text:
      In re DU BOIS’ ESTATE.
    1. Evidence — Wills—Opinion Evidence.
    An opinion of a witness, on the trial of the question of mental competency to execute a will, that the testator understood what he was doing at the time of executing his will, was admissible, whether or not he had testified to facts and circumstances sufficient to admit his opinion as to the mental competency of deceased.
    2. Same — Trial—Conclusions.
    A question framed as follows: “State whether or not the stories (narrated by testator) were reasonable, connected stories,” was not open to the objection that it was leading, but was properly excluded, since it called for the conclusion of the witness.
    3. Same — Medical Authorities.
    On cross-examination of a medical expert, the trial court rightly refused to permit counsel to read extracts from a medical work, and to ask the opinion of witness concerning it.

      i. Same — Competency—Expert and Opinion Evidence.
    After the court had refused to permit a witness to answer a question concerning testator’s mental competency, counsel asked whether or not testator was able to transact ordinary business matters, and witness answered the first question, excluded by the court, testifying that the deceased was sane and competent to make a will. No motion was made to strike out the answer: Held that the question was admissible, the answer being objectionable as not responsive asid incompetent, but no error was committed in failing to strike it out, in the absence of a motion.
    5. Wills — Undue Influence.
    Undue influence may be proved by other than direct testimony that it has been exerted; and circumstances disclosed by the will itself and the manner of procuring it to be made may raise the presumption that undue influence has been exerted.
    6. Same.
    But where no such circumstances were disclosed by the evidence, the question was properly withdrawn from the consideration of the jury.

      7. Appeal and Error — Trial—Argument.
    On a record showing only detached portions of argument to which exception was taken in the trial court, and which the court rebuked, where the record did not disclose whether or not the improper argument was called out by remarks of opposing counsel, prejudicial error was not shown.
    Error to Tuscola; Beach, J.
    Submitted October 25, 1910.
    (Docket No, 112.)
    Decided December 22, 1910.
    Samuel R. Du Bois and Frank North offered for probate the will of Isaac Du Bois, deceased. From an order of the probate court admitting the instrument to probate, George H. Du Bois and Mary E. Lewis, contestants, appealed to the circuit court. A judgment sustaining the validity of the will is reviewed by contestants on writ of error.
    Affirmed.

      W. J. Spears, Harry G. Kimball, and Ellwood P. Morey, for appellants.

      Frank L. Foies, for appellees.
   Ostrander, J.

The probate court for the county of Tuscola admitted to probate an instrument proposed as the last will and testament of Isaac Du Bois, deceased. The contestants appealed to the circuit court, contending that deceased had not sufficient testamentary capacity to make the will, and that he was unduly influenced by relatives and those surrounding him at the time the will was made. A jury found that the instrument was the last will of the deceased, and contestants ask us to review the proceedings had at the trial. The errors assigned will be considered in the order in which they are presented in the brief for appellants.

One of the subscribing witnesses to the will was sworn and examined as a witness. He was asked:

“Q. From what you observed and discerned of Mr. Du Bois at the time he requested you to sign this as an attesting witness, in his presence, this will, did you form any conclusion as to whether he understood and comprehended the will ?
“A. I paid no further attention any more than I would to any other customer that I was waiting on in the bank.
“Q. I do not ask you to tell the conclusion, but did you arrive at any conclusion as to whether Mr. Du Bois understood and comprehended this particular will ? (An objection was made to this question by counsel for contestants, on the ground that it is not a proper question and on the ground that witness had not laid sufficient foundation, which said objection was overruled by the court. Contestants excepted.)
“A. I should think he fully understood what he was doing.
"Q. From what you observed and discerned, state whether or not the testator, Mr. Du Bois, appeared to be under any restraint or undue influence ?
“A. Not to my knowledge.”

It will be noticed that the question called for no opinion or conclusion, and could, and should, have been answered by yes or no. Assuming that the objection raises the question which is argued in the brief, namely, that the witness had not testified to such observation of the testator or to such acts or circumstances as entitled him to express an opinion concerning his mental competency, it is still apparent that the answer to the question imported no less and no more than the signature of the same witness to the will imported, which was that so far as appearances were noticed by the witness the testator appeared to understand what he was doing at the time of executing- the will which the witness attested.

A witness for the contestants had testified that the deceased, in August, 1906, was under his observation, and that he noticed, among other things, that he told long stories. Upon this subject the examination proceeded as follows:

“Q. Can you give us any idea of those stories, what would he say ?
“A. All of his early life; talked a great deal of his pony, told us his hunting trips and fishing, and how he lived while in the woods.
Q. State whether or not the stories were reasonable, connected stories ?”

Counsel for proponents objected upon the ground that the question was leading, and the objection was sustained. The argument which is made for appellants is that a witness may often state a conclusion or give an impression when he is unable to describe appearances. We see nothing in the question which would indicate that the witness was expected to answer the question in a particular way. The question was objectionable as calling for the conclusion of the witness. While this was not the ground of the objection, it appears to have been the ground of the ruling. Later, the witness was denied the privilege of answering the question, “ Did they have a point to them ?” referring to the stories, and the question, “Were these reasonable stories ? ” the court saying that those were questions for the jury. Still later, the witness attempted to describe the stories. The ruling of the court was correct, and the jury had the benefit of the description of the stories which the witness gave, and of the testimony tending to prove that the stories were frequently repeated. They also had the benefit of the opinion of other witnesses for contestants who testified, without objection, that decedent told long stories, without point, not reasonable or connected, repeating them without apparent reason.

A medical witness, called by the proponents, testified upon direct examination as follows:

“Q. Do people ever, die of arterio sclerosis standing by itself, except they have either apoplexy or an attack of the heart?
“A. Not in my experience.
• “Q. Do you know of any instance laid down in the authorities, except it is one or the other of the causes named that would immediately precede death ?
‘A. I do not.
“Q. Are there any authorities, with which you are familiar, that lay it down that death may ensue from that disease, except one or the other of these immediate causes obtain ?
“A. No.
“Q. State whether you know in your own experience, or know of any instance laid down in the authorities, of a person dying of arterio sclerosis or inanition due to that, where the capacity to transact ordinary business is questioned, for a period of two months prior to the death ?
“A. No, I don’t.”
On cross-examination, he testified as follows:
“Q. Does that have an effect on the mentality of the patient ?
“A. Arterio sclerosis ?
“Q. Yes.
“A. I never heard of a case where it did.
“ Q. Is Church & Peterson a good work on this ?
“A. On what ?
“Q. Church & Peterson on Nervous and Mental Diseases ?
“A. Supposed to be.
“Q. A standard authority ?
“A. It is one of them. I don’t know how late an edition you have got there; it might have been an authority a number of years ago, and not authority now. It would be well enough to know the edition.
“Q. Church & Peterson, 1903.
“A. That is quite recent.
Q. Is that a good authority on it ?
“A. I should say so.
“Q. Do you know whether it has any effect on cerebral activity ?
“A. Well, it will after a while, undoubtedly.
“Q. On page 197 of Church & Peterson it says (reading from book).
“Mr. Wixson: We object to reading from the medical book and substituting the text of some writer for the testimony of the witness, even upon cross-examination. We have no opportunity for redirect examination upon this authority. (Objection sustained. * * * Exception for contestants.)”

It is conceded by counsel for appellants that scientific books cannot be introduced in evidence, but contended that it is competent on cross-examination to base questions upon the contents of them or upon extracts from them, so long as the testimony is rigidly confined to the one purpose of testing the competency of the expert, or the value of his opinions. Assuming the rule to be as stated, we are not convinced that counsel was denied the benefit of it. We do not know what counsel proposed to read, or did read. The point is not ruled in appellants’ favor by Pinney v. Cahill, 48 Mich. 584 (12 N. W. 862), because the witness had not referred to the medical work as supporting his opinion, or professed any acquaintance with the work beyond its general reputation. We find no reason for refusing to apply the rule of Marshall v. Brown, 50 Mich. 148 (15 N. W. 55).

The same witness, on redirect examination, was asked:

“Q. Can you answer now, predicating your answer upon what you saw of him from the 20th of October to the 9th of November including the intervening visits, as to whether from your first visit on October 20th to November 9th the last, he had the capacity to make a will ?
“Mr. Kimball: Same objection.
“The Court: The objection is sustained to the latter portion of the question.
“Mr. Wixson: What particular portion, if the court please, if you will direct my attention to it ?
“The Court: Under your own objections haven’t we confined it to the question of the will in question in this case?
“Mr. Wixson: If the court please, I think the 134th Michigan decided that we are not obliged to confine it to the will in this case. My objections to the testimony of the contestants — perhaps the court and counsel misunderstood one another — was as to the question involving what would constitute legal testamentary capacity. Now, I don’t ask the doctor here as to his knowledge — without reference to what may or may not constitute capacity— I ask him predicating it solely upon what he observed upon these several visits. I cite the 134th Michigan, page 51.
“The Court: He may answer.
“Q. Predicating your answer solely upon what you observed of Isaac Du Bois on the occasion of your first visit, the last visit, and the intermediate visits, between those dates, did you, or could you now, have an opinion as to the capacity of Mr. Du Bois to transact and handle his ordinary business affairs? (Same objection. Objection overruled. Exception for contestants.)
“A. Yes; I have an opinion.
Q. What is that opinion ?
“A. That he was perfectly sane and competent to make a will.”

It will be noticed that the witness did not answer the question over which the colloquy occurred. The question he did answer was not subject to the same objection, and the ruling permitting an answer was not erroneous. The answer given was subject to the objection, on the part of proponents, that it was not responsive, and, on the part of the contestants, that it was really an answer to the question first put and subject to the objection which was debated. But no motion was made to strike it out.

At the close of the testimony, the court withdrew from the jury the question of undue influence, and this is assigned as error. The examination of the record which this assignment makes necessary has been made. The will was executed October 23, 1906. The testator died December 12, 1906, at the age of 62 years. He left no widow and no children; his kindred being three brothers, a sister, and the two children of a deceased brother. The sister lived in Washington, D. 0., one brother at Vassar, Mich., two brothers in California, and the nephews in Maine and New York, respectively. The legatees and respective bequests made are: To George, his brother, $1,000; to Charles, his brother, $3,000; to Mary, his sister, $2,000; to Edward, nephew, $1,000; to Nettie, widow of John, $1,000; to Matilda, wife of his brother, Samuel R., $3,000. Samuel R. is made residuary legatee. It seems to be conceded that of the property immediately disposed of by the will the residuary legatee would take very much the largest portion. These provisions, and the one for payment of debts, etc., are found in the first eight numbered paragraphs of the will. In the ninth paragraph is a recital of decedent’s interest, as legatee, in an estate in Missouri, “which will be paid at intervals and in different amounts for a term of twenty years from the date of such will.” Such sums as shall, after his death, be derived from this source the testator gives to Frank North, in trust, to hold and invest until the said 20 years shall have elapsed and the Missouri estate is closed, then to distribute, after paying taxes and expenses, to his brothers and sisters living at the time of the distribution, share and share alike, and if any are dead leaving descendants living at that time, such descendants to take the portion which would otherwise have been distributed to the ancestor.

Frank North, who is appointed executor and trustee, is cashier of, and a considerable stockholder in, a bank at Vassar. The lawyer who drew the will is the attorney of the bank and a personal friend of said North. Decedent formerly lived in and around Vassar, then at some point in the northern part of Michigan, then in Wisconsin, where he was a homesteader and where he lived alone. In 1904 he went to Hastings, Mich., where his brother Charles then resided, living with his brother, and from there to Vassar in February, 1905, to the home of his brother Samuel R. Du Bois, and lived with him the remainder of his life, some 22 months.

Notice of the bequest of a portion of the Missouri estate seems to have been received in May, 1905. With money from that source decedent purchased a farm of' 100 acres, erected some buildings thereon, and placed it in charge of an agent. The necessary inference from the testimony is that decedent had accumulated very little property, had very little education derived from schools and books, was addicted to the intemperate use of liquor, which intemperate use increased with prosperity. That his intemperance frequently made him incapable of transacting business, and had an effect upon his general condition which hastened his death, are facts which may be said to be established by the testimony. The certificate given at his death stated the cause of death to be “inanition due to arterio sclerosis.” To what extent his mental and physical capacity had been affected at the time the will was made is the subject of much of the testimony presented to the jury. Some facts are established. He went Medina, N. Y., and to Washington, D. 0., visiting, in February, 1906, remaining until about April 1st. In September, 1906, he attended the fair in Toronto, Canada, and on his return, after a day’s absence in Saginaw, he attended the State fair in Detroit. There is much conflicting testimony, professional and other, concerning his physical condition in October, .1906, and thereafter. He applied to Frank North to draw his will and was referred to Mr. Fales, who did draw it, and, according to his testimony, it was drawn to express what testator desired to have expressed therein. The circumstances were presented to the jury.

We do not find any testimony which tends to prove the .act, or fact, of solicitation of the decedent, or argument or persuasion, to make a will containing the provisions found in this one. Considering that each of his brothers and his sister profited equally with himself out of the Missouri estate, none of the provisions of the will clearly •offend what is sometimes called natural justice or feeling. Undoubtedly, undue influence may be proved by other than direct testimony that it has been exerted, and circumstances disclosed by the will itself and the manner of procuring it to be made may raise the presumption that undue influence has been exerted. In re McMaster’s Estate, 163 Mich. 310 (128 N. W. 259). Although it is contended by the appellants that the residuary legatee, the trustee and the lawyer who prepared the will were interested, each in a different way, in the preparation of such a will, it is not claimed that the interest and relations disclosed, and the will itself, give rise to the presumption referred to. It may be said here, as it was said in Hibbard v. Baker, 141 Mich. 124, 128 (104 N. W. 399), that if decedent was competent to make the will, there is involved no distinct question of undue influence. The court did not err in the ruling complained about.

Upon the question of the mental competency of the decedent the verdict of the jury was taken. Upon this subject the charge is not criticised.

The portions of the arguments of counsel for the proponents which appear in the record evidence a trial somewhat bitterly contested. The practice of sending to this court in the bill of exceptions single and detached statements made, by counsel in argument is not calculated, generally, to materially aid the court in determining whether the consequences should be a reversal of the judgment. Though such a penalty is sometimes imposed upon the client for misbehavior of counsel, it is for conduct prejudicial to the defeated party, not excused or palliated by the conduct or statements of counsel upon the other side, and not evidence merely of bad taste. Upon this record it appears that counsel for proponents improperly characterized the contestants and their counsel, and was rebuked by the court. We are not satisfied that contestants were prejudiced by the statements, since a jury is quite as likely to resent as to applaud unfair reasoning and vituperation.

The judgment is affirmed.

Bird, C. J., and Hooker, Moore, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    CROSS v. GRIFFIN.
    1. Specific) Performance — Pleading—Sufficiency of Title.
    In a suit for specific performance of a land contract, instituted by the vendee who avers a tender of the amount due and failure of the vendor to execute a sufficient deed, no issue can be raised without averring the claim in the pleadings, that the vendor, not having a good title to the premises, could not forfeit the interest of the vendee for a default.

      3. Same.
    Relief is rightly refused to the assignee cf a purchaser’s rights under a land contract, which, for a default in stipulated payments, had been forfeited by the vendor taking possession of the premises with notice to the vendee, who afterwards assigned his interest to complainant.
    Appeal from Newaygo; Palmer, J.
    Submitted October 27, 1910.
    (Docket No. 127.)
    Decided December 22, 1910.
    Bill by Charles B. Cross against Albert E. Griffin and Lucy Griffin, for specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Gross, Vanderwerp, Foote & Boss, for complainant.

      John G. Anderson, for defendants.
   Ostrander, J.

Complainant, claiming to have succeeded to the rights of the vendee in an executory contract for the purchase and sale of land, files his bill against the vendor and his wife for specific performance. It appears from the contract, which is set out with the bill, and is dated November 30, 1901, that the purchase price was $250, and of this the vendee paid $150. The contract permitted the vendee to occupy the land. The vendor agreed, upon payment of the purchase money and payment of taxes, etc., to execute and deliver a good and sufficient deed, conveying a good and unincumbered title in fee simple. The forfeiture clause contained the following:

“And if he shall, at any time hereafter, violate or neglect to fulfill any of said agreements he shall forfeit all rights or claims under this contract, and be liable to the said party of the first part for damages, and shall also be liable to be removed from the said land in the same manner as is provided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease. And it shall be lawful for the said party of the first part, at any time after the violation or nonfulfillment of any of the said agreements on the part of the said party of the second part, to sell and convey the said land, or any part thereof, to any other person whomsoever; and the. said party of the first part shall not be liable in any way, nor to any person, to refund any part of the money which he may have received on this contract, nor for any damages on account, of such sale.”

The fourth (third annual) payment of $50 was due November 30, 1904. It is charged in the bill that the vendee on December 1, 1904, offered to pay the vendor $106, if he would then, under the agreement, execute and deliver a deed of the premises, and tendered the vendor $106, which sum the vendor refused, unless the vendee would accept a quitclaim deed of the premises, which he would not do; that thereafter the vendee was ready and always willing to pay the vendor $106 and to perform the agreement on his part whenever the vendor would execute and deliver a good and sufficient deed of the premises. It is charged that on March 4, 1907, the vendee conveyed his interest in the contract and land to complainant, who thereafter gave the vendor notice, in writing, of the acquirement of such interest and forbade the cutting of timber on the land. The notice also contains the statement that an agent of complainant, named in the notice, is authorized to take possession of the land, to tender the balance due on the contract, and to receive a deed of the premises, and that if a conveyance is refused a bill will be filed for specific performance of the contract. It is charged that the contract is in force. The bill is verified. It was answered, a replication was filed, and a hearing was had in open court. The bill was dismissed.

The proofs do not sustain the case made by the bill. We find that the vendee never tendered to the vendor $106, or any other sum, for a conveyance, and the vendor never required or proposed that the vendee should accept a quitclaim deed of the premises. On the contrary, the vendee proposed in November, or December, 1904, to pay the balance unpaid on the contract and take a deed. The vendor assented, gave orders to have an abstract and deed of the land prepared, when he was told by the vendee that his title was infirm and that he would not accept a deed from him. Thereupon the vendor canceled his order for the preparation of a deed, and desired the vendee to pay him the sum which, by the terms of the contract, was then due and unpaid. This the vendee refused to do, saying he would put no more money into the place. Since then, neither he nor any one for him, or in his right, has paid or tendered any portion of the purchase money. The vendor, as he told the vendee he would do, re-entered peaceably and has been and is now in possession. Of the re-entry and removal of some of his property, the vendee had early notice.

Considerable is said in the briefs about the state of the vendor’s title to the land. The recitals in an abstract of title were read into the record, and it appears to be agreed that they correctly indicate the condition of the record title. It is asserted in the brief for the defendant (vendor) that the land had been occupied for 22 years by vendor and his grantors under tax titles. We are referred to no testimony supporting the assertion. The title of the vendor was acquired by quitclaim deed, dated January 29, 1900. His grantor’s title originated in a deed given by the auditor general in 1882, for taxes for the years 1875-1879 inclusive. There are other tax titles, as well as the original or government title, outstanding.

Whatever support there may have been for the vendee’s assertion that the vendor had not good title, and however the real or apparent condition of the title may have excused the refusal of the vendee to make further payments, and denied to the vendor the right to declare or work a forfeiture, these questions are not raised by the pleadings. The bill does not attack the title of the vendor and no right of the vendee is predicated on a want of title. A single reason is given in the bill for the refusal to make payments. That reason has no support in fact. The case stands, then, as if the vendee had, without excuse, refused to perform the contract, declaring, also, that he should pay no'more. The consequences of such a default are declared in the contract to be forfeiture of all rights thereunder. If it is doubtful whether by the terms of the contract alone such default ipso facto forfeited the vendee’s rights, there can be no doubt that the vendor, with notice to-the vendee, accomplished both an entry and forfeiture before any assignment was made by the vendee to complainant. We are of opinion, therefore, that the circuit court rightly refused complainant relief.

The decree is affirmed, with costs to appellee.

Bird, C. J., and Hooker, Moore, and Stone, JJ., concurred.


text:
    VOLLI v. WIRTH.
    Limitation of Actions — Demand—Assumpsit.
    The statute of limitations bars an action of assumpsit for money loaned on interest, in separate items, of which the last was advanced more than seven years before any demand was made; the transaction amounting to a loan payable within a reasonable time after demand.
    Error to Wayne; Donovan, J.
    Submitted October 28, 1910.
    (Docket No. 136.)
    Decided December 22, 1910.
    Assumpsit in justice’s court by Frederick Yolli against Frederick Wirth, for money loaned. Defendant appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Lehman, Biggs & Lehman, for appellant.

      Merriam, YerJces, Simons & Ladd, for appellee.
    This action was begun in justice’s court, where the plaintiff declared, orally, upon the common counts in assumpsit and filed a bill of particulars, the last item of which was money delivered to defendant December 11, 1898. The plea was the general issue, with notice that the cause of action was barred by the statute of limitations. In the circuit court the cause came on to be tried October 22, 1909, and counsel for plaintiff made an opening statement to the jury. This statement, in substance and effect, was that plaintiff came to this country from Germany in 1889 and became acquainted with the defendant—
    “ I think during the first or second year he was in this country, at any rate, within the first years he was in this country, he was out of employment, and not feeling very well, and he went to Mr. Wirth’s and stayed there, and made it his home, and while there he let Mr. Wirth have $40 dollars, without any statement about_the interest. He just let him have it to take care of, and upon the express agreement that when he wanted- the money, he should tell Mr. Wirth that he wanted it, and then Mr. Wirth, after being told that he wanted it, was to have a reasonable time to raise the money, and not be crowded. And the thing ran along a year or such a matter, and he let him have $12 more on the same arrangement — nothing said about interest — just let him have it to take care of it; and it was stated when he wanted it he would pay him the two sums together. And about a year after that, $18; and about a year after that, and, I think, the latter part of the year 1898, Mr. Volli had some money in the City Savings Bank, and Mr. Wirth wanted to use some money, and he spoke to him about it, and he either drew the whole sum, or the principal portion of it, from the bank and gave it to him, again upon the identical same understanding be bad given him the other money. He was to take care of it for him and use it, and take care of it, and nothing said about the interest, and pay him back when he wanted it, and he let him have $180 at that time. * * * And the thing ran along until about November, 1905. Mr. Yolli wanted to get his money together, and he asked Mr. Jacob Ruester, a carpenter living upon Medbury avenue, 1050 Med-bury, a man whose acquaintance he had made, and a friend of his, where he sometimes stayed when he had no particular work, and he took him out and Mrs. Ruester fixed up in German a paper, an acknowledgment showing what sums of money he had let him have up to that time. And he went out then and told him he would either like to have the money or else sign an acknowledgment, because he could not tell what might happen, and Mr. Wirth says: ‘You give me another year, and come again, and I will pay you the whole sum,’ and he went away again, and he did not make further demand upon him at that time, until ahout two years after. And he * * * went out there a year ago last summer, shortly before these suits were started, and he again asked him to pay the money, or give some obligation. He says: ‘You never come out here unless you bring a couple of loafers with you, and I want you to get off my farm,’ and he drove them off the place. And Mr. Volli then brought suit to recover his money, and you all understand that there is a certain jurisdiction in the justice court; so he brought suit for these four sums, $40, $12, $18, and $180, and that is the suit that is now before you for determination.”
    At the conclusion of this statement, the attorney for defendant submitted to the court whether, assuming the facts stated to be proven, plaintiff was entitled to recover. In answer to questions by the court, the attorney for the plaintiff stated that no receipt for the money was given, no partial payment ever made, no note given, the defendant had not been absent from the State, but had lived all the time within four or five miles of the plaintiff, plaintiff had not been confined or insane. After an argument, during which plaintiff’s attorney was permitted to offer in evidence a paper writing, referred to in the opening statement of counsel, which was prepared for the purpose of obtaining an acknowledgment of the debt from the defendant, the court directed a verdict for the defendant. This writing, literally translated, reads:
    “ I have of Mr. Frederick Volli a capital borrowed and indeed in sums: first, $40, then $12, $18. On 26 December, 1898, the sum of $180, then later $50 and then $25; now is the sum $325 today not yet paid with interest. Detroit, the 2 Dec. 1905.”
    A number of requests to charge were preferred on the part of the plaintiff and refused, and exceptions were taken. The question presented by the assignments of eTor is, whether the action is barred by the statute of limitations; it being admitted that the last item of money involved in this suit was given to defendant December 11, 1898, and the first demand was made December 2, 1905.
   Ostrander, J.

(after stating the facts). The writing prepared at the instance of the plaintiff indicates that interest was due, and that interest was expected is conceded in the brief for plaintiff. It seems, then, that each transaction amounted to a lending of money, upon interest, payable within a reasonable time after demand. It is not perceived in what respect the case would be different if each time plaintiff gave defendant money he had received a demand note or a receipt for money to be accounted for on demand. And if it be assumed that an actual demand was contemplated by the parties and was necessary before an action to recover the money could be maintained, no demand was made until nearly seven years had expired after the last money was given to defendant. The court therefore was not in error in holding that the plaintiff could not recover. Palmer v. Palmer, 36 Mich. 487 (24 Am. Rep. 605); Freeman v. Ingerson, 143 Mich. 7 (106 N. W. 278).

The judgment is affirmed.

Bird, C. J., and Hooker, Moore, and Stone, JJ., concurred.


author: Hooker, J.

text:
    CUSICK v. KINNEY.
    Automobiles — Highways—Negligence. '
    Plaintiff was leading his horse along the highway when defendant approached in his automobile. The horse became frightened while the car was some distance away, and, as defendant came nearer, reared, struck plaintiff down and injured him. Plaintiff did not signal for the driver to check the machine. Held, that the questions of negligence and contributory negligence were for the jury.

    Error to Livingston; Miner, J.
    Submitted October 28, 1910.
    (Docket No. 157.)
    Decided December 22, 1910.
    Case by William Cusick against Asa M. Kinney for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.
    , W. E1. Robb and Louis E. Howlett, for appellant.

      Shields & Shields, for appellee.

       As to law governing automobiles, see note to Christy v. Elliott (Ill.), 1 L. R. A. (N. S.) 215.

   Hooker, J.

The plaintiff has appealed from a directed verdict.

He was injured by a horse that was frightened by an automobile. Plaintiff was leading a horse by a headstall, when defendant’s automobile came over a hill 25 rods distant. The horse was restive. Plaintiff did not signal for the driver to stop, and he came along toward the horse, which finally reared and struck plaintiff down and ran away. The court directed a verdict upon the ground of contributory negligence, holding that the plaintiff should have let go of his horse.

We are of the opinion that this was error. Both the question of defendant’s negligence and plaintiff’s contributory negligence should have been submitted to the jury. It is quite possible that they might have found contributory negligence, or that the defendant was not negligent; but the testimony was not undisputed and a case for the jury was made.

The judgment is reversed, and a new trial ordered.

Bird, O. J., and Ostrander, Moore, and Stone, JJ., concurred.


author: Bed, C. J. Hooker, J.

text:
    MAY v. WILSON.
    1. Limitation of Actions — Seduction—Personal Injuries — Words and Phrases — Statutes.
    An action for seduction under a promise of marriage is barred, ■ unless commenced within three years, by Act No. 155, Pub. Acts 1899, relating to actions for personal injuries.
    2. Same — Words and Phrases.
    A personal wrong is an invasion of a personal right; it pertains to the person, the individual, as contradistinguished from an injury to property.
    3. Appeal and Error — Trial — Directing Verdict on Statement of Counsel.
    The direction of a verdict, upon the opening statement of plaintiff’s attorney, will not be reversed, on error, if no protest against the action of the court was made at the trial, and the attorney does not claim that he could make a stronger case by his evidence than he presented in the opening, which was insufficient to take the case out of the statute of limitations.
    Error to Wayne; Donovan, J.
    Submitted October 28, 1910.
    (Docket No. 154.)
    Decided December 22, 1910.
    Case by Clara May against Seneca C. Wilson for se-

      duction under a promise of marriage. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Affirmed.

      Thomas Hislop, for appellant.

      George F. and Peter J. Monaghan, for appellee.
   Bed, C. J.

The defendant was apprehended on a capias to answer to plaintiff in an action on the case for having seduced her under promise of marriage. The case was begun on the 27th day of May, 1909. Defendant pleaded the general issue and gave notice of the statute of limitations. When the case came on for trial, plaintiff’s counsel made his opening statement to the jury, in which he stated that the seduction occurred on the 24th day of June, 1905. The defendant’s counsel then moved the court for a directed verdict for the reasons:

• (1) Because from the statement of-counsel, that the seduction took place on the 24th day of June, 1905, the action is barred by the statute of limitations.
(2) Because another suit of like character was begun on the 7th day of March, 1906, and plaintiff was defaulted for failure to file her declaration within the time prescribed by the rules of court, and the court afterwards refused to set aside the default.

The trial court was of the opinion that both grounds were well taken and accordingly directed a verdict for defendant.

It is the claim of defendant that an action for seduction is an action for personal injuries, within the meaning of Act No. 155, Pub. Acts 1899, which reads as follows:

“Section 1. That no action shall hereafter be brought in any courts of this State to recover damages for personal injuries, unless the same shall be brought within three years from the occurrence upon which the claim for liability is founded.
“ Sec. 2. All acts or parts of acts in anywise contravening any of the provisions of this act are hereby repealed.”

Prior to the passage of this act, the statute of limitations applicable to actions of seduction was six years. Section 9728, 3 Comp. Laws. The question, then, is whether an action for seduction is an action for personal injuries. If it is, it follows that the foregoing statute applies and the limitation on such actions is reduced to three years.

This court has said that, “a personal wrong or injury is an invasion of a personal right; it pertains to the person, the individual ”(People v. Quanstrom, 93 Mich. 254 [53 N. W. 165, 17 L. R. A. 723]), as contradistinguished from injuries to property (Norris v. Grove, 100 Mich. 256 [58 N. W. 1006]). The injury complained of by plaintiff in her declaration is one against her person, and the damages which she claims are traceable directly to that injury. She alleges that by reason of the injury she has given birth to a child and has suffered great physical and mental pain and loss of health. How could her injuries have been more of a personal nature if she had been run down by a street car and injured, and, as a consequence, been greatly injured in body and mind and suffered a loss of health ?

In Hutcherson v. Durden, 113 Ca. 987, 991 (39 S. E. 495, 496, 54 L. R. A. 811), the plaintiff brought an action to recover damages for the seduction of his daughter and upon the trial the same question was raised as is raised here. The section of the Code relied upon was as follows:

“Actions for injuries done to the person shall be brought within two years after the right of action accrues,' except for injuries to reputation, which shall be brought within one year.”

When passing upon the question, the court said:

“ It is, we think, therefore, evident that the meaning of the expression ‘ injuries to the person ’ as understood by the codifiers and within the scheme of classification adopted in the Code, was not confined to mere physical or bodily injuries, but embraces all actionable injuries to the individual himself, as distinguished from injuries to his property. * * * We think, however, that section 3900 of the Civil Code of 1895, itself shows that the expression, ‘ injuries done to the person,’ as therein used, includes not only injuries to the physical body, but every other injury for which an action may be brought, done to the individual and not to his property.”

Other cases holding to the same effect are: Garrison v. Burden, 40 Ala. 513; Hoover v. Palmer, 80 N. C. 313.

As all the injuries complained of in this case, and which are usually complained of in cases of like kind, are personal to the plaintiff, we think it should be held that an action for seduction is an action for personal injuries, within the meaning of Act No. 155, Pub. Acts 1899. It would follow that the plaintiff’s case is barred by the statute, and that the trial court was right in so holding.

We refrain from discussing the second ground of dismissal for want of a sufficient record of the proceedings of the former suit.

Error is assigned on the action of the trial court in directing a verdict for the defendant upon the opening state-. ment of plaintiff’s counsel. The record does not show that plaintiff entered any protest to the action of the court at the time and he makes no claim in this court that he did not state the case to the jury as strong as the witnesses would have stated it, if they had been permitted to testify. If the opening statement disclosed plaintiff’s case as fully as it would have been disclosed had the witnesses testified, the case ought not to be reversed for that reason. In view of the fact that plaintiff fails to point out how his client’s rights were prejudiced in any way by such action of the court, we think the assignment is not well taken. Spicer v. Bonker, 45 Mich. 630 (8 N. W. 518).

The case is affirmed, with costs.

Ostrander, Hooker, Moore, and Stone, JJ., concurred with Bird, C. J.

Hooker, J.

I concur in the opinion of Mr. Justice Bird, for the reasons stated therein and for the following additional reason: Act No. 239, Pub. Acts 1909, was introduced, discussed, and passed by both houses under the following title, viz.:

“A bill to amend section 2 of chapter 140 of the Revised Statutes of 1846, entitled, ‘Of the limitations of personal actions,’ the same being compiler’s section 9729 of the Compiled Laws of 1897, as amended by Act No. 168 of the Public Acts of 1905.”

Both section 9729 and Act No. 168, which had a similar title, covered actions of assault and battery, false imprisonment, slander, and libel. The latter added actions for malpractice. It would seem to follow that a more comprehensive section was intended, rather than one limited to the class of actions popularly referred to by the term “ personal injury cases.” The title forbids the assumption that the last act was passed merely to cover such cases, and that in passing it there was no intention to affect the classes of cases covered by section 9729, and Act No. 168. Evidently the intention was to include all in the new act, and the term “ personalinjuries ” should be given the broad construction contended for in defendant’s brief. See Williams v. Williams, 20 Colo. 51 (37 Pac. 614); Hutcherson v. Durden, 113 Ga. 987 (39 S. E. 495, 54 L. R. A. 811); Houston Printing Co. v. Dement, 18 Tex. Civ. App. 30 (44 S. W. 558); Martin v. Telegraph Co., 6 Tex. Civ. App. 619 (26 S. W. 136); McMurtry v. Railroad Co., 84 Ky. 462 (1 S. W. 815); 3 Blackstone’s Commentaries, p. 118. These cases are all cited in defendant’s brief, but we include them here for convenient reference.

The judgment should be affirmed.

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


author: Bird, C. J.

text:
    HOLLEY v. HORTON.
    1. Homestead — Exemptions—Purchase Price.
    The provisions of section 2, Art. 16, Const. 1850, and of section 2,Art. 14, Const. 1909,with the statute (3Comp.Laws, § 10362), creating the homestead exemption, limit the amount of land to forty acres, and cannot be construed to exempt the entire purchase price of a parcel, claimed to constitute a homestead, consisting of forty-one acres of land; and the additional one forty-first portion of such purchase price may be levied upon in garnishment proceedings against the vendee by a creditor of the homestead owner, who has sold the property on a land contract.
    2. Same — Waiver—Selection—Statutes.
    And it is a sufficient and timely selection of the homestead right, where the owner, who had conveyed the premises by land contract, filed a bill of complaint to enjoin the proceedings at law, and claiming her homestead, at the first opportunity after learning that the unpaid purchase price had been garnished.
    3. Same — Selection.
    The owner of real estate including a homestead is not obliged to select the exemption until the officer who levies on the land mates and presents an appraisal.
    Appeal from Livingston; Miner, J.
    Submitted November 14, 1910.
    (Docket No. 165.)
    Decided December 22, 1910.
    Bill by Ella Holley against John F. Bedinger and William Horton to enjoin garnishment proceedings and have her rights of exemption determined. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Louis E. Howlett, for complainant.

      Shields & Shields, for defendant Horton.
   Bird, C. J.

Complainant Í3 a resident of Livingston county and filed her bill of complaint in the circuit court for that county to enjoin certain proceedings at law, and to have declared exempt certain premises as her homestead.

The complainant was the owner of 41 acres of land in the township of Iosco, Livingston county. There was a' mortgage on it of $550. She and her husband occupied it as a homestead. Neither complainant nor her husband was the owner of any other real estate. The complainant, being desirous of freeing herself from debt, made a contract with defendant Redinger for the sale to him of the premises, subject to the mortgage, for $1,450, $100 to be paid down and the balance to be payable October 1, 1909. Prior to the making of this contract defendant Horton had obtained a judgment against complainant for $120 in justice’s court. Subsequent to the making of the. contract he garnished the defendant Redinger, seeking to satisfy his judgment out of the balance due complainant from the sale of the premises. At this juncture of affairs complainant filed her bill of complaint to stay the proceedings at law and to have the premises declared exempt as a homestead, and the proceeds thereof exempt from legal process. The pleadings were perfected and a hearing had, and the trial court found that the premises were exempt as a homestead, that the purchase price thereof was likewise exempt from legal process, and that she had not waived her exemption. From this decree, the defendant Horton appeals.

It is claimed by defendants that the trial court was wrong in holding that the premises constituted a homestead, for the reason that its acreage was in excess of that permitted by the Constitution and statute of the State, and that if it were a homestead she had waived her homestead rights by her failure to make a selection.

The Constitution provides that:

“Every homestead of not exceeding forty acres of land and the dwelling house thereon, and the appurtenances to be selected by'the owner thereof, and not included in any town plat, city or village, * * * shall be exempt from forced sale on execution or any other final process from a court.” Section 2, art. 16.

The statutory provision provides that:

“A homestead consisting of any quantity of land not exceeding forty acres and the dwelling house thereon and its appurtenances, to be selected by the owner thereof, and not included in any recorded town plat or city or village, ‡ * shall not be subject to forced sale on execution, or any other final process from a court for any debt or debts growing out of or founded upon contract either express or implied.” 3 Comp. Laws, § 10362.

The language of both the Constitution and statute, as to the quantity of land that may be exempted, is susceptible of but one construction. The limitation is clear. There is no room for any refinement in construing it. It means just what it says, “not to exceed 40 acres.” If we can say 41 acres may be exempted under this language, why not 46 or 50 acres ? Complainant’s counsel argues that if this provision is construed as liberally as the one exempting a lot in a village or city, that the exemption can be made to include the 41 acres. The difference in construction is explained by the difference in the language creating the exemptions. The language of one provision is, “not exceeding 40 acresin the other, “a quantity of land not exceeding in amount one lot.” An acre of land is a definite and fixed quantity, always the same, whereas the word “lot” is more or less indefinite as to quantity. It may be a large lot or a small lot, but there is no such thing as a large or small acre. A certain quantity of land may be one lot today and two lots tomorrow. This uncertainty as to how much land constitutes a lot has undoubtedly given rise to the liberal construction in King v. Welborn, 83 Mich. 195 (47 N. W. 106, 9 L. R. A. 803), and other cases cited by counsel. The constitutional provision, which differs somewhat from the statutory one, also justifies the construction given in these cases. We cannot construe this exemption so as to include the 41 acres without doing violence to plain, unambiguous language. We are of the opinion that ■££ of the premises were exempt as a homestead, and as the homestead has been converted into a fund nowin court by stipulation, it follows that ■£-£ of the fund are exempt from legal process.

It is also insisted that plaintiff has waived her exemption by a failure to claim it. We cannot agree with counsel in this contention. If the land had been levied upon while she o'vyned it, she would not have been obliged to make a selection of her homestead until an appraisal was made and presented to her by the officer making the levy. Riggs v. Sterling, 60 Mich. 643 (27 N. W. 705, 1 Am. St. Rep. 554). As soon as the proceeds of the sale were attacked, she filed this bill claiming her homestead rights. We do not see how she could have claimed her exemption sooner. She claimed it at the first opportunity she had after she knew that defendant Horton was taking steps to subject the proceeds of her home to the payment of his claim.

The decree will be modified, as herein indicated, and affirmed, with costs to the defendant.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.

       Const. of 1850. For similar provision, in new Constitution, see section 2, Art. 14, Const. 1909.


author: Stone, J.

text:
    HARTZ v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Certiorari—Appeal and Error.
    A finding of the circuit court, on certiorari, for the purpose of reviewing proceedings to lay out a highway, that no error was shown that would require a reversal of the action of the defendant highway commissioner, constitutes a final judgment, reviewable on error or certiorari in the Supreme Court.
    3. Same — Adequate Remedy — Judgment.
    Mandamus is not the proper remedy to revise a final judgment on matters of record, which may be returned and examined on certiorari.
    Mandamus by John C. Hartz against James O. Mur fin, circuit judge of Wayne county, to compel the respondent to vacate an order dismissing a writ of certiorari and to quash certain proceedings of Berton D. Brown, highway commissioner, to open a highway.
    Submitted November 29, 1910.
    (Calendar No. 24,272.)
    Writ denied December 22, 1910.

      Keena, Lightner & Oxtoby, for relator.

      C. O. Yerkes, for respondent.
   Stone, J.

In this cause petitioner seeks to review by mandamus the action of the circuit judge in dismissing proceedings pending in the circuit court upon certiorari issued to the commissioner of highways of the township of Plymouth, and the clerk of said township, whereby petitioner sought to review certain proceedings had for the purpose of opening a highway in said township. An order to show cause was granted herein, and the respondent has answered.

It appears that the circuit judge disposed of the certiorari case upon its merits, as will appear by the following excerpt from his written finding:

“A re-examination of the record and'of the case, is convincing that no error affirmatively appears such as requires a reversal. For that reason the writ of certiorari may be dismissed.”

It is very clear that this was a final judgment upon the merits of the case.

Counsel for respondent contends that petitioner is in error in attempting to bring the case to this court by mandamus, and that his proper remedy, if any, is by writ of error, or certiorari.

It is settled by a long line of decisions in this State that mandamus is not the proper proceeding where the relief sought is the revision of a final judgment of matters of record, and where everything necessary to a determination may be returned on a writ of certiorari. Wiley v. Allegan Circuit Judge, 29 Mich. 487; Mobley v. Judge of Superior Court, 32 Mich. 190; O’Brien v. Tallman, 36 Mich. 13; Stall v. Diamond, 37 Mich. 429; Olson v. Muskegon Circuit Judge, 49 Mich. 85 (13 N. W. 369); Reed v. St. Clair Circuit Judge, 122 Mich. 153 (80 N. W. 985); Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355).

In the last-cited case it was held that mandamus will not lie to compel a circuit judge to vacate an order quashing, with costs, a writ of replevin, since the order is final, and reviewable on error. To the same effect is Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W.. 1), relating to an order quashing a writ of capias ad respondendum.

Unless the writ of certiorari is to lose its office, it should be resorted to here. The writ will be denied on this ground.

Writ denied.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


author: Moore, J. Ostrander, J.

text:
    McINTIRE v. CARR.
    1. Compromise and Settlement — Tender—Pleading—Contracts.
    In an action of assumpsit for breach of a contract, an offer of compromise which was shown by the evidence, and which was a substantial compliance with the contract alleged in plaintiff’s declaration, but was not treated by the party making the offer as a tender, and was made only for the purpose of avoiding litigation, being accepted by plaintiff and then withdrawn by defendant, did not constitute a tender, or a sufficient defense to plaintiff’s cause of action.

      2. Contracts — Assdmpsit—Pleading—Corporate Stock.
    Allegations of a declaration state a cause of action where the pleading shows that defendant agreed with plaintiff to form a corporation and transfer certain stock to plaintiff, and give him an interest in other stock in consideration of his associating himself in the enterprise, that plaintiff entered upon the performance of his part of the agreement, and that the business had been conducted profitably, but defendant had refused and neglected, although, often requested, to perform the said contract.
    Error to Saginaw; Kendrick, J.
    Submitted November 28,1910.
    (Docket No. 92.)

    Decided December 22,1910.
    Assumpsit by Arthur F. McIntire against Henry W. Carr, for breach of contract. A judgment for defendant upon a motion and objection to the introduction of evidence under the pleadings, is reviewed by the plaintiff on writ of error.
    Reversed.

      John A. McKay (James H. Davitt, of counsel), for appellant.

      Beach, O’Keefe & Bockwith, for appellee.
   Moore, J.

From a directed verdict the plaintiff has brought the case here by writ of error. We quote from the first count of the declaration of the plaintiff:

“ For that whereas the said plaintiff is and has heretofore for 15 months or thereabouts been a resident of the city of Saginaw, in said county, where, on or about, to wit, the 8th day of August, 1907, he entered the employment of the Saginaw Milling Company, a Michigan corporation, having its head office at Saginaw, Michigan, and engaged in a general flour and other milling business, and in the business of buying, selling and dealing in grain, hay, beans, vegetables and other farm products, and leasing, owning and operating elevators at various places in Michigan for carrying on its said business, and at the time this plaintiff entered the employment of said Saginaw Milling Company Henry W. Carr, the said defendant, was its general manager and had been such general manager for a number of years previous, to wit, fourteen years, and this plaintiff became assistant to the general manager, and continued in the employment of said Saginaw Milling Company as assistant to the said defendant, Henry W. Carr, until on or about, to wit, the 13th day of April, 1908, when, relying upon the inducements and promises hereinafter fully set forth, held out and made to him by said Henry W. Carr, who had resigned his position of general manager of said Saginaw Milling Company, to engage on his own account in the business of grain and mechandise broker, buying and selling on commission, grain, hay, and other farm products and furnishing to elevators, shippers and others, farm and other supplies, consisting of coal, salt, cement, brick, tile, lime, etc., * * * which said inducement and promises of said defendant, by which he prevailed upon this plaintiff to resign his position with said Saginaw Milling Company and forego the prospects which it offered and had held out to him, and to co-operate and associate himself with said defendant, were, that in consideration of the plaintiff’s cooperating with the, defendant and associating himself in said business with the defendant, and in consideration of and in return for the assistance, knowledge, experience and good will of the plaintiff, which were all of a practical character and value in the organization of said new business, said defendant promised and undertook to organize said business as a corporation with a total capital stock of $50,000, and to transfer to this plaintiff certain interests therein, to wit, capital stock therein to the par value of $1,000, of the value of $1,000, the income on $5,000 par value of said capital stock for two years of the value of $5,000, and in addition, the option of purchasing at any time within two years $5,000 par value of the capital stock of said corporation of the value of $5,000, of which corporation it was also agreed this plaintiff should be the secretary, when organized, in witness of which agreement into which they had entered the plaintiff and said defendant, on the 23d day of April, 1908, drew up and signed the following memorandum:
“ ‘This agreement, entered into this twenty-third 'day of April, 1908, by and between Henry W. Carr of the city of Saginaw and Arthur F. McIntire of the city of Saginaw, as follows:
‘ ‘ ‘ First, that it is proposed to organize a corporation to be known as the Henry W. Carr Company, to take over the trade, good will, knowledge and information of the said Henry W. Carr, in payment for which said corporation is to issue to the said Henry W. Can-stock to the extent of fifty thousand dollars ($50,000) in five thousand shares of ten dollars each. It is further agreed between the parties that upon the delivery of the stock of the Henry W. Carr Company to the said Henry W. Carr, that he is to transfer one hundred shares of the said stook to the said Arthur F. McIntire. It is also understood that five hundred shares of the balance of the stock issued to Henry W. Carr be held in trust by the said Henry W. Carr in such a manner that the earnings from this stock for two years shall be paid to the said Arthur F. McIntire. It is further understood that the said Arthur F. McIntire has the privilege of buying five hundred shares of the stock in the Henry W. Carr Company at the par value of ten dollars per share at any time prior to the end of the first two years of the life of the company. The purchase of this stock at any time previous to July 1st, 1910, does not invalidate or cancel the dividends which are to be paid to said Arthur F. McIntire on the five hundred shares held in trust.
“‘ It is further understood and agreed between the parties to this agreement that the officers of the Henry W. Carr Company are to be Henry W. Carr, president and treasurer; Ida F. Carr, vice president ; and Arthur F. McIntire, secretary. Henry W. Carr is to receive a salary of $250 per month and Arthur F. McIntire a salary of $110 per month for the first six months, salaries thereafter to be ar. ranged in accordance with conditions, etc.
“ ‘ The business of the Henry W. Carr Company will be that of acting as general selling or sales agents for elevator companies and shippers and others having or wishing to have sales made; also to' act as brokers and business developers in the organization and incorporation of ^business companies.
“ ‘ In connection with the Henry W. Carr Company, it is proposed ■ at a later date to organize a storage company and a publishing company, details of which are to be arranged at a later date, excepting that it is understood at this time that when the publishing company is organized the paid in capital stock is to be $5,000, of which one thousand dollars in stock is to be assigned to the said Arthur F. Mc-Intire in exchange for valuable information and knowledge, the rights of which he will transfer to the company in return therefor.
[Signed] Henry W. Carr.
[Signed] ‘“Arthur F. MoIntire.’
“And this plaintiff did co-operate and associate with said defendant in said business, devoting his best energy, ability and endeavors thereto, and contributed in full the entire consideration moving from him to said business and to said defendant, consisting of his labor, services, knowledge, experience, good will, advice, etc., so that said defendant has had the full benefit and advantage thereof, so much so that said business became very successful and showed earnings and profits of a very large amount, to wit, of $2,500 per month and upwards, whereupon this plaintiff requested said defendant to fulfill and perform, their said contract by organizing said corporation to be known as the Henry W. Carr Company and allotting to plaintiff the capital stock thereof to be assigned to him, and otherwise performing said contract according to the terms and conditions thereof; but the said defendant, not further regarding his said promise and undertaking, but contriving and intending craftily to deceive and defraud the said plaintiff, refused to perform said contract, or any part thereof, and, although often requested so to do, has refused, and still refuses, to keep, observe or perform his said promise' undertaking, contract and agreement, to the plaintiff’s damage $10,000, and therefore he brings suit, ” etc.

A second count followed. The defendant pleaded the general issue and gave notice of several special defenses, among others the following:

“(6) That before the commencement of this suit no demand by the plaintiff was made upon the defendant for the whole or any part of the stock to which he refers in his declaration, and no demand was made upon the said Henry W. Carr Company to transfer to the said defendant five hundred (500) shares of stock in trust for said plaintiff, bub after the commencement of this suit and on, to wit, the 6th day of November, 1908, said defendant, in a letter written to said plaintiff, which is herewith made a part of this notice by reference, advised said plaintiff that for the purpose of avoiding litigation and ending the controversy between the parties hereto he notified said plaintiff that he had had one hundred (100) shares of stock of the Henry W. Carr Company, a corporation, transferred to him, and requested said plaintiff to receipt for the same and procure said stock, and that this was necessary under the by-laws of the company, all of which statements were true. And further advised said plaintiff that the Henry W. Carr Company had transferred to defendant five hundred (500) shares of stock for said plaintiff. * * *
“Defendant will further show, under the plea of the general issue as above set forth, that said plaintiff has not receipted for said stock and has not called for the same or made any request to have said stock delivered to him; that said communication of November 6, 1908, was written and delivered to said plaintiff for the purpose of avoiding litigation and as a compromise of the controversy existing between the parties hereto with reference to said stock; and that said communication was not intended as an acknowledgment of any legal liability on the part of said defendant.”

Upon the trial this defendant objected to the introduction of any testimony for many reasons, among others:

(1) Because said declaration does not set out a cause of action.
(2) Because said alleged contract set forth in plaintiff’s declaration is against public policy, and is null and void.
(3) For the reason that the alleged contract shows upon its face that it could not be executed or carried out.

In the course of the colloquy that followed between court and counsel correspondence between the parties, including the letter referred to in the notice of special defense which we have quoted, was received in evidence. Counsel for plaintiff then stated:

“ We have elected to treat their offer as a tender. Now, if it is not a tender, and the court decides it is not a tender, that raises another question.”

In reply to this, counsel for the defendant insisted that the correspondence simply showed a negotiation for a settlement. The judge finally expressed himself as follows:

“ Therefore, gentlemen of the jury, it being a separate and distinct case, an agreement for settlement and construed by me not to be a tender, I instruct you to bring in a verdict, and that your verdict will be no cause of action.”

Counsel for plaintiff make two contentions:

First. “ The issue presented here is very simple. It is whether the offer contained in paragraph 6 of the defendant’s notices of defense constitutes a tender. Defendant’s offer cannot be construed as an agreement of settlement, or technically as an accord and satisfaction, because there has been no satisfaction. The defendant has not performed. He has refused to give satisfaction. * * * Plaintiff is now entitled, on account of defendant’s refusal to deliver the stock, to a money judgment of $1,000, which should carry full costs of both courts, with interest from November 6, 1908, the date when the tender was made.”
Second. “That in any event plaintiff is entitled to a new trial.”

The claims of defendant are summarized as follows:

“ It is our claim in this case:
“(1) That the declaration stated no cause of action, for the reasons hereinbefore pointed out.
“(2) That the plea was not a tender, it being lacking in every essential requisite to a valid plea of tender, and was not intended or understood to be a tender, as is apparent from a mere reading of the letters and paragraph 6 of the defendant’s notice.
“(3) That if the defendant’s notice should have been construed by the lower court to be a tender, which the plaintiff upon the trial was willing to accept, that then that ended the case, and the plaintiff’s only remedy was then to have demanded the stock of the Henry W. Carr Company or its secretary, which he claimed was tendered, and, if delivered to him, it would be a fulfillment of the tender, while if delivery had been refused he might then have had his action for the value of the stock by bringing trover or some otherproper action therefor.”

We have stated substantially all that occurred upon the trial. No proof other than the correspondence was introduced. No effort was made to show the value of the stock. The court disposed of the case as a question of law. This we think could not be done. The declaration shows a cause of action. The correspondence does not show an offer to pay costs or such an unconditional tender of the stock that a judgment without other proofs could be entered thereon.

The court erred, we think, in denying an opportunity to introduce the testimony and to hear the case upon the merits.

Judgment is reversed, and a new trial ordered.

Hooker and Brooke, JJ., concurred with Moore, J.

Ostrander, J.

The action is for damages for breach of an alleged contract to which the plaintiff and the defendant were parties. It is alleged in the declaration that the defendant wholly failed to perform the contract. Defendant did not demur to the declaration, but pleaded the general issue. With the plea he gave notice that he would show in his defense that plaintiff made no demand upon defendant for performance of the alleged contract before suit was brought. If a demand was necessary and was not made, the fact is, of course, important. Defendant does not, in his notice, rest only upon the fact of want of a demand, but also upon the further fact that after the suit was begun he notified plaintiff, not that he was ready and willing to perform the contract according to its terms, but that he held 500 shares of stock for the plaintiff, and that plaintiff could get 100 other shares by applying to the Henry W. Carr Company, a corporation, and feceipting for the same. By the terms of the contract alleged by plaintiff, defendant was himself to transfer 100 shares of stock of the Henry W. Carr Company to plaintiff, the stock being first issued to defendant. The notice states that the said offer to perform was not intended as an acknowledgment of liability, but was made to avoid litigation. The offer was not immediately accepted, but was later on accepted before being withdrawn. It may therefore be assumed that although not an offer to comply strictly with the contract, it was satisfactory to plaintiff. After its acceptance, defendant, in a letter to plaintiff, refused to turn over any stock. This action, it seems to me, may be regarded by plaintiff and the court as a withdrawal of the notice which has been referred to, leaving the cause to be tried upon the theory of the declaration, the plea of the general issue, and such special matter of defense as remains.

The judgment should be reversed, and the cause proceed to trial.

McAlvay, J., concurred with Ostrander, J.


author: Moore, J.

text:
    RALPH v. GIES-GEAR CO.
    1. Damages — Pain and Suffering — Adequacy.
    In a personal injury case, a verdict of $100 damages for an injury to plaintiff’s hand cannot be said to be inadequate, as a matter of law, under testimony disputed by plaintiff, tending to show that the pain which plaintiff suffered for about four years, from his injury', resulted from improper treatment and care.
    2. Same — Pleading—Special Damages — General Health.
    Evidence that plaintiff’s general health suffered from the effects of his injury, was erroneously excluded, although the declaration did not specifically aver the fact.
    Error to Wayne; Murfin, J.
    Submitted November 30, 1910.
    (Docket No. 156.)
    Decided December 22, 1910.
    Case by William Ralph, by Tillie Ralph, his next friend, against the Gies-Gear Company for personal injuries. A judgment for an alleged insufficient amount is reviewed by plaintiff on writ of error.
    Reversed.

      Lehman, Biggs & Lehman, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Moore, J.

Plaintiff was bom on the 25th of June, A. D. 1891. He received the injuries out of which this lawsuit grows on the 18th day of November, 1906. He recovered a judgment of $100. A motion was made for a new trial, which motion was overruled. He brings the case here by writ of error.

The contention of counsel is as follows (we quote from brief of counsel):

“ (1) The jury regarded plaintiff with disfavor because, in substance, he was characterized by the court, almost at the inception of the trial, as untruthful. '
“(2) Because the jury obtained the impression that the court thought the case was a trifling one, because he would not permit plaintiff’s counsel to occupy a half hour, were he not compelled to do so by rule, in which to mak9 both the opening and closing arguments; and we insist the rule should only be applied in cases of a trifling character, and not involving permanent injury to the hand of a boy at the very threshold of his young manhood, a hoy destined to earn his living by the toil of his hands.”

An examination of the record does not sustain either of these contentions. We again quote from the brief:

“We also insist that the court should have granted a new trial on the ground that the damages were wholly inadequate, and not at all reasonable compensation for the injury sustained by plaintiff. The undisputed testimony shows that the plaintiff was a terrible sufferer for at least two weeks, and that he has suffered more or less pain for a period of four years, and is not yet free from pain.”

This contention cannot be sustained, because of testimony to the effect that much of the pain suffered by the plaintiff was due to neglect in caring for the injury, which injury defendant insists was not serious. If the jury believed this testimony, it might account for the small verdict.

We must consider a more serious assignment of error. In the declaration appears the following:

“ His hand came in contact with said unguarded and unprotected emery wheel, and was burned and ground by the same to such an extent that the use of the same was for a long time practically wholly destroyed, and he has not recovered from the same; that in consequence of the same he became sick, sore, lame, and disordered; that the same has been operated upon and treated on four different occasions, but plaintiff has not yet recovered from the same; that as a result of said injuries plaintiff has suffered pain from thence hitherto, and must suffer like pain in the future indefinitely.”

Testimony was offered as to the effect of the injury upon the general health of the plaintiff. This testimony was excluded, upon the theory that it should have been specially pleaded. We think this was error, under the following authorities: Leslie v. Traction Co., 134 Mich. 518 (96 N. W. 580), and the many authorities cited therein; Renders v. Railroad Co., 144 Mich. 387 (108 N. W. 368); Groat v. Railway, 153 Mich. 165 (116 N. W. 1081).

Judgment is reversed, and new trial ordered.

Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred.


text:
    HARTLEY v. MILLER.
    1. Appeal and Error — Record — Settlement — Extension op Time by Stipulation.
    The attorneys of the respective parties may stipulate to extend the time for settling a record on case-made.
    3. Same — Case-Made—Time to File.
    A motion to dismiss a case-made, which was settled in accordance with stipulations of the attorneys extending the time, and was filed with the clerk of the circuit court to be returned to the Supreme Court on the last day of the year allowed by 3 Comp. Laws, §10493, will not be dismissed, although the clerk did not make the usual entry and indorsement until the following day.
    Case by William Hartley against Frank P. Miller for negligence. On motion by defendant and appellee to dismiss a case-made.
    Submitted November 29, 1910.
    ( Calendar No. 24,299.)
    Motion denied December 22, 1910.

      Albert McOlatchey, for the motion.

      McHugh & Gallagher, contra.

   Moore, J.

This is a motion to dismiss an appeal. Several reasons are assigned but the important one is that the appeal was perfected too late.

The attorney for the appellee in this motion did not represent the appellees in the court below. The record shows the judgment in the circuit court was entered October 13, 1909. At that term an order was entered giving appellant 60 days in which to settle a bill of exceptions or make a case. A motion was made for a new trial, which motion was overruled November 29, 1909. Within 60 days of this date the attorneys for the appellant prepared and served upon the' attorney for the appellee a proposed case-made. It was then agreed upon between the attorneys that the time for settling such case-made should be extended from time to time to suit the convenience of counsel. Stipulations extending the time in which to settle a case-made were filed from time to time, the last one extending the time until October 15, 1910. At least one amendment to the proposed case-made was prepared and agreed upon and on the 13th day of October a case-made was agreed to by the attorneys, and was on the same day taken to the trial judge and was-read and signed hy him. The attorneys for the appellant at once took the case-made which had been signed by the judge to the clerk of the court, and left it with him with the request that said clerk enter upon the records a note of the signing and filing of the same and the filing of the assignments of error thereto. What then occurred is shown by the affidavit of the clerk as follows:

“That on the 13th day of October, A. D. 1910, after the close of court on said day, and at about 4:15 p. m., the case-made and assignments of error in the case of William Hartley v. Frank P. Miller, et al., Wayne Circuit Court No. 49,436, were delivered to deponent by Wm. Henry Gallagher, in the office of the clerk of said county, said case-made at that time bearing the signature of said Morse Rohnert; and deponent was thereupon requested by said Wm. Henry Gallagher to note upon the records of the court the signing and filing of said case-made and the filing of said assignments of error; that deponent thereupon informed said Wm. Henry Gallagher that he had closed his court sheets for that afternoon, and did not intend to return to the courtroom of said judge, and asked if the said entry on the records might be made upon the following day, to which request said Wm. Henry Gallagher assented; and thereupon, on the following day (i. e., October 14, 1910, deponent entered upon the records of said court for that date a note of the signing and filing of said case-made and the filing of said assignments of error.”

The case-made was then sent on and filed with the clerk of this court. The record also shows that no order substituting attorneys was made in the records of the circuit court, and that no notice of a change of attorneys was served upon the attorneys for the appellant.

It is insisted, first, that the attorneys had no right to stipulate for an extension of time. No authorities are cited in support of this contention and we think it is not well taken.

Second, it is contended that by analogy to the statute limiting the time for taking out a writ of error to one year, the party who for that length of time neglects'to have the case-made certified to the Supreme Court is deemed to have abandoned it; citing Van Blarcom v. Insurance Co., 6 Mich. 299; Faust v. Calhoun Circuit Judge, 30 Mich. 266. It is also insisted that the question is one of jurisdiction, and that anything defendant’s attorneys did would not confer jurisdiction; citing Riley v. Railway, 163 Mich. 327 (128 N. W. 187). A reference to the last-named case will show it is not in point because more than 18 months had expired before the writ of error issued. In the case at bar it has already appeared that the case-made was agreed upon, signed by the judge and left with the clerk for filing within the year. It has also appeared that an order extending the time to settle a bill of exceptions or make a case was entered at the term when the case was tried. Subdivision “ b,” Circuit Court Rule 47, has this provision:

“But no more than sixty days’ further time shall be granted for that purpose, except, etc., * * * or on the written stipulation of the parties.”

Section 10492, 3 Comp. Laws, provides that an extension not exceeding six months beyond one year may be granted for the issuance of writs of error upon a proper showing. Circuit Court Rule 48 provides that the practice in settling and filing cases-made shall be the same as is provided for the settling of bills of exceptions.

In People v. Wayne Circuit Judge, 20 Mich. 220, it was held that, where parties have prepared their bill of exceptions and presented it in season to the judge, they are not responsible for subsequent delays for which they are in no wise at fault, and the court declined to dismiss the bill of exceptions.

In People v. Kalamazoo Circuit Judge, 39 Mich. 123, it was held that, where counsel for both parties have stipulated to extend the time, their stipulation removes the necessity for following the rules, and the court has no right to disregard the stipulation.

In any aspect of the case the motion to dismiss cannot prevail.

It is denied, with costs.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    GRAND UNION TEA CO. v. DODDS.
    1. Injunction — Master and Servant — Injury to Business — Unfair Competition — Fraud.
    Complainant, a corporation, is engaged in the business of selling teas, coffees, spices, etc., in the city of Detroit, by means of wagons and drivers, which go to all parts of the city. The drivers secure orders for future delivery, deliver goods already ordered, collect therefor, and retain 20 per cent, as compensation. They secure the customers themselves except that they are assisted by general canvassers of the company. Each driver keeps a list of the customers on his route and calls on them regularly. Defendant was a driver on one of these routes, and, while still employed by complainant, agreed with a competing firm to leave complainant’s employ and transfer his services, together with his route and customers, to such competitor. When he turned in his order cards to complainant he had erased the names of the old customers, and neglected to turn in the names of new ones. The order card is the only record which complainant has of its customers and patrons. In a suit to perpetually enjoin defendant from using such lists of customers and canvassing on such routes, it was held, that the routes and lists were valuable assets of complainant, and that he should be required tofurnish complainant with lists of the customers which he fraudulently withheld; also that defendant be restrained from using such lists or copies of such, or giving or showing them to others.
    2. Same — Unfair Competition — Injunction — Restraint of Trade.
    Defendant will not be restrained from selling his commodities, for himself or his employer, in any part of the city, or to any person, so long as he does not use any property belonging to complainant, or copies thereof that were surreptitiously made.
    3. Costs — Decree Modified.
    Where defendant comes to this court apparently questioning the whole decree, he should not be given costs of this court, although the decree is modified slightly in his behalf.
    Appeal from Wayne; Murfin, J.
    Submitted November 28, 1910.
    (Docket No. 43.)
    Decided December 22, 1910.
    Bill by the Grand Union Tea Company against Charles Dodds for an injunction and other relief. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      William G. Fitzpatrick (M. Hubert O’Brien, of counsel), for complainant.

      Frank C, and O. J. Golden (Clyde I. Webster, of counsel), for defendant.
   Hooker, J.

There is but little dispute about the facts in this case. According to the complainant’s brief, the complainant is a retailer of teas, etc., in Detroit, and does business by the following method: It is the owner of horses and wagons, and these are put in charge of men selected for the purpose. Each man has a route for each day of the week, and he calls upon patrons once a week, and also obtains new patrons upon these routes, where he can do so. He delivers the goods upon orders taken the preceding week, and takes orders for delivery a week later. These men are expected to collect for the goods when delivered, and on their return from the trip must turn in 80 per cent, of the price of the goods delivered, and return the undelivered. They retain 20 per cent, for their compensation. The orders taken are upon blanks furnished them; the name and address of the purchaser and the description of goods ordered are required to be written thereon. It will be observed that the effect of this method of doing business is the establishment of business routes, which are valuable assets of the business, and the plaintiff claims to be the owner of these and the orders and lists of purchasers, which the drivers make or have, upon the blanks furnished for their use.

About October 1, 1906, defendant engaged with the complainant as such driver, taking the place of one Kramer. He rode with Kramer five days, and at the end of this time Kramer turned over the orders taken to defendant, who was to and did deliver them the following week. Defendant continued with the complainant until May 31, 1909, and on the following day commenced work for a competitor, which did a similar business in the same way. Defendant had contemplated this change for some months, and some days before ceasing work for complainant had agreed with his new employer to make the change and promised to bring the former patrons of his routes with him, so far as he could, and agreed that he would continue to solicit them thereafter. Accordingly, and in furtherance of this plan, he announced to them during the last week of his work for complainant, that he was going to work for another company, and he obtained the consent from many of them to allow him to have the orders filled by his new employer. Before turning over his cards to complainant, on May 31st, he erased all names of customers from the cards and concealed from complainant the names of others by not putting them on the cards. He continued thereafter to work the same routes, and to solicit the same customers for his new employer.

The defendant’s understanding of the case differs somewhat from the foregoing statement. He admits that when he began work for complainant, he received the list of patrons from complainant, that by his own industry, and with the aid of the complainant’s general canvassers, the list was increased, while he worked for it. He claims that in the morning, he was wont to receive a quantity of goods from complainant, that they were charged to him, and that from these he filled his orders of the previous week, returning the remainder of the goods and 80 per. cent, of the price of the goods not returned, regardless of whether he had collected so much or not. In other words, if he sold on credit it was necessary that he pay for the goods himself on his return; settlements being made every evening. He admits that the horse and vehicle were furnished by the complainant. Apparently he does not deny that he retained the orders when he quit, and that he erased, or entered by secret marks unintelligible to complainant, the names of the customers, but he asserts that there were no business relations between the complainant and the patrons, claiming that the routes and business were his, and that these routes were purchased by him for $12 from the complainant’s local manager. No denial seems to be made to the charge that, by arrangement with complainant’s competitor, the latter was to reap the harvest from complainant’s sowing, according to the questionable agreement made by it and defendant. He contends: (1) That complainant had no ownership of the routes or lists \ (2) that if it did own them, equity should not interfere by injunction.

The cause was heard on pleadings and proofs and a decree rendered for the complainant, from which defendant has appealed.

At the oral argument and in their supplemental brief, counsel say:

“And right here we would like to call the attention of the court again, as we did at the argument — that there are many things in this decree that we do not complain of at all. We simply complain of the one proposition and that is, that this defendant cannot be restrained from soliciting or selling these people goods so long as he does so in an open and fair manner. If he makes any misrepresentations, he can be restrained from making them further. If he uses any lists that belong to the complainant or makes copies thereof and uses the copies, he can be compelled to turn these back — to stop using them.”

We are of the opinion that the testimony clearly shows that the routes and lists were valuable assets of the complainant and that defendant had no right to either. Had he not by fraudulent disobedience of his instructions rendered the orders unintelligible and practically useless to the complainant, and withheld the orders taken during the last week, complainant could have placed new or other men upon the routes and the business would have gone along as it did when defendant took the place of his predecessor. His unfair manipulation enabled him to carry out his collusive agreement, whereby his new employer was to be enabled to practically acquire these routes, without expense.

For the injury shown, arising out of the immediate loss, complainant has recovered damage in this case. We think it is entitled to a decree affirming the decree of the circuit court in this respect, and that defendant shall supply it with a list of the patrons of the route which he concealed, and that he be perpetually enjoined from using any list or copy of list which has been made or retained, or giving or showing them to others.

We are of the opinion, however, that he cannot be restrained from selling his commodities, for himself or for any employer, in any part of the city, or to any person, so long as he does not use any property belonging to the complainant, or copies thereof that were surreptitiously made. So far we think ourselves well within equity jurisdiction, on general principles. The statute precludes an injunction restraining defendant from soliciting any one to purchase his wares, notwithstanding he may remember that they were his patrons while he was employed by the complainant. See Grand Union Tea Co. v. Lewitsky, 153 Mich. 244 (116 N. W. 1090).

We cannot sustain defendant’s contention that the case last cited is inconsistent with all of complainant’s claims. The question that was decided in that case seems to have been confined to the validity of the written contract made by the parties. From the. cursory examination of the bill in that case we are impressed that it would have been held sufficient to warrant relief similar to that given by this opinion, had the case turned on that question. Whether we are right on this estimate of the sufficiency of that bill we need not determine. We cannot consider the case controlling on the bare fact that the bill was dismissed, inasmuch as no attention appears to have been given to the point involved here.

The decree of the circuit court was correct in all things, except as it prohibits and restrains the defendant, his agents, servants, etc., from calling upon and canvassing, soliciting, accepting or filling orders for goods similar to those carried by the complainant from those who were his former patrons, while he was employed by the complainant. With this modification the decree is affirmed.

As the defendant has neither performed nor offered to perform any part of the decree below, except the requirement that he deliver a list of customers to complainant, so far as we can learn from the record, and has come here apparently questioning the whole decree, he should not be given costs of this court. Neither party will recover costs in this court. Complainant is of course entitled to costs in the circuit court, under the decree of that court.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: Per Curiam.

text:
    KAISER v. DETROIT UNITED RAILWAY.
    Appeal and Error — Bill of Exceptions — Remand for Amendment.
    A motion to remand the record to the trial judge for an extension of time to settle a bill of exceptions having been granted by the Supreme Court, the time was extended to November 18th, on which date plaintiff presented to the court amendments to the proposed bill of exceptions, but discovered that the same had been settled on November 15th, according to notice duly given, and the record had been returned to this court on November 17th. Plaintiff’s attorney served a copy of the amendments upon defendant’s attorney, and asked the court to consider them. Upon objection, the court, for want of jurisdiction, refused to do so, but certified to this court the above facts, and also that certain matters should be included, in order to review the case properly. It appearing to the satisfaction of this court that certain matters should have been included in the bill of exceptions, and that the trial judge would have granted plaintiff’s application had his attention been called to it in time, plaintiff’s motion to again remand is granted upon condition that he proceed at once to propose amendments, and cause such as may be allowed to be printed and attached to the record without any expense to defendant.
    Case by Christopher E. Kaiser against the Detroit United Railway. On motion to remand the record to incorporate plaintiff’s amendments to the bill of exceptions.
    Submitted November 29, 1910.
    (Calendar No. 24,053.)
    Motion granted
    December 22, 1910.

      William M. Mertz, for the motion.
    Brennan, Donnelly & Van De Mark, contra.

   Per Curiam.

This is a motion to remand the record to the circuit court for a further supplemental return. On mandamus proceedings in this court a certain order extending time to settle a bill of exceptions in this case was vacated July 14, 1910, for the reasons stated in the opinion then filed. Kaiser v. Wayne Circuit Judge, 162 Mich. 247, 250 (127 N. W. 336). A motion made by defendant and appellant to remand the record, for the purpose of applying to the trial judge to extend the time for settling a new bill of exceptions, was granted November 4, 1910, as appears from the opinion. 163 Mich. 109 (128 N. W. 1).

The application to extend such time was made on notice duly given for November 11, and that the time was extended to November 18, 1910. Plaintiff prepared amendments to the proposed bill of exceptions, and presented them to the court on November 18th, the day which he claims he thought the bill of exceptions would be presented for settlement, but was informed by defendant’s attorney that the same had been settled on November 15th according to notice duly given, and the record had been returned to this court November 17th, and refused to take the matter up before the court. Plaintiff’s attorney filed, presented, and served a copy of the amendments upon defendant’s attorney, and asked the court to consider them. Upon objection, the court felt that it was without jurisdiction to do so, unless the record was in the circuit court, and therefore could not consider them.

A certificate of the circuit judge corroborates the above statement, relative to extending the time for settling the bill of exceptions until November 18th, and the fact that it was settled November 15th; plaintiff’s attorney not being present. He says that he was under the impression that amendments had been proposed and made at a former settlement of the bill in April last, but it has been made to appear that he was mistaken. He further says that certain matters have been called to his attention which he deems it advisable should be considered by this court, in order to review the case properly, some of which matters he sets forth in his certificate. Plaintiff’s attorney admits that the notice to settle a bill of exceptions was served upon him November 11th, at the time the order to extend time was granted as above set forth, and says that it was mixed with other papers in the case and entirely overlooked.

There is no question but that certain matters not in the bill of exceptions should have been included. The trial judge, had the matter been called to his attention in time, would have granted plaintiff’s application. Plaintiff’s attorney is not free from fault on account of his forgetfulness. His motion to remand is granted, without costs, upon condition that he proceed at once to propose amendments, and then cause such as may be allowed to be printed, attached to, and made a part of the record, without expense to defendant.

Said cause, at the option of defendant, to stand for hearing at the January term, 1911, of this court.