text:
    HEWITT v. MORLEY.
    1. Slander—Variance Between Pleadings and Proofs—Evidence.
    Evidence that the defendant in an action for slander stated to witnesses that he was confident that plaintiff had taken money and certain other articles, and made other statements fairly imputing a charge of larceny, supplemented hy his admission that he intended to convey the idea that plaintiff had stolen, will support a verdict for the plaintiff, although the words proved to have been uttered are slightly different from those set out in the declaration.
    3. Same—Privileged Communication—Question for Jury.
    Whether the statements of defendant were for the purpose of making an investigation which he had a right to make, or of imparting information to one who had a right to know, and were therefore privileged, is a question for the jury; under proper instructions.
    3. Appeal—Form of Verdict—Objection not Raised Below.
    An objection that the verdict in an action for slander failed to specify the amount awarded for damages to feelings separately from the amount awarded for other damages, as required by Act No. 316, Pub. Acts 1895, § 3, comes too late, where the case was pending when the act went into effect, and the point is raised for the first time in a supplemental brief.

      Error to Berrien; Coolidge, J.
    Submitted October 22, 1896.
    Decided December 18, 1896.
    Case by Ida Hewitt against Alvin Morley for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Edward Bacon, for appellant.

      James O’Hara, for appellee.
   Moore, J.

This is an action for slander. There are several counts in the declaration. Omitting the legal verbiage, the allegations are as follows :

First count: ‘ ‘ She (plaintiff meaning) is a thief. ” ‘ ‘She stole five dollars from my hired man.” “She stole money from my children.” “She stole money from my wife.” “She stole sugar and soap.” “Ida Hewitt (plaintiff meaning) took five dollars from my hired man, two dollars from my wife, and some money from my children, —(meaning and intending thereby to charge the plaintiff with the crime of larceny).”

The second count charged the defamatory words to be:

‘ ‘ I have good proof of Ida Hewitt taking small articles, such as sugar and soap.”

The third count stated the defamatory words to be:

‘ ‘ I am satisfied that Ida Hewitt took five dollars belonging to Allie Sober out of my house. I am also satisfied that she took money belonging to our children.”

Another count charged the defamatory words to be:

“I am satisfied in my own mind that Ida Hewitt stole five dollars from my hired man, and took money belonging to my little girl.”

In another count the defamatory words were:

“You had better keep quite close watch of Ida Hewitt, for, while she was working at our place, I am satisfied she took five dollars belonging to Allie Sober, two dollars from my wife, and some money belonging to our children.”

In the declaration the necessary words of innuendo and colloquium were inserted to make the declaration good pleading. The defendant pleaded the general issue. The jury rendered a verdict for $300 in favor of the plaintiff, and defendant appeals. Upwards of 4=0 errors are assigned, but it will not be necessary to discuss all of them.

It is claimed that there is a variance between the pleadings and the proofs, and such a failure of the proofs to establish a case that a verdict should have been directed for the defendant. The record shows this conversation between defendant and Mrs. Markham:

“ He came into the store one afternoon, and wanted to know if I was aware that the girl we had was light-fingered. I told him I was not, and he said that they liad missed five dollars belonging to the hired man, and two dollars from his wife’s pocketbook, and some change belonging to the children, and some pocket handkerchiefs, and they felt confident Ida had taken them.”

Miss Hewitt was at this time in the employ of the witness.

Dr. Sober testified:

“He came into my field where I was at work, and told me he was satisfied in his own mind that Miss Hewitt took the five dollars from his hired man, and some nickels from his little girl.”

In reply to a question, the witness stated:

“He might have said she stole the five dollars, or he might have said she took the five dollars. It all appeared to me the same, right then and there.”

Miss Hewitt was not in the employ of Dr. Sober, but the witness was an uncle of the hired man. In the same conversation defendant stated that he did not wish to injure Miss Hewitt, and that he wanted to find evidence of her having taken the things. He told Miss Kempton he thought Miss Hewitt had taken things from the house, —handkerchiefs, and small change from the children. He said he had good proof that she had taken them. He told Mr. Markham, in whose employ Miss Hewitt was at the time, that his hired man had lost five dollars; that five dollars had been taken from him, and he suspected Ida Hewitt of taking it, as she was working for him at that time; also some money belonging to the children,— that he had reason to believe she had taken it. He said to Mr. Markham that he told him as a friend, to put him upon his guard, knowing that she was in his employ, and that he left her in the store, and asked him not to repeat it. Other evidence of a like character was introduced, which it will not be necessary to insert here.

The defendant testified that he told her father:

“ ‘ Mr. Hewitt, I have said nothing about Ida but what I will say to her or will say to you; nothing but what I believe to be true. We have lost these things from our house. I believe Ida is the guilty person. I have reasons to believe so. I have reasons that justify me in this belief, and I think I would be justified before any jury in Berrien county, if the facts are found.’ Then he says, ‘ If you thought Ida took the money, why didn’t you get a search warrant, and come and see if you couldn’t find it ? ’ I said, ‘ That would be .a nice way to ascertain,—to search for a five-dollar bill! ’ ”

During the progress of the cross-examination of the defendant, he said to the court that he intended to convey the idea that Miss Hewitt stole the articles. Any one reading this testimony would have the right to infer that Mr. Morley intended to charge Miss Hewitt with the larceny of the things mentioned by him. That would be a fair conclusion from the language used. There was no such variance between the pleadings and proofs, and no such failure of proof, as would justify the court in directing a verdict for the defendant. Wiest v. Luyendyk, 73 Mich. 665; 5 Wait, Act. & Def. 731.

It is the claim of the defendant that what he said was privileged; that it was his duty to say it; and that what he said was either for the purpose of making an investigation he had a right to make, or to impart information to one who had a right to know. The trial judge allowed full latitude in the admission of testimony bearing upon this feature of the defense. The circuit judge charged the jury at the request of the defendant:

‘ ‘ Where a person is so situated that it becomes right, in the interests of society, that he should tell to a third person certain facts, then, if he, bona fide and without malice, does tell them, it is a privileged communication.

‘ ‘If the money or goods of the person to whom he [the defendant] speaks would be in great and obvious danger of being stolen or destroyed, he may volunteer information to those in danger, or to their master, though he be nót himself personally concerned. So, too, it appears that the defendant may, without being applied to for the information, acquaint a master with the misconduct of his servants, if instances have come under the especial notice of the defendant which have been concealed from the master’s eye.

“It is necessary, further, that circumstances should be present to his [the defendant’s] mind which reasonably impose on him a duty to make such a statement. If such circumstances exist, the statement is privileged, although it may prove to be untrue. It is not necessary that, before making such a statement, the defendant should have thoroughly investigated the reports which have reached him. Hearsay is sufficient, reasonable, and probable cause, in the absence of malice, unless the defendant ought, for any reason, to have known that his informant was unreliable, and his story undeserving of belief. And, lastly, the defendant must make the statement under an honest sense of duty, desiring to serve the person most concerned, and not for any malicious or self-seeking motive.

‘ ‘ An important question in this case is this: Did the defendant honestly believe it to be his duty to make the communication complained of, and did he do so under a sense of duty ? * * * The jury must place themselves in the position of the defendant at the time these suspicious circumstances were brought to his knowlege,— when first the question arose in his mind, ‘ Ought I not to inform my neighbor ?’ It may well be that another man would have said, ‘It is no concern of mine,’ and would have done nothing, but that does not prove that the defendant was wrong in acting as he did. * * * But the jury should find for the defendant if they are satisfied that he both honestly felt, and had reasonable grounds for feeling, that he could not conscientiously allow the person to whom he made the communication to continue in secure ignorance, and honestly felt that he must communicate to such person that which he was much concerned to know. * * *

“If you shall find that the defendant had no malice— that is, hatred or ill will—against the plaintiff, and that he had just cause or excuse for endeavoring to detect the plaintiff in the unlawful taking of his property, or that of his hired man, and that he made any particular charge or accusation simply to detect her, if guilty, then your verdict must be for the defendant, so far as anjr particular charge or accusation is concerned. * * *

“If the jury find that any slanderous communication that the defendant made to any neighbor of his was made under the belief, justified by the circumstances that had come to his knowledge, that his duty to the person to whom he made the communication required him to make the same, because of confidential relations, then the communication was privileged, and the jury ought not, because thereof, to find the defendant guilty.”

The defendant has no reason to complain of this statement of the law. Moore v. Thompson, 92 Mich. 504.

It is urged in defendant’s supplementary brief that the verdict cannot stand because it does not comply with the provisions of section 2, Act No. 216, Pub. Acts 1895, which provides that—

“In awarding damages to the plaintiff in any suit brought for the recovery of damages for libel or slander in' this State, the jury shall in all cases specify the amount awarded for damages to feelings separately from the amount awarded for other damages mentioned in the foregoing section.”

This act did not take effect until after this suit was begun, but it is urged that the act is a procedure act, without any saving clause,1 and that pending litigation would be affected by it. The provisions of the act were not called to the attention of the trial court, and there is no reference made to it, nor any argument based upon it, in the original brief filed by counsel. There is everything to indicate that the provisions of the new act were unknown both to counsel and the court at the time of the trial, and when the original brief was prepared by defendant’s counsel, and we think it tóo late now to raise the question in a supplemental brief. Black v. Dawson, 83 Mich. 485; Shippy v. Village of Au Sable, 85 Mich. 380; Ashman v. Railroad Co., 90 Mich. 567; Lacas v. Railway Co., 93 Mich. 412.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    STOLTE, DANGEL & FOSS CO. v. COCHRAN.
    Justices or the Peace—Docket Entries—Adjournment.
    A judgment rendered by a justice of the peace on failure of defendant to appear on an adjourned day is void if the docket entries fail to show the hour at which.the summons was returnable, the hour and place to which the cause was adjourned, the. hour on the adjourned day at which plaintiff appeared, and the hour at which the case was called by the justice.
    Error to Gogebic; Haire, J.
    Submitted October 33, 1896.
    Decided December 18, 1896.
    Trover by the Stolte, Dangel & Eoss Company against Livy R. Cochran and another. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Buck & Wqples, for appellant.

      George C. Foster and Foster & Bushnell, for appellees.
   Moore, J.

Plaintiff’s cause of action depends upon whether a judgment rendered in justice’s court is good. The entries on the justice’s docket, which was offered in evidence, read as follows:

“August 31, 1893. Summons issued, returnable at my office, in the city of Ironwood, in said county, on the fourth day of September, 1893. Returned duly served on Carl T. Engstrom and Johanna P. Johnson, defendants, at the city of Ironwood, in said county, on the first day of September, 1893, by William J. Ninness, deputy sheriff. His fees $1.50.

“Sept. 5. Case called at nine o’clock in the forenoon, the fourth day of September. The return day of said summons being a legal holiday, said cause was continued to September fifth, according to the statute in such case made and provided. Plaintiff appears by Belmont Waples, attorney, and proves his authority to appear, and declares orally on the common counts in assumpsit, and especially for goods sold and delivered, and claims damages three hundred dollars or under. Defendant does not appear; and after waiting for one hour, and said defendant not appearing within that time, at request of plaintiff I did proceed to try and determine said cause.”

No other proof was offered to show the manner of service of the original process in said cause of the Stolte, Dangel & Eoss Company against Carl T. Engstrom and Johanna P. Johnson, copartners. It was proved that the files and records in the cause of the Stolte, Dangel & Eoss Company against Carl T. Engstrom and Johanna P. Johnson, except the judgment aforesaid, wbre lost. No proof was offered to prove the contents of the officer’s return of the summons in the said cause of the Stolte, Dangel & Eoss Company against Carl T. Engstrom and Johanna P. Johnson. The circuit judge held that the judgment rendered by the justice was void. After-wards the original summons was found, the return upon which showed due personal service on each of the defendants named in the summons. A motion was then made before the trial judge for a new trial, upon the ground that the court ei’red in holding that the docket entry did not show such service of the summons as gave the justice jurisdiction; also, because the original summons shows that the docket entry of the justice was erroneous and incomplete, and because of newly-discovered evidence in the finding of the original summons, with the officer’s return upon it, showing personal service. The motion for a new trial was overruled by the trial judge. The trial judge was not requested to assign his reasons for making the disposition he did of the motion for a new trial, and he did not assign his reasons for refusing a new trial. The plaintiff brings the case here.

There are several reasons why the case should be affirmed. The only ones necessary to mention here are: First. The docket entry does not show at what hour the summons was returnable on the 4th day of September. Second. It does not show to what hour the case was adjourned on September 5th, nor to what place. Third. It does not show at what hour on September 5th the plaintiff appeared before the justice, or at what hour the case was called by the justice. These defects were fatal. Mudge v. Yaples, 58 Mich. 307; Post v. Harper, 61 Mich. 434; Wedel v. Green, 70 Mich. 642; Talbot v. Kuhn, 89 Mich. 30 (28 Am. St. Rep. 273); Waldron v. Palmer, 104 Mich. 557.

The judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    DAYTON v. STONE.
    Contracts—Purchase Price—Uncertainty.
    A contract for an exchange of merchandise for other property, by the terms of which the undamaged goods are to be inventoried and taken at cost prices, and the damaged goods at “prices agreed upon,” is uncertain as to the price to be paid for the damaged goods, and cannot be enforced.
    Error to Ingham; Person, J.
    Submitted October 23, 1896.
    Decided December 18, 1896.

      Assumpsit by Sarah M. Dayton against William B. Stone for the breach of a contract for the sale of goods. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      M. V. & B. A. Montgomery, for appellant.

      8. L. Kilbourne and Black & Dodge, for appellee.
   Long, C. J.

The parties entered into the following contract:

“Agreement made this day, January 5, 1895, between S. M. Dayton and W. Stone & Company. She, S. M. Dayton, sells her entire stock of goods, fixtures, and store furniture situated at 222 Washington Avenue North, Lansing, Michigan, at wholesale cost price, except goods that are damaged, to W. Stone & Company,—the damaged goods at prices agreed upon,—and is to take in pay for said goods what notes W. Stone & Company now hold against George M. Dayton as part pay; and five (5) houses and lots on Center street (Lansing), now owned by W. Stone & Company, for forty-five hundred dollars ($4,500); one house and lot in Englewood addition, now being erect,ed, to be finished according to plans and specifications, said house to be completed by the 1st day of April next, for $2,000. Balance, if there should be any, duebill on the firm for said amount, to be ■ paid in lumber out of shop. Parties are each to pay one-half of the commission, one and one-half per cent. each. Invoice of goods to be commenced Monday, January 7, 1895. Each of the parties to pay one-half of the expense of invoicing.

x“ Sarah M. Dayton.

“ W. B. Stone & Company.

“Witness: J. E. Carroll.”

Action was brought upon this contract, and on the trial the court directed verdict in favor of the defendant.

On the trial this contract was offered in evidence by the plaintiff, and received. The plaintiff then introduced evidence tending to show that upon the 7th of January, 1895, she employed Mr, Watrous, and the defendant employed Daniel C. Hurd, to inventory the goods referred to in the contract; that they went forward with such invoice until 11 o’clock the following day, when defendant called Mr. Hurd away from the work, and stated that he would go no further with the deal; that some days after-wards the plaintiff made arrangements with Mr. Hurd to go back, and help through with the inventory; that, on Wednesday of the following week, Mr. Hurd and Mr. Watrous began the inventory again, and went on and finished it; that the goods were measured, and handed to Mr. Hurd and Mr. Watrous; that Watrous announced the cost to Hurd, who looked occasionally through the goods to see if the price was correct; that a part of the goods so inventoried after Mr. Stone’s withdrawal were damaged, and a part of them undamaged; that the parties inventorying them assorted them out, put down the undamaged goods at cost, and the damaged goods at what they thought they were fairly and honestly worth; and that the inventory footed up to $19,426.29. The plaintiff also called the defendant as a witness, who testified that, when the contract was made, W. B. Stone & Co. owned five houses on two lots (and no others) on Center street, Lansing, worth from $3,000 to $3,500; also, a house in process of construction in Englewood addition, worth probably $2,000; that they held notes against George M. Dayton, principal and interest aggregating about $3,000; that they, for some time prior thereto, and ever since, and now, are conducting a lumber business in the city of Lansing; that they keep lumber and a lumber yard, in which articles are manufactured and kept for sale. After introducing evidence tending to show that defendant disaffirmed and repudiated the contract, the plaintiff rested her case, and thereafter defendant’s counsel requested the court to instruct the jury to return a verdict for the defendant upon the ground that the contract was incomplete, uncertain, and void under the statute of frauds. The court directed verdict for defendant upon that ground. On the trial it was shown that, after the inventory was completed, plaintiff wrote defendant to that effect, advising him of the footing of the invoice, told him where to find the key, and demanded from him the property, etc., which she was to receive, and a few days afterwards again made formal demand upon him for performance of the contract, which was refused.

There is no uncertainty as to the undamaged goods. They were to be inventoried at wholesale cost prices. The damaged goods, by the terms of the contract, were to be inventoried at “prices agreed upon;” and counsel for plaintiff contend that the parties themselves interpreted these words as the prices to be fixed by Mr. Hurd and Mr. Watrous; that the contract does not mean prices thereafter agreed upon by the parties, because neither of them had anything to do with the invoice, and that it must mean an amount fixed upon by Hurd and Watrous; that by this interpretation the contract was rendered complete. As counsel put it:

“To be sure, the price of each separate article was not then, when the contract was signed, agreed to, but the standard was agreed to, and the defendant was to pay ' ‘the prices to be fixed by third persons.’ These third persons were selected, the invoice begun, and presumably about one-sixth completed, when defendant attempted to back out; but still tbe third persons went on, and fixed the prices. When this contract was signed, and the person or persons who were to fix the prices selected, and the work actually begun, the contract was as complete as though the referees or arbitrators were named in the instrument, or as though the contract read, ‘ at prices to be fixed by D. C. Hurd and G. W. Watrous.’”

We are satisfied that the contract cannot have this interpretation. There is nothing in it providing who shall take the inventory, or that, when the inventory was taken, the parties were to be bound by the prices fixed by those who put the value upon the damaged goods, and there is nothing in the record showing that Hurd and Watrous were made the arbitrators irrevocably to determine what were damaged goods and their value; and we think the words, “the damaged goods at prices agreed upon,” when taken in connection with the other parts of the contract, mean that the inventory was to be taken of' these goods with the others, and that then or thereafter the prices of the damaged goods were to be fixed and determined. This interpretation leaves the contract uncertain and incomplete, and not one which can be enforced against the defendant. The parties themselves have failed to agree upon the essential terms, and it is evident that the minds of the parties never met upon the value of these damaged goods. The case falls within that class of cases cited by counsel for defendant in their brief, viz.: Gates v. Gamble, 53 Mich. 181; Wardell v. Williams, 62 Mich. 50 (4 Am. St. Rep. 814); Gault v. Stormont, 51 Mich. 636.

The judgment below must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    DAWSON v. LINDSAY.
    Husband and Wife—Abandonment—Title to Personalty—Gift.
    A gift by a husband to his wife of his interest in a piano is not established, so as to subject it to levy on execution by a creditor of the wife, by evidence that, upon abandoning his home, he left the instrument in her possession, and that she took it with her when she changed her place of residence, where it appears that the piano was purchased for the use of a daughter, under a contract providing that the title should remain in the vendor until payment of the purchase price, and that it was not fully paid for.
    Error to Wayne; Donovan, J.
    Submitted November 10, 1896.
    Decided December 18, 1896.
    Trover by Edwin Dawson against William A. Lindsay and John Eldert. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Franklin L. Lord, for appellants.

      William L. January, for appellee.
   Hooker, J.

Dawson purchased a piano, the title to remain in the vendors, Grinnell Bros., until paid for. It was further provided that he should not part with the possession without their written consent. The piano was taken to his residence, and was used by his daughter. He subsequently had difficulty with his wife, and left his home. The piano continued in the possession of Mrs. Dawson. The defendant Lindsay recovered a judgment against Mrs. Dawson; and defendant Eldert, a constable, by his direction, levied execution upon and sold the- piano, which was bid in for Lindsay by his attorney, upon the claim that it had become the property of Mrs. Dawson. Lindsay then tendered Grinnell Bros, the amount of their claim, but they refused to accept it. Dawson brought trover for the conversion of the instrument, and the defendants have appealed from a judgment in his.favor.

The theory of the defendants is that the plaintiff, by .abandoning the piano, showed an intention to give his interest in it to his' wife, which was corroborated by her keeping and moving it when she changed her place of residence. The mere fact of abandoning his wife, and leaving the piano, did not establish a gift to her. It is quite as consistent to say that he left the piano for the use of his daughter, who is the only one who used it, and in whose welfare and education he may be supposed to have had an interest. Both husband and wife testify positively that the piano was not given to the latter, and there is no evidence in the record tending to show it, and the court might properly have so instructed the jury.

A number of assignments of error relate to rulings upon the introduction of testimony. An examination of these has revealed no error, and as, upon this record, we think that a verdict should have been directed for the plaintiff, it is unnecessary to consider the questions raised upon the charge.

The judgment is affirmed.

The other Justices concurred.


text:
    WHITAKER v. WHITAKER.
    Appeal—Divorce.
    A decree granting to a husband a divorce on the ground of extreme cruelty, alleged to consist in refusal of cohabitation, was affirmed.
    Appeal'from Wayne; Kinne, J., presiding.
    Submitted November 10, 1896.
    Decided December 18, 1896.
    Bill by Byron Whitaker against Gertrude E. Whitaker for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Elliott G. Stevenson, for complainant.

      Gray & Gray (A. Howell, of counsel), for defendant.
   Hooker, J.

The defendant has appealed from a decree granting to the complainant divorce from the bonds of matrimony upon the ground of extreme cruelty, alleged to consist of refusal of cohabitation. No legal question of interest or importance is involved, and it is unnecessary to discuss the testimony or facts sought to be established. The testimony was taken in open court, and we find nothing to indicate that the circuit judge’s conclusions were not fully warranted, and his decree a just one. It is therefore affirmed, and, in addition to the sum heretofore allowed for costs and solicitor’s fee, it is decreed that defendant be allowed the further sum of $300 for her support and maintenance pending proceedings.

The other Justices concurred.


author: Grant, J.

text:
      In re SEYMOUR’S ESTATE.
    Wills—Undue Influence—Evidence.
    Evidence that one of testator’s sons had attended largely to his father’s business, and that the father, who was a .man of advanced age, had stated that he could not do as he wanted to, and that he was afraid of his son, and did not know how to make his will in the son’s absence; together with evidence of a statement of another son, who was a large beneficiary under the will, that they had got it fixed, and that the sisters would get nothing,—is sufficient to go to the jury on the question of undue influence.
    Error to Wayne; Hosmer, J.
    Submitted November 10, 1896.
    Decided December 18, 1896.
    George and Walter Seymour presented for probate the will of their father, Joseph Seymour, deceased. Sarah Newton and others, daughters of deceased, appealed to the circuit court from an order probating the will. From a judgment for contestants, proponents bring error.
    Affirmed.

      Henry M. Cheever and Edward P. Allen, for appellants.

      James H. Pound, for appellees.
   Grant, J.

Joseph Seymour died testate in 1894, leaving two sons and four daughters. His will was executed February 9, 1894, .when he was very ill. He was 80 years old, and died a few days after the execution of the will. He died seised of 80 acres of land, and left but little personal property. He devised one 40-acre lot to his son Walter,, and the other 40 to his son George. To his daughters, all of whom were married, he bequeathed $100 each, and charged his sons with the payment thereof. The daughters contested the will, charging incompetency and undue influence. The case was submitted to the jury upon both theories. Upon' which ground the jury set the will aside does not appear. It is conceded that there was evidence of incompetency introduced by the contestants, and evidence of competency introduced by the proponents. No complaint was made of the correctness of the instruction given to the jury, provided there was any evidence of undue influence; the proponents insisting that there was no such testimony, and that the court should have so instructed the jury. It seems unfortunate, in cases of. this kind, that juries should not be required to state on what ground their action is based.

The deceased was living with a second wife, with whom he had lived 23 years. His sons lived in their own homes, near by. George married the daughter of his stepmother. Neither of the boys nor the wife of the deceased was present when the will was executed. George and Walter both testified that they knew nothing of the contents of the will until it was read to them and their sisters a few days after the father’s death. The testimony upon the question of incompetency is not before us. The record of 120 pages contains all the testimony bearing upon the question of undue influence. This testimony was directed mainly to prove that George had for some time attended largely to his father’s business; that the deceased had made statements showing that he was afraid of his wife and of his son; that George had ordered one of the daughters out of his father’s house, saying that she was after his property; that her father had said that he could not do as he wanted to; that he said he did not know how to make his will, and he wished George were there; that Walter said, at the time the will was read, and one of the sisters remarked that George must have known something about the will before, that ‘ ‘ they had got it fixed; that they came loaded, cocked, and primed, and they had got it fixed, that we [the sisters] would never get a cent of it.” There was other testimony of a similar character. We are unable to say from this record that there was no evidence of undue influence. The undue influence sufficient to set aside a will must depend to some extent upon the physical and mental condition of the testator. The two are usually intimately connected. What would be undue influence in a case of physical and mental weakness would not be undue influence where he was in the full possession of his mental faculties.

We think the case was properly submitted to the jury, and the judgment must be affirmed.

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


text:
    WHITAKER v. ENGLE.

    1. Pleadings and Proofs—Variance.
    That plaintiff’s proofs disclose a right of action for commissions due on an exchange of real estate, whereas his bill of particulars in justice’s court claimed commissions upon a sale, does not constitute a fatal variance, where the defendant has been in no way misled by the pleading.
    2. Real-Estate Agents—Commissions—When Earned.
    An agent’s right to recover commissions on an exchange of land is prima facie established by proof that defendant agreed to pay commissions if a person having satisfactory property to exchange should be secured, and that the agent found such a person, with whom the defendant executed a contract for the exchange of the lands in question.
    3. Trial—Prima Facie Case—Ruling Thereon.
    It is not error for the court to decide, at the plaintiff’s request, as to whether or not he has established, prima facie, a right to recover, although plaintiff makes the request before resting his case.

      4. Same—False Testimony—Instructions.
    A request for an instruction that, if the jury should believe that the plaintiff testified falsely on any material point, they might consider that fact in weighing the rest of his testimony, is covered by a general instruction to the effect that, if any of the witnesses testified falsely in any particular, the jury should consider that fact, and weigh the testimony as to that as they would any other fact in the case.
    Error to Wayne; Lil'libridge, J.
    Submitted November 10, 1896.
    Decided December 18, 1896.

      Assumpsit by William Whitaker against Seth E. Engle for a commission on an exchange of real estate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Seth E. Engle, in pro. per.

      A. Ward Copley (Charles B. Whitman, of counsel), for appellee.

       Rehearing denied January 12, 1897.

   Grant, J.

This suit involves the right of the plaintiff to recover the commission on an exchange of real estate which plaintiff claims he effected between the defendant and a third party. He recovered a verdict of $333.41. The claims of the respective parties, as submitted by the court to the jury, are as follows:

“Plaintiff claims that defendant entered into an agreement to pay him 2 per cent, for commission for selling or exchanging his property on Lincoln avenue, in this city, for some other property; that defendant asked him what commission he would charge for the sale of this property; that he replied 2 per cent, for sale or exchange; that defendant said he would be willing to pay him 2 per cent., provided that he could bring a man who had property which was satisfactory to him. It is undisputed in this case that afterwards the plaintiff did bring together Mr. Engle and Mr. Elmer H. Stone, and that Engle and Stone made a contract.

“The defendant denies that he made any such agreement, but claims that the agreement was that, if plaintiff would exchange his property on Lincoln avenue, having a $5,500 incumbrance on it, for other improved property having less incumbrance on it, he would pay him 1 per cent.; that, if plaintiff brought him a customer who would pay cash, he would pay plaintiff 2 per cent.; if he brought him a customer who had vacant lots without any incumbrance on them, it would be an exchange for that property, and he would give him 1 per cent.; and if he brought him a customer who offered him an exchange of vacant lots with the same amount of incumbrance on them which was on the Engle house, he would not pay him anything.”

The testimony of the parties as to the terms of the contract is in direct conflict, each giving testimony to support his claim. Plaintiff did bring the parties together, and they executed a contract. This contract the parties, it seems, did not carry out on account of certain disagreements between them. They attempted to execute another contract, but failed.

1. This was the second trial of the case,'and the defendant insists that the plaintiff tried his first case upon a different theory from that claimed upon the second trial. His testimony upon the first trial was made a part of the record, and we find nothing in it to show any inconsistency.

2. Defendant insists also that there was a variance between the declaration and the proofs. The suit was commenced in the justice’s court, where the declaration was on the common counts, with bill of particulars, as follows:

July 15, 1893, to commissions on $10,500, at 2 per cent______________________________-...............$210
And “specially for commission on sale of real estate,” claims damage.................................... 300

Defendant demurred to this declaration in justice’s court, and asked for a more specific statement. This was overruled. The defendant refused to plead, judgment was taken, and on appeal to the circuit court he pleaded the general issue. There is no claim that defendant was misled by the pleadings. The fact that it was called a commission on “sale,” instead of “exchange,” is not fatal. In one sense, it was a sale of the defendant’s property. Such technical objections will not be considered where defendant is not and cannot be misled.

3. Complaint is made that the plaintiff was permitted to make his case by “piecemeal,” and that the court held at the close of the plaintiff’s testimony on his direct examination that he had made out a prima facie case. Plaintiff had testified to his contract with defendant, that he had brought Engle and Stone together, and that they had drawn up and executed a contract, and that Engle then said, “It is all right.” Plaintiff’s attorney then asked the court to decide whether he had made a prima facie case. While this may be somewhat unusual, we find in it no error.

4. Complaint is made that the court erred- in refusing to instruct the jury, “If you believe that.plaintiff testified falsely about not having an agreement from Stone for a commission, or as to any other material fact, you may consider that in weighing the rest of his testimony.” The court, in his general instruction, covered this point by instructing them that, “If any of the witnesses testified falsely in any particular, you should consider that, and weigh their testimony as to that as you would any other fact in the case.”

We find no error upon the record, and the judgment is affirmed.

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


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    HOPE v. DELAWARE & HUDSON CANAL CO.
    Carriers—Liability for Negligence.
    Defendant received goods for shipment under a contract providing that it should not be liable for loss or injury, or for delay in delivery, by any other carrier after the delivery of the goods to it by the defendant. The goods were properly delivered to a ¡connecting carrier. Thereafter a new waybill was made out, from which were omitted the instructions to notify certain persons, at the place of destination, which had appeared upon the bill of lading. The consignee, by reason of the error, could not be located, and the goods were placed in storage, from which the persons mentioned, for whom the . consignment was in fact intended, after locating the goods, refused to remove them unless the storage charges were paid. The goods were finally sold for such charges. Held, that the defendant was not liable.
    Error to Wayne; Frazer, J.
    Submitted November 10, 1896.
    Decided December 18, 1896.

      Assumpsit by Mark F. Hope and another against the Delaware & Hudson Canal Company for tbe alleged breach of a contract of carriage. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.
    One James Cavanagh was the owner of 96 bales of woolen rags, deposited with the defendant company at Plattsburg, N. Y. He sold them to the plaintiffs, who were engaged in business at Detroit, Mich. The defendant was the original shipper. It gave a bill of lading to Cavanagh, on the face of which was written: “To order of James Cavanagh, Detroit, Mich. Notify M. F. Hope & Co.” It contained the agreement that the defendant—
    “Should not be held liable for the loss of the property, or for any damage or injury to it, or for any delay in the delivery thereof, by any other carrier, cartman, or freight-man, whether such loss, damage, or delay resulted from the carelessness or negligence of said company, its agents or servants, after the same had been delivered at the company’s warehouse in accordance with said directions, or after delivery to the connecting carrier.”
    The goods were shipped in two cars, September 26, 1892. The two cars were transported by the defendant in the same train, and delivered to the Delaware, Lackawanna & Western Railway Company, the connecting carrier, and by this carrier were conveyed to Buffalo, N. Y., where in some way the two cars were separated, one being shipped over the Grand Trunk Railway, and the other over the Lake Shore & Michigan Southern Railway. The bill of lading, with draft attached for purchase price, was forwarded by Cavanagh to a bank in Detroit. In the forepart of October plaintiffs called up the Grand Trunk Railway by telephone, and informed the freight agent that they expected this merchandise from Plattsburg. When the first car came, plaintiffs were notified. Plaintiffs then paid the draft, received the bill of lading, delivered it to the Grand Trunk Railway Company, and received the merchandise. About the same time the other car-load was received by the Lake Shore & Michigan Southern Railway Company. The waybill contained no instructions to notify plaintiffs. This bill was dated October 4th, and shows that the car was received by the Lake Shore & Michigan Southern Railway Company from the Delaware, Lackawanna & Western Railway Company at Buffalo. This waybill was made out at Buffalo. The Lake Shore & Michigan Southern Railway Company notified the consignee, James Cavanagh, by mail, of the arrival of the goods, but did not find any such party, and after some days turned the goods over to the Moreton Storage Company for keeping. October 29th they received notice to notify plaintiffs. This was done, whereupon plaintiffs went to the Lake Shore & Michigan Southern Railway Company, and informed its agent that they were willing to take the goods if the company would pay the storage. The agent of this company declined to deliver the goods without the bill of lading. The agent of the Grand Trunk Railway Company refused to surrender the bill of lading. The freight departments of the two roads were only two blocks apart. Plaintiffs did not apply to the storage company for the goods, nor tender the amount of freight and storage charges. The goods remained with the storage company for 25 months, when they were sold for the charges against them. Plaintiffs’ suit is planted upon the alleged negligence of the defendant in the transportation of the goods. The original declaration charges the negligence to be in “improperly marking the cars containing said woolen rags, and in improperly billing the same.” Upon the trial plaintiffs were permitted to amend by adding the words, “And not then and there inserting the words, ‘Notify M. F. Hope & Co.’” The court directed a verdict for the defendant.

      Haug & Yerbes (Alfred Lucking, of counsel), for appellants.

      F. F. Bankin and Geer & Williams, for appellee.
   Grant, J.

(after stating the facts). The instruction was correct. Plaintiffs failed to show any negligence on the part of the defendant, or any violation of the contract of carriage. There is no showing that Mr. Cavanagh instructed the defendant to ship by any particular route. It therefore fully performed its contract by shipping the goods in the usual manner.- It was not, therefore, its fault that the cars were separated at Buffalo. There is no showing that the waybill of the Lake Shore & Michigan Southern Railway Company was made by the defendant, or under its instruction. If there were directions to place upon the waybill, “Notify M. F. Hope & Co.,” there is no testimony that this was not upon the waybill made out by the defendant over its own road. What testimony there is upon the point indicates that it was there, and that the omission occurred at Buffalo. The agent of the Lake Shore & Michigan Southern Railway Company—a witness for plaintiffs—testified that he got notice from Buffalo to notify plaintiffs. Each carrier made out its own waybill, and the defendant cannot be held liable under its contract with Cavanagh for any failure on the part of any succeeding carrier to make out a proper one. If, however, there were such testimony, this would not render the defendant liable for the value of the goods. There was a delay of three weeks after their arrival in notifying the plaintiffs. In any event, the defendant could be liable only for the damages caused by this delay, which plaintiffs claim was $14,—the storage charges. The reply to this claim is that plaintiffs have not paid it, and have made no such claim in their declaration. It is clear that the defendant is not responsible for what occurred after the arrival of the goods at their destination and notice thereof to plaintiffs. Somebody’s stupidity or unjustifiable conduct is responsible, but whether it be the fault of plaintiffs, or of either or both of the railway companies, we need not determine. It is only essential for the determination of this suit to say that no blame rests upon defendant.

Judgment affirmed.

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


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    SLACK v. NORTON.
    1. Married Women—Power to Contract.
    A married woman is entitled to the benefits of a contract by which she furnished board and care to another, where all of the supplies were provided by her, and the arrangement was entered into and carried out with the consent of the husband.
    . 2. Same—Witnesses—Competency—Matters Equally Within Knowledge of Deceased.
    In a proceeding by the wife to enforce such a claim against the estate of a decedent, the husband is competent to testify to the arrangement made with the deceased, since he does not stand to the wife as assignor of the claim, and is therefore not within the statute (3 How. Stat. § 7545) prohibiting an assignor from testifying to matters which, if true, were equally within the knowledge of the deceased. Stackable v. Stackable’s Estate, 65 Mich. 518, distinguished.
    Error to St. Joseph; Yaple, J.
    Submitted November 10, 1896.
    Decided December 18, 1896.
    Susan E. Slack presented a claim against, the estate of Henry Slack, deceased, for services rendered decedent during his lifetime. The claim was contested by the administrator, John M. Norton, and was disallowed in part, whereupon the claimant appealed to the circuit. From a judgment there for defendant on verdict directed by the court, claimant brings error.
    Reversed.
    SI M. Constantine, for appellant.

      Alfred Akey, for appellee.
   Long, C. J.

Claimant presented her claim to the commissioners on the estate of Henry Slack, deceased. She claimed $252.50, and was allowed $125. From this she appealed to the circuit court, where, upon a trial before a jury, the court directed verdict in favor of the defendant. The claimant is a married woman. In the spring of 1894, she was living at Vicksburg, keeping boarders. Her husband was a traveling salesman, selling fruit trees. The deceased was the father-in-law of the claimant, and was an invalid, and desired to make his home with her. As to the arrangement between the claimant and the deceased, it was shown upon the trial, by the husband of the claimant, under objection, that the deceased agreed to pay the claimant well for his board and care if he should be permitted to live there; that claimant agreed to take care of him; that he came to her house, and had his board and washing and necessary attendance, and remained there until some time in May of the same year, when he requested the claimant to break up house-keeping, and move down to his place, and take care of him there, and agreed, further, that if she would do so he would pay her well, and it should not cost her anything for house rent or wood; that claimant agreed to this, and the deceased sold off all his household effects, except furnishings for one room, and claimant took charge of the house, and furnished everything, including provisions; that deceased, owing to the nature of his disease, soon commenced to grow worse, and claimant had to have extra help, paying $2.50 a day therefor; that claimant kept an itemized account of the board and of the services rendered to the deceased; and that her husband had nothing whatever to do with it. There is no dispute upon the record that such board and services were rendered, nor of the value thereof. At the close of the testimony, the court was of the opinion that the husband was incompetent as a witness, and struck out his testimony, and found that there was no competent testimony in the cause which would warrant the jury in finding a verdict for the claimant.

On appeal here, counsel for the estate contends that the court was not in error, for the reasons, among others, that the husband is entitled to have his wife’s services and earnings, the same as at common law, and to make such a contract valid as here claimed, so that the wife might recover upon it, there must not only be contract relations between the husband and wife, by which the husband releases all his rights to her time and services, but, also, those relations must be understood by the deceased ; that, if the husband agreed with his wife that she should receive compensation for her own services, it would not be binding upon the deceased unless he assented to it; and that, if the contract was made between the deceased and the wife for such services, it would be essential to have the husband’s consent. In support of this contention counsel cites Mason v. Dunbar, 43 Mich. 407 (38 Am. Rep. 201). Counsel contends that, under that case, in order for the claimant to recover, the husband must have relinquished his right or claim to claimant’s services, either by assignment or otherwise, before or after her services commenced, and asserts that, if this had been proved by competent evidence, he would concede her right to recover, but that the husband was an incompetent witness under section 7545, 3 How. Stat., and that his testimony should be stricken out, and that therefore there was nothing in the case which warranted a verdict in favor of claimant. The statute cited (Act No. 139, Pub. Acts 1885) is amendatory of the general statute, the words added being “that, whenever the words ‘the opposite party ’ occur in this section, it shall be deemed to include the assignors or assignees of the claim, or any ■ part thereof, in controversy.”

In Stackable v. Stackable’s Estate, 65 Mich. 518, the court, referring to this statute, say:

“It is clear that, without some assignment, this claim for board would belong to the husband, and not to the wife. He was the head of the household* and furnished the family supplies. There had to be some agreement on his part' with his wife that she should receive the pay for the board. The statute is aimed at an assignment before the death of the party against whom the claim exists, as well as to one after his death. ”

And it was held in that case that the husband was not a competent witness in relation to the items for board.

In the present case, the wife was permitted by her husband to keep boarders, furnished the provisions herself, and with which it is apparent the husband had nothing to do. In this respect it differed from the Stack-able Case, and the husband was a competent witness to show that this was the wife’s business, and not his own. It is not an action upon an account brought by the wife which has been assigned to her. It is a claim with which the husband had nothing to do, if his testimony given in the case is to be believed. The husband did not stand towards the wife as the assignor of the claim, and therefore was not prohibited by the statute from testifying to any ai’rangement which the wife made with the deceased for his board and care. Pz’ior to the time of this arrangement between claimant and deceased, she had kept boarders. This seems to have been her business, while the business of the husband was that of a traveling salesman. It has been decided many times in this court that a married woznan, with the consent of her husband, may carzy on business on her own account, and may be protected in the results thereof, against him and against his creditors, to the same extent as if she were unmarried. Tillman v. Shackleton, 15 Mich. 447 (93 Am. Dec. 198); West v. Laraway, 28 Mich. 464. We think the court was in error izz holding that the husband, under the circumstances, was not a competent witness, and that the jury should have been instructed that, if they found the contract as claimed by the claimant, they should find a verdict in favor of the claimant, as we think there was 'sufficient evidezzce to warz’ant the submission of that question to the jury.

The judgment must be reversed, and a new trial ordered.

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


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    BREWER v. LANDIS.
    1. Mortgages—Foreclosure—Irregularities—Remedy.
    The defendant in a foreclosure suit may proceed by petition to have the sale set aside for alleged irregularities in the proceedings, although the rights of third persons have intervened.
    2. Same—Setting Aside Sale—Discretion op Court.
    The action of the circuit court in setting aside a foreclosure sale for want of notice to the mortgagor, the notice of sale having been published in a paper which had no circulation in his neighborhood, and for inadequacy of the price realized, is within its discretionary powers, and will not be interfered with unless the discretion is abused.
    Appeal from Kent; Grove, J.
    Submitted November 10, 1896.
    Decided December 18, 1896.
    Bill by Aaron Brewer against Maggie Landis and others to foreclose a mortgage. A decree for tbe sale of tbe premises was assigned by complainant to Eli Landis, and tbe latter bid them in at commissioner’s sale, and subsequently transferred tbem to John R. Watts. Maggie Landis filed a petition to set aside tbe sale. From a decree for petitioner, Eli Landis and Jobn R. Watts appeal.
    Affirmed.

      Wylie & Clapperton, for petitioner.

      Dwight Goss, for Eli Landis.

      John 8. McDonald, for John R. Watts.
   Long, C. J.

In November, 1889, Maggie Landis, together with her husband, made a mortgage upon 40 acres of land to Aaron Brewer. This mortgage was foreclosed, and decree entered in favor of complainant for $890.12. In tbe proceedings to foreclose, tbe subpoena was duly personally served upon each defendant. No appearance was entered by either defendant, and the decree was taken upon default. No question is raised as to the regularity of the proceeding. The decree provided that sale could be made at any time after November 11, 1895. September 18, 1895, Brewer sold and assigned this decree to Eli Landis, who made a petition to the court to be substituted in place of Brewer, under Chancery Rule No. 125. This order was made, and Landis at once commenced proceedings to sell under the decree. The premises were sold by a commissioner, and bid in by Landis for $1,022.09, being the amount of the decree and costs. An order confirming the sale was entered, and within a few days thereafter Landis mortgaged the land to Ida E. Cartwright for $700. This mortgage was recorded January 30, 1896. On February 3, 1896, Landis sold the land on contract to John R. Watts for $1,200, Landis reserving all the timber. Watts paid nothing down, but went into immediate possession of the land. On the same day that Landis sold the land to Watts, Maggie Landis filed her petition in the cause to set aside the orden substituting Landis in place of Brewer, and also to set the sale aside. The grounds upon which she asks to have the proceedings set aside are:

1. That she had no notice of the assignment of the decree from Aaron Brewer to Eli Landis, or of the petition for substitution.

2. That no such notice was served on the solicitors of the original complainant, Aaron Brewer.

3. That the notice of sale was published by the commissioner in the Lowell Journal, which had no circulation in her neighborhood; and that she had no actual notice of the sale, or its confirmation; and that the land was sold at a sacrifice.

Upon the petition being filed, an order was served on Eli Landis, John R. Watts, and Ida E. Cartwright to show cause why the prayer of the petition should not be granted. Landis and Watts answered. Ida E. Cartwright filed no answer, the good faith of her mortgage not being questioned. Upon tbe hearing, the court made an order setting aside the order made on November 26, 1895, substituting Landis for Brewer in the cause, and also all the subsequent proceedings, and gave costs against Eli Landis. Landis and Watts appeal. It is contended by their counsel that the court was in error in bringing the parties before .the court on motion; that the remedy of the petitioner was by bill to redeem.

The practice pursued in the present case was the same as in Nugent v. Nugent, 54 Mich. 557, where the order made was affirmed. In that case the sale was set aside upon some of the grounds that appear in the present case, and it was held that the questions presented were largely within the discretion of the court below, which would not be interfered with unless it had been misused. We have examined the record with some care, and find that there was evidence presented to the court below upon which he might very properly reach the conclusion that the order of sale and order of substitution of parties should be set aside; and we cannot say that the discretion vested in the court in such proceeding was misued.

The order of the court below must be affirmed, with costs in favor of petitioner, Maggie Landis.

The other Justices concurred.


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    BURGESS v. ISHERWOOD.
    Appeal—Second Trial—Instructions.
    A judgment will not be reversed upon a second appeal for alleged error in giving or refusing instructions, where the testimony was the same upon both trials, and the cause was submitted to the jury in accordance with the opinion on the former appeal.
    Error to Kalamazoo; Buck, J.
    Submitted November 12, 1896.
    Decided December 18, 1896.
    Trover by Charles E. Burgess against John Isherwood. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      William A. Luby, for appellant.

      E. M. Irish, for appellee.
   Hooker, J.

The facts of this case will be found stated in the report of the former hearing in this court in 101 Mich. 319. Counsel for the appellant states in his brief that the testimony was the same upon both trials. Upon the last trial, the court submitted the case to the jury, and a verdict for the defendant was returned. All assignments of error relate to the charge or refusal to give requests. After examination, we are satisfied that the cause was submitted to the jury in accordance with the views expressed in our former opinion. It is unnecessary to discuss the several assignments of error (of which there are many) to show wherein they are not meritorious. They raise no law questions of interest, and the subject is sufficiently covered by our former opinion.

The judgment is affirmed.

The other Justices concurred.


author: Hookee, J.

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    FULLER v. PENINSULAR WHITE LEAD & COLOR WORKS.
    Contracts—Yearly Hiring—Construction.
    A contract of employment dated January 1, 1893, by" which the employé was “to receive $1,200 per year until further notice, or during the year 1893,” the salary not to be reduced in any event, is not a contract from year to year, so as to entitle the employe, on being discharged, after having worked a year and eight months, to compensation for the balance of the year.
    Error to Wayne; Hosmer, J.
    Submitted November 10, 1896.
    Decided December 18, 1896.

      Assumpsit by Simeon F. Fuller against the Peninsular White Lead & Color Works on a contract of employment. From a judgment for plaintiff, defendant brings error.
    Reversed.

      William F. McCorkle (Henry M. Gheever, of counsel), for appellant.

      Sullivan & Mason, for appellee.
   Hookee, J.

Plaintiff had been' in the employment of the defendant corporation for several years, at a stated salary of $13 per week. In December, 1892, Mr. Goodell, then defendant’s manager, “said to the plaintiff that there was a probability of some changes in the management of the company, and the people coming in would make some change, and he would give him an agreement, so that he would be fixed, and not lose his place;” that he afterwards .gave him a writing, and gave him to understand that he could not be put out by the new management, but that he would retain his position for the year. The following is a copy of the writing:

“Detroit, Mich., January 1, 1893.

“ This is to certify that, in'consideration of the faithful performance of his duties during the last five years, Simeon F. Fuller is to receive twelve hundred dollars ($1,200) per year until further notice, or during the year 1893. The salary is not to be reduced in any event, and may be raised, at the discretion of the Peninsular Co. or its manager, at any time.

“Peninsular White Lead & Color Co.

“O. D. Goodell, Manager.”

Within a short time, Mr. Worcester became manager of the company, and the plaintiff continued to work for the defendant under this arrangement for 1 year 8^ months, without further conversation about the matter. At that time the company sold out its business, and the men were all paid off and discharged, Fuller, among the rest, having knowledge that the company was going out of business; and when the sale was made he was informed that he would not be wanted further. This action is brought to recover plaintiff’s salary to January 1, 1895, upon the claim that his was a yearly hiring, and that, when he commenced on the year 1894, he could not be discharged before the year expired.

We think that the evidence shows conclusively that the plaintiff accepted employment upon the terms stated in the writing, which was that he should be paid a salary of $1,200 per year until further notice. It might be raised, but could not be reduced, during 1893, but might thereafter, upon notice. To say that he could only be dismissed at the end of a year would make this provision meaningless, for nobody contends that without it the contract might not be changed, or even terminated, at any yearly period by either party. The only reasonable construction is that for the year 1893 the plaintiff had a right to a salary of $1,200. After that his right might be terminated upon notice, which was equivalent to saying that the defendant might terminate the contract, because he could not be compelled to work at a lower price, or insist upon receiving any stated amount.

The judgment is reversed. No new trial should be ordered.

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


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    ANGELL v. CORTRIGHT.
    1. Drains—Application for Cleaning—Sufficiency.
    An application for the cleaning out of a drain, which recites that the petitioners are freeholders in the township in which it is situated, and that five of them (giving their names) are owners of lands that were assessed for benefits in the construction of the drain, and are liable to be assessed for benefits in cleaning it, and that the drain needs cleaning, is sufficient, under Act No. 203, Pub. Acts 1893, chap. 8, § 1, providing that any five freeholders of the township in which a drain is situated, one or more of whom are owners of land liable to an assessment for benefits in the cleaning out of the drain, may make application therefor.
    2. Same—Validity of Assessments.
    The fact that contractors to clean out a public drain, in accordance with a diagram of the drain as originally constructed, made the drain wider than it originally was, do6S not invalidate the assessments therefor.
    Error to Clinton; Davis, J., presiding.
    Submitted November 10, 1896.
    Decided December 18, 1896.

      Assumpsit by Oliver S. -Angelí against James Cortrigbt, treasurer of Dewitt township, to recover taxes paid under protest. From a judgment for defendant on verdict directed by-the court, plaintiff brings error.
    Affirmed.

      Fedewa & Walbridge, for appellant.

      Spaulding & Norton, for appellee.
   Long, C. J.

The plaintiff, and John - Wieland and Egbert Hurd, his assignors, were assessed $180 for cleaning out and widening what is known as the ‘ ‘Gunderman Lake and Prairie Creek Drain,” in Dewitt, Clinton county, for the year 1895. On the 2d day of March the parties paid such taxes to the defendant township treasurer under protest. These protests were signed by the parties, and it appears that prior to the payment of the taxes the defendant had seized and taken into his possession some personal property belonging to John Wieland, for the purpose of satisfying the payment of the tax, and also threatened to take some of the personal property of Egbert Hurd for the payment of his said taxes; and that prior to the commencement of suit these parties assigned their claims to the plaintiff. On the trial it was contended by the plaintiff:

1. That the application for cleaning out the drain was illegal, in that it did not recite that the application was made to the commissioner by whom the drain was constructed, or to. his successor in office, and in that it did not set forth that five applicants are freeholders of the township in which said drain is situated.

2. That the drain was widened beyond its original width.

3. That the contracts for doing the work were let for a drain 1¶ feet slope to one foot rise, and paid for on that basis, while in-fact the work was actually performed on the basis of one foot slope to one feot rise.

4. That there was a fraudulent arrangement between the commissioner and the contractors, by which the taxpayers were defrauded of large sums of money.

On the trial the court directed a verdict in favor of the defendant.

The statute under which the petition was made is section 1, chap. 8, Act No. 203, Pub. Acts 1893, and provides:

“Whenever a drain, or any portion thereof, needs cleaning out, straightening, deepening, widening, or extending, any five freeholders of the township or townships in which such drain is situated, one or more of whom shall be owners of land liable to an assessment for benefits in the cleaning out, deepening, widening, straightening, or extending, as the case may be, may make application in writing to the commissioner by whom it was constructed, or to his successor in office, setting forth its necessity,” etc.

The application for the cleaning out of this drain is signed by nine persons, and recites that five of them— giving their names—-are owners of lands that were assessed for benefits in the construction of the drain, and are now owners of land liable to be assessed for benefits in the cleaning out of the drain; and that the drain needs cleaning out to its full capacity its entire length. Counsel for plaintiff contend that the case of Tinsman v. Probate Judge, 82 Mich. 562, settles the rule that the application was insufficient. In that case the petition did not show that one or more of the petitioners were assessed for the construction of the two drains which they asked to have widened and deepened, and it was held that the statute required this, and that such requirement was jurisdictional. That proceeding was had under Act No. 233, Pub. Acts 1889. As has been seen, the petition in the present case shows that five petitioners were assessed for benefits for the original construction, and that they then held land liable to be assessed for the improvement.

We think there is no showing that the drain was widened beyond its original width. The contracts under which the cleaning out was done appear to,have been destroyed after all the work had been completed; but it was shown that the contracts referred to a diagram made of the ditch before the letting of the contracts, and after the surveys had been made, and that a certain portion was to be of the dimensions of one foot slope to one foot rise, and another portion, 1|- feet slope to one foot rise, and there is no showing but that these were the dimensions of the original ditch. There is no evidence that the contracts were let upon any different basis than that shown in the diagram, and whatever the contractors may have done in the construction of the drain in making it wider can in no manner affect the plaintiff’s rights, as the contracts were let simply for the cleaning of the old ditch, and in accordance with the diagram.

There is not a particle of evidence in the record that there was collusion between the commissioner and the contractors by which the taxpayers of the township were defrauded.

The judgment below is affirmed.

The other Justices concurred.


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    BENNETT v. KNOWLES.
    1. Statute of Frauds—Contracts Relating to Lands—Part Performance,
    An oral contract for the exchange of lands, whereby one of the parties agrees to reduce an incumbrance on the land conveyed by him, is taken out of the statute of frauds by the execution and delivery of deeds, so as to render enforceable a subsequent promise in writing to deliver possession, and to reduce the incumbrance pursuant to the oral agreement.
    2. Contracts—Consideration.
    An agreement in form: “I hereby agree to give B. possession of said property in L. when she gives possession of said property in S., and also to make the mortgage to $2,000, the same as my deed,”—executed after a delivery of deeds in exchange of land, and in accordance with the terms of a parol agreement therefor, signed by the promisor, is supported by a sufficient consideration, arid is binding upon the promisor.

      Error to Jackson; Peck, J.
    Submitted November 11, 1896.
    Decided December 18, 1896.

      Assumpsit by Lucina Bennett against Ezra S. Knowles for damages growing out of a contract for an exchange of lands. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. A. Lyon (Fellows & Chandler, of counsel), for appellant.

      Lewis M. Powell, for appellfee.
   Hooker, J.

The plaintiff and defendant exchanged real estate. The bargain was oral, and the plaintiff alleges that, as a part of the consideration, the defendant promised to pay the excess over $2,000 upon a mortgage then upon the property conveyed by him to the plaintiff. A quitclaim deed was given to the plaintiff, but when she ascertained that the mortgage had not been reduced as promised, and was being foreclosed (which defendant had concealed), she refused to give possession of the property conveyed by her to said defendant until he should pay said sum, alleging that he had deceived her. She claims that he thereupon gave her a writing, wherein he promised to “pay” said mortgage “down to the $2,000,” and to put her in possession of the farm, when she should give him possession of the Stony Creek place. The following is a copy:

“June 6, 30, ’8?.

“I hereby agree to give Lucina Bennett possession of said property in Liberty when she gives possession of said property in Stony Point, and also to make the mortgage to two thousand dollars, as same as my deed.

“E. S. Knowles.”

This he failed to do, and the plaintiff brought this action to recover the amount of such excess, and damages for the use of the farm; in which she found others had possessory rights. The jury found a verdict for the plaintiff, and the defendant has appealed.

It is claimed on behalf of the defendant that the original contract, being oral, was within the statute of frauds, and, not being in writing, was therefore void; that this agreement to reduce the mortgage was, in effect, agreeing to perfect title,—i. e., to enlarge the rights of Mrs. Bennett, the plaintiff, in the real estate conveyed by quitclaim deed; and that, moreover, it was a promise to pay the debt of another, inasmuch as Knowles did not give the mortgage, but only took the land subject to the mortgage theretofore existing. The writing was objected to because it did not contain the entire bargain, and because it was not signed by both parties, and for want of consideration. The answer to all this is that, if the oral contract made in the first instance was void under the statute of frauds, when both parties conveyed the land by deed, leaving nothing for the defendant to do but to pay the money agreed to be paid, and give the possession agreed in writing to be given, it became valid, and, if the money agreed to be paid had been payable to the plaintiff, she could have brought her action to recover it, but, inasmuch as the promise was to pay the sum to another, her remedy was an action for the breach of the contract. The fact that the effect of such payment was to lessen the amount of a lien upon the land was unimportant. See Holland v. Hoyt, 14 Mich. 238.

The paper writing, if it was given, was valid. Each party performed the oral agreement in part. Plaintiff gave her deed, and defendant gave his. She declined to give possession until he bound himself in writing to pay the excess over $2,000 existing as an incumbrance, and to give her possession. This writing is no more without consideration than a promissory note for the money would be, and there was no more occasion for the plaintiff’s signature upon it. It was a conditional promise, the consideration for which he had already received. The proposition that this promise to pay was void because it was an undertaking to pay the debt of another is without merit. It is elementary that an original promise to pay the existing debt of a third party, where based upon a present consideration, is not within the statute of frauds. It has been so held repeatedly in this State, and there is probably no State in which it is not the rule. But, if it were otherwise, the promise is in writing, and therefore not within the statute.

This covers the substance of the points involved, and we do not think it profitable to discuss the cases cited by counsel, as they are not applicable to the state of facts before us, the contract apparently being fully executed upon both sides, except in the particulars complained of, for which the jury seem to have found that the plaintiff held the defendant’s written obligation.

The judgment is affirmed.

Long, C. J., Grant and Montgomery, JJ., concur- • ' red. Moore, J., did not sit.


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    VINCENT v. CITY OF KALAMAZOO.
    Adverse Possession—Conveyances — Reservation for Sidewalks.
    Actual possession and occupancy for the statutory period, by successive owners of a city lot, of a strip of land included within the platted lines of a public street, is sufficient to establish title as against the city, although none of the owners occupy the premises for the full period, and each conveyance excepts that part set aside for sidewalk purposes, where the part actually used for a sidewalk has never included the strip claimed, and the recorded plat sets aside no specific land for such purpose.
    Appeal from Kalamazoo; Buck, J.
    Submitted November 11, 1896.
    Decided December 18, 1896.
    Bill by Edward B. Vincent against tbe city of Kalamazoo to restrain interference with the erection of a building. From a decree for complainant, defendant appeals.
    Affirmed.

      Howard & Boos, for complainant.

      George P. Hopkins (E. M. Irish, of counsel), for defendant.
   Hooker, J.

On July 35, 1894, James Carrol conveyed to the complainant, by warranty deed, the following parcel of land in the city of Kalamazoo, viz.:

“That part of lot number 333 commencing 36J feet from the south curbstone, the same being 31 feet from the center, of Water street; * * * running thence east 66 feet; thence north 36& feet; thence west 66 feet; thence south to place of beginning,—and containing the land therein, except that set apart for sidewalk purposes.”

Previous to this time, and from 1864 to 1893, when the building was destroyed by fire, the curbstone was distant 10 feet from the side wall of a wooden building situate upon said lot, and the sidewalk covered the space between the wall of the building and the curb. The complainant proposed to erect a brick building upon the site of the former building, the north wall to be placed at a distance of 10 feet from the curb. The city claimed that such a location of the wall would encroach upon the street 2 feet, and an inspection of the recorded plat shows that this strip of land 2 feet wide, adjoining the sidewalk upon the south, was within the limit of the street as platted. This bill is filed to restrain the defendant city from preventing complainant from covering by his proposed building the two-foot strip of ground.

The case turns upon the question of adverse possession. It seems to be admitted that the buildings have covered this ground for about 30 years, during which period no claim of encroachment was made by the city; but it is contended that none of the owners occupied the premises more than 8 years, and that each one excepted this strip when the property was conveyed by him, and that consequently his successor acquired no advantage by reason of the adverse occupancy. This contention is, of necessity, based on the claim that the part of the street set aside for sidewalk purposes included all of the land between the curb and the street line as platted, i. e., 12 feet. There is no evidence that any portion of the street was “set apart for sidewalk purposes,” except the fact that a walk 10 feet wide existed. Nothing in the plat shows an intention to designate any part for sidewalks, nor is there evidence of any corporate action setting apart this 2 feet with other land for sidewalks. The only reasonable construction, therefore, is that the exception referred to the land actually in use for that purpose, viz., 10 feet. It is unnecessary to discuss the legal question, as it has been frequently held that the public could lose an easement by nonuser, accompanied by occupancy by an adjoining proprietor.

The judgment is affirmed.

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


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    SMITH v. PEGG.
    Statute oe Limitations—Foreclosure—Deficiency.
    Tlie statute of limitations begins to run against the right of a mortgagee to an execution for a deficiency from the entry of the decree of foreclosure, although the liability of the mortgagor cannot be enforced until the sale is made, and the report thereof is filed fixing the amount of such deficiency.
    Appeal from Cass; Coolidge, J.
    Submitted November 11, 1896.
    Decided December 18, 1896.
    Bill by Luther Smith against Abijah Pegg for a decree for a deficiency on foreclosure, and for an award of execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    On July 14, 1884, a decree of foreclosure was made in a suit brought by the complainant against defendant, Pegg, and wife, and one Lindsley. Pegg had executed the note and mortgage upon 'the real estate described in the bill of complaint, and was therefore personally liable. The decree found that defendant Pegg was indebted to the complainant in the sum of $813, and decreed that he pay the same to complainant on or before July 33, 1884; that, in default of payment, the lands be sold; that the commissioner report the amount of the deficiency; and that, upon the coming in and confirmation of the report, defendant Pegg pay the amount of such deficiency. The land was sold under the decree, commissioner’s deed executed, and report of the commissioner filed November 8, 1884, showing the deficiency to be $611.12, and decree enrolled the same day. No further proceedings were taken by the complainant to collect the deficiency until the filing of this bill, September 20, 1894. The bill is an original one, instead of the usual petition for confirmance of the sale and decree or order for the deficiency. The reason for filing an original bill is that the files in the case were lost. They were, however, found, and produced at the hearing. The prayer of the bill is for a decree for such deficiency, and an execution therefor. The bill was dismissed.

      Edivard Bacon, for complainant.

      F. J. Ativell, for defendant.
   Grant, J.

(after stating the facts). The defense interposed is the statute of limitations, which the defendant insists began to run from the date of the entry of the decree, July 21, 1884, and the complainant insists did not commence to run until the filing of the report, or until after an order had been entered confirming the report of sale and directing the payment of deficiency, under 2 How. Stat. § 6702. The statute of limitations provides:

“Every action upon a * * * decree heretofore rendered, or hereafter to be rendered, in a court of record * * * of this State, * * * shall be brought within ten years after the entry of the * * * decree, and not afterwards.” 2 How. Stat. § 8736.

The original decree in a foreclosure suit, fixing the amount due and ordering a sale, is a final decree, from Which an appeal will lie, and is the decree fixed by the statute of limitations. If the mortgagor does not choose to pay this decree, he may let the land be sold, and the amount realized will be credited upon the decree. The decree is an adjudication of the amount due. It is final and conclusive, unless an appeal is taken. Subsequent payments, whether voluntary or by the sale of the property, do not affect the time when the statute begins to run. It is true that the personal liability cannot be enforced until the sale is made and report thereof filed, Mickle v. Maxfield, 42 Mich. 309; Shields v. Riopelle, 63 Mich. 462. The right to an execution is suspended until this is done. A stay of execution of a judgment at law does not postpone the running of the statute till the stay expires. If the complainant’s construction be the correct one, he may postpone indefinitely the running of the statute, either by neglecting to sell, or to have the sale, when made, confirmed. By implication, at least, the rule is settled in Wallace v. Field, 56 Mich. 3, in which it was said: , “The complainant had 10 years after the decree within which to make his claim by execution.” While the point was not directly involved in that case, yet it is a plain declaration by the court of their construction of the statute, and, we think, states the correct rule.

The decree is affirmed, with costs.

The other Justices concurred.


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    EDISON v. BABKA.
    1. Married Women—Power to Contract.
    A contract between a husband and wife and a third person, whereby the latter is to set out an orchard on land occupied by the former, the title to which is in another, and is to receive a share of the fruit for a term of years, is not binding upon the wife, although she afterwards acquire title to the land.
    2. Contracts—When Assignable.
    A contract between a nurseryman and a farmer, by the terms of which the former is to plant fruit trees on the latter’s land, to prune and care for them, and to receive in payment half the fruit grown for a period of 10 years, is made in part consideration of the skill and honesty of the nurseryman, and, in the absence of a special provision in the contract, it cannot be assigned by him without the consent of the other party.
    Error to Kent; Adsit, J.
    Submitted November 13, 1896.
    Decided December 18, 1896.
    Trover by George M. Edison against Joseph Babka and Delia Babka. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Henry J. Helker, for appellant.

      Thompson & Temple, for appellees.
   Long, C. J.

This action was brought by the plaintiff as the assignee of a certain contract, which reads as follows:

“Memorandum of agreement made and entered into this 6th day of November, A. D. 1889, by and between Mrs. Dolly Orcutt and Joseph Babka and Delia Babka, his wife, of the township of Plainfield, county of Kent, and State of Michigan, parties of the first part, and Chas. E. Knapp, of the township of Grand Rapids, county of Kent, and State of Michigan, party of the second part, witnesseth:

“That Chas. E. Knapp is to furnish enough peach trees to set out a certain piece of land, to the amount of 1,000 trees, more or less, in the spring of 1890 and 1891, and said Knapp is to be to one-half of the expense of setting said trees, and to fencing said lot with post and wire, on the farm known as the ‘D. Orcutt Farm,’ and described as follows: The southeast quarter of the northwest quarter of section No. 20, township eight (8) north, of range eleven (11) west, township of Plainfield, said land owned and occupied by said first parties. Said Chas. E. Knapp agrees to replace all trees that die or are killed by the hard winters for the first three years after setting, and one-half of all trees to be replaced there, and Joseph Babka is to pay for the other half. Now, therefore, in consideration of the premises, and for said trees furnished, and to be furnished, by the said Chas. E. Knapp, in reference thereto, the said Joseph Babka hereby agrees to plow and till the ground on which said trees are set for the first three years after setting, and to plant the land to corn or beans, and to care for the trees in a good and workmanlike manner, and said Babka is to have for his work all of said corn or beans; and the said Knapp is to prune said trees each year as much as in his judgment is needed, and after the first three years said Knapp is to pay for one-half of the work in said orchard, or do it himself each and every year thereafter, at a rate not to exceed $2.50 per day for man and team, and $1.25 for man; said work to be done in proper season, without doing harm to the trees, up to picking time. Then each party can gather and dispose of their part, or they may pick and market it together, as they may choose. And said Knapp is to have one-half of all peaches grown on all of said trees for the term of 10 years from the time of setting said trees. That first parties are to furnish said Knapp, free from all expense, all necessary facilities, in the nature of roads, etc., for the caring for said trees, and for ingress and egress in gathering, securing, and removing his part of said fruit grown. And it is hereby agreed that the provisions of this agreement shall be binding on their heirs, executors, or administrators of the respective parties. '

“Witness our hands and seals, this 15th day of November, A. D. 1889.

“Joseph BIbka. [l. s.]

“Delia Babka. [l. s.]

“Chas. E. Knapp, [l. s.]

“In presence of

“Michael Babka.”

While the contract was drawn to be executed by all the parties, it was not executed by Mrs. Orcutt, who was at that time the owner of the premises to which the contract related. At the time it was executed, Joseph Babka and his wife, Delia, were living on the farm, and working it on shares. On the 11th of October, 1892, Dolly Orcutt deeded the premises to Delia Babka, and she and her husband still reside upon the premises.

It is admitted that the trees were planted in accordance with the terms of the contract, and were tended and kept pruned by Knapp until the year 1893, when he assigned his interest in it to D. B. Pond and George H. Burgett; and they, on the 22d of September, 1894, assigned their interest to the plaintiff in this case. Previous to this last assignment, it is claimed that some peaches had been grown upon the trees, a part of which Burgett and Pond claimed belonged to them under the terms of the contract; and they claimed that the peaches were taken and disposed of by the defendants, or one of them, before they assigned their contract to the plaintiff. In the assignment to the plaintiff, they assigned, in writing, any right of action they might have against the defendants, or either of them, for taking and disposing of the peaches.

This suit is in trover for the conversion of the peaches. On the trial, it was contended by counsel for defendants:

1. That the contract was not one which Mrs. Babka could make, as at that time she was a married woman, and the contract did not relate to her separate estate, the title to the farm being then in Mrs. Orcutt.

2. That the contract was a .personal one with Mr. Knapp, and that Babka had a right to rely upon the benefit he would derive from the personal knowledge of Knapp in the fruit business, his skill in trimming trees, and his honesty, as, by the terms of the contract, Knapp had the right to enter the orchard at any time, and remove the fruit.

On the trial, the court directed a verdict in favor of the defendants.

We think counsel are right upon both propositions. The contract was one which was not within the power of Mi’s. Babka to make, and by which she could be bound. It had no reference to her separate estate. Naylor v. Minock, 96 Mich. 182, 186. We think, also, that it was a contract which could not be assigned without the consent of Babka, so that he would be bound to accept the services of a third party; and no showing was made or offered to be made that he ever assented to the assignment of it. Babka had the right to the benefit of Knapp’s knowledge as a fruit-tree man, and it is plain that, by the terms of the contract, he did rely upon his- knowledge, not only in the planting of the trees, but in the pruning from year to year during the whole 10 years covered by the contract. It is held in such cases that, where the contract is such as to imply peculiar confidence in the honesty, pecuniary ability, knowledge, or skill of the person to whom a guaranty is addressed, there is good reason for holding it to be strictly personal, unless its language implies the contrary. King v. Batterson, 13 R. I. 120. In the notes to Sloan v. Williams, 12 L. R. A. 496 (138 Ill. 43), this whole subject is fully discussed, and the rule stated in King v. Batterson, supra., upheld.

The judgment below must be affirmed.

The other Justices concurred.


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    KNAUSS v. MAJOR.
    Bills and Notes—Sale—'Warranty.
    The purchaser of a promissory note under a verbal warranty that it is good, and the maker financially responsible, is not bound to exhaust his legal remedy against the maker before bringing suit for a breach of the warranty.
    Error to St. Joseph; Yaple, J.
    Submitted November 13, 1896..
    Decided December 18, 1896.

      Assumpsit by Levi J. Knauss against Isaac D. Major on a verbal warranty. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff brought suit upon an alleged verbal warranty in the sale of a promissory note. The court instructed the jury as follows:
    “If you believe from the evidence that the defendant Represented or stated to plaintiff that the note was good and all right, and the maker thereof was financially responsible, and that such statements or representations Were made with the intention that the plaintiff should believe it to be true, and plaintiff relied upon such statement, and was thereby induced to take the note, relying Upon the representations or statements as a warranty that the note ivas good and all right, and the maker thereof financially responsible, then such statements and representations would amount to a warranty that the note was good and all right, and the maker thereof financially responsible. To constitute a warranty in this case, however, it is not necessary that the statements or representations, if any were made, should have been intended by the defendant as a warranty. If the representations were explicit and positive that the note was good and all right, and the maker thereof financially responsible, and such representations were not a mere expression of opinion, and the plaintiff understood it as a warranty, and, relying upon it, took the note, the representations would still have heen a warranty, although not so intended by the defendant.”
    The court further instructed the jury that the plaintiff, in order to recover, must prove (1) that defendant warranted or guaranteed the note to be good, all right, and the maker thereof financially responsible; (2) that hq took the note in reliance upon such warranty; and (3) that the note was worthless. Verdict and judgment were for the plaintiff.

      TI. 0. Bliss, for appellant.

      8. M. Constantine, for appellee.
   Grant, J.

(after stating the facts). The defendant contends that the warranty or guaranty was of collection merely, and that plaintiff cannot recover because he has not exhausted his legal remedy .by suit against the maker. We cannot concur in this view. There was testimony on which to base the instruction to the jury. We think that the case was properly left to them upon the theory of a warranty, and that the plaintiff was under no obligation to prosecute the collection of the note. Huntington v. Wellington, 12 Mich. 10; Clark v. Roberts, 26 Mich. 506; Taylor v. Soper, 53 Mich. 96. The representations had no reference to the financial condition of the maker of the note in the future. They referred to his condition at that time, and were positive that he was then financially responsible, and that the note was then good. They constituted a warranty of the then financial condition of the maker, and, if relied on by plaintiff, entitled him to recover. ’

Other question's were raised upon the admissibility of evidence and charge of the court, but we find nothing in them important to mention. The sole issue of fact was whether the representations were made, and this issue was submitted to the jury in a brief and clear charge.

The judgment is affirmed.

The other Justices concurred.