § 334a, a candidate desiring a recount of the votes cast at an election must apply therefor on or before the last day of the regular session of the board of canvassers, and by merely filing a protest on the last day, and thereby securing an adjournment, he cannot extend the time within which to file his petition.

      Certiorari to Wayne; Hosmer, J.
    Submitted June 11,' 1895.
    Decided July 2, 1895.

      Mandamus by Jeremiah Drennan to compel the common council of the city of Wyandotte to reconvene as a board of canvassers, and to recount the votes cast for the office of supervisor, pursuant to relator’s petition. From an order denying the writ, relator brings certiorari.

    Affirmed.

      T. E. Tarsney and W. W. Wicker, for relator.

      Casgrain, Sullivan, Mason & Dwyer, for respondent
   Montgomery, J.

This is certiorari to the circuit court of Wayne county to review an order denying a mandamus. The relator was a candidate for the office of supervisor for the Second ward of the city of Wyandotte. The board of canvassers met on the 4th of April, 1895, and adjourned to the 5th of April, which would be the last day, in the usual course of the session. On that day the relator made no application for a recount of the votes, but filed a protest with the board against the issuing of a certificate of election to his competitor, on the ground, as he stated:

“1 have several reasons to believe that he [his. competitor] lias not been duly and lawfully elected to the office of supervisor of said ward.”

The hoard thereupon assumed to adjourn to the 15th day of April. Application was made by the competitor of the relator, Mr. Megges, for a mandamus to require the board to issue to him a certificate of election. Upon the hearing of this application a mandamus was granted, requiring the board to reconvene on the 15th of April, and canvass the votes. On that day the relator appeared before the board, and asked for a recount.

We think this application came too late. The statute (Act No. 208, Pub. Acts 1887) provides that the application for a recount shall be made on or before the last day of the session of the board, and as was held in Newton v. Board of Canvassers, 94 Mich. 455, the statute contemplates that the board shall proceed promptly to determine the result of the election, and that no adjournment, except for the purpose of having the returns corrected, shall be made. We think it was not within the power of the relator to extend the time within which, he could make his application for a recount by filing a protest which the law‘does not recognize, and thus inducing an unlawful adjournment of the board.

The conclusion of the circuit court was right, and the order will be affirmed.

The other Justices concurred.


text:
    COMMERCIAL BANK OF IRON MOUNTAIN v. HILLER.
    Mortgage — Stipulation for Partial Release — Construction.
    Where a mortgage covering several lots provides that the mortgagee will release from the lien of the mortgage, without consideration, a certain number of the lots as fast as sold, and at such time or times as the mortgagor may request, the latter is entitled to the release of lots that are within the terms of the stipulation upon making demand therefor at any time before foreclosure.

      3. Same — Payments.
    Under a stipulation in a mortgage that the mortgagee will, “on demand,” release from the lien of the mortgage a certain number of the lots covered thereby, “ upon the payment” of a specified sum for each lot so to be released, the same to be applied upon the indebtedness secured, payment and demand must be concurrent, and the mortgagor, having made merely the payments that he was bound to make by the terms of the mortgage, cannot afterwards demand the release of a proportionate number of lots.
    Appeal from Dickinson; Stone, J.
    Submitted June 11, 1895.
    Decided July 2, 1895.
    Bill by the Commercial Bank of Iron Mountain against John M. Hiller and others to foreclose a mortgage. Complainant appeals from a foreclosure decree providing for the release of a part of the mortgaged premises.
    Decree modified.

      Cook & Pelham, for complainant.

      F. J. Tmdell (Newman d Northrup, of counsel), for defendants.
   Montgomery, J.

This is a foreclosure suit. Defendant Hiller, on the 30th day of December, 1890, executed to defendants Jones and Crowell a mortgage covering the entire plat of Lakeside, in Dickinson county, excepting five lots previously sold. The mortgage was conditioned for the payment of three notes, of even date, for $3,750 each, due in 9, 15, and 18 months, respectively. Defendants Jones and Crowell subsequently assigned the mortgage to complainant, and indorsed the notes. The other defendants are subsequent purchasers. The court below decreed foreclosure, but also decreed that certain of the lots should be released from the mortgage, and complainant appeals from this portion of the decree.

The mortgage contained the following provisions:

“Said John T. Jones and Joseph A. Crowell, for themselves and their heirs, executors, administrators, and assigns, hereby agree, and this mortgage is made upon the express condition, that they wil-1 release from the lien and operation of this mortgage and the indebtedness hereby secured, without payment, charge, or compensation, one-fifth of all the lots in said Lakeside subdivision hereby conveyed, as fast as they are sold or contracted to be sold, at such time and times as said John M. Hiller, or his assignee or grantee, may request such lots to &e so released.”
“And said John T. Jones and Joseph A. Crowell, for themselves and their heirs, executors, administrators, and assigns, hereby further agree, and this mortgage is made upon the express condition, that they will, on demand, release from the lien and operation of this mortgage, and the indebtedness hereby secured, the remaining four-fifths of said lots hereby conveyed, upon the payment of one hundred and fifty dollars ($150) for each and every lot to be >so released, and, when paid, to be applied and credited upon said indebtedness.”

The first two notes secured by the mortgage were paid at maturity, and, on the day of its date, the last note was reduced by a payment of $1,093.75. The interest was also subsequently paid on the last note at its maturity. On November 8, 1893, the mortgagor made demand for the release of certain lots, which had been sold or contracted to be sold, under the provision of the mortgage calling for the release of one-fifth of the lots when sold, and also requested the release of 57 of the remaining four-fifths of the lots so mortgaged, being one lot for each $150 of principal paid. Complainant refused compliance with these demands, and on December 6, 1893, this bill was filed.

We think the conclusion of the learned circuit judge that, under the first stipulation above quoted, the mortgagor had the right to have one-fifth of the lots covered by the mortgage released when sold or contracted to be sold, upon making demand therefor at any time, is fully sustained by authority, and is correct in principle. The undertaking is absolute, and not limited as to time, but, on the contrary, the contract is to release at such time or times as the mortgagor or his assigns or grantees may request. See Nims v. Vaughn, 40 Mich. 356; Chrisman v. Hay, 43 Fed. Rep. 552; Vawter v. Crafts, 41 Minn. 14.

A different question is presented, however, by the second stipulation. No payment was made upon the mortgage distinctively as payment for a release. On the contrary, the payments made were such as the mortgagor was bound to make, and he was still in default when the demand for the release of the lots under this stipulation was made. The agreement of the mortgagees was that, on demand and upon payment pf $150 for each lot to be released, they would release lots from these remaining four-fifths. This stipulation evidently contemplated that the payment and the demand for release were to be concurrent, and the mortgagees had the right so to treat it. It appears that, no such demand having been made, they rested upon the security of this mortgage, and delayed foreclosure for one and one-half years after its maturity. It cannot be doubted that they during this time thought, and had the right to think, that the mortgage covered the land, and it would be inequitable to require them new to release any portion of this security. See McComber v. Mills, 80 Cal. 111.

The decree of the court below will be modified to conform with this opinion. Complainant will recover costs of this appeal.

The other Justices concurred.


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    GRAND LODGE OF ANCIENT ORDER OF UNITED WORKMEN v. KOHLER.
    Mutual Benefit Associations — Change of Beneficiary by Will.
    Under the rules of a mutual benefit association providing that a member may change his beneficiary by indorsement upon his certificate and surrender of the same for reissue, such change may be effected by will, where the certificate was delivered for safe keeping to the beneficiary named therein, who afterwards refused to surrender it, and the local body has declined to permit the change to be made without its production.
    Appeal from Wayne; Hosmer, J.
    Submitted June 12, 1895.
    Decided July 2, 1895.
    Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen of the State of Michigan against Mary Kohler and others to determine the ownership of the proceeds of a membership certificate. From a decree in favor of the legatees of the deceased member, Julius A. Kohler, defendant Mary Kohler appeals.
    Affirmed.

      Albert P. Jacobs, for complainant.

      William Look (Edward Minock and Ira G. Humphrey, of counsel), for appellant.

      Charles Flowers, for remaining defendants.
   Montgomery, J.

Complainant filed a bill of inter-pleader, paying into court the amount named in a beneficiary certificate issued to Julius A. Kohler. The contest is between the defendant Mary Kohler, the former wife of Julius A. Kohler, and the beneficiaries named in the will of Julius A. Kohler, by which instrument he attempted to effect a change of beneficiaries. Mary Kohler, the wife, was named as beneficiary upon taking out the certificate. The rule of the order upon the subject provides that—

“Any member desiring to change his beneficiaries may-do so in the following manner, viz.: He shall fill out the blank form on the back of his beneficiary certificate, authorizing the change; he shall have his signature attested by the recorder of his lodge,.and the seal of the lodge attached thereto. When this is done, he shall deliver his beneficiary certificate to the recorder of his lodge, together with a fee of fifty cents. The recorder shall forward the said certificate and fee to the grand recorder, who shall make a record of the change in the books of the grand lodge, and shall issue a new certificate in lieu thereof, payable as directed on the back of the surrendered certificate.”

After the certificate was issued, the deceased and Mary Kohler were divorced. Some time prior to his death, Mr. Ivoliler sent a messenger to Mary Kohler for the certificate. She declined to deliver it, and stated that it was not then in her possession. On the 23d of November, 1891, he made a sworn application to the lodge of which he was a member for the privilege of changing the beneficiary, setting out that he had been divorced from his wife, Mary Kohler; that she had possession of the certificate, and refused to surrender the same; and asking that a change of beneficiary be made. This application was disapproved at a meeting of the lodge, and on the 8th of December, 1891, deceased executed a last will, and testament, disposing of the fund to become due on the certificate, and died a few days thereafter. The court below sustained this testamentary disposition of the fund.

Counsel representing Mrs. Kohler claim that there was a gift of the certificate to her by Mr. Kohler, and that after the separation she kept up the payment of the dues. AVe are not satisfied that there was any gift; on the contrary, we think that the testimony on behalf of Mary Kohler, fairly construed, shows that the certificate was handed to her for safe keeping, and falls far short of establishing that the deceased intended to part with his right to malee a change in beneficiary. The case falls within the holding in Grand Lodge of A. O. U. W. v. Noll, 90 Mich. 37. See, also, Grand Lodge of A. O. U. W. v. Child, 70 Mich. 163.

The decree will be affirmed, with costs against the appellant.

The other Justices concurred.


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    LIESEMER v. BURG
    1. Claim against Parent — Care of Child — Evidence of Family
    Circumstances.
    Where it is sought to charge a father for care bestowed upon his infant child, evidence of- the character and standing of the father and the expectancy of the child is inadmissible upon the question of the value of the services rendered.
    '2. Promissory Note — Unauthorized Cancellation — Evidence.
    The maker of a promissory note, upon its delivery to him for a temporary purpose, cannot, by marking it “Paid” and retaining it upon the claim that he is entitled to a credit equivalent to the balance due thereon, destroy the character of the note as an existing obligation or as evidence of the indebtedness, but the same will be admissible upon explanation being made of its condition.
    •3, Principal and Agent — Money Had and Received.
    One who has collected money for another, being duly authorized thereto, is liable to his principal in an action for money had and received.

      4. Money Had and Received — Burden of Proof.
    Where the defendant in an action for money had and received admits the receipt of the money, but claims to have paid it over to plaintiff, the burden is upon defendant to prove such payment.
    •5. Witnesses — Admissions in Testimony of Opposite Party.
    One of the parties to an action may avail himself of an admission made by the other party when sworn as a witness in his own benalf, without being bound by other portions of his testimony.
    Error to Washtenaw; Kinne, J.
    Submitted June 11, 1895.
    Decided July 2, 1895.

      Assumpsit by Louis J. Liesemer against John Burg. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. J. Sawyer (F. E. Jones, of counsel), for appellant.

      E. B. Norris (J. F. Lawrence, of counsel), for appellee.
   McGrath, C. J.

Suit is brought to recover a balance of $171.66, with interest from February 9, 1891, upon a note made by defendant, payable to plaintiff, and also two installments of interest, amounting to $90, collected by defendant upon a note made by one Biddle, and payable to plaintiff. Defendant sought to set off a claim for 34 weeks’ board, care, etc., of plaintiff’s daughter, a child of four years of age. Plaintiff recovered a judgment of $161.51.

Error is assigned upon the rejection of testimony tending to show the character and standing of plaintiff, and the expectancy of the child, as bearing upon the value of the services rendered in her care. The court was right. The question was not whether defendant was warranted in making certain expenditures for the child, or in furnishing for her what her circumstances demanded, but, rather, what was the value of what was actually done in that direction. • -

Plaintiff claimed that he took the note made by defendant to the latter’s place of business, and demanded payment thereof; that defendant asked for the note, for the purpose of computing the amount due upon it, and plaintiff handed it to defendant; that the amount of the note, with interest, was $1,060; that defendant paid him $893, and demanded credit for the balance on account of the daughter’s board; that plaintiff refused to allow the claim, and defendant kept the note. When produced upon the trial, it appeared that defendant had written across the face of the note, “Paid February 9th.” Plaintiff testified that this indorsement was not upon the note vchen defendant received it. The note was then offered and received in evidence. The objection made was, “I object, unless you read the whole of it.” It was entirely proper to offer and receive the note with the explanation given. Defendant could not, by cancellation under such circumstances, destroy its character as an existing obligation, nor as evidence of the indebtedness.

Bespecting the Biddle note, it is urged that no author-; ity existed from plaintiff to defendant to receive any payment of interest thereon, that plaintiff has never released Biddle from his obligation to pay the note, and that the declaration contains no special count upon which a recovery can be had. Defendant effected the loan to Biddle. He held the note when both installments of interest were paid to him, and was authorized to make the collection. The rate of interest was 10 per cent., and he claimed that it was agreed between plaintiff and himself that he was to retain 3 per cent, for collection, and was to pay over 7 per cent, to plaintiff. The agency, the possession of the note by defendant, and the payment of the interest to him having been ¡established, Biddle had a. complete defense, and defendant was liable to plaintiff under the count for money had and received.

The court instructed the jury that the burden to show the payment to plaintiff of this interest was upon the defendant; that “inasmuch as he admits, by his testimony, that he had received this interest, the burden of proof is upon him to satisfy you that he returned it to or accounted for it to plaintiff.” There can be no force in the claim made that the burden was upon the plaintiff to prove that he had not received the interest money collected by defendant. Nor is the claim tenable that because, “in the same breath with which Mr. Burg admits the receipt of the money, he swears hepaid it over to plaintiff, and settled with him for it,” therefore the court was bound to accept both statements, if either. Defendant was not plaintiff’s witness. Plaintiff was entitled to avail himself of his admission, and to contradict other portions of the testimony, which he did.

The judgment is affirmed.

The other Justices concurred.


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    KROLL v. DIAMOND MATCH CO.
    Pleading — Breach of Land Contract — Statute oe Frauds.
    A declaration alleging that defendant proposed in writing to pay plaintiff a specified sum for a deed to certain lands, that plaintiff accepted the offer, and afterwards tendered the deed, but that defendant refused payment, is not defective in failing to aver that plaintiff’s acceptance was in writing.
    Error to Houghton; Hubbell, J.
    Submitted June 11, 1895.
    Decided July 2, 1895.

      Assumpsit by William Kroll against the Diamond Match Company for the breach of an agreement for the purchase of land. From a judgment sustaining a demurrer to the declaration, plaintiff brings error.
    Reversed.
    W. S. Hill (T. W. Whitney, of counsel), for appellant.

      A. R. Gray, for appellee.
   Grant, J.

The declaration in this case sets forth that the defendant offered and proposed in writing to pay plaintiff $2,000 upon receipt of a quitclaim deed of certain lands; that he then and there accepted said proposal, and afterwards, on a date mentioned, while said proposal was unrevoked and in full force, he tendered to defendant a proper and sufficient quitclaim deed, but that it refused to pay. The defendant interposed a general 'demurrer.

The only question before us is, was it necessary to allege an acceptance in writing? That question is settled in this State against the defendant. Dayton v. Williams, 2 Doug. 31; Harris Photographic Supply Co. v. Fisher, 81 Mich. 136. Were it conceded that the acceptance rested in parol, and that the tender of the deed was made pursuant to said contract, we could dispose of the case upon its merits. Thompson v. Marley, 102 Mich. 476. But we do not find this concession in plaintiff’s brief. It must therefore be reserved for determination upon the evidence.

The case must be reversed,'and remanded to the court below, where the defendant will be given the usual time to plead.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.


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    STERLING v. CALLAHAN.
    Intoxicating Liquors — Sale to Minor — Civil-Damage Law— Evidence — Harmless Error.
    In an action under 3 How. Stat. g 2283e3, for the sale of liquor to plaintiff’s minor son, any error committed in permitting a witness to testify that he had drunk with the minor at another saloon than the defendant’s is cured by an instruction that it is immaterial whether any one else than the defendant gave liquor to the minor, and that the damages to which plaintiff is entitled cannot be lessened by-reason of that fact.
    Error to Wayne; Frazer, J.
    Submitted June 12, 1893.
    Decided July 2, 1895.
    Case by Henry O. Sterling against Robert O. Callahan under the civil-damage act. (See 94 Mich. 536.) From a judgment for defendant, plaintiff brings error.
    Affirmed.

      B. T. Prentis, for appellant.

      Ralph Phelps, Jr. (William B. Jackson, of counsel), for appellee.
   Long, J.

This action was brought to recover damages for the sale of intoxicating liquors to plaintiff’s minor son. The case was tried before a jury, w'ho found a verdict in favor of defendant.

One of plaintiff’s witnesses was permitted to testify on cross-examination that he had drunk with the minor at a saloon other than the defendant’s. It was claimed that this testimony was offered for the purpose of testing the recollection of the witness. Plaintiff’s contention is that the testimony was incompetent, under Theisen v. Johns, 72 Mich. 292, and Steele v. Thompson, 42 Mich. 594. If it be conceded that the court was in error in permitting this testimony, we think the error was cured by the charge of the court in giving one of plaintiff’s requests, which was, substantially, that it was immaterial whether any one else than defendant or his barkeeper gave beer or whisky to plaintiff’s minor son; that the damages could not be lessened merely because of any injury caused by the giving or selling of such liquor to plaintiff’s son by others than the defendant or his barkeeper. The court also stated to the jury that, if defendant or his barkeeper gave the son beer or whisky, the plaintiff was entitled to recover at least $50, under the statute, and also such other damages as the jury might find the plaintiff entitled to.

Some other questions are raised. We have’examined them, and do not deem it necessary to discuss them. The case was very fairly tried, and was submitted to the jury under a charge which was eminently fair to the plaintiff.

The judgment must be affirmed.

The other Justices concurred.


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    MARTIN v. ELLIOTT.
    Sale op Horse — Breach op Warranty — Right op Defendant to Examine Horse.
    Upon the trial of an action for breach of warranty on the sale of a horse, an order that defendant may send a veterinary surgeon upon plaintiffs premises to examine the horse, on condition that he be accompanied by plaintiff, or some one selected by him, and requiring plaintiff to permit access to his premises for such purpose, is beyond the power of the court, especially where the testimony of the surgeon would be cumulative merely.
    Error to Shiawassee; Wisner, j.

    Submitted June 12, 1895.
    Decided July 2, 1895.
    Case by Joseph Martin against Marcus D. Elliott for fraud and breach of warranty. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Albert L. Chandler, for appellant.

      John T. McCurdy, for appellee.
   Long, J.

This action is brought to recover damages for breach of warranty in the sale of a mare. On the trial the plaintiff contended that in the purchase the defendant warranted the mare sound and all right, whereas in fact she was not sound, but sick and disordered, and had been so overdriven and heated that she broke out in blotches and continued so up to the time of the trial. The plaintiff testified that these blotches were as large as a kernel of wheat, and festered; that he used a wash which drove them away, but that they would come back again. One of plaintiff’s witnesses testified that the horse had these blotches at the time plaintiff purchased her, but that the defendant said she had scratches, and her hair looked rough from want of care. This witness testified that she was now no better than when purchased, as he had seen her a week before, and that she did not have scratches, but something else which would injure her value. Plaintiff paid $200 for her, and gave testimony that she was in fact of little or no value. At the time of the trial the mare was in plaintiff’s barn. The defendant claimed that, in view of this testimony, he had the right to have an examination made of the mare by a veterinary surgeon. The court then made the following order:

“On motion of John T. McCurdy, attorney for said defendant, and it also appearing to the court that the plaintiff in this case claims the horse about which this action is brought is now in practically the same condition that she was at the time she was purchased from defendant, and that since said purchase the horse had been in possession of plaintiff in this case; therefore, after hearing Odell Chapman and A. L. Chandler, attorneys for said plaintiff, in opposition thereto, it is ordered that the defendant have the privilege .of sending a veterinary surgeon to examine the mare in question, provided he shall be accompanied by the plaintiff or some person whom plaintiff may select. The court further orders that the plaintiff give such veterinary surgeon access to the premises and stable where said mare is located to make such examination. This order is made upon the authority of the case of Graves v. City of Battle Creek, 95 Mich. 266. Such examination to take place at any time between the hours of 6 o’clock and 10 o’clock p. m. of this day.”

The defendant sent Mr. Yan Sickle, a veterinary surgeon, to make the examination. Plaintiff objected to the making of the order and to the veterinary surgeon’s going to make the examination. Mr. Yan Sickle, after the examination, was called as a witness, and testified that the mare was in perfect health, but had a slight irritation under the fetlock, and also a few pimples, but no pustules. The jury returned a verdict in favor of the defendant. The plaintiff contends that the court was in error in making this order.

It appeared in the case of Graves v. City of Battle Creek, 95 Mich. 266, upon which the court below relied in making the order, that the plaintiff was seeking to recover for personal injuries. She appeared as a witness, and the jury observed her use of the injured arm and wrist. A physician testified in her behalf to its condition and the prospect of .recovery. He was asked:

“Is the fact that the plaintiff is able to use her arm in the ordinary ways, as it has appeared here, as she used it in this room, as you have seen her when she was. in the witness chair, — is that proof that the injury to the arm has subsided, and that there is no pain there; that is,, is there any surgical proof?”

This question was permitted to be answered. The-defense -then requested the court to direct that plaintiff remove her glove from the injured hand and exhibit the-hand to'the jury; also that she submit the injured hand to a physician to be examined in the presence of the jury. This was refused. It was held by this court that the-direction should have been given. It was said:

“The rule is well recognized by substantially all the courts of the country that the injured party may exhibit his wounds to the jury, in order to show their nature or-extent, and that rule has been followed in this State-Testimony which is open to one party ought logically to-be o-pen to his opponent, if it can. be obtained with due regard to decency, and in the orderly conduct of the trial.”

The fact was recognized in the above case that a wide discretion is vested in the trial court, which justifies a refusal to require the examination when the necessities of the case are not such as to call for it, or where (he sense of delicacy of the plaintiff may be offended by the-exhibition, or Avhere the testimony would be merely cumulative.

The rule thus laid down did not, however, justify the order made in the present, case. The mare in question was in possession of the plaintiff and upon his premises-The order compelled the plaintiff to permit the parties to enter upon his premises to make the examination, and by a party whom the plaintiff! objected to as coming there. The court had no power to compel the plaintiff to submit to such an invasion of his premises. If the plaintiff refused to let the mare be examined at that time,, or to have his premises visited for that purpose, it was his right. The testimony also was merely cumulative. Several witnesses had seen the horse only the day before, and gave testimony as to her condition.

For this error the judgment must be reversed, and a new trial ordered. We need not discuss the other questions raised.

McGrath, C. J., Grant and Montgomery, JJ., concurred. Hooker, J., did not sit.