text:
    DINGMAN v. DINGMAN.
    1. Wills — Revocation—Statutes—Evidence—Sufficiency.
    In a -will contest, the fact that an alleged lost or destroyed will contains a clause revoking a former will is not established “by at least two reputable witnesses, having knowledge thereof,” under 3 Comp. Laws 1915, § 13789, providing that no revoking clause in an alleged lost or destroyed will and no disposition of property, terms or conditions claimed to be inconsistent with a former will •which has been produced for probate shall be sufficient to defeat or destroy the effect of such former will, unless the legal execution of such lost will and the fact that it contained such revoking clause shall be established “by at least two reputable witnesses, having knowledge thereof,” where one subscribing witness, the attorney who drew the later will, affirmatively stated that the later will contained a revoking clause, and the other, his stenographer who typed the later will, had no recollection on the subject.

    2. Same — Statutes—Retroactive Effect.
    The statute establishes a mere rule of evidence, and is binding on the trial of a case begun before, but heard after, the act went into effect.
    3. Same — Revocation—Inconsistent Provisions.
    A merely inconsistent provision in a later will destroyed by a testator does not revoke the earlier will.
    Error to Chippewa; Fead, J.
    Submitted October 3, 1917.
    (Docket No. 2.)
    Decided December 27, 1917.
    Mary A. Dingman presented for probate the last will of Edward W. Dingman, deceased. The will was disallowed in the probate court, and proponent appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.

      Francis T. McDonald and John W. Shine, for appellant.

      E. S. B. Sutton (Warner & Sullivan, of counsel), for appellee.

      On effect of revocation of later will to revive an earlier one, see notes in 37 L. R. A. 575; 14 L. R. A. (N. S.) 937; 37 L. R. A. (N. S.) 291.

   Ostrander, J.

An instrument dated May 19, 1903, purporting to be the last will and testament of Edward W. Dingman, was offered by his widow, Mary Augusta Dingman, for probate, he having died without issue November 10, 1915. He left real and personal property, five brothers, two sisters and his widow surviving him. A brother and heir at law of the deceased set up that the instrument was not a last will, alleging that about the year 1908 the deceased made and executed a will in which he expressly revoked all former wills; that the later will was in writing, signed by the testator and duly attested and subscribed by M. M. Larmonth and' Elizabeth J. Lemon, two competent witnesses. The probate court determined that the deceased executed a will in the year 1907, 1908, or 1909, witnessed as above stated, containing a clause revoking all former wills. The alleged last will was not produced.

In the circuit court, upon appeal from probate court, the jury answered in the negative the special question submitted by contestant, “Did Edward Dingman, deceased, make and execute a will later than the will offered for probate by Mrs. Dingman?” and by a general verdict sustained the will dated May 19, 1903. To this effect judgment was entered.

The will contested gives all of testator’s property to his wife, the proponent. Its due execution is not disputed. ■ The testimony for contestant tends to prove that at some time during the years 1907, 1908, and 1909 — during the period that the stenographer, Miss Lemon, was in his employ — Mr. Larmonth, at the request of the-deceased, whom he knew, prepared for him a last will and testament, which contained a clause revoking former wills, was duly executed, witnessed by Mr. Larmonth and the stenographer, and taken away by the deceased. Testimony for proponent tends to prove that no such paper was found among the papers and effects of the deceased.

Various exceptions were taken to rulings made during the trial, and to the ruling refusing a directed verdict for contestant. Objections and exceptions were taken to rulings made during the argument of the case to the jury by proponent’s attorney. Upon these error is assigned, as well as upon the refusal of the court to give contestant’s eighth request to charge and to the charge as given.

The proponent, also, at the close of contestant’s case, asked for a directed verdict and decision of the motion was reserved. This motion was based upon the provisions of section 17, chap. 52, of the judicature act (3 Comp. Laws 1915, § 13789), which reads:

“No revoking clause in any alleged, lost, destroyed or suppressed will, and no alleged disposition of property, terms or conditions contained therein, claimed to be inconsistent with a former will which has been produced for probate, shall be sufficient to defeat or destroy the effect of such former will, unless the legal execution of said alleged, lost, destroyed or suppressed will, together with the fact that it contained such revoking clause or such inconsistent disposition of property, terms or conditions, shall be established by at least two reputable witnesses, having knowledge thereof.”

Accepting the verdict of the jury, the trial court did not pass upon the question thus raised, but the statute is relied upon in this court by appellee and counsel have discussed it in the briefo and in oral argument. ,¡

While Mr. 'Larmonth testified that the later will contained a clause revoking former wills, Miss Lemon, the other alleged subscribing witness, who typed the will, did not so testify, having, as she declared, no recollection upon the subject. Therefore the fact that the instrument contained a revoking clause is not established “by at least two reputable witnesses, having knowledge thereof.” Counsel for contestant, appellant, do not question the validity-of the statute, but. question its application here. Proponent’s will was offered for probate in November, 1915; the answer of contestant was filed in December, 1915; the day set for the hearing in probate court was December 27, 1915; there were adjournments, and the hearing in that court occurred February 23, 1916. The judicature act took effect January 1, 1916.

I am of opinion that the statute established a rule of evidence merely, which, without giving the statute retroactive effect, was binding upon the court at the time of the trial. In this view, counsel for appellant say that both witnesses, Mr. Larmonth and Miss Lemon, testified to. a provision in the later will inconsistent with the will sought to be probated. But a merely inconsistent provision in a later will destroyed by the testator would not revoke the earlier will. Cheever v. North, 106 Mich. 390 (64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499); Danley v. Jefferson, 150 Mich. 590 (114 N. W. 470, 121 Am. St. Rep. 640, 13 Am. & Eng. Ann. Cas. 242).

Contestant having as matter of law failed in the testimony required to sustain his contention, it is mere waste of time to consider the errors assigned, or to do more than to affirm the judgment of the court below.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    FREDERICK v. STAUFFER.
    Cancellation of Instruments — Exchange of Property — Fraud —Evidence.
    On a bill for tbe cancellation of a mortgage, evidence examined and held, to sustain a decree for tbe plaintiff.
    Appeal from Jackson; Parkinson, J.
    Submitted October 16, 1917.
    (Docket No. 142.)
    Decided December 27, 1917.
    Bill by James Frederick against Harlan A. Stauffer for the cancellation of a mortgage. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Robert A. Smith, for plaintiff..

      James J. Noon, for defendant.
   Ostrander, J.

Plaintiff owned land in Canada, incumbered with a mortgage for $1,500. He owned, also, 80 acres of land in Ohio, incumbered with mortgages amounting to $6,000. Defendant, who lives in Jackson, Mich., was agent for Elias E. Church, owner of several parcels of land in Jackson county, Mich., incumbered with a mortgage for $8,500 to the Peninsular Life Insurance Company, and by a second mortgage for $2,700, owned by defendant, but not recorded. Plaintiff wished to remove from Ohio and take up his residence in Michigan. In Jackson he met defendant. In the course of time, and after negotiations, a trade was arranged between them; plaintiff never having seen Church and doing no business directly with him. The terms upon which the trade was to be made are in dispute. It was consummated, plaintiff says, according to the agreemént, which was that he was to convey the Canada land, subject to the $1,-500 mortgage, to Church, convey the Ohio land, subject to the incumbrance to defendant, and receive a conveyance from Church of the Jackson county land, subject to the $8,500 mortgage. The necessary deeds having been executed and exchanged, plaintiff removed to the Jackson county land. Later on, defendant returned to plaintiff the deed of the Ohio land in a letter, the terms of which are:

“As I have investigated the Ohio farm and find that it does not come up to representations in any way, and also find that there is going to be trouble in regard to the title, I have decided that I don’t want it and herewith returning the deed to you. I will give you plenty of time on the commission so as not to cramp you.”

Defendant recorded his mortgage on the Jackson county land, and plaintiff, having requested defendant to discharge the same, and being refused, filed his bill in this cause to secure a cancellation of the record and of the mortgage as to himself and the land.

The record presents questions of fact only, determined by the court below in plaintiff’s favor. I am satisfied that a right conclusion was reached. . It will profit no one to set out the testimony or to discuss its value.

The decree granting plaintiff relief is affirmed.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Ostrander, J. Ostrander, C. J.

text:
    ROFF v. McCREERY.
    Mortgages — Foreclosure—Redemption—Evidence—Sufficiency.
    On a bill to redeem from tbe sale on foreclosure, evidence examined, and UelcL, to sustain a decree dismissing tbe bill.
    Appeal from Calhoun; North, J.
    Submitted October 16, 1917.
    (Docket No. 158.)
    Decided December 27, 1917.
    Rehearing denied March 28, 1918.
    Bill by Frank E. Roff against Vance McCreery to redeem from a mortgage foreclosure. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      J. M. Hatch & Son, for plaintiff.

      Winsor .& Robinson, for defendant.
   Ostrander, J.

A first mortgage upon real estate w^s foreclosed by advertisement, and the property was sold to the representative (executor) of the mortgagee. The owner of a second mortgage upon the same property, during the period allowed the owner of the land to redeem from the sale, purchased the rights of the senior mortgagee. The owner of the land did not redeem. The period of redemption having expired, the junior mortgagee, assignee of the senior mortgagee, purchaser at the foreclosure sale, instituted proceedings to get possession of the premises. These the owner defended and the result is announced in the opinion in McCreery v. Roff, 189 Mich. 558 (155 N. W. 517). It is said that the owner of the land, upon advice of counsel, relied upon Johnson v. Johnson, Walk. Ch. 331, and therefore did not redeem from the sale -upon the foreclosure. It is. pointed out in McCreery v. Roff, supra, that the case relied upon is not controlling. Of a certain alleged equitable defense, it was pointed out that it could not be admitted in a court of law; this court saying:

“If there were such deceit as equitably would still authorize redemption by Roff, his application therefor must be to a court of equity. Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32).”

In the suit at bar, the owner, plaintiff, filed his bill to redeem. After a hearing the trial court filed an opinion, in which it is said:

“The prayer of the bill is of a double character; the first, that the plaintiff be given additional time in which to redeem from said mortgage foreclosure; and, secondly, if such relief is denied, ‘that the payment of taxes for the year of 1913 (on the lands covered by the foreclosure) by your orator be decreed to be an involuntary payment, and the same having accrued to the benefit of McCreery, that he, the said McCreery, be required by an order from this court to pay the amount of said taxes with interest thereon to your orator, and that m default of said payment the same shall be decreed to be a lien upon said premises.’ I have given the testimony taken in this case and the briefs filed for the respective parties careful consideration; and as the result thereof I am fully convinced that the plaintiff has not established the facts which he claims would entitle him to the relief first sought in the bill of complaint. On the contrary, I am convinced that the defendant McCreery insisted all along that he did not want the farm in question, but that he did want his mortgage paid, both principal and interest.
“As to the relief sought on the theory that the payment of taxes was involuntary, I think the plaintiff has not made out a case. In the first instance, it is not shown by a preponderance of the proof, in my judgment, that the payment was involuntary; and besides this, as between these parties it was clearly the, duty of the plaintiff as a mortgagor to pay the taxes. Certainly this would be true of an ordinary land tax which had accrued during the time the mortgagor had the possession and use of the land; and I do not think the rule would be different as to a drain tax which was assessed and became payable during the time which the plaintiff had the right to the land and claimed the ownership of the same.”

A decree was entered dismissing the bill, with costs to defendant. The questions are questions of fact. I am satisfied that the court below reached a correct conclusion, and that the decree ought to be affirmed.

'It is affirmed, with costs of this court to appellee.

Kuhn, C. J., and Stone, Bird, Moore, Steers Brooke, and Fellows, JJ., concurred.

On Motion for Rehearing.

Ostrander, C. J.

A motion for rehearing is presented by plaintiff and appellant, based upon two grounds, (1) that the court misapprehended the facts, or “was misinformed or mistook certain essential facts in said cause,” (2) the court erred in drawing the conclusion it did from the facts, as it is against the clear preponderance of the testimony. As to the first of these it is pointed out that in the opinion, in giving a brief résumé of the facts and after stating that there was instituted, after foreclosure of the mortgage and after the time for redemption had expired, a proceeding to get possession of the premises, which the owner defended, it is further stated, inadvertently or otherwise:

“It is said that the owner of the land, upon advice of counsel, relied upon Johnson v. Johnson, Walk. Ch. 331, and therefore did not redeem from the sale upon the foreclosure,”

■ — there being nothing in the record to support the statement.

There was contained in the brief for appellant the following statement:

“Plaintiff Roff acting under the advice of counsel relied upon his legal defense as set forth in Johnson v. Johnson, Walk. Ch. 331, and appealed said case to the Supreme Court, and after having obtained a decision there as handed down in the case of McCrerry v. Roff, 189 Mich. 558, the plaintiff has filed this suit in equity, acting upon the suggestion in said case, which was as follows: ‘If there were such deceit as equitably would still authorize redemption by Roff, his application therefor must be to a court of equity.’ ”
“This statement,” counsel say, “by no means says that Roff, upon the advice of counsel, relied upon said decision and for that reason failed to redeem.”

Counsel are right and the sentence in the opinion which is objected to ought to have been omitted because it does not appear that the failure to redeem from the foreclosure sale was influenced either by advice of counsel or by. the decision in Johnson v. Johnson, supra.

But the sentence in the opinion, a part of an attempted recital of facts, is wholly immaterial to the conclusion arrived at. Omitted, as it should have been, the case considered is not at all affected, as a reading of the opinion will discover. The essence of the conclusion is found in the words:

“I have given the testimony taken in this case and the briefs filed for the respective parties careful consideration; and as the result thereof I am fully convinced that the plaintiff has not established the facts which he claims would entitle him to the relief first sought in the bill of complaint. On the contrary,”

To this we adhere. The correction indicated is made by what is here said.

The rehearing is ¡denied.

Bird, Moore, S.teere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    PEOPLE v. SPENCER.
    I. Appeal and Error — Findings oe Fact Treated as Special Verdict.
    The findings of fact of a trial court sitting without a jury , are to be treated on appeal as a special verdict.
    "2. Husband and Wife — Common-Law Marriage.
    A contract of marriage may be made and the relation of husband and wife established without proof of a formal ceremony conducted by a clergyman or magistrate, and without proof by actual witnesses to the making of the contract.
    3. Same.
    To establish a nonceremonial marriage, there must be proof, not only of the agreement, but of the setting up of the relation of husband and wife by cohabitation, and the parties must act in conformity with such agreement and live together and cohabit as husband and wife.
    4. Same.
    As applied to a common-law marriage, cohabitation means dwelling together, living in the usual manner of married people, a manifestation that the parties have consented between themselves to contract the marriage relation, a holding forth to the world by daily life, conduct, demeanor, habit, that the man and woman who live together have agreed to marriage, and to stand to each other in the mutual relation of husband and wife.

    . 5. Same.
    Evidence held, insufficient to establish a common-law marriage between decedent and one claiming his estate as his widow.
    Error to Manistee; Withey, J.
    Submitted October 11, 1917.
    (Docket No. 162.)
    Decided December 27, 1917.
    Petition by William J. Graham, administrator of the estate of James S. Madison, deceased, to determine the heirs of said intestate. There was an order awarding the estate to Hattie Belle Spencer, as widow, and the people of the State of Michigan appealed to the circuit court. Judgment affirming the order of the probate court. The people bring error.
    Reversed.

      Alex. J. Groesbeck, Attorney General, and Clare Retan and L. W. Carr, Assistants Attorney General, for appellant.

      Thomas Smurthwaite, for appellee.

      As to general characteristics and validity of common-law marriage, see comprehensive note in L. R. A. 1915E, 8.

   Ostrander, J.

At Manistee, Mich., where he was a domiciled resident, James S. Madison died intestate February 26, 1915, possessed of real and personal property. Upon the petition of his foster mother, an administrator of his estate was appointed by the probate court of Manistee county. Administration proceeded until, in September, 1915, the administrator filed in said court his petition, setting up, among other things, that after paying, or retaining funds to pay, all claims presented, proven, and pending, and all expenses of administration, he had more than $1,000 for distribution to the distributees of said estate; that the distributee claimants were the foster mother of deceased, a woman named Hattie Belle Spencer, of Chicago, 111., who claimed to be widow of the deceased, and the State of Michigan, which claimed that the said estate escheated, and praying that an order be made determining who were heirs of said deceased and who were entitled to inherit the real estate and to take the personal estate, and authorizing and directing a partial distribution thereof.

The State of Michigan thereupon filed a paper in said court objecting to the proceeding to determine heirs for the reasons (1) that the petitioning administrator had been appointed upon the petition of the foster mother, who was neither the natural mother nor legal mother of deceased, upon whose petition the court was without authority to appoint said administrator; (2) the said administrator was not represented to be an heir at law of deceased and did not claim an interest in the lands belonging to the estate nor claim through or under any heir at law. It prayed that testimony theretofore taken be disregarded, and the hearing “of the said petition and all proceedings taken in determining the heirs be quashed.

A hearing was had in December, 1915, and the court determined that Hattie Belle Spencer was widow and sole heir at law of the deceased, and ordered the partial distribution prayed for. The State claimed the benefit of an appeal, which was allowed, and in the circuit court, where the cause was heard by the court without a jury, it was held and determined that the order and determination of the probate court should be affirmed; and an order was entered accordingly. Findings of fact and law were made. They are:

“(1) That in the fall of the year of 1899, James S. Madison, now deceased, and Hattie Belle Spencer, the appellee in this cause, were residents of the city of Manistee in said county .and State, and that they were, and each of them was at the time, competent to enter into the marriage relationship, there being no impediment to their marriage on either side.
“(2) That at the time stated they did mutually agree each with the other to enter into the marriage relationship, and did by said agreement make a valid contract of marriage.
"(3) That the said parties repeated their contract of marriage in substance and effect, to others, and lived and cohabited together as husband and wife, and held each other out to be husband and wife from that time till the death of the said James S. Madison, which occurred in February, 1915.
“I find, as a conclusion of law, that the agreement between the said parties, and their living and cohabiting together as husband and wife, and recognizing that relationship, as aforesaid, was sufficient to constitute what is known as ‘a common-law marriage’; that such marriage was valid, and that at the time of the death of the said James S. Madison, the said appellee was, his lawful wife and is now his widow, and there being no other heir of the said James S'. Madison, the said appellee, under the statute in such case made and provided, is the sole heiress of the estate of the said James S. Madison, deceased.”

Certain amendments were proposed by the State, some of which seem to have been allowed and some disallowed. In effect, the findings are as above set out. The State of Michigan reviews the judgment. It appears that the foster mother does not further contest, and that in the circuit court the contest was one between the alleged widow and the State of Michigan.

It is said in appellant’s brief that the single contention is that the findings are against the clear weight of the evidence. Argument for appellant is addressed solely to the, proposition that by the clear weight of evidence the asserted common-law marriage of the deceased and Hattie Belle Spencer is not made out. The court having declared that the findings were made, without considering the testimony of the alleged widow and that she was not a competent witness, it is urged for the appellee, Hattie Belle Spencer, that her testimony was not incompetent, and must in any event be considered in respect of matters not equally within the knowledge of the intestate. A very considerable portion of the testimony for the claimant widow was taken by deposition, including her own testimony.

No one in this court is questioning the right to appeal from the order made by the probate court. See 3 Comp. Laws 1915, §§ 13915, 13916, 13930, 13937-13941. Compare Act No. 278, Pub. Acts 1887; Lorimer v. Wayne Circuit Judge, 116 Mich. 682 (75 N. W. 133). And, an appeal having been taken and heard, no one denies the right of the State to review the judgment. As former statutes did, the present law makes the determination of heirship prima facie evidence of the facts found. The provision for appeals applies to “any order, decree, or denial, of a probate court.” Whether the reasoning of the court in the case cited does not apply here with equal force is a question not presented by the argument made. Whether the fact that a partial distribution of the estate was prayed for and ordered distinguishes this case and Lorimer v. Wayne Circuit Judge is not suggested by counsel. With misgivings as to the finality of any judgment which can be rendered in this proceeding, I consider and decide the contention which is presented.

In considering the power and duty of this court to set aside the verdict of a jury, the trial court having refused to do so, it was said, in Hintz v. Railroad Co., 132 Mich. 305, 307, 308 (93 N. W. 634, 635):

“The statute gives that power, and this court would ■disregard an obvious duty if it did not, in a proper case, exercise it. In exercising it, we are bound to recognize the principles which have always governed trial courts in determining whether or not verdicts should be set aside. We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses. When, however, in accordance with these principles, it is apparent from the record, notwithstanding every reasonable presumption in support of his decision, that the trial judge erred in refusing to set aside the verdict on the ground that it is against the weight of the testimony, the duty of this court to overrule that decision is manifest. Whipple v. Railroad Co., 130 Mich. 460 (90 N. W. 287); Baldwin v. Railway Co., 128 Mich. 417 (87 N. W. 380); Cole v. Railway, ante, 122 (92 N. W. 935).”

Again, in Re McIntyre’s Estate, 160 Mich. 117, 120 (125 N. W. 51, 52), it was said:

“We held in the case of Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634), that it was the duty'of this court to review the evidence in a cause to determine whether a ruling upon a motion for new trial upon the ground that the verdict was contrary to the weight of evidence was erroneous. We cannot escape this responsibility, which was doubtless imposed by the legislature to provide relief against palpable miscarriages of justice through unjust verdicts, which all judges and lawyers know to be not uncommon. In the exercise of this power this court cannot content itself with a mere determination that there is a conflict of evidence, and that the jury is as well qualified to judge of the facts and the credibility of testimony as itself, which was the rule before, or that the trial judge has approved the verdict or even expressed his own belief that the verdict is not against the weight of evidence, and thereupon affirm the denial of a motion, but it must examine the testimony and determine for itself whether or not the verdict is so plainly against justice as to call for a new trial.”

In the case at bar, there is no verdict of a jury, although the findings of fact are to be treated as special verdicts. The duty of the court is not, however, different from that defined in the opinions referred to.

The case upon the facts is singular. A woman, three times married and but lately released from imprisonment upon conviction for a crime involving sexual immorality, and a man, an acquaintance, owner and publisher of a daily and weekly newspaper, in November, 1899, entered into, and thereafter sustained, relations which continued until his death, the legal effect of which relations is in dispute. The woman was known as Hattie Belle Spencer; Spencer being her maiden name. She had at some time prior to 1899 been employed at newspaper work by the deceased. Her reputation in Manistee was that of a sexually immoral woman. The man was reputed, whether generally is not made clear, but among some at least, to be part negro. Whatever the relation was, and it was admittedly an intimate one, the constancy of each to the other is not denied. The testimony for the woman (appellee) tends to prove that upon her return to Manistee soon after her release from prison, she and the man agreed presently to take each other for husband,and wife; that they declared and published to others the fact that they were husband and wife, and maintained with each other, upon occasions, some of the relations of married people.

Marriage is a fact. In this State, the contract of marriage may be made and the relation of husband and wife established without proof of a formal ceremony conducted by a clergyman or magistrate, and without proof by actual witnesses to the making of the contract. It was said by Chief Justice Campbell, in Proctor v. Bigelow, 38 Mich. 282, 283:

“The marriage was proved by her son’s testimony, showing that she and his father lived together and brought up a large family, treated each other on all occasions as husband and wife, were so reputed in the family and by others, addressed each other as such, and jointly signed papers in that relation.
“We know of no authority which requires any better proof of marriage, unless in criminal prosecutions and cases of seduction. There is no rule of law making marriage records the best evidence in any case, and even where they exist some parol evidence is usually necessary to identify the parties, in case of any controversy. In most cases where the right to property is to be made out by proof of a marriage, the witnesses who were present are not living or attainable. One or both of the married persons must die before any inheritance or dower can exist. It would be impossible in a majority of such cases to prove a marriage by any better testimony than conduct and reputation. The general presumption in favor of legality has led to more liberal rules instead of stricter ones in modern times, as more just and reasonable. 1 Starkie, Ev. p. 45; Hutchins v. Kimmell, 31 Mich. 126 [18 Am. Rep. 164]; 2 Greenleaf’s Ev. § 462; 3 Edwards’ Edition of Phillip’s Ev. p. 599, and cases.”

See, also, Hoffman v. Simpson, 110 Mich. 133 (67 N. W. 1107); Clancy v. Clancy, 66 Mich. 202 (33 N. W. 889); Cross v. Cross, 55 Mich. 280 (21 N. W. 309); Severance v. Severance, 197 Mich. 327 (163 N. W. 924).

It is probably no longer true that as to ceremonial marriages at least it is impossible to prove them — a majority of them — except by testimony of conduct and reputation. But, the issue being marriage or no marriage, the fact must be proven either by the record or by witnesses to the celebration of the marriage or by facts from which marriage may be presumed. In this State a marriage is not proven by evidence^ only that the parties, inter se, agreed to take each other for husband and wife. To establish a nonceremonial marriage, there must be proof, not only of the agreement, but of the setting up of the relation of husband and wife by cohabitation. The parties must act in conformity with such an agreement and live together and cohabit as husband and wife — live together in that relation. Hutchins v. Kimmell, 31 Mich. 130 (18 Am. Rep. 164); People v. McQuaid, 85 Mich. 127 (48 N. W. 161); Peet v. Peet, 52 Mich. 467 (18 N. W. 220); Lorimer v. Lorimer, 124 Mich. 631 (83 N. W. 609); Judson v. Judson, 147 Mich. 518 (111 N. W. 78).

The common-law marriage, so-called (or miscalled), is recognized in the interest of the family and of legitimacy of offspring. If the family relation is established and maintained in consequence of, and pursuant to, the mutual agreement to marry, the law recognizes the union; the family. Cohabitation in this behalf means dwelling together; living in the usual manner of married people. It is a manifestation that the parties have consented between themselves to contract the marriage relation, a holding forth to the world by daily life, conduct, demeanor, habit, that the man and woman who live together have agreed to marriage and to stand to each other in the mutual relation of husband and wife. In re Yardley’s Estate, 75 Pa. 207; Robinson v. Robinson, 188 Ill. 371 (58 N. E. 906); Campbell v. Campbell, L. R. 1 H. L. Sc. 182.

If we exclude the testimony of appellee, there is no proof of the making of mutual promises to marry. But waiving the competency of the witness in this behalf and accepting her statement as true, let us see what evidence of marriage the record affords. There is evidence of some introductions of each by the other, to others, as, “Meet my husband,” or “This is my wife,” but none that the introducing party mentioned the name of the one introduced. It is to be inferred, and from all of the testimony I do infer, that these introductions, as testified to, were made, not to state a fact, but to furnish an excuse for, to avoid comment upon, visible, open relations which could be satisfactorily explained in no other way. There is evidence of considerable financial provision made by the deceased for the appellee. In this connection, however, it appears that when a parcel of real estate was purchased in Chicago, it is said with money furnished by the deceased, the title was taken in the name of appellee and her daughter. After the alleged marriage, too, appellee disposed of real estate in Manistee by a conveyance in which she is described as “widow.” Appellee did not change her name. There is testimony tending to prove that the deceased declared that he would some day assume the name of Spencer. While little is disclosed of the antecedents, birth, and social standing of the deceased, it may be inferred that he did not for years conduct the business of publishing a newspaper in Manistee without becoming a well-known man, a figure in the business community, if not in the social life, of that place. It is said they agreed, in November, 1899, to take each other for husband and wife, and celebrated the agreement that night by occupying the same bed at appellee’s home. It may be inferred that they had before that time occupied the same bed. The deceased had before that time habitually slept in his office and taken his meals at various places about town. The appellee had maintained a house, a place in which she and her daughter lived, in the same city. So far as appearances went, neither changed the mode of living. Mr. Madison did not thereafter openly live and cohabit with appellee. He set up no home, no dwelling, no household. He perhaps spent more hours with her, remained at her house more often for the night, or a part of the night. If appellee’s family, or some of them, and one or two of her friends in Manistee are excluded, no one there knew about or observed any change in the manner in which Mr. Madison lived. No friend of his, or particular acquaintance, is shown to have had any knowledge of a matrimonial relation, or of facts from which the existence of the relation could be inferred. Not a business acquaintance of his or a social friend is produced to prove knowledge of his. cohabitation with appellee. On the contrary, he still maintained a place in his office to sleep, and still took his meals about town. From November, 1899, until some time in 1905, when appellee moved to Chicago, this state of affairs existed. In Chicago appellee set up a rooming house. In 1907 the deceased purchased a dwelling in Chicago^ the title thereto being taken in the name of appellee and her daughter. From 1905 until shortly before he died, deceased visited appellee in Chicago, usually upon holidays, remaining a day or two, sometimes longer. At such times the parties occupied the same room and bed. It was during some of these visits that the introductions above referred to were made. After 1899 he kept at appellee’s house some of his personal belongings,' as some shirts, collars, and nightshirts. After Mr. Madison died, appellee filed in probate court a claim for services she had rendered him from January, 1892, to December, 1897, and from November, 1898, to August, 1905.

It is true, as contended for the appellee, that outside of her immediate family and a few acquaintances appellee’s social connections were limited, and it is pointed out that it does not appear that Mr. Madison had an extended social alliance. It is argued that it is made to appear that in appellee’s family — to some extent at least — and among neighbors of hers in Chicago, it was understood, or was supposed, that she and Mr. Madison were married. But except that, while in Chicago, Mr. Madison behaved with appellee as a husband habitually behaves with his wife, there is little evidence to sustain the idea that he was holding himself out as husband.

There are in the record a great many letters written by Madison to appellee, one at least written in 1907, some in each year thereafter, to and including the year 1914. It is not claimed that this is. all of the written correspondence of the parties. Very uniformly, the letters are addressed “Dear Belle,” and are signed “Jim,” “J. S. Madison,” or “J. S. M.,” some of them being unsigned. In none of the letters does he refer to her as his wife, nor mention the relation of husband and wife as existing.

My attention is directed to testimony tending to prove that it was the intention of Mr. Madison to sell his interests in Manistee upon a favorable opportunity presenting itself, and thereafter to live in Chicago with appellee. It is said that only unfavorable conditions prevented the setting up of a home in Chicago. There are expressions in some of the letters I have referred to indicative of his purpose to provide for the old age comfort of appellee and himself, but unless the thought of marriage was otherwise introduced, no one would assume from the relations they maintained, or from the letters produced, that they were married. The usual daily life of Mr. Madison negatived matrimonial relations. The family physician of appellee in Chicago never was told and did not know or assume that appellee had a husband. I do not express an opinion concerning the competency of the testimony of appellee. I am impressed, viewing all of the testimony, that it fails to establish the fact that these parties were husband and wife — were married — and therefore fails to sustain the judgment.

It follows that the verdict and judgment must be set aside, with costs of this appeal to the appellant.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


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    MILLER v. MATHIS BROTHERS CO.
    1. Appeal and Eeeoe — Motion to Stbike Testimony — Objections Not Raised on Teial.
    In an action by an employee for personal injuries sustained as tbe result of a fall caused by tbe breaking of a cross plank used as a support for tbe flooring of a scaffold, there was no reversible error in denying a motion to strike out tbe opinion evidence of a foreman of tbe defendant employer as to tbe strength of such plank where no objection was made to tbe. admission of such evidence at tbe time it was introduced and the jury might have regarded bis opinion as entitled to little weight.

      2. Master and Servant — Personal Injuries — Scaffolds—Negligence — Contributory Negligence — Question for Jury.
    In an action by a servant for personal injuries due to the falling of a scaffold on which he was at work, under the direction of a foreman,' with other employees in installing a heavy piece of metal work, the negligence of the master and lack of contributory negligence of plaintiff were questions for the jury.

    Error to Kent; Perkins, J.
    Submitted October 22, 1917.
    (Docket No. 75.)
    Decided December 27, 1917.
    Case by Verner Miller against Mathis Brothers Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      H. Monroe Dunham, for appellant.

      Lombard, Hext & Washburn (Otto G. Byden, of counsel), for appellee.

      On duty of master as to condition of scaffold constructed by employees, to an employee not a member of the gang for whose use the scaffold was primarily constructed, see note in 22 L. R. A. (N. S.) 952.

   Ostrander, J.

.The plaintiff was employed by the defendant. The defendant had not elected to come under the workmen’s compensation act. ■ A scaffold on which plaintiff was working with three other men fell, and he was injured. In his declaration plaintiff alleges that he was a common laborer, working under the direction and instructions of a foreman of defendant in installing certain sheet metal work and breechings to lead from a boiler to a smokestack in a high school building being erected in the city of Grand Rapids, Mich., in the installation of which defendant necessarily constructed and used a scaffold, the platform of which was some 16 feet from the ground. The breaches of alleged duty stated are:

“Yet the said defendant, well knowing its duties as aforesaid, while the said plaintiff was employed by the said defendant as a laborer and then and there assisting the mechanics and the foreman of the said defendant in installing the said sheet metal work and breechings in the manner aforesaid, and particularly when because of the height of the said sheet metal work from the ground, it became and was necessary to construct a scaffold upon which the workmen and the said plaintiff could adjust and place the breeching in its proper position and make the proper connections, negligently and carelessly failed to furnish the said plaintiff with a reasonably safe and suitable place in which to perform the work required of him in the course of his employment with the said defendant, and did negligently and carelessly require the said plaintiff to work upon a scaffolding and in a place that was unsafe and dangerous, for the purpose that it was intended.
“And further disregarding its said duties, the said defendant did negligently and carelessly fail to exercise due care and caution in the construction and erection of the said scaffold upon which the said plaintiff was directed and required to work, and negligently and carelessly failed to make the said scaffolding reasonably safe and of sufficient strength to support the plaintiff and the other workmen required to work .thereon under the directions of the foreman of the said defendant, in the prosecution of their work in the installation and construction of the sheet metal work and breeching in the manner aforesaid, and negligently and carelessly failed to construct the said scaffold of good and substantial material of sufficient strength and stability to support the plaintiff and the other workmen engaged in the work in the manner aforesaid, and to withstand the additional pressure that would necessarily be placed upon it other than the weight of the said workmen in lifting the steel plates in adjusting them to their proper position, and the said defendant did, negligently and carelessly, through its said employees, construct the said scaffold of planking which was not good, and which was knotty, rotten, and old and of insufficient strength to withstand the weight of the workmen required to work thereon in the manner aforesaid and the additional pressure and weight that would be caused by the lifting of the heavy breeching to its proper position.
“And the said defendant, further disregarding its said duties in the premises, did, negligently and carelessly, through its said foreman, William C. Larson, who was then and there an employee of the said defendant, and then and there superintending the installation and construction of the said sheet metal work from the boiler to the smokestack in the manner aforesaid, and who was duly authorized by the said defendant to give instructions and directions to the plaintiff and the other workmen assisting in the work aforesaid, and who was familiar with the construction and the material used in the said scaffold, and who knew, as did the said defendant, or in the exercise of due care and caution should have known, that the said platform of the said scaffold was supported only by a plank at each end nailed edgeways to the uprights of the said scaffold, and knew, as did the defendant, or in the exercise of due care and caution should have known, that any additional pressure or weight other than the weight of the workmen and the said foreman standing upon the said platform would cause the said scaffold to break down and entail great injury and imminent danger to the said plaintiff and the other workmen, failed to refrain from causing any additional pressure or weight to be placed upon the said platform of the said scaffold, and negligently and carelessly failed to refrain from directing the workmen working upon the said platform to lift the breeching leading from the boiler to the smokestack, which said breeching was of great weight, to wit, 800 pounds, well knowing, or in the exercise of due care and caution should have known, that the additional weight caused by the lifting of the said breeching, together with the weight of the said workmen standing upon the platform of the said scaffold, would break and tear down the said scaffolding, and the said defendant did, negligently and carelessly, while the said plaintiff was standing upon the said scaffolding, and then and there assisting the said foreman and the other workmen of the said defendant in the manner aforesaid, and while the said plaintiff was in the exercise of due care and caution for his own safety, and without any fault or negligence on his own part, through its said foreman, William C. Larson, command the said workmen and the said plaintiff to lift the said breeching and steel plates, which was of great weight, to wit, 800 pounds, and negligently and carelessly commanded the workmen, and the said foreman assisted in lifting, all at the same time, well knowing, or in the exercise of due care and caution should have known, that the additional weight of the said steel plates and breeching, together with the additional weight caused by the lifting of the said breeching, would produce a greater weight than the said scaffolding could support, well knowing that the said scaffolding was made of old, knotty, and rotten planks and well knowing that the platform upon which they were standing in attempting to lift in the manner aforesaid rested only upon one plank nailed edgeways in the manner aforesaid.”

The trial court declined to direct a verdict for the defendant, a verdict for plaintiff was returned, and judgment entered thereon.

Defendant, appellant, says it relies upon two propositions :

(1) There is no evidence of its negligence other ' than the mere fact of the accident.

(2) The admissions of the witness Larson (the foreman), called by plaintiff for cross-examination under the statute, and his opinions were not binding upon defendant.

Taking up first the last contention, and for the purpose, first, of seeing upon what it is grounded, it appears that it is based upon an assignment of error which is in turn based upon a motion “that all the testimony given by Mr. Larson respecting his opinion as to the cause of the accident on this day in question be stricken out as not competent, relevant, or material,” which motion was overruled. No exception was taken to the ruling. There is no index in the record to the testimony. Some portions of that given by Mr. Larson are quoted in the brief for appellant. It is said, in the brief, that the quoted portions clearly show that this witness “was not competent and not qualified to. testify from any experience that he had, or from any scientific knowledge of the strength of timber.” Following further quotations from the testimony of this witness, it is said, in the brief, that “these conclusions testified to by the witness are conclusions based solely from the experience that he had in the breaking of this plank, and no other.” * * *

It does not appear that any objections to the testimony were interposed by defendant, who therefore may be said to occupy the position of a party willing to speculate upon what the testimony to be given might be, to accept it if favorable, and move to strike it out if unfavorable. But beyond this, the objection now made is based, in part at least, upon the doctrine that the declarations of an agent as to a past transaction are inadmissible to bind the principal. No such declarations were offered or received in evidence. Mr. Larson was a witness, and he answered such questions as were propounded and, as has been stated, without objection. The value of his opinions may have been small, a fact which a jury would regard. Under the circumstances, it is not made to appear that reversible error' was committed in denying the motion to strike out his testimony.

The evidence of defendant’s negligence. It appears that certain sheet metal work was to be installed between a boiler and a chimney. It was in two sections, one from the boiler, the other from the chimney, and it was necessary to unite them — to join them. The alignment of the two sections was such that it was necessary to lift the end of one of them 2 inches in order to make the connection. A scaffold, the platform of which was some 16 feet above the ground, had been constructed and had been used by the workmen in the course of installing these sections. It was constructed by plaintiff and another under direction of the defendant’s foreman. When it broke, there were four men on it, one of them being the foreman, for the purpose of lifting one section of the metal work, which weighed about 800 pounds — to raise it 2 inches to bring it in alignment with the other section. The men had lifted once, and under the command of the foreman were lifting a second time, when the scaffold went down. The testimony tends to prove that no one knew when the scaffold was constructed that the metal section would have to be raised, and that ordinarily it is not necessary to raise it as was done here.

Some difficulty has been experienced in learning how the scaffold was constructed, especially in learning the distances between bearing points. Described in a general way from the testimony, it was built with four uprights, two at each end, but how many feet it was from the uprights at one end to the uprights at the other is not clear, nor how far from each other the uprights at either end wére placed. In short, neither the length nor width of the floor of the scaffold is given. It seems that there was no support to the floor other than that furnished by the planks at each end of the scaffold. In the brief for appellant it is stated:

“The plank that broke was 2 inches thick, 12 inches wide, and 16 feet long, and was standing edgewise, and rested between the boiler and uprights near the pier of the west wall, which supports were from 12 to 14 feet apart.”

It is further stated:

“One end of the scaffold was supported by a plank 2 by 12 .and 16 feet long, extending from the boiler to uprights near a pier in the west wall. This was at the south end of the scaffold, and from this plank which stood-edgewise were laid 12 planks laid 2 deep from this plank at the south end of the scaffold to the cross-plank at the north end of the scaffold.”

There are no references to the record, and no further description of the scaffold is given in appellant’s statement of facts. In the brief for appellee it is said that appellant has stated the material facts with sufficient accuracy.

The witness Larson estimated the weight of the planks forming the floor at 50 pounds each, or 600 pounds, the weight of the four men at 700 pounds, and the weight of the metal work to be lifted at 800 pounds. The white pine plank supporting the floor at one end broke directly across, without splintering. This is the undisputed testimony, unless it may be said to be disputed by common observation and knowledge, which is not suggested. If he is believed, and the court could not well determine his credibility as matter of law, the witness Larson by his testimony established negligence in the construction of the scaffold for the use to which it was finally put; or negligence in subjecting the scaffold, constructed as it was, to the additional load. Four men worked upon it safely. Portions of the metal work were hoisted upon it. For two days it appeared to be a safe construction. But when four men united in an effort to lift the section of metal work, the end plank supporting the floor of the scaffold broke and the structure collapsed. Of long experience, Mr. Larson testified that if he had, in building the scaffold, provided for this extra burden to be imposed by the lifting by the men he would have built it better. He testifies that he did not think, when he gave the orders to lift the metal work, about how the scaffold had been built, about its safety under those conditions, and that if he had thought he would not have imposed the strain upon that scaffold. In short, he testifies to a construction intended for and sufficient for a certain use, subjected to a different use, a greater burden, not only greater because of the actual load to be sustained, but from the manner of imposing the load upon the structure. There is testimony tending to prove plaintiff’s want of knowledge of the requirements of safe building of such a scaffold. While particularity and preciseness are lacking in the description of the scaffold and in what was lacking to give it the necessary strength, nevertheless the testimony tends to prove much besides an accident and injury. The case, upon plaintiff’s theory, is fairly controlled by Bayer v. Grocholski, 196 Mich. 325 (162 N. W. 1030). It was not error for the court to refuse a directed verdict for the defendant.

The judgment is affirmed.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred. .


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    SAYRE v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Dismissal and Nonsuit — Failure to Prosecute — Judicature Act.
    Sections 10252, 10253, 3 Comp. Laws, under which judgment for a defendant, as in case of nonsuit, might be rendered in case of. neglect of a plaintiff to bring an issue of fact to trial, were repealed by sections 2 and 3 of chapter 18 of the judicature act (3 Comp. Laws 1915, §§ 12574, 12575), the former of which two sections provides that causes in which no action has been taken nor progress made for more than a year shall be placed on the calendar and shall be dismissed for want of prosecution, but without prejudice, unless cause be shown to the contrary, and the latter; that if further time for the trial of the issue is allowed by the court and the plaintiff shall neglect to try the same within the time so allowed the court shall dismiss the action as above provided.
    2. Same — Practice—Plea in Abatement.
    Where a cause of action had stood untried for 20 years at the time a motion to dismiss was made and the cause had been revived in the name of the personal representative of the deceased plaintiff and the motion is made after the passage of the judicature act such act prevails as to the practice, and a plea of abatement under the old practice cannot be made.
    3. Courts — Discretion oe Court — Laches.
    A court may deny a. continuance or other discretionary relief sought by a plaintiff guilty of laches.
    4. Same — Equity—Abatement and Revival.
    A court of equity may refuse to revive and continue an action interrupted or abated by the death of a party after delays and laches which have placed the defendant at disadvantage.
    5. Same — Equity—Stale Demands.
    The refusal of courts to enforce stale demands is not necessarily dependent upon a statutory limitation.
    6. Same — Continuances—Validity.
    Continuances to show cause why an action should not be dismissed, under section 2, chap. 18 of the judicature act (3 Comp. Laws 1915, § 12574), for want of prosecution, granted by a judge who, before ascending the bench, was plaintiff’s attorney, are void.
    7. Dismissal and Nonsuit — Laches.
    Dismissal on the ground of laches, of á cause, revived after a lapse of nearly 20 years and after the death of the original plaintiff and the discharge of his administrator, held, to have been without authority, and unjustified, even if authority existed.
    Error to Shiawassee; Searl, J., presiding.
    Submitted October 12, 1917.
    (Docket No. 97.)
    Decided December 27, 1917.
    Case by Charles H. Sayre against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent burning of plaintiff’s buildings. On the death of plaintiff the cause was revived in the name of Frank J. Sayre, administrator de bonis non. Judgment dismissing suit for failure to prosecute. Plaintiff brings error.
    Reversed.

      Leon F. Miner, for appellant.

      Harrison Geer (A. E. Richards, of counsel), for appellee.
    Claiming that some of his property had been destroyed by a fire set by the defendant, Charles H. Sayre, December 11, 1895, commenced a suit against the defendant to recover his alleged damages, filing a declaration in a plea of trespass on the case. To this declaration the defendant, in March, 1896, by E. W. Meddaugh, its attorney, filed a plea of the general issue. The plaintiff in that suit died August 5, 1902, intestate, leaving surviving him a widow and four children. Proceedings were had in the probate court for the county of Shiawassee for the administration of the estate, the result being that on the 26th of February, 1906, the final account of the administrator, showing payment of all claims, was allowed and approved by the probate court, and the administrator was discharged.. The papers and files in the probate proceedings are not before us, but it is stated in the brief of appellant that the claim of the deceased against the defendant was not inventoried, nor was any notice taken of it in the proceedings to administer the estate. The heirs of the deceased, on the 14th of July, 1905, assigned to the widow, Judith C. Sayre—
    “to have and to hold for and during the period of her natural life, to do with as she- sees fit, all the right, title, and interest that we or any of us have in any money, property, or effects which might or otherwise would come to us or any of us by reason of our right to share in the property or estate of our father, Charles H. Sayre, deceased.”
    On the 4th of April, 1906, the widow executed and delivered to the administrator a paper writing, containing the following:
    “This is to certify that Elford Sherman, administrator of the above-named estate, has turned over to me all property, money, and effects, belonging to the said estate, and I hereby acknowledge receipt in full to him for the same; the interest of all the heirs having been previously assigned to. me.”
    Mr. E. W. Meddaugh, the attorney of record for the defendant in said suit, died. Selden S. Miner, the attorney for the plaintiff, became circuit judge of the circuit in which Shiawassee county is on January 1, 1906. From the calendar entries in said suit it appears that January 30, 1897, a demand “for bill of items” was filed. No further proceedings appear to have been taken in said cause until in the year 1916, when, pursuant to section 2, chap. 18, of the judicature act (3 Comp. Laws 1915, § 12574), at the January, 1916, term of the circuit court for the county of Shiawassee, the above cause was placed upon the calendar as one in which no progress had been made for the period of one year. When the cause was called, an order was entered giving plaintiff until the end of the next term in which to prosecute the same, and July 17,1916, the time was extended until the 'first day of the then next succeeding term. These orders are not found in the record, but reference is made to them in the briefs, and it appears to be conceded that they were made, and that when made and entered Judge Miner was the presiding judge.
    A petition was filed in the probate court for Shiawassee county on April 25, 1916, asking for the appointment of an administrator de bonis non of the estate of Charles H. Sayre, deceased. At the hearing upon this petition defendant was represented, and upon July 25, 1916, an order was made appointing an administrator de bonis non. From this order the defendant appealed to the circuit court. The appeal came on to be heard before Judge Dodds, and an order was made affirming the order of the probate court appointing the administrator. No appeal has been taken from the adjudication of the circuit court. An order was granted by Judge Searl reviving the cause in the name of the administrator de bonis non; the date of the order being November 25, 1916.
    Defendant moved to dismiss the case, the motion was heard December 27, 1916, and on February 2, 1917, Judge Searl, who heard the motion, made and filed an opinion reading:
    “Defendant objects to revival of this cause on the ground that many years have elapsed sinqe it was commenced, and makes a showing under oath which is. not contradicted that its books have been accidentally burned, and many of its witnesses either deceased or otherwise out of reach of subpoena. In my judgment defendant’s position is correct, and is supported by the authorities cited. An order may be entered in accordance with this opinion.”
    On February 23, 1917, an order was entered dismissing the case, reciting that the court is of the opinion that during the long time said cause has been pending the books and records of said defendant have been accidentally destroyed by fire, some of its witnesses have died, and others are beyond the process of this court, and that said plaintiff has been and is guilty of such laches as legally preclude the further prosecution of the case.
    The plaintiff excepted to the action of the court dismissing the cause, sued out a writ of error, and assigns, as error that the court erred in dismissing the cause.

      The motion to dismiss, based upon all the records and files in the cause, and upon an affidavit, includes a motion to set aside the order made in February, 1916, giving plaintiff until the first day of the next regular term to prosecute its cause, and to set aside an order made on the 17th of July, 1916, giving the plaintiff until the first day of the next regular term to prosecute the cause, for the reason that Hon. Selden S. Miner was presiding as circuit judge in said court, and madé each of said orders, and that he whs attorney of record for the plaintiff in said cause and disqualified from making said orders, and for the further reason that the orders were made and entered at the instance of Leon F. Miner, an attorney of said court and the son of the said Selden S. Miner, and each were made upon an ex parte showing, without notice to defendant’s attorney. Further reasons for dismissing said cause are that the estate of Charles H, Sayre is settled and distributed, and there is no unadministered estate, and that an administrator de bonis non should not have been appointed; that the right of action involved was property belonging to the estate and with the other property was assigned to the widow, who became the legal owner thereof, alone capable of invoking necessary legal remedies, since, under chapter 12, § 2, of the judicature act (3 Comp. Laws 1915, § 12353), suits must now be prosecuted by the actual parties in interest; that more than ten years have elapsed since the administrator was. discharged, during all of which time the legal title to the chose in action has been vested in the assignee, Judith C. Sayre; that the estate, the administrator, the heirs, and the widow abandoned the suit; that there has been laches on the part of the owners of the demand.
   Ostrander, J.

(after stating the facts). The “state- . ment of facts” in appellant’s brief, with a single and unimportant exception, refers to no page of the record. The printed record does not show when pleadings and papers were filed. The effect of this disregard of two of the rules of this court and the general state of the record have much increased the labors of the court.

The order dismissing the suit is in form absolute, and, if allowed to stand, disposes of the cause. Counsel for defendant, appellee, does not point out the statute or rule of practice pursuant to which it made its motion to dismiss or any authority which sustains the action of the court. The motion raises no question heretofore raised by plea or demurrer. See section 4, chap. 14, judicature act (3 Comp. Laws 1915, § 12456); Pagenkoff v. Insurance. Co., 197 Mich. 166 (163 N. W. 1000). When the motion was made, the issue had stood untried for 20 years. The cause had been revived in the name of the personal representative of the’ deceased plaintiff. The jurisdiction of the court must be admitted, the declaration is not attacked, the cause of action survived the death of plaintiff, and it is not perceived how at this time a plea in abatement could be, under the old practice, interposed.

Sections 10252, 10253, 3 Comp. Laws, under which judgment for a defendant, as in case of nonsuit, may be rendered in case of neglect of a plaintiff to bring an issue of fact to trial, are repealed by the judicature act. See, as affecting the application of these sections, Abe Stein Co. v. Wood, 151 Mich. 657 (115 N. W. 1046); Heintzen v. Gault, 174 Mich. 56 (140 N. W. 520), which hold that something more than mere failure of plaintiff to notice a cause for trial must be shown before a nonsuit can be entered.

It is evident that the legislature intended the provisions of sections 2 and 3 of chapter 18 of the judicature act (3 Comp. Laws 1915, §§ 12574, 12575) to take the place of 8 Comp. Laws, §§ 10252, 10253. Section 2 provides that causes in which no action has been taken or progress made for more than one year, unless by reason of the business of the court the same' shall not have been reached, shall be placed on the calendar as such causes by the clerk of the court, and shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party by whom they were brought into court, unless cause be then and there shown to the contrary. The succeeding section provides that, if further time for the trial of the issue is allowed by the court, and the plaintiff shall neglect to try the same within the time so allowed, the court shall dismiss the action as above provided. Assuming the validity of these provisions, and their validity is not questioned, it is under them and any rules of practice affecting the subject treated by them that parties must now move in the aid of or against the retention in court of suits in which progress has not been made.

But defendant, appellee, is not, in form, proceeding under these provisions, and it does not invoke any general, inherent authority of the court to dismiss a cause at issue upon the motion of a defendant. Many cases may be, some are, cited in support of the proposition that a court may deny a continuance or other discretionary relief asked for by a plaintiff guilty of laches, and that a court of equity may refuse to revive and continue an action interrupted or abated by the death of a party after delays and laches which have placed the defendant at disadvantage. And the refusal of courts to enforce stale demands is not necessarily dependent upon a statutory limitation. But when the motion of defendant was made in the case at bar, it stood in form upon the records of the court at issue, ready for trial. A notice from either party would have placed it upon the trial docket. This was the situation whether we do or do not assume that the orders made by Judge Miner were void. If they were void, and it must be agreed that they were, no qualified judge had exercised discretion to dismiss or not to dismiss under the provisions of section 2, chap. 18, of the judicature act (3 Comp. Laws 1915, § 12574). No authority is cited in support of the proposition that the court then had any general or special power, upon the motion of defendant, a motion based in part upon an affidavit stating the alleged disadvantage in which defendant was placed, to dismiss the cause. I have considered and rejected the suggestion that the motion to dismiss and the opposition thereto may together be treated here as the equivalent of showing cause, under the act, why the action should not be dismissed. The suggestion came from the language of the opinion of Judge Searl; the recitals in the judgment entry, and the state of the record, generally, require the conclusion. Appellant is entitled to treat the judgment as a final judgment entered upon the motion of the defendant in a cause apparently at issue and ready for trial, upon the notice of either party. In my opinion, the court was without authority to render the judgment. Assuming that it had authority and that the question of judicial discretion and its abuse is before us, no default of plaintiff except failure to bring the cause on for trial is involved, for which defendant at all times had a remedy by itself bringing the cause on for trial.

Other questions raised by the motion are open upon a trial, since plaintiff must maintain the issue he tenders.

The judgment is reversed, with costs to appellant.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    BILLIG v. GOODRICH.
    1. Fraud — Misrepresentation—Vendor and Purchaser.
    A map on one side of letter paper of real estate agents incorrectly showing the location of lots, is a material representation of fact where the value of the lots depends upon their nearness to a city and a proposed plant of a large steel corporation.

    2. Principal and Agent — Evidence—Sufficiency.
    Evidence held, sufficient to show the agency of a firm acting for defendant in the sale of the lots.
    3. Actions — Common Counts in Assumpsit — Fraud—Rescission.
    Recovery may be had on the common counts for money paid on a contract into which plaintiff was induced to enter by fraudulent representations of the defendants, and which plaintiff repudiated.
    4. Same.
    A recovery may not be had under the common counts in assumpsit under 3 Comp. Laws, § 10421 (3 Comp. Laws, 1915; § 12350), providing that in all cases where, “by the fraudulent representations or conduct of any person, an injury has been produced, either to the person, property or rights of another, for which an action on the case of fraud or deceit may by law be brought, an action of assumpsit may be brought to recover for such injury, and in all such cases a promise shall be implied by law to pay all just damages arising from such fraud or deceit, and may be so declared upon.”
    Error to Wayne; Withey, J., presiding.
    Submitted October 5, 1917.
    (Docket No. 40.)
    Decided December 27, 1917.
    Assumpsit in justice’s court by Adolph Billig against Joseph P. Goodrich and another for money had and received. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Bailey & Bradley, for appellants.

      Millis, Griffin, Seely & Streeter, for appellee.

      On right of action to rescind contract for the sale of land for misrepresentations as to location, see note in 38 L. R. A. (N. S.) 303.

   Ostrander, J.

In justice’s court plaintiff declared orally “in an action of assumpsit on all the common counts, especially on a written contract, claims damages $500 or under, and waives tort. The defendants pleaded the general issue.” This from the return on appeal. The items of plaintiff’s demand, according to a bill of particulars, are:

To sum paid in purchase price of lots 195, 196, and 206 of block 0 of Ojihway Park subdivision $275.00
Expenses in going to and from the property.. 200.00
$475.00
Interest ......................................

A more particular bill was asked for, and not furnished. With the plea defendants gave notice that plaintiff was indebted to defendants, the amount of which would be set off against the demand of plaintiff. The particulars of defendants’ demand are:

Sept. 29, 1915. To amount due on 13 notes dated Oct. 30, 1913, for $25 each, due respectively one, two, three, four, five, six, seven, eight, nine, ten, eleven', twelve, and thirteen months after date .......................... $325.00
Sept. 29, 1915. To interest thereon............ 43.87
Sept. 29, 1915. Two notes dated Aug. 30, 1913, for $50 each, due respectively Nov. 1 and Dec. 1, 1913, with interest thereon to Sept. 29, 1915 112.48
Interest to Dec. 22............................ 14.50
$495.85

Defendants had judgment. What objections were raised to the declaration in justice’s court we do not know.

Upon the trial in the circuit court, before any testimony was introduced, defendants withdrew two notes of $50 each as set-off, and moved to strike the declaration from the files, counsel saying:'

' “The declaration in this case, it seems to me, is insufficient to support the cause of action which my brother has outlined to the jury, an action of fraud, and I move to strike the declaration from the files as insufficient. The declaration is oral, and it merely declares fraud, not setting forth in detail in any particular what the fraud consists of.”

The motion was overruled. Objection was made to admitting any testimony because the declaration was insufficient. This was overruled. The trial .resulted in a verdict and judgment for the plaintiff.

The testimony for plaintiff tended to prove that the defendants owned, or claimed to own, a parcel of land in Ontario, Canada, which may be roughly described as a part of lot 34 in the second concession of the township of Sandwich, facing on the easterly side of Malden road, and containing 56 acres, more or less. Defendants contracted with certain persons, first with Ed. E. Samuel and Le Roy W. Cummings (Samuel & Cummings), in February, 1913, for the purchase and sale of the land. Later others were admitted by a supplemental agreement as vendees. In its essence this contract contemplated the platting of the land into blocks and lots by the vendees (and it was platted and called Ojibway Park); that the vendees should sell the lots in a manner described to net a certain sum to the vendors per lot; and authority is given the said vendees to sell the lots and any of them for any price more than $125 each “net to parties of the first part.”

The vendee agents had an agent in Chicago, where plaintiff lived. They had stationery, and on one side of the letter paper is a map. The Chicago agent was supplied with the letter paper. It came to pass that he attracted the attention of plaintiff to the property. It was supposed that the United States Steel Corporation owned and would own and improve land in the vicinity, and the city of Ojibway had prospects depending more or less upon the action of the steel corporation. The map showed the Detroit river, city of Windsor, Canada, the city of Ojibway, land marked “United States, Steel Company,” and various subdivisions of land, including Ojibway Park. It represented Ojibway Park as- immediately adjacent to the east boundary of the city of Ojibway. Plaintiff saw the map and heard, but without relying upon them, various oral representations of the Chicago agent of the vendees of the owner. On the 30th of August, 1913, plaintiff purchased or agreed to purchase lots 196, and 206, block O, “according to plan of Ojibway Park subdivision,” for $850. Mr. Crane marked with ink, upon a copy of the map, the location of the lots, and a written instrument was made and delivered to plaintiff in Chicago, signed by defendants, by Samuel & Cummings, and bearing also the initial's “A. M. C.,” meaning, presumably, A. M. Crane, the Chicago agent. The parties to the agreement are the defendants and the plaintiff, and it recites:

“The sum of one hundred (100.00) dollars to be paid on the signing of this agreement and the balance in consecutive monthly installments of fifty (50) dollars each; the first of said installments to be paid in one month from date hereof.”

Plaintiff paid $100, and gave 13 notes for $25 each; the payees in each of them being the defendants. A written receipt for the $100 payment was given to him by Crane, signed, “Samuel & Cummings, A. W. Crane.” It was written upon a letter head of Samuel & Cummings. Plaintiff went to Detroit, desiring to see the property, and carried with him a letter, written and signed by A. M. Crane, addressed to Samuel & -Cummings, in which it is stated that he had bought two lots, “and I have agreed that you will return his money without deductions if he is not satisfied after investigating.” Some one for Samuel & Cummings went with plaintiff to, or near to, the property. There was little to see except a bare country. Later on plaintiff bought another lot, perhaps while on this trip to Detroit, and a similar writing to the one described was executed. It is dated September 30, 1913. Plaintiff signed neither agreement. He again, and alone, visited the land, and then learned for the first time, he says, that he had been deceived, principally - by the map hereinbefore referred to. Testimony tends to prove, and it is not disputed, that Ojibway Park is, in fact, a long distance from the eastern boundary of Ojibway city, and his lots are much farther from the city limits and from the plat marked on the map to the steel company than the map discloses. He did no business with the defendants, directly. After his last visit to Ontario, which was in November, 1913, he returned to Chicago, saw Mr. Crane, showed him the map he had and two other maps issued by others, said he had been deceived, and demanded the return of his money. As testified to, he said, “You return my money; I am through with you.” Later he received a letter, dated November 22, 1913, at Detroit, written by Campbell & Sibley, “successors to Samuel & Cummings,” in which they refer to information they have received from Mr. Crane by telephone, and in which they assert that:

“Our map is drawn from an official county map and is probably the most correct map ever printed, showing the territory adjacent to the newly incorporated city of Ojibway.”

There is much more in the letter. Plaintiff’s demand for the return of his money was not recognized, and he brought this suit.

Assuming the plaintiff’s cause of action as proven to be stated in the declaration, there is testimony requiring the case to be submitted to the jury as it was submitted, and neither in rulings complained about admitting and excluding testimony, in refusing to charge, nor in the charge does reversible error appear.

The map was a representation of a fact, and an important one. The city or town of 0 jib way was incorporated in the year 1913 by statute. The property surrounding it became, to some extent at least, speculative property. It will be assumed that its value depended, and its probable increase in value, to some extent, upon its remoteness from the city and from the steel company’s property. If what the map represented was not qualified, as defendants claim it was, arid plaintiff says it was not, by oral statements, it misrepresented greatly the actual relative positions of the city and the lots purchased by plaintiff. The acceptance by the defendants of the notes given in part payment of the purchase price, the execution and delivery of the land contracts and other documentary evidence, and the plea of set-off sufficiently evidence the agency of the men with whom plaintiff did business, especially in the absence of contradictory evidence. Upon the facts the issue is a simple one, fairly submitted to the jury.

The serious question presented is whether the declaration is a good one. Appellee says:

“There are four reasons (each sufficient in itself) why the plaintiff’s declaration is sufficient, to wit:
“(1) Purchase money may be recovered under the common counts, in assumpsit without a special count, where the contract has been made void by fraudulent representations.
“(2) When there is nothing further to be done than the payment of money, the common counts in assumpsit is a sufficient declaration.
“(3) The contracts were void under the statute of frauds. 3 Comp. Laws, § 9511 [3 Comp. Laws 1915, § 11977].
“(4) Upon the facts and pleadings before the justice, to which defendants did not object, and on the theory of an action in assumpsit, waiving tort, under the statute (3 Comp. Laws, § 10421 [3 Comp. Laws 1915, § 12350]).”

This statement seems to indicate some confusion of thought. Assumpsit may be a proper remedy when the common counts would not properly state the plaintiff’s claim. The statute referred to permits an action of assumpsit to be brought in certain cases, but it does' not permit a recovery upon the common counts. Quite the contrary. Anderson Carriage Co. v. Pungs, 134 Mich. 79, 82 (95 N. W. 985); Barbour v. Hurlburt, 137 Mich. 534, 539 (100 N. W. 781); Burchy v. Carpenter, 181 Mich. 78 (147 N. W. 612). See Prest-O-Lite Co. v. Widrig, 179 Mich. 230 (146 N. W. 178). The statute does not change the rules of pleading. It is difficult, therefore, to understand how the first, second, and fourth reasons assigned equally support the proposition that the declaration is sufficient. If, however, we eliminate from the declaration, as some of plaintiff’s argument implies we should do, all but the common counts in assumpsit, there seems to be authority for the ruling that the declaration is sufficient; that it supports the judgment. So far as the proofs are concerned, no breach of contract is claimed. Nor do I see any reason for holding that the contracts are void. Plaintiff says there is reason for his repudiation of them — for rescission. It was held in Angell v. Loomis, 97 Mich. 5 (55 N. W. 1008), that a recovery may be had on the common counts for money paid on a contract into which plaintiff was induced to enter by fraudulent representations of the defendant, and which plaintiff repudiated, citing Johnson v. Insurance Co., 39 Mich. 33. Fitzpatrick v. Hoffman, 104 Mich. 228 (62 N. W. 349), Murphy v. Dalton, 139 Mich. 79 (102 N. W. 277), and Silfver v. Daenzer, 167 Mich. 362 (133 N. W. 16), are other cases which sustain the proposition that the plaintiff may in such a case recover under the common counts. It does not appear that defendants were surprised at the trial. The precise thing at issue between the parties has been determined by a jury upon all of the evidence either cared to submit.

The judgment is affirmed.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    DENNIS v. VINTON.
    1. Pleadings — Plea and Notice — Admissions—Court Rules.
    Under Circuit Court Rule No. 23, § 6, providing that any statement of fact set forth in a notice added to a plea shall be treated as an admission by the defendant and .need not be proved by the plaintiff, the plea and notice need not be formally introduced in evidence in order to make admissions they may contain available to plaintiff.
    2. Same.
    Under such rule a plaintiff is not bound by a claim of defense contained in a notice, or by the facts stated therein, added to a plea, even though he offered such record in evidence.
    3. Brokers — Contracts—Consideration—Burden of Proof.
    In an action by a broker on a written contract for services for the sale of real estate, the fact that the record offered in evidence by plaintiff of defendant’s notice, filed with his plea under Circuit Court Rule 23, § 6, stated a certain consideration had been paid by defendant to plaintiff under the agreement for services as a broker sued on, together with the facts evidenced by the writing and by defendant’s testimony, were not sufficient to relieve plaintiff from proving that the stated consideration had been paid or furnished hy defendant, as it was uncertain from the words employed in the writing whether it did or did not import a consideration rendered by plaintiff for defendant’s promise.
    Error to Wayne; Mandell, J.
    Submitted October 8, 1917.
    (Docket No. 56.)
    Decided December 27, 1917.
    Assumpsit by Frederick W. Dennis, administrator of the estate of Arthur S. Dennis, deceased, against Warren Jay Vinton for services rendered. .Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      James R. Neill, for appellant.

      Sherman D. Callender, for appellee.
    Plaintiff declared in assumpsit upon the common counts and upon a special count for money due plaintiff under and by virtue of “a written contract,” reading:
    “Warren Jay Vinton,
    “Detroit, Michigan.
    “March 17, 1916.
    “Mr. Arthur S. Dennis,
    “Detroit, Mich.

      “Dear Sir: I hereby agree to pay you the sum of three thousand five hundred dollars ($3,500,00) in consideration of your services in connection with the sale of fifty (50) acres more or less on the N. W. corner of Livernois Ave. and the Detroit Terminal R. R. Said payment to be made upon completion of sale. *
    “Very truly,
    “Warren Jay Vinton.”
    Defendant pleaded the general issue and gave notice that he would prove at the trial:

      “That at the time of the filing of said declaration herein and since the 17th day of March, 1916, the said plaintiff has been indebted to this defendant in the sum of $250, money had and received by the plaintiff from this defendant without consideration, which said amount, with interest thereon, this defendant will ask at the time to have allowed-in his favor and have judgment therefor.
    “And this defendant will at the trial offer in evidence a certain check which .is in words and figures following:
    “ ‘Detroit, Mich., March 17, 1916. No. F. 2297.
    “ ‘First and Old Detroit National Bank 9 — 1.
    “‘Pay to the order of Arthur S. Dennis $250.00 two hundred & fifty dollars.
    “‘Warren Jay Vinton.’
    “(Check is indorsed: ‘A. S. Dennis.’)”
    “And this defendant will further show at the trial that the said alleged written agreement set forth in plaintiff’s declaration was never carried out by said plaintiff ; that the services claimed to have been performed by said plaintiff were never performed; that the transaction referred to in said letter was with one Fred E. Gregory; that said Fred E. Gregory totally failed and neglected to carry out the proposed agreement for the purchase of said premises, which said agreement was forfeited and canceled through no fault of this defendant; that thereafter this defendant made demand upon the plaintiff for the repayment of the said $250 advanced by this defendant to plaintiff, which amount said plaintiff has failed and neglected to repay. Wherefore this defendant has been damaged in the sum of $250 and interest, for which he asks judgment in his favor.”
    Plaintiff called the defendant as a witness, and no other witness was sworn. Defendant gave testimony tending to prove that at one time he had an interest, by way of a contract to purchase, in the parcel of land mentioned in the writing set up in the declaration, and that he had sold his said interest. The writing was offered, and, over objection, was received in evidence. Direct examination of the witness ended here. The court ’ inquired of plaintiffs attorney, “What is the basis of your suit?” the reply being:
    “It is a suit that he owed us that amount of money; it speaks for itself, services and not commission.

      “The Court: Services already rendered or to be rendered ?

      “Mr. Neill: Services that have been rendered.”
    On cross-examination, the witness testified that he did not sell the property pursuant to the agreement with plaintiff’s intestate. Plaintiff offered in evidence the defendant’s plea and notice, and rested. Ño further testimony was offered. Plaintiff preferred no requests to charge, but took an exception when the court, upon defendant’s, motion, directed a verdict in his favor. Judgment was entered on the. verdict.
    Plaintiff did not, in the usual way, assign error. At some time he gave a notice to defendant’s attorney which may be and is interpreted to mean that error is assigned upon the charge, and is co-extensive with the exception taken thereto.
    It is plaintiff’s theory that the writing declared upon is a promise to pay a sum of money upon a contingency which the testimony shows has happened, and that the burden of proving want of consideration rests upon the defendant; further, that in the notice given by defendant with his plea is an admission that $250 of the $3,500 was actually paid by defendant to plaintiff. The trial court was of opinion that upon the face of the contract itself it was apparent “that the services were not complete,” that the proof of consideration had failed, and, as the plaintiff had offered in evidence the plea and notice which contain an offer to prove that the services had not been performed, “there has been an utter failure of consideration for the promise to pay, and the promise is not of full force and effect.”
   Ostrander, J.

{after stating■ the facts). Circuit Court Rule No. 23, § 6, provides that any statement of fact set forth in a notice added to a plea shall be treated as an admission by the defendant and need not be proved by the plaintiff. The plea and notice are a part of the record, and it is unnecessary to formally introduce them in evidence in order to make available for plaintiff any admissions they contain. Carpenter v. Carpenter, 126 Mich. 217 (85 N. W. 576); Buckeye Brewing Co. v. Eymer, 157 Mich. 518 (122 N. W. 124); Irwin v. Wolcott, 183 Mich. 92 (149 N. W. 1035). Plaintiff is not bound by a claim of defense contained in the notice, nor bound by facts therein stated. Nor was his position changed by the fact that he formally offered the record in evidence. The fact stated therein, of which he sought to avail himself, was that a payment of $250 had been made— advanced — by defendant to plaintiff, pursuant to whatever agreement existed.

In my opinion, this fact, and the facts evidenced by the writing and by-the testimony of defendant, are not sufficient, in law, to relieve plaintiff from proving that the stated consideration had been paid or furnished to defendant. This because it is uncertain from the words employed in the writing whether it does or does not import a consideration rendered by plaintiff for defendant’s promise. Being uncertain, it was necessary for the plaintiff to prove performance — consideration — on the part of his decedent, and in this behalf the notice given by defendant does not aid him. It is probable, as was remarked by the learned trial judge, that the death of one party to the arrangement (whatever it was) has made it difficult for either party to the suit to spread upon the record the real facts.

The judgment must be affirmed.

Kühn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    KINNEY v. CADILLAC MOTOR CAR CO.
    1. Evidence — Admissibility—Declarations.
    In proceedings for compensation for the death of an employee under the workmen’s compensation act, although statements made by deceased relating to his feelings, mental or physical, are admissible in evidence, statements made as to the cause of accident or source of injury are inadmissible.
    2. Master and Servant — Workmen’s Compensation Act — Evidence — Competency.
    The decision of the industrial accident board will not be reversed because of the admission of incompetent evidence if any competent evidence sustains its conclusion.
    3. Same — Workmen’s Compensation Act — Personal Injuries— Infection — Evidence—Out of and in Course of Employment.
    Evidence that deceased, a motor car manufacturing company employee, when he left his rooming house in the morning to go to work had no bandage on his thumb; that he worked 10 hours that day at assembling brake and clutch pedals; that abrasions were a common form of injury; that shortly'before quitting time he went to his foreman and exhibited his left thumb, which was dirty, torn up and clotted over with blood, some of which appeared to be fresh; that at the foreman’s order he went to the company’s doctor and received the regular treatment, according to the practice; that he returned to his rooming house between 5:30 and 5:45 p. m. that day with his thumb bandaged; that next day a physician who was called found the thumb well bandaged but an infected abrasion at the first joint; that septicaemia followed, and deceased died therefrom three weeks later, tended to show an accident arising out of and in the course of the employment.

    Certiorari to Industrial Accident Board.
    Submitted October 18, 1917.
    (Docket No. 85.)
    Decided December 27, 1917.

      Selina I. Kinney presented her claim for compensation against the Cadillac Motor Car Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.
    J. H. Goldie, for appellant.

      Miller, Smith, Canfield, Paddock & Perry, for appellee.

      On construction and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23, L. R. A. 1917D, 80.

   Ostrander, J.

Claimant’s decedent was employed by the Cadillac Motor Car Company at an average weekly wage of $12.98. Claimant was totally dependent upon deceased and entitled to compensation, if at all, at the rate of $6.49 per week for 300 weeks. Her decedent died March 21, 1916, from general septicaemia, resulting from an abrasion on his left thumb. The committee of arbitration declined to make an award. Its determination was reversed by the industrial accident board, which considered the testimony produced to the arbitration committee and some further testimony taken by depositions. It was found:

“(1) That on February 29, 1916, George R. Kinney did receive an accidental injury arising out of and in the course of his said employment with the respondent, Cadillac Motor Car Company.
“(2) That the death of George R. Kinney was due to general septicaemia resulting from the said accidental injury, and that the proximate cause of the death was the accidental injury received by the deceased in the course of his employment.
“ (3) That there is no testimony in the case tending to show any intentional and wilful misconduct or any misconduct whatever on the part of the deceased employee.”

It is the contention of the respondent, plaintiff in certiorari, that there is no competent evidence to establish the fact of an accidental injury to claimant’s decedent, arising out of and in the course of his employment. In this connection it is said that the only evidence tending to show that he received such an injury is hearsay and inadmissible.

It was held in Reck v. Whittlesberger, 181 Mich. 463 (148 N. W. 247, Am. & Eng. Ann. Cas. 1916C, 771), that although statements made by an injured employee relating to his. feelings, mental or physical, are admissible in evidence in such proceedings, statements made as to the cause of the accident or source of injury are not admissible; but that the admission of such incompetent testimony would not necessarily require a reversal of the decision of the board, if there was otherwise a legal basis for its conclusion. To the same effect, as to sustaining the conclusion of the board, is Fitzgerald v. Lozier Motor Co., 187 Mich. 660 (154 N. W. 67). It is necessary, therefore, to examine all of the testimony considered by the board to see if any competent evidence sustains its conclusion.

Claimant’s decedent roomed at the home of the witness Mrs. Collins. The testimony tends to prove that on February 29,1916, he had no bandage on his thumb when he went away to his work in the morning. He worked 10 hours that day, his duty being to assemble brake and clutch pedals. In this employment, abrasions are a common form of injury. Shortly before quitting time, claimant’s decedent went to his foreman, and exhibited his left thumb, which was dirty, naturally, torn up, and clotted over the thumb nail with blood — some of the blood looked to be fresh. The foreman told him to go to the doctor. The plaintiff in certiorari kept a doctor, his office being across the street from the place where the deceased worked. Deceased went out and proceeded in the direction of the doctor’s office — the hospital maintained in the plant. It was the foreman’s practice, if not his duty, to send, or direct, an injured man to the doctor’s office. Deceased returned to his rooming house between 5:30 and 5:45 that day with his left thumb bandaged. He was ill and lay down. Next day a physician was called. He found the thumb bandaged as a professional man would bandage it and painted with iodine, with an abrasion at the first joint. The abrasion was infected, septicaemia followed, and deceased died therefrom March 21, 1916. I have omitted all reference to testimony which can be called hearsay; all reference to the statements of the deceased as to when and how he received the injury. But assuming the facts to be those I have stated, I think they support the inference that the injury arose out of and in the course of the employment.

No reversible error appears.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.