text:
    HINCHMAN v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Negligence—Frightening Horse — Question for Jury.
    After defendant’s engine had obstructed a highway for some time, it was moved a few feet to permit plaintiff to drive across. He attempted to do so, but, just as he reached the crossing, steam was emitted from the engine, his horse became frightened, and plaintiff was injured. The engineer testified that he did nothing to occasion the emission of the steam, and it appeared that there was an automatic safety valve, through which it might have been emitted; but there was testimony from which it might be inferred that, though the steam was emitted from such valve, its emission might have been prevented by appliances under the engineer’s control, and that he could have foreseen such emission, and provided against the consequences by moving the engine farther away. Held, that the jury might infer negligence.
    3. Same — Proximate Cause.
    Plaintiff had controlled the horse for 10 minutes with the lines, waiting for the engine to move; but, as the steam was emitted, the horse reared, the right line unsnapped, plaintiff jumped and caught the bridle, and the horse spun around, throwing and injuring him. He testified that he would not have been injured had the line not come unsnapped. Held, that the jury might infer that the unsnapping of the line was due to defendant’s negligence in frightening the horse, which was therefore the proximate cause of the injury.
    8. Same — Concurrent "Causes.
    But, even if defendant’s negligence did not cause the line to unsnap, such negligence was at least a concurrent cause of the injury, rendering defendant liable, in the absence of negligence on the part of plaintiff.
    4. Same — Obstructing Crossing.
    2 Comp. Laws, § 6234, subd. 5, providing that a railroad company shall not obstruct a highway by cars for more than five minutes, does not prohibit an engine from standing for more than that time within the limits of a highway, if it does not obstruct the crossing.

      •5. Same — Liability for Frightening Horse.
    The fact that defendant’s engine had obstructed a highway for more than ñve. minutes, in violation of the statute, before moving so as to permit plaintiff to drive across, has no bearing upon its liability for injuries from the frightening of plaintiff’s horse by an emission of steam from the engine as-he attempted to exercise such right.
    6. Same.
    A railroad company is not liable for injuries from the frightening of a horse by an emission of steam from its engine merely because the engine was, and for more than five minutes had been, obstructing a crossing; the injuries not being the proximate result of its unlawful act.
    7. Same — Contributory Negligence — Instructions.
    An instruction, in an action for injuries caused by an emission-of steam from a railroad engine as plaintiff was about to drive across the track, that it was for the jury to determine whether or not it was foolhardy to drive across at the time and in the manner he did, was erroneous, as authorizing the inference that, though he was guilty of contributory negligence, he could recover if his act was anything less than foolhardy..
    8. Same^-Trial — Argument of Counsel.
    In an action against a railroad company for negligent injuries,, argument of plaintiff’s counsel, based on the premise that a person in defendant’s employ at the time of the accident, who-was cognizant of the facts, and who had not testified, was still in its employ, was improper, the premise being unwarranted by anything in the testimony.
    9. Same.
    Where, in an actionfor injury from the frightening of a horse by the emission of steam from an engine, the jury were not permitted to see the horse, argument of plaintiff’s counsel, by which he undertook to convey to them the suggestion that an inspection of it would show that it was not vicious, was improper.
    Error to Berrien; Coolidge, J.
    Submitted January 15, 1904.
    (Docket No. 58.)
    Decided April 19, 1904.
    Case by Burwell Hinchman against the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frederick W. Stevens (Victor M. Gore, of counsel), for appellant.

      O’Hara & O’Hara, for appellee. ■
   Carpenter, J.

Plaintiff brings this suit to recover compensation for personal injuries. He recovered a verdict and judgment in the court below. His claim, as appears from his testimony, may be stated as follows: On the afternoon of September 24, 1900, he was traveling with his wife in a carriage on a highway which crossed defendant’s road. When he reached this crossing, he found it obstructed by one of defendant’s engines. He waited about 10 minutes, and then asked the engineer to move. The engineer replied, “We don’t have to,” but subsequently he moved the engine, not from the highway, but so that its nearest point (the tender) was “something over 10 feet ” distant from the plank crossing. Plaintiff told the engineer that he was still in the road, but the engineer replied, with an oath, “Why don’t you cross?” Plaintiff then attempted to cross, but, just as he got “to the edge of the planking,” steam was emitted from the engine, the horse threw up his head and reared, “the right line unsnapped,” and plaintiff jumped, and caught the bridle of his horse. The horse spun around and threw him, and he was injured. The evidence of the plaintiff did not indicate with any certainty just what caused the emission of steam, and defendant’s engineer testified positively that he did no act to occasion its emission. It also appeared that there was an automatic safety valve, through which the steam which frightened plaintiff’s horse might have been emitted.

It is the contention of the defendant that we are bound to assume that the emission of the steam was through the automatic safety Valve, and numerous authorities are cited to the proposition that such emission is not negligence. There was testimony from which the jury might have inferred that, though the steam was emitted from the automatic safety .valve, its emission could have been prevented by appliances under control of defendant’s engineer, and that defendant’s engineer could have foreseen this emission, and have provided against the consequences by moving his engine farther from the crossing. From" this evidence, we think that the jury might infer negligence.

It is contended that the proximate cause of plaintiff’s injury was the fact that his line became unfastened, and not the negligent emission of the steam. It is not contended that the line became unfastened in consequence of plaintiff’s negligence. The verdict of the jury negatives any such claim. But, as plaintiff testifies that he would not have been injured “if that line had not come unsnapped, ” it is contended that the unsnapping of the line is the sole proximate cause of his injury. Defendant’s argument assumes that the unsnapping of the line was not a result of its negligence. If it was, then, on principle and authority, such unsnapping would not lessen its liability. McKeller v. Township of Monitor, 78 Mich., at page 488 (44 N. W. 412); Putman v. Railroad Co., 47 Hun, 439. We are unable to agree with defendant in the proposition that we are bound to assume that this unsnapping did not result from its negligence. According to the testimony of the plaintiff, he had been able to control his horse for 10 minutes by the use of this line. When the steam was emitted, the horse threw his head up, and the line unsnapped. We are unable to see why a jury could not infer from this evidence that defendant’s negligence, by frightening the horse, caused the line to unsnap.

But, assuming that neither plaintiff’s negligence nor defendant’s negligence caused the line to unsnap, we cannot agree with defendant that the unsnapping of the line thereby became the sole cause of plaintiff’s injury, and consequently relieved defendant from all liability. Because the line unsnapped, plaintiff, jumped from his buggy and seized his horse by its bridle; and the horse spun him around and threw him, not merely because the line was unsnapped, but because the horse was still frightened, as a result of defendant’s negligence. We think we go quite as far as we are warranted, in holding, under this hypothesis, that plaintiff’s injury resulted from two causes, viz., the unsnapping of the line and defendant’s negligence. We think it clear that, under such circumstances, defendant is responsible.

In Phillips v. Railroad Co., 127 N. Y. 657 (27 N. E. 978), defendant’s employes, in lowering a gate, hit a horse attached to a vehicle. The horse became frightened and ran away. The court said:

“ It may be assumed that the plaintiff would have escaped injury if the rein had not broken. * * * The jury specifically found that the gate was then being lowered, and it did hit the horse; and it may be assumed that they also found that this rendered the horse unmanageable, and caused the situation from which resulted the calamity, although the immediate cause may have been the inability of the driver to control the course of the horse, occasioned by the breaking of the rein, thus causing or permitting him to make so short a turn as to upset the wagon and throw the plaintiff out of it. The facts so found may have been a proximate cause of the injury, and it may be that they produced a condition which required strong reins for protection against the injury which followed. This was not, therefore, necessarily attributable solely to the breaking of the rein, which may have been one of two proximate causes, and in that view, if the latter occurred without fault of the plaintiff, she would not be denied the right to recover. ”

In Hunt v. Town of Pownal, 9 Vt. 411, plaintiff, while traveling on a highway, was injured as a result of two joint causes, viz., the insufficiency of a nut or bolt on the carriage (not chargeable to plaintiff’s negligence), and the neglect of defendant to keep its highway in suitable repair. The court, speaking through Mr. Justice Redfield, said (page 418):

“The loss,'then, is the combined result of accident and of defendants’ neglect to repair the road. We think, under such circumstances, the defendants are liable for the loss. It is no doubt true that, had the accident not occurred, no damage would have been sustained. And, had the defendants performed their duty, the same result would have followed.”

Defendant contends that this conclusion is opposed to numerous authorities. Among others, it cites three Michigan cases,—Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790), Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014), and Powers v. Lumber Co., 92 Mich. 533 (52 N. W. 937).

In Lewis v. Railway Co., plaintiff, a passenger on the-defendant’s railway, was carried past his station on a dark night. On leaving the train he was misinformed by the conductor as to his whereabouts, but he soon discovered where he was, and started for his home. In crossing a cattle-guard, his eyes deceived him, his foot slipped, he fell, and was sei’iously injured. It was held that the defendant’s negligence in carrying him past the station- and in misinforming him as to his whereabouts was not the proximate cause of his injury. In that case the wrong of the defendant had only this to do with the plaintiff’s injury: It led to his being in the position he was, where he-was injured by another cause. In this case, however, the-force which injured plaintiff resulted directly from defendant’s wrong.

In Beall v. Township of Athens, plaintiff’s horse became frightened at a log, not in, but alongside, the highway. He shied, plaintiff struck him with the whip, he sprang forward, and went down an embankment, upsetting the buggy and injuring plaintiff. To show the question involved and its disposition, we quote from the opinion:

“ The important question in the case is whether the-narrowness of the highway and the neglect to place railings or barriers along it primarily caused the accident. The township is only liable where the neglect complained' of was the proximate cause of the injury. If such neglect was the secondary or remote cause, the township is not liable. The testimony shows conclusively, and without contradiction, that the primary cause of the accident arose from the horse taking fright at a log at the side of the road, and the act of the driver in striking the horse a blow with his whip.”

This reasoning — and in accordance therewith the case was decided — is not helpful to defendant, but is distinctly helpful to plaintiff, in the case at bar. It leads to the' conclusion that the fright of the horse — the direct result in this case of defendant’s wrong — was the primary cause-of plaintiff’s injury.

In Powers v. Lumber Co., plaintiff’s intestate, a brakeman on defendant’s railroad, was riding on a train of logs-loaded by himself. One of these logs came in contact with a tree standing close to the railroad. A piece fell from it, and killed him. He knew of this tree, and it was his duty so to load his train as to avoid the collision which occurred. It was held that the defective loading, for which he alone was responsible, was the proximate cause of the injury. No argument is necessary to show that this case is clearly distinguishable from the case at bar.

Defendant cites many decisions from other courts. Some of these (see Daniels v. Ballantine; 23 Ohio St. 532 [13 Am. Rep. 264]) are like the case of Lewis v. Railway Co., supra, and therefore, as we have already-shown, are clearly distinguishable. Others relate to the liability of one who negligently starts a fire, for the spreading of that fire. These cases have, at most, a remote-bearing on the case at bar. If they have any, the liability of the wrong-doer, as settled in this State by Hoyt v. Jeffers, 30 Mich. 181, furnishes an argument which supports plaintiff’s contention.

The only case cited by defendant’s counsel which needs distinguishing from the case at bar, in our judgment, is the case of Marble v. City of Worcester, 4 Gray, 395. In that case, a horse being driven on the highway became frightened at a defect in the highway, broke loose from the vehicle, and, after running over 50 rods, injured plaintiff, who was traveling on the highway in the exercise of due care. It was held, in a majority opinion written by Chief Justice Shaw, that this injury was not a proximate result of defendant’s neglect to keep the highway in suitable condition; the court basing its decision upon “the remoteness and distance between the alleged defect in the highway and the place where the injury occurred,” and “the entire want of connection of the plaintiff with the horse and sleigh and the accident which happened to them.” For the purposes of this case, we are not called upon either to approve or disapprove this reasoning. It is sufficient to say that it clearly has no application to the case at bar. In deciding the case, however, the court laid down this rule, which is relied upon by defendant:

“ The general rule of law, we understand, is that where two or more causes concur to produce an effect, and it cannot be determined which contributed most largely, or whether, without the concurrence of both, it would have happened at all, and a particular party is responsible only for the consequences of one of these causes, a recovery cannot be had, because it cannot be judicially determined that the damage would have been done without such concurrence, so'that it cannot be attributed to that cause for which he is answerable.”

This statement was no necessary part of 'the decision, and we do not think it supported by authority. Our own decisions holding the employer responsible for injuries to an employer resulting from the concurrent negligence of himself and a fellow-servant (see Town v. Railroad Co., 84 Mich., at pages 221, 222 [47 N. W. 665]; Hayes v. Frederick Stearns & Co., 130 Mich., at page 292 et seq. [89 N. W. 947]) are opposed to this principle.

We forbear any discussion of defendant’s contention that plaintiff was, as a matter of law, guilty of contributory negligence. We think its argument rests upon the assumption that the jury were bound to believe defendant’s testimony, and to discredit the testimony of plaintiff himself. We cannot, as a matter of law, say that the jury could not credit plaintiff’s testimony, no matter, how many witnesses contradicted him.

In charging the jury, the court said:

“ Now, if the engine had been standing in the highway for more than five minutes, and was then standing upon the. highway at the time the plaintiff crossed, any emission of steam through the safety valve of this engine by the act or permission of the engineer would be an act of negligence; and, even if it were a fact that the engineer could not control or govern the amount of steam pressure upon the valve, or control the amount' of steam generated, that would be no defense at law whatever. In other words, in that case the engine would be upon the highway unlawfully, and the engineer must take the consequences in case steam was emitted. The law would not recognize any defense, in such case, of the emission of steam by which the party crossing the track would be injured, unless the driver — the person crossing the track— was careless himself.”

It is apparent from this language — and this is made more certain by other portions of the court’s charge — that the jury were instructed that defendant was responsible for injuries resulting from any emission of steam, regardless of negligence, if the engine was on the highway more than five minutes. We think this was clearly error. In giving this charge the trial court must have assumed that the law of this State prohibited an engine standing upon the highway more than five minutes. This is a mistake. Subdivision 5, § 6234, 2 Comp. Laws, provides that the railroad shall not “obstruct any public highway or street by cars or trains for more than five minutes at any one time.” The court could not, as a matter of law, say that, because the engine was within the limits of the highway, it obstructed the crossing. See Lewless v. Bailway Co., 65 Mich., at page 295 (32 N. W. 790). Plaintiff’s counsel suggest that the charge is correct because, before the engine moved, it had obstructed the crossing for more than five minutes. This argument will not stand analysis. The responsibility of defendant for emitting the steam must depend upon the circumstances then existing, and not upon those which had formerly existed.

There is, however, a more serious vice in this charge. If defendant’s engine, 11 feet from the crossing, constituted an unlawful obstruction, defendant would be responsible only for injuries resulting proximately from its unlawful act or from some other wrong done by it. See Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790). The charge violates this principle. It makes defendant responsible for injuries caused by the emission of steam, though that emission did not result from its negligence or have any relation to its wrongful obstruction of the crossing. It cannot be contended that Young v. Railway Co., 56 Mich., at page 435 (23 N. W. 69), justified the charge. ' We there held:

“It was the duty of the railroad company not to obstruct the traveled portion of the highway at the crossing by placing cars thereon and permitting them to remain an unreasonable time. If it did not discharge this duty resting upon it in this respect, the defendant is liable to the plaintiff for damages arising from any injury which was the direct consequence of such negligence.”

In charging the jury respecting the plaintiff’s care, the ■court said:

“Now, gentlemen, you will scrutinize carefully this question with regard to the care of the plaintiff in driving across that track, and determine whether, on his part, it was a foolhardy act or not to drive that horse at the time and in the manner he did, and under the circumstances, across that track.”

The jury would naturally infer from this language that, though plaintiff was negligent, and that negligence contributed to his injury, if his act was anything less than foolhardy he might recover. We need cite no authority to prove that this is wrong.

In his argument to the jury, plaintiff’s counsel said:

“We have not heard the sound of the fireman’s voice, but he is still living, and in the employ of the company in this State. * * * The fireman’s testimony might possibly be of some benefit to somebody, gentlemen. If the testimony of the fireman would have a tendency to be of benefit to this defendant, then the fireman is still in their employ. He was there that day. He saw what happened. If his testimony would be beneficial to the defendant, he would be here to testify, would he not F Haven’t we a' right to infer that ?”

There was no testimony that the fireman was still in the employ of the company, and the foregoing argument was therefore improper.

Plaintiff’s counsel also stated, in his argument to the .jury:

“ We got the horse down here so all you could see it,— this vicious horse. No; don’t want to see it. Why, you would laugh to see the horse that we had here some three days. My brother, in his fairness, wants everything submitted to your consideration, my very fair brother indeed, but he didn’t want you to see this horse.”

It appears that the jury were not permitted to see the horse, and yet plaintiff’s counsel, by this language, undertakes to convey to them the suggestion that an inspection of the horse woidd show that it was not vicious. It is unnecessary to say that this was improper.

We refrain from noticing other complaints of this argument, in the belief that they relate to questions which will not again arise.

For the errors pointed Put, the judgment must be reversed, and a new trial granted.

Moore, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., took no part in the decision.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PROPER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Death by Wrongful Act — Damages—Instructions—Harmless Error.
    Where, in an action for wrongful death, the court, in its charge, assumed that decedent’s widow had received some support from his personal earnings, and was therefore pecuniarily injured, and, in effect, made the right of recovery to depend on the questions of negligence and contributory negligence, an instruction that the widow was entitled to such damages only as the jury might find she had sustained by being deprived of decedent’s contributions from his personal earnings, and not from the income of his accumulated property, could not have been the cause of a verdict for defendant, and, if erroneous, was harmless.
    2. Same — Evidence.
    Where an action for death must have turned on the issue of contributory negligence, the admission of proof that deceased was a wealthy man and had money at interest, if error, was harmless.
    3. Railroads — Accident at Crossing — Evidence—Res Gestie.
    Where deceased was killed at a railroad crossing while driving with a companion, evidence as to what occurred at the time of the accident, including the acts of decedent’s companion, was admissible as res gestes.

      4. Same — Contributory Negligence.
    Where decedent, having stopped his horse 50 feet from a' railroad crossing, and looked and listened for a train, drove onto the track without taking any further precautions than to look out of the glass at the back of the buggy, from which he could see only a few rods of the track, he was guilty of contributory negligence, precluding a recovery for his death from collision with a train.
    Error to Hillsdale; Chester, J.
    Submitted February. 23, 1904.
    (Docket No. 9.)
    Decided April 19, 1904.
    Case by William E. Proper and Walter G-. Proper, administrators of the estate of George W. Proper, deceased, against the Lake Shore & Michigan Southern Railway Company, for the alleged negligent killing of plaintiffs’ intestate. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      W. J. Sampson and Grant Fellows, for appellants.

      C. E. Weaver and Dallas Boudeman, for appellee.
   Hooker, J.

The plaintiffs’ intestate was -instantly killed by the defendant’s passenger train at a street crossing in the village of Jonesville. At the time he was driving in a buggy, and his horse was struck when he had but just stepped his fore feet upon the track. The action is case for negligence, and the case was left to the jury, who found a verdict for the defendant, and plaintiffs have appealed.

The claim was made by defendant’s counsel upon the trial that the deceased supported the widow from interest earned by his accumulated property, and not from his personal earnings; and the judge was induced to charge that the damages would be—

“ The present worth of such an amount of money as you are able to say, from all the evidence in the case, it is reasonably probable would have been contributed by the decedent, if he had lived, to the support of his wife from his earnings. * * * ,His contributions, as before explained, are for the individual services which the husband renders the wife. They cannot be enlarged by the fact that the deceased had accumulated a considerable property, which the wife-enjoyed with him, for she is entitled to enjoy a portion of such property whether he was dead or alive; and so the jury, if if finds for the plaintiffs, must be careful that it does not go out of the rule which the court has given, that the measure of the damages is the present worth of such contributions as the husband would have made from his individual services to the wife during her lifetime, as nearly as the same can be estimated. * * *
“You are also instructed that you should not base a verdict for damages in this case upon what Mr. Proper may have given to his wife out of the interest money on mortgages or other moneys which he had out at interest. 'The question for you, as far as it relates to damages, is, How much would Mr. Proper, had he lived, have contributed to his wife for her support out of his personal earnings F — not what be may have given her in the way of moneys which he had already accumulated, or what he may have given her for the purpose of making presents to their children or others, or what she may have received ■out of the income of the farm. The matters last mentioned have nothing to do with the question of damages. It is simply a question of how much Mr. Proper, during his lifetime, would have contributed from his personal labor to the support of his wife, and what is the present worth of such an amount.. Now, I have spoken of nothing from the farm. Of course, if you find that he earned anything by his services and work there on the farm, and contributed to those earnings of his own efforts to his wife, then she would be entitled to that portion of those earnings.”

Counsel for defendant now claim that, if this was erroneous, it was harmless, for the reason that, under the testimony, the jury must have found that a part of deceased’s contributions were from his personal earnings, and that the fact that they did not give her any damages shows that they must have based their verdict upon some other ground, e. g., contributory negligence. There are cases where it can be said that questions relating to damages become immaterial, in view of a verdict which obviously must rest upon some other ground. If we can say that in this case, we may pass the point.

After discussing the questions of negligence and contributory negligence, the judge said to the jury:

Then, gentlemen, if, under the evidence in this case, and the instructions I have given you, you find for the plaintiffs, you come to the question of damages; and, if you come to the question of damages, gentlemen, you are instructed upon that question that plaintiffs, if entitled to recover, are entitled to damage to the extent of the pecuniary loss which the widow has sustained by the death of George W. Proper.”

Then followed what has been already quoted.

This charge nowhere directed the jury that they should render a verdict of not guilty if they should find that the widow received no support from deceased’s personal earnings. It assumes that she received some such support, and it also makes the plaintiffs’ right to recover depend upon the questions of negligence and contributory negligence. Then he discussed the measure of damages, as already shown. In view of these directions, there is little reason to believe that the jury found an absence of contributory negligence, and defeated plaintiffs solely because her support did not come from personal earnings of her husband. They could not reasonably have found the latter fact, under the proof, and they had received no intimation that it would require a verdict of not guilty if they should so find. They were, in effect, told that plaintiffs were entitled to a verdict if they should find negligence on the part of the defendant, and an absence of contributory negligence.

Error is assigned upon the admission of the proof showing that the deceased was a wealthy man, and had money at interest. We do not see that this testimony was injurious to the plaintiffs, inasmuch as the case must have turned on the question of contributory negligence, even if it were inadmissible, which we do not say.

We think it was proper to inquire fully as to what occurred at the time of the accident, including the acts of deceased’s companion, Wisner. It was part of the res gestee, and bore upon the question of the sufficiency of de•ceased’s caution. ,

The court instructed the jury as follows:

'' If you find that Mr. Proper did all that the ordinarily 'Careful and prudent man would do under like circumstances, and with his knowledge of this crossing, and of the trains passing over it, in approaching this crossing, to ascertain if any train was coming on this track, then and in that case he is not guilty of contributory negligence, and, so far as that question is concerned, plaintiffs would be entitled to recover.
“Contributory negligence, in the law, maybe defined as-an act by the injured person which an ordinarily prudent man would not have done under the same circumstances, or the omission to do that which an ordinarily careful and prudent man would have done under the circumstances, and which'act or acts directly aid in causing or contributing to the injury received. If the mind of an ordinarily prudent man would be.impressed with the belief of danger,, under the circumstances existing and surrounding him at the time of the injury, he has no right to incur the danger. But, on the other hand, if the mind of an ordinarily prudent man would not be impressed with the belief of danger •by the circumstances surrounding and existing at the time of the injury, he is not guilty of contributory negligence.
“Therefore, you will understand that it is a very important question in this case for you to determine whether or not the deceased, George W. Proper, was exercising the care and caution which he should have exercised as he approached this track, for, unless it be shown that he gave proper attention, — that is, exercising due and proper care in the question of whether there was an approaching train, — then he cannot recover; and if the train was easily to be seen, had he stopped and looked for it, or had looked attentively enough without stopping, and the approaching train would have been seen by him if he had used due care and caution and given proper attention, then he was guilty of such a degree of negligence as would prevent a recovery in this case.
“There is no particular act necessary to be found on which to base contributory negligence. It may exist in a variety of ways. It may be inferred from the failure of the plaintiff or decedent to stop his horse or to look in the direction of the approaching train, or a failure to hear the approaching train because of the noise of the buggy, or any other noise, if you find there was any, or by being occupied in conversation with his companion; and various other things which may occur may be considered as contributory negligence. Anything in the way of inattention to the approaching train, which, in the mind of the jury, contributed to the injury of the deceased, and the injury would not have occurred had it not been for such inattention, is contributory negligence. The attention which is required of Mr. Proper is the same attention and observation that is used and exercised, by an ordinarily careful and prudent man under the same circumstances. * * *
“You are also instructed that the plaintiffs are not entitled to recover in this case simply because there was an accident which resulted in the death of Mr. Proper, for whom the plaintiffs claim to act as administrators. The fact that Mr. Proper was killed at this crossing is of itself no evidence whatever of any negligence on the part of defendant, or of any liability on its part to respond in ■damages. While it is true that, simply because an accident had occurred, negligence is not to be presumed, still, in determining the question of negligence, the fact that an accident has occurred may be and should be taken into consideration, in connection with all the other facts and circumstances in the case, for the purpose of determining whether in fact there was negligence.
“And if you find from the evidence that when Mr. Proper and his companion, Mr. Wisner, had reached a point in the highway which was somewhere in the neighborhood of fifty feet or six or seven rods from the track, as estimated by various witnesses, he stopped his horse and looked and listened for the train, then started up ■again, and, as he started, Mr. Wisner looked out of the glass at the back of the buggy, where he could only see a few rods of the track, and the parties then passed onto the track, without any further looking in the direction of the approaching train, or any further attempt to find whether there was an approaching train, then such acts constituted contributory negligence, and plaintiffs could not recover.”

Error is assigned on the last paragraph of the above. The plaintiffs claimed that the view of the track was obscured by buildings and trees, and that it was a difficult and dangerous crossing. We think that the judge was right in holding that, under the admitted circumstances, it would be negligent to assume that it was safe to proceed without any further effort to ascertain than was made at the time of stopping. Vreeland v. Railroad Co., 109 Mich. 585 (67 N. W. 905); Shufelt v. Railroad Co., 96 Mich. 327 (55 N. W. 1013); Braudy v. Railway Co., 107 Mich. 100 (64 N. W. 1056); Osborn v. Railway Co., 115 Mich. 102 (72 N. W. 1114); Britton v. Railroad Co., 122 Mich. 359 (81 N. W. 253); Tucker v. Railway Co., 122 Mich. 149 (80 N. W. 984), and cases cited.

We are of the opinion that the ordinance could not affect this case, and that there was nothing in the instruction relating to positive and negative testimony of which plaintiffs can justly complain.

The judgment is affirmed.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


author: Montgomery, J.

text:
    HARDING v. AUDITOR GENERAL.
    1. Taxation — Void Sale — Refunding Purchase Money.
    A purchaser at a tax sale is not entitled to a refunding of the-purchase price on the sale’s being held invalid; in the absence of a statute conferring that right.
    O. Same — Law of 1889.
    The only provision for refunding contained in the tax law of 1889 (Act No. 195) is that found in section 66, under which the purchaser must look to the county treasurer, and not to the auditor general.
    3. Same — Law of 1885 — Repeal.
    The refunding provision of the tax law of ,1885 (Act No. 153,- § 104) was not repealed by the tax law of 1889, section 113 of which expressly saved all rights existing under the earlier act.
    4. Same — Adverse Possession.
    But a refunding should not be granted under said section 104 where, at the time the tax title was declared invalid, it had become ineffectual in any event because of five years’ adverse occupancy of the premises, in accordance with section 115 of' the act:
    5. Same.
    The fact of such occupancy, however, must be established, in order to defeat such right; mere lapse of time is not sufficient.
    6. Same — Laches.
    Laches cannot exist in the matter of an application for a refunding by a tax title purchaser prior to the time when his. right to a refunding became complete.

      7. Same — Determination of Invalidity of Title.
    Under said section 104, providing for such refunding where the title has been annulled “either in a court of law or equity,” a finding of the invalidity of such title in an action of ejectment is sufficient.

      Mandamus by Vine Harding and others to compel Perry P. Powers, auditor general, to refund the consideration paid for certain tax deeds.
    Submitted March 15, 1904.
    (Calendar No. 20,335.)
    Writ granted in part April 19, 1904.

      C. B. Wilkes (C. J. Pailthorp, of counsel), for relators.

      Charles A. Blair, Attorney General (Charles W. McGill, of counsel), for respondent.
   Montgomery, J.

The relators ask for the writ of mandamus to compel respondent, the auditor general of the State of Michigan, to refund the amount paid by Josiah E. Harding for the purchase of certain tax lands for the-taxes of 1882, 1883, 1884, 1885, and 1888; relators having-succeeded to the rights of Josiah E. Harding. The land was sold for the taxes of 1882 on October 6, 1885, for the-, taxes of 1883 on the same date, for the taxes of 1884 on October 5, 1886, and for the taxes of 1885 on October 4, 1887, und.er the provisions of the general tax law of 1885, being Act No. 153; and for the taxes of 1888, sold May 4,1891, under the provisions of the general tax law of 1889, being Act No. 195 of said year. Eor the sales made under the tax law of 1885, deeds were issued September 11, 1889, and, for the sale for the taxes of 1888, a deed was issued on surrender of the certificate of purchase on September 1, 1896.

Suit in ejectment was brought in the circuit court for the county of Emmet, and in the proceedings the deeds were introduced as evidence of title, and held by the circuit judge to be void, and ineffectual to convey title. On a certificate of the circuit judge, application was made to respondent auditor general for a refunding of the amount paid by reason of the several purchases referred to, together with interest thereon, which was refused; and, on being renewed, was again refused, principally for the reason that Act No. 153, Pub. Acts 1885, § 104, under which claim was made for refunding, had been repealed by the enactment of the general tax law of 1889, although the auditor general reserved the right tó raise any other objection he saw fit if suit was commenced by mandamus or otherwise to effect a refunding. On refusal of respondent auditor general to refund in accordance with the several applications to which reference is made in relators’ petition, this suit was instituted.

It is settled that refunding cannot be demanded except where authorized by statute. Crane v. Reeder, 25 Mich. 320; People, ex rel. Rice, v. Auditor General, 30 Mich. 12; Ball v. Auditor General, 133 Mich. 521 (95 N. W. 539). As to the purchase for the tax of 1888, it appears that Josiah E. Harding bought these lands May 4, 1891, under the provisions of the general tax law of 1889. Act No. 195, Pub. Acts 1889. As section 66 of that act provides for a refunding by the county treasurer, and not by the auditor general, it would seem clear that, if the provisions of the act are still in force, relators are not entitled to the remedy sought.

The purchases for the taxes of 1882, 1883, 1884, and 1885 were made under the tax law of 1885. The question is presented as to whether the tax law of 1889 (Act No. 195), repealing the tax law of 1885 (Act No. 153), cut off the right of a purchaser under the law of 1885 to have the purchase money refunded in case the title was declared invalid. Both the law of 1889, by section 113, and the law of 1893 (see section 3948, 1 Comp. Laws), contain provisions saving “any rights which may have accruedunder the act repealed. As was said in Tillotson v. Saginaw Circuit Judge, 97 Mich. 585 (56 N. W. 945), it is very questionable whether the rights of purchasers under former laws are not so vested that they could not be divested by subsequent legislation. As to this question, see State v. Foley, 30 Minn. 360 (15 N. W. 375). But we find it unnecessary to determine this question in the present case. We think the legislative intent was clear to preserve all rights existing under prior laws, and that the provision for refunding was not repealed.

Respondent, however, contends, and very properly, that section 104 of the general tax law of 1885 (the refunding provision) should be read in connection with sections 115 and 116, and contends that, when tax deeds are declared invalid at a time when the right to maintain their validity has been lost by lapse of time under the provisions of sections 11§ and 116, the provisions of section 104 should not be held to apply. Granting this contention, it does not meet the case made by the relators. The finding of the circuit judge in the trial of the case involving the validity of the tax deeds was that in each case the deeds were null and void for causes not the fault of the grantee in the deed. There is nothing upon the record to indicate that facts ever existed which would make the provisions of sections 115 and 116 applicable. In other words, there is nothing to indicate that the lands were occupied so that the title under the tax deeds was cut off by the provisions of these sections.5 The point that relators are guilty of laches is, therefore, without force. There could be no laches in the matter of making this application until the right to apply for refunding accrued. The finding of the invalidity of the tax titles in an ejectment proceeding meets the requirements of the statute. See Auditor General v. Bay County Sup'rs, 106 Mich. 675 (64 N. W. 570).

The writ will issue as prayed, except as to the taxes of 1888.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


author: Moore, C. J.

text:
    CARPENTER v. CARPENTER.
    Judgments — Res Judicata — Ejectment.
    A woman who is present, participating in and conducting the defense, at the trial of an action of ejectment against her tenant and her husband, is bound by the judgment.
    Error to Ingham; Wiest, J.
    Submitted November 4, 1903.
    (Docket No. 85.)
    Decided April 26, 1904.
    Ejectment by Cora M. Carpenter against Frank L. Carpenter and Lucy C. Jones, impleaded with others, From a, judgment for defendants on verdict directed by the court,, plaintiff brings error.
    Affirmed.

      Q. A. Smith and O. J. Hood, for appellant.

      Frank L. Carpenter, for appellees.
   Moore, C. J.

This action is ejectment, wherein plaintiff claims title in fee to an undivided fifth of lot 10, the interest inherited by Miriam Carpenter, and claimed to have been deeded to Abigail C. Rogers, and through mesne conveyances to plaintiff. The' common source of title of lots 10 and 12 was Benjamin Carpenter, who died intestate in 1859, leaving a widow, Maria, and five children, Miriam, Lucy, John, Augustus, and Frank. Three ejectment suits have been tried in the Ingham circuit court wherein it is claimed the title to Miriam’s interest in these lots has been litigated:

On June 7, 1887, Lucy and Frank brought ejectment for this interest in the south three acres of lot 10 against John I. Carpenter and one Sautelle, claiming by devise from their mother, claiming she acquired it by adverse possession; and on June 6, 1888, recovered a judgment against them, from which no appeal was taken, and under-which they have ever since held possession.

On September 14, 1893, Cora M. (John’s wife and grantee) brought ejectment for this interest in lot 12 against Augustus and his wife, wherein the defendants, recovered judgment, which was reversed by this court (see 119 Mich. 167 [77 N. W. 703]), and again tried, when plaintiff recovered a judgment, which was reversed by this court (126 Mich. 217 [85 N. W. 576]).

On March 29, 1899,. Cora M. brought ejectment for this interest in lot 10 against Lucy and Frank, who recovered judgment on March 14, 1901, reversed by this court on March 26, 1902 (130 Mich. 213 [89 N. W. 717]), and again tried in June, 1902, when defendants again recovered judgment. The case is brought here by writ of error.

A reference to the cases as reported in 126 Mich. 217 (85 N. W. 576), and 130 Mich. 213 (89 N. W. 717), will make a long statement here unnecessary. Upon a second trial of this case, the trial judge was of the opinion the decision in Carpenter v. Carpenter, 126 Mich. 217 (85 N. W. 576), was controlling, and, because of the decision in 1888 in the case of Carpenter v. Carpenter and Sautelley the question was res adjudicata.

Upon the part of the appellant it is insisted the record upon this trial as to what was litigated in the case tried in 1888 is very different from the record which was before the court when the opinion was written by Justice Hooker, reported in 126 Mich. Counsel put the question in their brief:

Are the defendants in this action, who, as plaintiffs in the former action, recovered against John I. Carpenter and Llewellyn Sautelle on the theory that John was asserting a title in the land in himself, and that Sautelle was. his tenant, entitled now to use the judgment so obtained as a bar to this plaintiff’s action on the present theory that John was her agent and that Sautelle was her tenant ?”

Counsel say the former judgment binds only the parties thereto, and—

“ The force and effect of this judgment is that the plaintiff was neither a party nor represented by a party in this former action. The anomalous situation is that defendants have introduced as an estoppel against plaintiff’s right of action in this case a judgment in a former case in which it was found and determined by the jury that she was neither a party nor represented by a party. In other words, they seek to bar her present right of action by a judgment which determined that John was asserting a title to the premises in himself, and not in his wife, and had put in possession his own tenant, and not a tenant for his wife. They have introduced evidence of a judgment which they only recovered by convincing the jury that John was not acting as agent for his wife, as a bar to her right of action on the present theory that he was acting as her agent. The defendants have introduced evidence of this judgment as an estoppel against plaintiff’s right to recover in this case. We deny that the judgment is any evidence of an estoppel against the plaintiff. ”

In the ejectment suit tried in 1888, a plea of the general issue was filed, signed by Jbhn I. Carpenter in pro. per. and as attorney for defendant Sautelle, which plea John I. Carpenter says was written by H. B. Carpenter. It was' the claim of the plaintiffs in that case that they were the owners of the interest in the land; that Sautelle was in actual possession; and that John I. Carpenter, though not in actual possession, asserted ownership, so that it was necessary to make him a party to the record; and, as proof of his assertion of ownership, it was claimed he leased the premises in his own name to Sautelle, and put him in possession. It was also claimed that a deed running to John I. Carpenter was upon record, that no deed from himself to his wife was recorded when the suit was brought, and that the first knowledge of such a deed plaintiffs had was when it was claimed upon the trial such a deed existed. It was also shown that the defense was conducted by John I. Carpenter and H. B. Carpenter as attorneys. There was testimony that plaintiff was present during the whole trial, and sat by the attorneys for the defendants. On the part of the defendants it was claimed plaintiffs did not own the interest in the land for which suit was brought, but that it was owned by Mrs. Carpenter, and that Sautelle was a tenant under her. It was further claimed that John I. Carpenter was not claiming to be the owner, that he was not in possession, and that in making the lease to Sautelle he was acting as agent for his wife, and that Sautelle was her tenant, and not his. John I. Carpenter and Cora M. Carpenter were both sworn as witnesses, and tlieir testimony tended to establish the defense as stated above. Among other things, Mrs. Car-. penter testified:

‘ ‘ Q. Sautelle is, then, your tenant, is he ?
“A. Sautelle is not a tenant.
Q. Was at the time this deed was made ?
“A. He was at that time. He was the first tenant I had on the place. * * * Mrs. Nellie Bowman is my tenant there now. I never saw the original lease made by my husband to Sautelle. I did not consider it necessary to see it. He made the second lease. I have not seen that. I did not consider it necessary. I don’t know where it is. I don’t know where either lease is. They are in the hands of the parties. I think Mr. Carpenter has Mrs. Bowman’s lease to present in the case today. I think he borrowed it of her for that purpose, — the original lease.
Q. What did you have to do with taking possession over there, in the first place ?
“A. Mr. Carpenter and I went outriding one day, and we drove up that street to the old house. It was apparently a deserted house. There was nothing there except one stove, as far as he could see. When he went away he took the key, and brought it to me. After that I authorized him to take possession of it. I knew who his tenant was to be. I was present myself when the bargain was made; fixed the price myself; delivered the key to Sautelle at the wheelbarrow works in Lansing. There was a written lease made.’ This occurred on Saturday, the 7th of May, and there was a verbal lease made that day with Mr. Sautelle fixing the price. Mr. Carpenter went home and drew a written lease, and took it over to Sautelle. The written lease I never saw, but I suppose it embodied the terms that we made in the other lease.
Q. But you don’t know anything about it? You did not see it while he was drawing it, did you, — did not read it?
“A. I don’t think that he drew it at the house. I think he drew it at the office.”

It is true the jury, in order to render the verdict they did against Mr. Carpenter, must have found he was asserting, ownership, and as to that feature of the case accepted the version of the plaintiffs. The question remains, Does the verdict against Carpenter and Sautelle, which remains undisturbed, bind Mrs. Carpenter? The case, briefly stated, is that an ejectment suit was commenced against John I. Carpenter, the husband of the plaintiff in this case, and Llewellyn Sautelle, according, to her version her tenant. Mrs. Carpenter had knowledge of that litigation and participated in it. When the case was tried, Sautelle had ceased to be her tenant, and was succeeded by Mrs. Bowman, his daughter, who was in possession at the time of the trial. It is impossible to read the record and reach any other conclusion than that John I. Carpenter and his wife both participated in and conducted the defense, entering fully upon the merits, claiming the plaintiffs’ case must fail because of a lack of title in themselves, and also .claiming that the legal title was in Cora M. Carpenter, and for that reason the case must fail as against her tenant, Sautelle. It was claimed, in addition to the defense above stated, that as to John I. Carpenter plaintiffs had no case, because John I. Carpenter was not in possession; that he had no title, and was not asserting title in his own right. The plaintiffs obtained judgment against both defendants, from which no appeal has ever been taken. We think the plaintiff in this action is bound by the judgment in that case. See Herm. Estop. § 152; 2 Van Fleet, Former Adj. p. 1072. See, also, Jennings v. Sheldon, 44 Mich. 92 (6 N. W. 96); Bachelder v. Brown, 47 Mich. 366 (11 N. W. 200); Estelle v. Peacock, 48 Mich. 469 (12 N. W. 659); Carpenter v. Carpenter, 126 Mich. 217 (85 N. W. 576).

Judgment is affirmed.

Montgomery and Hooker, JJ., concurred. Carpenter, J., did not sit. Grant, J., took no part in the decision.


author: Per Curiam.

text:
    BOWERS v. CHIPPEWA CIRCUIT JUDGE.
    Equity Practice — Amendment op Bill — Pro Conpesso. Under Chancery Rule 16, authorizing an amendment to a bill of complaint “ at anytime before a plea, answer, or demurrer is put in, without leave of court,” a bill may be amended after an order pro confesso has been entered.

      Mandamus by Frank Bowers to compel Joseph H. 'Steere, circuit judge of Chippewa county, to proceed to the hearing of a chancery cause.
    Submitted November 17, 1903.
    (Calendar No. 20,214.)
    Writ granted April 16, 1904.

      William A. Goutts, for relator.
   Per Curiam.

The question presented is whether, under 'Chancery Bule 16, which authorizes an amendment to a bill of complaint at any time before plea, answer, or demurrer is put in, without leave of court, a bill may be .amended in a pro confesso case after the time limited for .appearance.

We are of the opinion that the rule covers such a case. The defendant, in making default, does so with full knowledge that the rule permits the amendment. The circuit judge refused to recognize such an amendment in the present case. In this he erred.

The writ is granted, without costs.


text:
    McNAUGHTON v. SMITH.
    1. Fraud — Proof.
    Fraud may be proved, like any other fact, by any facts and circumstances which satisfy the mind of its existence.
    2. Same — Requests to Charge.
    A request to charge that the circumstances from which a presumption of fraud arises must be strong and irresistible, and! such as to amount to clear proof, — that it will not be inferred) from slight circumstances, — is improper, as requiring too' high a degree of proof.
    3. Same — Sale of Stock — Statute of Frauds.
    Plaintiff sold to defendant C. certain shares of stock in a cement company, receiving part payment in cash, and security for the balance in a contract for the sale of certain, shares of stock in a manufacturing company. Defendant S. represented that the manufacturing company’s stock was worth from 75 cents to par, and that he would take it off plaintiff’s hands if the purchaser should fail to pay. The purchaser failed to pay, and the manufacturing company became insolvent. Plaintiff sued defendants for fraudulently converting his cement stock. Held, that a request to charge that defendant S. could not be held liable, for the reason that his promise was not in writing, was properly refused, as plaintiff did not seek to recover for a breach of the agreement, but claimed that the promise was made fraudulently, and in pursuance of a conspiracy for the purpose of inducing him t0‘ part with his cement stock.
    4. Same — False Representations — Evidence.
    Testimony that defendant, who was president of a manufacturing company, said in May that he would not take its stock at any price, that in the summer following the company went into the hands of a trustee, that at that time there was a mortgage on its real estate with one year’s interest unpaid, and a mortgage on its personal property to secure indorsements of its paper at the bank, that at the time of the trial the property had been sold, and no stockholder paid anything, tends to show that a statement made by defendant in February previous, that its stock was worth from 75 cents to par, was false.

      5. Same — Arrest of Codefendant.
    In an action for fraud in the sale of certain shares of stock, the • contention that it was error to permit plaintiff to show that, after the alleged fraudulent sale was fully consummated, one of the defendants became financially embarrassed, and was sent to State’s prison on a criminal charge, is without force, where such testimony was given, without objection,' by the complaining defendant.
    6. Trial — Incompetent Testimony — Curing Error.
    Error in the admission of testimony is cured by subsequently striking it out, and directing the j ury to disregard it, where no further allusion is made to it, and no request for further instructions thereon.
    Error to Hillsdale; Chester, J.
    Submitted November 18, 1903.
    (Docket No. 133.)
    Decided April 26, 1904.
    Case by Kent McNaughton against George N. Smith, impleaded with Albert B. Cummins, for the fraudulent conversion of certain corporate stock. From a judgment •for plaintiff, defendant brings error.
    Affirmed.

      F. M. Hall and F. A. Lyon, for appellant.

      Lehmann & Biggs, for appellee.
   Moore, C. J.

It is the claim of plaintiff that George N. Smith, Albert B. Cummins, and George M. Swaney entered into a conspiracy to defraud him of his stock in the Omega Portland Cement Company, and that, by means of fraudulent statements made by them to Delmar McNaughton, his half-brother and agent, they obtained possession of said stock, and fraudulently converted it. This suit was brought to recover the value of said stock. From a judgment in favor of the plaintiff, the defendant Smith has brought the case here by writ of error. The-record is quite a long one. There are 58 assignments of error. So many of them relate to the charge of the judge, and to his refusal to give requests to charge, that it is best to give the substance of his charge to the jury, which was as follows :

“ The plaintiff claims that in February, 1901, he offered for sale 250 shares of the Omega Portland Cement stock; the plaintiff residing in Detroit. His brother, Dell McNaughton, was in business here, and he sent this stock to his brother to dispose of, because the cement plant was located in this county, and some of the directors and a good many stockholders resided in this county. Mr. Dell McNaughton advertised the stock for sale. Mr. McNaughton claims that the defendant Smith came to his store and asked about the stock; that he told him that the stock belonged to his brother, and his brother wanted to get cash out of it, and that he could not sell it for less than 90 cents on the dollar in cash; that he had some conversation with Mr. Smith regarding it, and Mr. Smith said he would not pay that, and he one day afterwards said something to him about getting a purchaser; that one day Mr. Smith came into the store and told him that he guessed he had found a purchaser for him, which turned out to be Mr. Cummins, or at least Mr. Cummins was with him; that they then had a talk about this stock, Mr. McNaughton telling him, in substance, that this stock was for sale, and advertised for 90 cents on the dollar; that Mr. Cummins substantially agreed with him that he was to take it, and that Mr. McNaughton was to come over to the store soon after that and close up the deal.
“ That, shortly after that, Mr. McNaughton went over to Mr. Cummins’ store, and there they had a talk, and that Mr. Cummins then had the plan of giving to Mr. McNaughton $800 in money, and a contract which he claimed he had entered into with his brother-in-law, Mr. Swaney, for the sale of certain Hillsdale Manufacturing stock; that that contract amounted to $1,625, and it called for the sale of $2,500 of the Hillsdale Manufacturing stock. It was claimed that Mr. Swaney had paid to Mr. Cummins at that time $50 on that contract; that he then wanted to turn that over to Mr. McNaughton as security for the balance that would be due on this stock at 90 cents, which was $1,450, I think'; that, after some conversation there, Mr. McNaughton asked for time, and then Mr. Cummins told him that Mr. Swaney wanted to take the train, — that he could not wait very long, — but, after some conversation, he was given, perhaps, a half hour. Mr. Dell McNaughton claims that he went to the Hillsdale Savings Bank, and saw some one there; went down to the First National Bank, and saw some one there regarding it. He then started back to Mr. Cummins, and Mr. McNaughton says it was in his mind then to tell Mr. Cummins that he would not make the trade or the sale as Mr._ Cummins had talked. About this time he saw Mr. Smith. He claims that Mr. Smith then represented to him that he (Smith) had $4,000 in this company, and that it was worth par. He then told him about this contract,— what Mr. Cummins wanted to do; that Mr. Cummins offered to give him $800 in money, and turn out this contract, which was to be performed on or before the 2d day of March following; and that Mr. Smith then said to him, if he made that deal, that he (Smith) would take the stock off of his hands, providing Mr. Swaney did not perform the contract or Mr. Cummins did not redeem it; claiming to him that this Hillsdale Manufacturing stock was worth from 75 cents to a dollar on a share, but that he would not sell his for less than a dollar, or that, in substance, he thought it was worth a dollar. He claims at this ‘time that Mr. Smith went in with him and looked over this contract, and that he relied upon the statements made there by Mr. Smith at that time that this contract was perfectly good. It is also in evidence here that Mr. Dell McNaughton thought Mr. Cummins was financially good; but he claims he relied upon the statement of both of these men that this contract should be performed, and that Mr. Smith said that the stock was worth from 75 cents to a dollar, and that, if he didn’t take it, he would take it off from his hands; that, after he had made this deal, he communicated it to Kent McNaughton, in Detroit, and by'telephone he got back from Kent McNaughton some inquiries regarding it, and also questioning the sale; and that, after some conversation or a letter from Mr. Kent McNaughton, he went and saw Mr. Cummins, and Mr. Cummins guaranteed that this contract would be performed. I think it is also in evidence here that Mr. Dell McNaughton at that time understood and- believed that Mr. Smith was also financially responsible and reliable.
“ That he had more or less conversation over the phone and by letter with his brother in Detroit regarding the situation here, until the 2d day of March, — -the brother insisting that he could not get good reports regarding it, that he was not satisfied with it, — and that Dell McNaughton would go and have a talk with Mr. Smith, and also with Mr. Cummins, and then he would write his brother or telephone him, assuring him that everything would be all right; that this ran along until the time of the contract, was up, March 2d, and then that Dell McNaughton made what efforts he could to secure his money on this contract. I might state that, at the time this contract was made, there was another contract signed, whereby Mr. Dell McNaughton agreed to pay back to Mr. Cummins, when Mr. Swaney paid him, the difference between the amount which was due Mr. McNaughton and what Mr. McNaughton should get, and I think the evidence shows that that would be $125.
“ The plaintiff claims that he was defrauded out of this-stock; that is, the difference between $800, the amount that he received, and the market value, which he claims-was 90 cents, for the Omega stock. He claims that the amount he lost by this deal was $1,450. He claims that the evidence shows that at this time this Hillsdale Manufacturing stock was substantially worthless, — was not worth 75 cents to a dollar, — and that the statements made by Mr. Cummins and Mr. Smith were false; that they were made for the purpose of cheating him out of his stock and getting it from him. He claims that the circumstances show, at this time when this contract was delivered, and the check for $800 was given to him, which check he sent to his brother in Detroit — that the evidence shows that Mr. Smith and Mr. Cummins gave a note to the bank for $800 to meet that check. He claims that is an element of evidence here bearing upon the question as to whether or not Mr. Smith had any knowledge or any understanding with Mr. Cummins about purchasing this stock.
“ It is also claimed on the part of the plaintiff that his. agent, Dell McNaughton, knew nothing about Mr. Smith’s having this stock until about the time Mr. Riggs came here; that Mr. Riggs came here some time in May; that he saw Mr. Cummins regarding this stock, — about his taking back the $800 and this contract, and surrendering up the Omega stock; that he was informed by Mr. Cummins, or learned, that Mr. Cummins did not have the stock, and he and Mr. Cummins together went to Mr. Smith’s house and saw him; that they had a talk about it. Mr. Riggs claims that he then tendered back to Mr. Smith the $800 in money, the contract for the sale or purchase— whatever it may be termed — of this Hillsdale Manufacturing stock, and the Hillsdale Manufacturing stock; that Mr. Smith refused to take it, but said to him he would see him later, if he made up his mind to turn the stock back; that he came back down to the hotel and waited for him, and he did not come, and then he went to Mr. Smith’s place of business, and Mr. Smith refused to turn back the stock, and take the $800 and the contract and the Hillsdale Manufacturing stock.
‘ ‘ It is s claimed here that the evidence establishes that Mr. Smith and Mr. Cummins had some conversation about this stock before Mr. McNaughton sold it to him, and it was understood by them that there was a scheme on foot between Mr. Smith and Mr. Cummins that Mr. Cummins should obtain this stock for Mr. Smith in this way, and that Mr. Smith was to do his part, and that in doing his part he made the representations which the plaintiff claims he did make regarding the Hillsdale Manufacturing stock. The plaintiff claims those representations were false, and that he relied upon them and parted with his stock, and that he has been defrauded.
“The defendant insists that he did not enter into any scheme with Mr. Cummins to get this stock away from Mr. McNaughton. He denies that there was ever any intent on his part of defrauding anybody. He denies that he told anything to Mr. McNaughton that was not true, or anything he did not believe to be true; and he insists that he bought this stock in good faith from Mr. Cummins, paying him 75 cents on the dollar, which he claims was a reasonable price, and all it was worth at that time; at least, it was a reasonable price for him to pay for it. He claims he did not make any false statements to Mr. McNaughton about the value or the amount that he had, or what he claimed it was worth. He insists he believed the stock was geod, and would pay a fair income ■on the amount of stock that was issued by the company, upon the business they had, with proper management; •■and he insists that the evidence in this case is not such as would justify the jury in finding that he was guilty of any fraud or deceit.
“I might state at the outset, gentlemen, that it is necessary for the plaintiff to make a tender. It was necessary for the plaintiff to make a tender back to the defendants here of the $800 in money and the Hillsdale Manufacturing Company stock and the contract, in order that he might bring this suit. You have heard the evidence on that ■subject, as to whether he did or did not, and it is for you to •determine whether he did, at the time Mr. Riggs was here, make a tender to Mr. Cummins, and also to Mr. Smith, as claimed by him; and, if he did not make a tender at that time, as claimed by the plaintiff, the plaintiff cannot recover, unless you further find that Mr. Smith refused absolutely to receive them under any circumstances, whether he produced them there or not. It is claimed on the part of the plaintiff that they did- produce those papers; but, if Mr. Smith at that time refused to accept them, then he would be relieved from producing them in his sight, but, otherwise from that, it was his duty to make the tender.
“Then, if you find that the-plaintiff did make the tender, you come to the question of whether this action has been seasonably brought. Upon this question, you are instructed that, where one claims to have been induced to enter into a contract by fraud, it is his duty, upon the discovery that he has been defrauded, to rescind the contract within a reasonable length of time, by tendering back what he has received and demanding that of which he claims to have been defrauded; and the party defrauded is bound to use reasonable diligence and to use no avoidable delay in complaining.
“As I said, the plaintiff must have acted promptly to-rescind; and on this point I charge you, gentlemen, as-follows: It is a rule of law that, in cases where the plaintiff intends to rely upon fraud, that the rescission should be prompt and unequivocal; but each case depends upon its own circumstances and environments. Here the plaintiff claims that the evidence shows that the same men who-did perpetrate the fraud, if any was perpetrated, continued to use strong arguments and persuasions on the brother, Dell, continuing their deception after the transaction; claiming that the man Swaney would soon carry out his-contract; claiming at other times that the defendant Cummins would take the stock; claiming that they would bring purchasers to him up from Hudson and other places; and this information being continually forwarded to-Detroit to the plaintiff. Then, if you find that it was by reason of the acts of the defendants themselves, working through Dell McNaughton, the agent of the plaintiff, assuring the plaintiff that all would be well and come out right, lulling him into a feeling of security and safety, and that it had that effect upon him, in such case the person defrauded would not be called upon to make so prompt and decisive a rescission as might be the case where the facts were different. If you find that the plaintiff, upon discovering the fraud, acted in a reasonably prompt manner in tendering back this money and rescinding the whole transaction and beginning suit, you will take nothing against him because of the period or the lapse of time between the transaction and the commencement of suit. In other words, gentlemen, it is a question for you, under all the circumstances here, to say whether the rescission of the plaintiff, through Riggs, of the agreement, was sufficiently prompt to satisfy the law. ' The plaintiff claims that he did not fully discover the fraud which had been perpetrated upon him through the conduct of these defendants until the visit of Mr. Riggs to Mr. Smith, and that, as soon as he discovered the fraud, he at once authorized, said attorney to tender back all he had received through the transaction, and demand back his stock. If you fiúd that to be a fact, then I charge you that the defendants cannot claim any benefit because the contract was not more promptly rescinded, if you find that through their conduct the full knowledge of the fraud was kept from the plaintiff.
“Then, gentlemen, you come to the question of fraud.. If, under the evidence in this case, you find there was a scheme or an agreement or an understanding or a co-operation between Mr. Smith and Mr. Cummins to deceive this plaintiff, through the plaintiff’s agent, and fraudulently obtain from him this stock, and they did, and he relied upon those representations which were made, which you find to he false, and they did defraud him, then the plaintiff would be entitled to recover.
“Now, I have said if they did deceive him. If you find that the claim made here by the plaintiff, that Mr. Smith introduced Mr. Cummins to him, and that Mr. Cummins had a talk with him whereby he agreed to purchase this stock for 90 cents cash, -and then he went over there, and Mr. Cummins had an arrangement whereby he would pay him $800, and turn out to him as security this contract, and Mr. McNaughton made inquiries, or, whether he did or not, but anyhow he came to the conclusion that he would not take it, and he saw Mr. Smith, and Mr. Smith, as a part of the arrangement, said to him, for the purpose of inducing him to part with his stock and take this contract: ‘Why, I will take that stock off your hands at that price. It is perfectly good. This stock is worth from 75 cents to a dollar,’ — and you find that those things were false, and that he did not intend to take this stock off from his hands, then you will find against the defendants and for the plaintiff upon the question of fraud. On the other hand, if Mr. Smith made the representations independent of Mr. Cummins, or if he made them believing them to be true, as to the value of this stock, or if he made them, and was not co-operating with Cummins to cheat, wrong, or defraud plaintiff, then the plaintiff cannot recover. Or, if you find that plaintiff has not been defrauded in any way, of course he could not recover-.
“ The defendant Smith, here, I think, has announced through his counsel here that they make no defense for Mr. Cummins. He neither admits nor denies, so far as Mr. Cummins is concerned, anything one way or the -other,— whether those things are true as to Mr. Cummins or not; and the position he takes on this question is that, even if Mr. Cummins did get the ownership of this Omega stock through fraud, he (Smith) is not a party to it, and cannot he held accountable. But this is for you to say, under all the facts and circumstances developed here, whether or not the defendant Smith was connected with this fraud, if you find there was a fraud perpetrated on the plaintiff; and if you find that Mr. Smith co-operated with the defendant Cummins in this fraud, knowing that Cummins was engaged in a fraudulent scheme of the character charged, and the defendant Smith aided Cummins by helping to persuade the plaintiff’s agent into making the deal with Cummins, then the defendant Smith would be equally liable with Mr. Cummins for the results, regardless of what Mr. Smith may have paid Mr. Cummins for the stock that he got.
“You are not called upon to figure out who got the most out of this transaction, Smith or Cummins. It is enough for you to decide whether one or both participated. The law holds the person responsible who fraudulently contributes to the result; and it will not do for Mr. Smith, here, to claim that he bought and paid for this stock from Mr. Cummins, if you find that he aided Mr. Cummins in defrauding the plaintiff out of it. In other words, if Mr. Cummins did buy this stock of Mr. McNaughton, and it now shows up in Mr. Smith’s hands, as the result of a sale, legitimate enough in its character, from Mr. Cummins to Mr. Smith, and you find that Mr. Smith knew the manner and means by which Mr. Cummins was obtaining this stoek, and he (Smith) helped it along by the use of his influence over Mr. McNaughton, and what he said and did .in influencing Mr. McNaughton was not true, but was •calculated to defraud him out of this stock, then Mr. Smith .must be held responsible for this action, because, under the law, it was through him that the loss came to the plaintiff.
“ I have already stated to you, gentlemen, that if there was not any co-operation here, or any conspiracy or scheme to defraud, or if there was no fraud perpetrated, and it was an innocent transaction so far as Mr. Smith was concerned, then there could be no recovery against Mr. Smith.
“ Some evidence has been introduced tending to show that defendant Smith made statements to Dell McNaughton, and promised him, if Mr. Swaney did not carry out the written contract of purchase of the Hillsdale Manufacturing stock, and if Cummins did not redeem the stock, he (Smith)'would buy the Hillsdale Manufacturing stock at the price at which Swaney was to have it. You are instructed that no recovery can be had against Mr. Smith because of the mere promise to purchase if Swaney failed to carry out the written contract. Such a promise to purchase would be void under the statute of frauds, and cannot be enforced. But if you find that such promises were made by Smith, and they were false, and made by him for the purpose of profiting thereby and cheating the plaintiff, and that it was a part of a scheme between him and Cummins and Swañey, or any two of them, to defraud plaintiff, then he (Smith) would not be relieved from his statements by virtue of the statute of frauds.
“Fraud cannot be presumed, gentlemen, in a case of this kind. It must be established by proof. It must be proof such as naturally leads your mind to the conclusion that there was fraud committed.
“ The burden of proof is upon the plaintiff in this case. He must establish the claim which he asserts here by a preponderance of the evidence, — that is, there must be more evidence in favor of the claim that he asserts than there is against it; and the burden of proof in establishing fraud, as I said a moment ago, is upon the plaintiff. * * *
“ The credit of witnesses is for you. Give to each witness such credit as you think he, under all the circumstances, is entitled to, having regard for the appearance of the witness upon the stand, — whether he appears candid or not; desirous of telling the truth or not; whether he hás any interest in the result that would bias his testimony; or whether he has any prejudice, or whether there-is any influence brought to bear upon him that would, change his testimony from that which would be right. All of these things are to be taken into consideration by you in determining the weight and credit that you should give to the testimony of a witness. * * *
“I have given you these instructions with reference to both of these defendants. If you find there was fraud upon the part of Mr. Cummins, and not upon the part of Mr. Smith, you can bring your verdict in against Mr. Cummins. In other words, if you find that both of these-men participated in this fraud, then you will bring judgment against both of them, if you find for the plaintiff. If you find that only one of them participated in the fraud,, you may bring a judgment against the one that you find is guilty of fraud in this transaction. If you find there-was no fraud upon the part of either one of them, then your verdict will be for the defendants. If you find that one of them did not participate, but the other did, you will find a verdict against one of them, and not against the-other.”

The most important question presented by the assignments of error is whether the plaintiff made a case which should have been permitted to go to the jury. It-is the1 claim of defendant that, giving the most favorable version to the testimony, there was no case made against the defendant Smith. To use the language of counsel:

“ It is the theory of the defendant, first, that no fraud was practiced upon the plaintiff; and, second, that the defendant Smith had nothing to do with bringing about the deal between defendant Cummins and the plaintiff in such a way as would connect him legally with any of the transactions, or make him legally responsible for the results.”

The question of how fraud may be proven has been before the court repeatedly. In Ferris v. McQueen, 94 Mich. 367 (54 N. W. 164), Justice Long, speaking for the court, said :

In speaking of the other claims of fraud made by counsel for defendant, the court stated to the jury:
“ ‘Fraud must be proved, and must not be inferred from slight circumstances. Fraud may be proved, however, by circumstantial evidence as well as positive proof. Where fraud is charged, express proof is not required. It may be inferred from strong presumptive circumstances. Fraud will not be presumed upon slight circumstances or mere suspicion, but the circumstances must be such as to. amount to clear proof, before a party can be held liable for fraud; and it must be consistent with the acts of fraud charged, and inconsistent with honesty and good faith.’
“It is claimed that this was error; that it was misleading to the jury; that the court was in error in stating that ‘fraud must be proved, and must not be inferred from slight circumstances;’ and, again, in saying that ‘it may be inferred from strong presumptive circumstances.’
“In O’Donnell v. Segar, 25 Mich. 378, it appears that the jury were told by the trial court that ‘ they could not infer fraud, and that it could not rest upon implication.’ It was said by this court:
“ ‘We know of no such rule of evidence in reference to the question of fraud. It is, like any other fact, to be proved by any facts and circumstances which satisfy the mind of its existence, and may be, and generally is, when found, inferred from circumstances, and cannot often be proved in any other way.’
“ The court in the present case, however, told the jury that fraud could ‘ be proved by circumstantial evidence as. well as positive proof;’ and yet a limitation was placed upon this by adding that these facts and circumstances must not be slight, and the inference could only be drawn from strong presumptive circumstances, which must amount to clear proof. The rule is that fraud may be proved, like any other fact, by facts and circumstances which satisfy the mind of its existence, and it is a question for the jury when there is any evidence to warrant the finding. As was held in Freedman v. Campfield, 92 Mich. 118 (52 N. W. 630), when there is a scintilla of evidence the verdict will not be disturbed. "We think the court was not justified in the use of this language, and that the rule laid down is not. upheld by the cases.
“In Watkins v. Wallace, 19 Mich. 77, Mr. Justice Campbell, speaking of the charge in that case, says:
“ ‘ We think, however, that, in charging the jury concerning the proof of .fraud, the language used had a tendency to mislead the jury into a belief that more stringent proof was necessary than the law requires. The judge charged them that “fraud will not be presumed from slight circumstances; the proof must he clear and conclusive.” '
“This was held error, and the case reversed. It is a little difficult to see any distinction between such a charge and the one given here. The court did not say that the proof must be conclusive, but did say that it must be clear, and, in effect, that it could not be inferred except from strong presumptive circumstances. As in Watkins v. Wallace, supra, it may be said that:
“ • It might have misled the jury as to the amount and quality of proof required. * * * No such rigid rule prevails in any civil case. Common sense teaches every one’ to be cautious in arriving at conclusions which are prejudicial to character and honesty; but, if the testimony produces a rational belief, a civil jury cannot be required to discard it because it is not conclusively established.’
“We think the court was in error in this part of the charge.”

This case is cited with approval in Gumberg v. Treusch, 103 Mich. 543 (61 N. W. 872), and the court added:

“ Proof of facts and circumstances is sufficiently clear if it creates a belief that a fraud has" been perpetrated.”

In Morgan v. Andrews, 107 Mich. 33 (64 N. W. 869), Justice Long, again speaking for the court, said:

“Fraud is seldom shown by direct proof, but by facts and circumstances taken together, and the inferences to be drawn therefrom. Ross v. Miner, 67 Mich. 412 (35 N. W. 60). The rule is that fraud may be proved, the same as any other fact, by facts and circumstances which satisfy the mind, and it is a question for the jury when there is any evidence to warrant the finding. Freedman v. Campfield, 92 Mich. 118 (52 N. W. 630).”

The record is a long one. It would profit no one to recite all it contains bearing upon the questions of fraud and Mr. Smith’s relation to it. A careful reading of the record, and especially Mr. Smith’s cross-examination, convinces us there was abundant evidence tending to show fraud, and that Mr. Smith participated in it, which, if believed, justified the verdict of the jury.

A good many of the requests to charge on the part of the defendant state the proposition that Mr. Smith cannot be held liable for the reason that his promise to take the stock was not in writing, and therefore was void under the statute of frauds. A good many pages of the briefs of counsel are devoted to arguing this proposition. We think this question is not involved in the case. Plaintiff does not seek to recover for a breach of the agreement, but claims the promises were made in pursuance of a conspiracy and fraudulently, for the purpose of obtaining from him his stock. We think the judge properly charged the jury upon this feature of the case.

Another claim made by counsel, stated in their own language, is:

“ We contend that nowhere in the record is there any testimony either negativing or tending to negative the statements claimed to have been made either by Mr. Cummins or Mr. Smith. There is not a scintilla of evidence in the record that shows that one single statement made by either of these parties, as a matter of fact, was not absolutely true. All statements which were statements of fact stand either corroborated by the plaintiff’s testimony, or not negatived. The testimony nowhere shows that any representation of facts made by either Cummins or Smith was not absolutely true.”

On the part of the plaintiff it is said there was no claim in the trial court that the representations were not shown to be untrue, but the claim was that no such representations were made. The record would seem to sustain this contention, for, though defendant presented 18 different requests to charge, no suggestion is made in any of them that the statements plaintiff claims were made were not negatived. We do not, however, need to pass upon the question of whether this claim was made in the court below. It should be borne in mind that, at the time of this transaction, Mr. Smith was president of the company, and Mr. Cummins was its secretary and manager. They ought to have known, and doubtless did know, of the condition of the company. The testimony is that as soon as the plaintiff, in Detroit, learned about his brother’s taking this stock, he notified him it was valueless, and the brother, in turn, talked with Cummins and Smith about it. The trade was made the 18th of February, 1901. Mr. Riggs testified that in the fore part of May, 1901, he had a talk with Mr. Smith, in which he—

“Asked him if he was ready to turn over the stock at that time. He said no, he couldn’t turn it over then; that his wife was out of town, and he had turned it over to her. He said he got it cheap, and made her a present of it. During the conversation at Mr. Smith’s house, when I was telling them that this was a fraud, — that this stock wasn’t any good, — Mr. Smith wanted to know how I made that out. I told him from Dun’s report, and from reports that I had learned about it; and I said, ‘If it is of any value, will you take it F ’ He said no, he wouldn’t take it himself at any price.”

The record also shows the company passed into the hands of a trustee in the summer of 1901, and at that time there was a mortgage on its real estate, on which one year’s interest was unpaid. There was a chattel mortgage of $2,000, running to Smith and Cummins, to secure them for indorsing the company’s paper at the bank. At the time of the trial the property had been sold, and no stockholder had been paid anything, and there was no reason to suppose ever would be. We think it cannot be said there was no evidence that the company was not paying dividends, and was not paying its debts as promptly as any man in town, and that the stock was not worth from ?5 cents to par.

It is insisted the court erred in not giving the following requests:

‘ ‘ Fraud cannot be presumed, but must be proved, and the burden of proof is on him who complains of it. The law presumes fairness, rather than fraud, and the circumstances must be such as amount to clear proof before the party can be held liable in fraud. The circumstances from which a presumption of fraud arises must be strong and irresistible, to allow the plaintiff to recover. The presumptions are against fraud, and it may never be held proved by circumstances that are merely ambiguous. The inference to be drawn from circumstances must not only be •consistent with the acts of fraud charged, but inconsistent with honesty and good faith in the transaction.
“ Fraud is never presumed, nor will it be inferred from slight circumstances. It is not enough to establish fraud to show a large number of circumstances tending in that direction. It is only when that tendency is so strong that it generates full belief that it can be regarded as evidence, and it is not until that evidence has become so convincing' as to amount to positive proof that it should be considered as established.”

These requests assumed that more proof is required to establish fraud than the decisions of this court have said is required. We have already quoted enough from the opinions in Ferris v. McQueen, supra, and Morgan v. Andrews, supra, to show it was not error to refuse these requests. The judge charged upon this subject as follows :

“Fraud cannot be presumed, gentlemen, in a case of this kind. It must be established by proof. It must be proof such as naturally leads your mind to the conclusion that there was fraud committed.
“ The burden of proof is upon the plaintiff in this case. He must establish the claim which he asserts here by a preponderance of the evidence, — that is, there must be more evidence in favor of the claim that he asserts than there is .against it; and the burden of proof in establishing fraud, as I said a.moment ago, is upon the plaintiff.”

This is in accord with the opinions quoted.

Counsel say it was error to allow plaintiff—

“To show that, after this transaction was fully consummated, the defendant Cummins got into financial embarrassment, and was sent to Jackson upon a criminal charge; that, after this misfortune came upon defendant Cummins, the Hillsdale Manufacturing Company’s property was placed in the hands of a trustee, to be closed out-for the purpose of settling up its affairs and paying up its indebtedness; and the plaintiff’s counsel was permitted, against the objection of counsel for defendant Smith, to show by the cross-examination of the witness William Prideaux the condition of this property of the Hillsdale Manufacturing Company at the time it was being closed out by him as'such trustee, and what this property sold for.”

It is an answer to the first part of this' contention that Mr. Smith himself testified, without objection, that:

“ I was in Hillsdale when Cummins was arrested. I did not see him frequently while he was under arrest. L never was over there but once. I never saw him but once. He sent over word for me to come, and I went over. The first and second times the sheriff was not there, and the-third time I saw him. I had to go over three times before-I saw him. From reports, Mr. Swaney is over to Jackson, six years, and Cummins five years.”

As to the last part of this contention, we think the-testimony was competent, as bearing upon the value of.' the stock.

Complaint is made because Mr. Riggs was allowed to-testify what Mr. Cummins, who was then in State’s-prison, told him a year after the transaction, which was-as follows:

“He [Cummins] said it was George N. Smith’s transaction. He said he was a stool pigeon. He said he held, the stock just long enough for Dell to get out of the store, and that he got practically nothing out of it. He told us-at that time that he would be willing to have his deposition taken, and to testify to the statements he was making-to us.”

When this testimony was offered, the judge was of the-opinion the testimony was competent as against Mr. Cummins, if not against Mr. Smith, and admitted it. The next day the judge, upon his own motion, struck out the-testimony, and directed the jury they were not to consider it for any purpose. No further allusion was made to the testimony, and no request was made for further instructions to the jury upon that subject. It is not necessary to express any .opinion as to whether this testimony was admissible against Mr. Cummins. If it was inadmissible, the action of the circuit judge cured the error. See Dykes v. Wyman, 67 Mich. 236 (34 N. W. 561); People v. Keefer, 103 Mich. 83 (61 N. W. 338); Harris v. Cable, 113 Mich. 192 (71 N. W. 531); Barnett v. Insurance Co., 115 Mich. 247 (73 N. W. 372).

The other assignments of error have been considered. We do not think any of them well taken.

The judgment is affirmed;

Carpenter, Montgomery, and Hooker, JJ., concurred. Grant, J., took no part in the decision.