text:
    CHURCH v. LARNED.
    1. Evidence — Admissibility—Pleading—Variance.
    In an action for personal injuries, where the declaration alleged that said injuries caused a prolapsus of the uterus necessitating an abdominal operation, testimony that in the operation one of plaintiff’s ovaries was removed, was admissible, it not being open to the objection that the declaration alleged one injury while plaintiff was permitted to prove another.
    2. Negligence — Contributory Negligence— Evidence — Question for Jury.
    Testimony by plaintiff that, on'alighting from a street car, she looked before proceeding towards the curb, and saw no automobile approaching, and by plaintiff’s daughter-in-law that plaintiff was about two feet behind witness and that she saw the automobile just before it struck plaintiff, who was still in the safety zone, but not in time to warn her, being all of the testimony on this question, held, to present a question for the jury as to whether plaintiff was guilty of contributory negligence.
    3. Trial — Argument of Counsel — Harmless Error.
    Statements by plaintiff’s counsel, in his argument to the • jury, which should not have been made, but which were either stricken out or withdrawn after being criticized by the court, and which cannot be said to have influenced the verdict, held, not reversible error.
    4. Same.
    Reference by plaintiffs counsel, in his argument to the jury, in refuting a suggestion by defendant’s counsel that plaintiffs trouble in the uterus might have been caused by child-birth, to the fact, brought out by defendant on cross-examination, that plaintiff had a son who was a soldier in active service, explaining, on objection, that his purpose was to show the lapse of time between the birth of the child and the discovery that her uterus was affected, held, not reversible error.
    Error to Wayne; Hosmer, J.
    Submitted April 22, 1919.
    (Docket No. 19.)
    Decided May 29, 1919.

      Case by Myrtle Church against Minnie Larned for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Vandeveer & Foster, for appellant.

      George B. Greening (Frank' W. Atkinson, of counsel) , for appellee.
   Brooke, J.

In this case plaintiff had judgment for $4,000 growing out of injuries received by her as the result of being run down by an automobile driven by defendant. The accident occurred at the intersection of Meadowbrook and East Jefferson avenues, in the city of Detroit, at about 11:50 p. m. A street car with trailer attached traveling east came to a full stop at the intersection of said streets. Plaintiff, accompanied by her daughter-in-law, was a passenger on the trailer. After the car came to a stop the two ladies left the car, the daughter-in-law a step or two in advance of the plaintiff. After plaintiff had left the car she testified that she looked to the right or year but failed to .see the oncoming automobile driven by defendant. After taking a step or two in a southeasterly direction and while still within the safety zone she was struck by the automobile and carried forward a distance of 50 or 75 feet before the machine came to a standstill. The defendant, with the help of others, placed her in the car and took her home. She was confined to the house for two or three weeks and thereafter went to the hospital where she was subjected to an abdominal operation. The declaration charged that as a result of the accident plaintiff suffered:

“(1) Many contusions over the entire part of the body.
“(2) The uterine ligaments became released, causing prolapsus of the uterus, which necessitated an abdominal operation, and there is grave doubt as to her ever getting in the same condition as she was in before the injury.”

During the examination of the operating physician the following occurred:

“I treated her for a while and drew out as much of this congestion from the uterus that could be drawn off by treatment at the office and waited for her body to recuperate from the shock of the injury and then I took her to the hospital later on and operated, when I removed one ovary.
“Objected to as not included in the declaration.
“Q. Does that include one of the ovaries there— that allegation?
“Mr. Vandeveer: I object to that. Here is a copy of the declaration.
“The Court: I think if you had asked for a bill of particulars I should have allowed it with reference to that. I think she may testify from that inasmuch as there was no demand for a bill of particulars as to the nature of the operation. Note an exception. If you had asked for a further bill of particulars in that respect, of what the abdominal operation was, I might have sustained your application in that regard, but I think I will let the testimony in.
“Exception.”

The assignment of error based upon this exception is the first one argued by appellant. It is urged in this behalf that the plaintiff apprised defendant of one injury in her declaration and over objection was permitted to prove not only this injury but still another. Shadock v. Plank-Road Co., 79 Mich. 7. We are of opinion that the averment in the declaration quoted is sufficient to cover the testimony admitted. Groat v. Railway, 153 Mich. 165. It is there asserted that the relaxed ligaments caused a prolapsus of the uterus which necessitated an abdominal operation. It is true that no mention is made that in the performance of said operation one of the ovaries, was removed, but as the fallopian tubes and the ovaries are appendages qf the uterus, we think the court was correct in holding the testimony admissible.

It is next argued by counsel for appellant that a verdict should have been directed upon the ground that the plaintiff was shown to have been guilty of contributory negligence as a matter of law. Plaintiff testified:

“After getting off the street car and before I proceeded toward the curb, I looked toward Hamilton avenue to see if an automobile was coming from that direction and approaching toward me, but I did not see any.”

Plaintiff’s daughter-in-law testified:

“She was in the safety zone but I don’t know exactly how far she was' from the street car.”

—and on cross-examination:

“I alighted from the car first and my mother-in-law followed me. The street car was still standing after she had been struck and picked up. She was about two feet behind me, and I looked to the right or west and saw an automobile coming, but it was so close that before I could warn her, it struck her. It seemed to be the front wheel that struck her but I don’t remember whether it was the left or right — I don’t remember whether it was the radiator, but it seemed to have been the wheel; it happened so quickly that I don’t just remember which wheel it was. It was a fine, clear night with no rain or snow and I don’t know if the stars were shining or not. I would say Mrs. Church was about three feet from the car when she was struck and I was about two feet in advance of her.”

In connection with this testimony it is argued that inasmuch as the daughter-in-law saw the automobile and the plaintiff did not it should be held as a matter of law that the plaintiff was guilty of contributory negligence. It must be remembered that the accident occurred within a very few seconds of the stopping of the car and while the plaintiff was within the so-called safety zone. The testimony of the mothar and daughter-in-law was all there was as to the happening of the accident, the defendant not being sworn. We are of opinion that the facts, presented by the testimony raised a question for the determination of the jury and that it was presented to them under proper instructions.

Error is next assigned upon the argument of counsel for plaintiff which it is asserted constitutes prejudicial error. All of the remarks criticized by appellant were without warrant and should not have been indulged in by counsel for plaintiff. The first was stricken out by the court as prejudicial. The second, when objected to, was criticized by the court and withdrawn by counsel. The third, when objected to by counsel for defendant, was withdrawn by counsel for plaintiff. The fourth consisted in the following:

“Counsel for Plaintiff: I only ask you as you would ask in right (like) cases, if this was your wife, or this was your sister, that was compelled to come into court.
“Mr. Vandeveer: I object to that statement.
“The Court: The Supreme Court has said you cannot make that comparison with reference to yourself or ask the jurors to make the comparison with themselves, so I cannot see why a wife or sister do not stand on the same plane.
“Mr. Vandeveer: No question about it, I object to it as an improper argument.
“The Court: The jury have got to give, if they find she was injured through the negligence of the defendant and was not guilty of negligence herself, what is the proper amount of compensation.”

There is no question under the authorities that this appeal to the jury constituted reversible error unless cured by the action of the court. Such errors have been overlooked by this court when it could be said that the verdict did not reflect the prejudice or passion to which appeal was made. No error is assigned upon the action of the court in denying a new trial on the ground that the verdict was excessive. The next incident of this character grows out of the following:

“Mr. Greening': I listened to this absurd argument by my learned brother that this poor woman’s injuries were through childbirth.
“Mr. Vandeveer: I did not say that. I said the testimony disclosed that 95 per cent, of those cases — ■
“The Court: I think if the jury would find that she raised a child who is now a soldier and has not suffered up to the present time, that the remark of counsel would be justifiable.
“Mr. Vandeveer: I object to the court’s remark and take an exception.
“Mr. Greening: On the 14th day of November, 1916, when Mrs. Church was injured, at my brother’s request she stated she had one child — now let us see where he was; he was down to the Mexican border; down with the soldiers down there.
“Mr. Vandeveer: I object to that statement; what is the purpose of it?
“The Court: I think the jury may take it into consideration.
“Mr. Greening: The purpose is to show the age of him and number of years that elapsed afnd whether that number of years — that he should be a soldier, before she discovered that her uterus was affected— that is the purpose of it.
“The Court: I think that is a legitimate argument.”

The record discloses that the plaintiff had borne a son who at the time of the accident was a soldier in active service. This fact was brought out by defendant’s counsel upon cross-examination. While counsel for plaintiff in his argument might well have omitted reference to the fact we are disposed to hold, considering the state of the record, that his remark does not constitute reversible error.

A review of the entire record discloses no reversible error and the judgment stands affirmed.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    MOSHINSKI v. KAY SALT CO.
    1. Master and Servant — Partial Disability — Compensation.
    Where an. injured employee at the time of his injury was earning an average weekly wage of $25, and, for the period covered by the hearing, was earning an average weekly wage of $22.31, an award by the industrial acci- . dent board of $3.25 per week for partial disability was unwarranted, since the amount authorized by the statute (2 Comp. Laws 1915, § 5440) is 50 per cent, of the difference.
    2. Same — Finding by Industrial Accident Board.
    Although the injured employee was offered more than he was earning before the injury if he would continue in certain work he was doing, a finding by the board of partial disability will not be disturbed where he testified that he could not stand the work because his arm bothered him so and he had to quit, and two physicians testified that the arm was reduced in efficiency about 30 per cent.
    On the question of compensation recoverable under the Workmen’s Compensation Act generally, see notes in L. R. A. 1916A, 129, and L. R. A. 1917D, 164 et seq.

    Certiorari to Industrial Accident Board.
    Submitted April 23, 1919.
    (Docket No. 92.)
    Decided May 29, 1919.
    Roy Moshinski presented his claim for compensation against the Kay Salt Company for injuries received in defendant’s employ. From an order denying a petition to discontinue payments for partial disability, defendant and the Royal Indemnity Company, insurer, bring certiorari.
    Modified, and remanded.

      John B. Coughlin, for appellants.
   Brooke, J.

Certiorari to the industrial accident board. On September 27, 1916, applicant received a severe injury arising out of and in the course of his employment. A compensation agreement was at once entered into between the parties under which the indemnifying company paid to claimant the maximum compensation of $10 per week from the date of the injury to January 8, 1918. It later developed that claimant had so far recovered from his injury that on June 12, 1917, he obtained employment with the International Harvester Company of Milwaukee, Wisconsin, where his average weekly wages amounted to $18.54. On February 20, 1918, an application was made to the board praying that compensation be fixed as for partial disability at the rate of $3.23 per week and that the excess already paid to claimant of $203.10 be credited to the employer upon payments made from and after January 8, 1918, as they became due. It. appeared without dispute that the averments- in the petition were true and on the 24th day of May, 1918, the board made an order to the effect that the rate of compensation should be reduced to $3.23 from March 8, 1918, during the period of partial disability and further:

“It is further ordered that compensation at the rate' of Ten Dollars ($10) per week be paid applicant from the date of the last payment, January 8, 1918, to March 8, 1918. Should applicant again become totally disabled because of his injury, compensation shall be again paid at the rate of Ten Dollars ($10) per week.
“It is further ordered that respondent’s prayer that certain amounts already paid applicant be refunded to them, is hereby denied.”

No appeal was taken from this order. On the 15th day of August, 1918, a second application was made to the board by the insurance company in which it is set up that after May 31, 1918, claimant was receiving an average weekly wage of $22.37; that therefore he was entitled but to the sum of $1.32 per week partial disability. It is further averred that on August 7, 1918, claimant quit his employment with the International Harvester Company although he was offered $25 per week. Petitioner asked for an order that compensation be paid to claimant at the rate of $1.32 per week from May 31, 1918, to August 7, 1918, and that all further payments or compensation be stopped on the ground that disability has ceased and the employee is able to earn the same wages he was earning at the time of the accident.- Considerable testimony was taken on the second application and the board on the 24th of December, 1918, made the following order:

“The board finds as a fact from the files and testimony in the case that said applicant should continue to receive compensation in accordance with the terms of the order entered by the board on May 24, 1918, viz., $3.23 weekly during the period he is partially incapacitated in the employment in which he was engaged at the time of the accident, and $10.00 weekly should he again become totally incapacitated in such employment; the board further finds that there is no evidence in the testimony submitted in support of said petition, medical or otherwise, which would tend to show- that said applicant is able to fully resume his usual employment, and, there being no testimony whatever on this point, the petition must be denied.
_ “It is therefore ordered and adjudged that said petition should be and the same is hereby denied, and said applicant is entitled to receive and recover from said respondents compensation at the rate of three dollars and twenty-three cents ($3.23) per week from the time payments were stopped, May 31, 1918, to the date of the hearing on said petition, November 20, 1918, in all the sum of eighty-two dollars and thirty-seven cents ($82.37), which amount shall be paid to applicant forthwith.
“It is further ordered that after November 20, 1918, said applicant is to continue to receive compensation in accordance with the terms of the order entered by the board on May 24, 1918, said order being in full force and effect at this time,”

—which is now reviewed in this court. The record shows conclusively that from May 31, 1918, to August 3, 1918, a period of nine weeks, claimant received an average of $22.31 per week. This deducted from the sum of $25 which he was receiving when injured leaves a balance of $2.69, 50% of which is $1.35. We can find no warrant in the record for the allowance of $3.23 during this period. On August 6th claimant quit working for the International Harvester Company and started to work for the James J. Swartz Fur Company, where he earned but $12 per week. This employment continued from August 7th to September 24th, when he took employment with the Milwaukee Tanning & Clothing Company, where he was working at the time of the hearing. His wages in the latter employment according to his own testimony were $22.05 per week. Fifty per cent, of the difference between that amount and $25.00 is $1.48. We think the appellant is correct in its contention that the board had no warrant in fixing the compensation at $3.23 as for partial disability. It is asserted by appellant that the board erred in holding that there was no evidence that disability had ceased after August 7, 1918. This assertion is based upon the fact that officers of the International Harvester Company testified that at the time claimant left its employ he was able to continue doing the work he was then engaged in and his continuance there would have resulted in his receiving from and after August 7th a sum in excess of $25 per week. On the other hand claimant testified:

“I couldn’t stand it any longer and my arm bothered me so that I had to quit.”

The testimony of the two physicians appearing in the case upon the earlier application tends to show that claimant sustained a very severe and extensive burn which involved his left arm and left side; that there is a large area of scar tissue, some of it very deep. At the time they testified they gave it as their opinion that claimant’s left arm was reduced in efficiency about 80 per cent.

The refusal of the board to grant the order discontinuing all compensation after August 7th will not be disturbed. The order of the board -as made is set aside and the case remanded for further proceedings in accordance with the terms of the act.

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


text:
    LIEBLEIN v. ISBELL BEAN CO.
    Contracts — Sales—Waiver of Inspection — Acceptance.
    In an action to recover the purchase price of 13 bags of beans which plaintiff purchased from defendant and paid for in advance, evidence that the beans were shipped subject to inspection, that plaintiff surrendered to the railroad company the order bill of lading which had been indorsed to him, and, without inspecting the beans, removed them to his warehouse on June 28th, held, to warrant the finding of the court below that plaintiff by his conduct accepted the beans and was precluded from thereafter claiming a right to recover because inspection “some time in July,” disclosed that they were spoiled.
    Error to Houghton; Fead, J.
    Submitted April 24, 1919.
    (Docket No. 60.)
    Decided May 29, 1919.
    Assumpsit by Edward M. Lieblein against the Is-bell Bean Company for goods sold and delivered. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Hanchette & Lawton, for appellant.

      MacDonald & Kerr, for appellee.
   Brooke, J.

This case involves the sum of $113, being the value of 13 bags of red kidney hand-picked beans. The dispute between the parties arose in the following manner: Plaintiff purchased from defendant on November 15, 1911, 25 bags of beans of the value of $228.75. The shipment went forward and bill of lading with draft attached accompanied it. This draft was paid by plaintiff and the bill of lading which contained the words “subject to inspection” was surrendered to the railroad company. The beans were removed to the plaintiff’s warehouse and some time thereafter were for the first time inspected. Plaintiff claimed that 13 bags proved to be badly cured and developed mold. The matter was immediately taken up by the plaintiff with the defendant and with the broker who had placed the order, Mr. Lavigne, with the result that defendant agreed to replace the 13 bags of defective merchandise with choice stock. These-13 bags went forward under an order bill of lading under date of May 8, 1912, which contained the words “allow inspection.” Plaintiff was' advised by the railroad of their arrival on May 31, 1912, and was likewise advised that there were freight charges in connection with the shipment amounting to $5.85. Correspondence immediately ensued between the parties relative to the payment of the freight charges which ultimately were paid by defendant. In the meantime the price of the beans had dropped about 98c per bushel, so that the market value of the beans received in replacement at the time they were received was some $30 less than the amount paid for those returned. Further correspondence ensued between the parties over this difference. The freight having been paid or satisfactorily adjusted, plaintiff surrendered the order bill of lading (which had been indorsed to him by defendant, the value of the shipment having been paid by the taking up of the bill of lading in the original shipment) to the railroad, and, without inspecting the 13 bags, removed them to his warehouse, on the. 28th of June, 1912. Correspondence ensued between the parties over the difference in price, and in the meantime a second shipment of 30 bags made on May 23, 1912, had arrived which plaintiff refused to accept because of the failure of the defendant to adjust said difference. On July 22, 1912, plaintiff wrote defendant the following letter:

“July 22, 1912.
“The Isbell Bean Co.,
“Detroit, Mich.
“Gentlemen: I have your favor of the 19th inst. I have repeatedly advised you when you remit your check in payment of the amount due me for decline in price on the thirteen bag lot from Shelby elevator I will take up this draft covering the shipment of May 23 and take possession of these beans. What are you going to do about this anyway? I stand ready to do my part just as soon as you have done yours.
“Very truly yours,
“Ed. M. Lieblein.”

In this it will be noted that there is no claim that the second shipment of beans was inferior although at that time it had been in plaintiff’s warehouse nearly 30 days. Later a claim was made that the second shipment of 13 bags was absolutely worthless and unfit for food. No adjustment having been reached between the parties suit was brought by the plaintiff for $113.60, the amount of the draft drawn by plaintiff on defendant and dishonored by the defendant, being the value of the 13 bags said to be worthless. Evidence was introduced tending to show that the beans were not inspected before delivery; that they were delivered on June 28th, and were inspected at the warehouse “some time in July.” A motion was made for a directed verdict in favor of the defendant at the close of the plaintiff’s case and both parties having rested the court granted the motion, saying in part:

“And it appears that some time in May 13 sacks of beans to take the place of the 13 sacks of defective beans in the November shipment were sent to the plaintiff. For a period of two or three weeks, at least, there, was some correspondence between the parties relative to the freight charges, and that was finally adjusted, and it appears that about a month after the plaintiff knew the beans were at the railroad and after he had in his possession the bill of. lading which would entitle him to obtain the beans, he sent to the 'defendant a bill or statement for the difference in price between what he had paid for- the beans in the fall before and what they were worth at the time of the delivéry in May. As stated, gentlemen, this statement was sent about a month after the plaintiff knew that the beans had arrived at the depot. The beans were there under an order bill of lading, subject to inspection, and during that month the plaintiff had an ample opportunity to inspect them. His sending the statement of that kind at that time after that opportunity to inspect, constituted an acceptance of the beans and he was not entitled thereafter to reject them. Aside from that, it appears to me that not only was that an acceptance of the beans and completed and closed the contract, but the correspondence between the parties after it is claimed that the plaintiff inspected the beans and found them defective, Is amply sufficient to show an acceptance upon the part of the plaintiff, and whether those beans were good or bad he had a right to accept them if he desired, and having accepted them the contract became completed and he would be liable for their purchase price in case the purchase price had not been paid in advance, as happened to be the case in this particular instance.”

Plaintiff reviews the case in this court under 17 assignments of error which may be treated together, the meritorious question being whether the court was in error in directing a verdict for the ^defendant on the ground that the plaintiff by his conduct had accepted the 13-bag shipment and was without remedy-in the premises. We are of opinion that the question is settled contrary to plaintiff’s contention by our decision in Berwick Store Co. v. Starks, 185 Mich. 473, where it is said:

“As a matter of law, plaintiff accepted this consignment of potatoes when it took possession of them without inspection, on or before January 14, 1903. Williams v. Robb, 104 Mich. 242; Jones v. Bloomgarden, 143 Mich. 326. See, also, Weyl v. South Pacific Co., 156 Ill. App. 493.”

The judgment is affirmed.

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


text:
    KLEIN v. MILLER.
    Canceulation of Instruments — Deeds—Fraud.
    On a bill to cancel a deed and an assignment of a mortgage, -where the record shows that defendant was indebted to plaintiff and deeded to him 116% acres of land in partial payment of said indebtedness, said land and 40 acres retained by defendant being subject to a mortgage which was later foreclosed and the equity of redemption about to expire when plaintiff agreed to redeem therefrom and to also cancel a $3,600 note and mortgage which he held against the 40 acres if defendant would convey to him said 40 acres, which plaintiff did without disclosing that he had already deeded said 40 to his stepson and had assigned to his brother a second mortgage for $3,000 covering said 40 which he had purchased and for which he had received credit from plaintiff, held, that plaintiff was entitled to the relief sought, defendant being the real party in interest.
    Appeal from Allegan; Cross, J.
    Submitted April 11, 1919.
    (Docket No. 32.)
    Decided May 29, 1919.
    Bill by Leon J. Klein against David R. Miller and others to set aside a deed and assignment of a mortgage on the ground of fraud. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Wilkes & Stone, for plaintiff.

      Clare E. Hoffman and Hatch, McAllister & Raymond, for defendants.
    The plaintiff herein is engaged in the business of loaning money in the city of Chicago, dealing principally in second mortgage securities. From October 20, 19l4, to July 31, 1915, he had loaned to defendant David R. Miller in various sums a total of $8,725.82, said sums being secured up to that time by a second mortgage of $20,000 on Chicago property as collateral. On March 16,1915, said defendant David R. Miller had purchased from two men named Petersen and Thurs-ton a farm in Allegan county known as “Sunny-Slope Farm.” This farm consisted of three parcels, 86% acres, 30 acres, and 40 acres, a total of 156% acres. At the time of the conveyance from Petersen and Thurs-ton to defendant David R. Miller, there rested upon said farm two mortgages — a first mortgage of $7,000 to one Fritz and a second mortgage for $3,000 to Henry Speer and Francis Downen. Defendant David R. Miller, being the owner of the legal title to said Sunny-Slope Farm On July 31, 1915, September 2, 1915, October 15, 1915, and October 25, 1915, conveyed to plaintiff, Klein, in partial payment of his indebtedness, 116% acres of said farm, being the 86%-acre parcel and the 30-acre parcel. Agreements between the parties were entered into by the terms of which defendant David R. Miller was to reduce the mortgages on said land, then amounting to $10,000, to the sum of $5,800.00. To secure his agreement to make this reduction, David R. Miller and his wife executed a mortgage to defendant in the sum of $3,600.00 on the 40 acres of said farm, title to which had been retained by them. Later and on April 15,1916, defendant David R. Miller purchased the second mortgage of $3,000 running to Henry Speer and Francis Downen and thereupon released plaintiff Klein’s 116% acres from the same, and plaintiff Klein indorsed the sum of $3,000 upon the $3,600 mortgage given by defendant Miller to secure the performance of his promise. On February 14, 1917, defendant Miller executed an agreement making the $600 balance of the $3,600 mortgage a lien upon the 40 acres prior to the $3,000 mortgage which he had purchased from Speer and Downen. In the meantime and on February 21, 1916, the first (Fritz) mortgage had been foreclosed and the equity of redemption would expire on February 21, 1917. On the 19th of February plaintiff and his attorney came to Michigan and attempted to secure from Fritz an agreement to convey to him the whole of said farm after the foreclosure proceedings became absolute upon the payment to him, Fritz, of the amount of the mortgage with interest and costs. In this attempt plaintiff was unsuccessful because upon his arrival in Grand Rapids he found, after consultation with Fritz, that Fritz had already executed such an agreement to Petersen and Thurston. It should be noted in passing that Petersen and Thurston had filed a bill in chancery against defendant Miller and plaintiff Klein, claiming that they had been induced to part with their title to the Sunny-Slope Farm through the fraud of defendant David R. Miller. Failing to secure the agreement from Fritz which they sought, some investigation was made by plaintiff Klein, as to the value of the 116% acres to which he had title and as to the value of the 40 acres, the part of the farm to which defendant David R. Miller had retained title, and it is his claim that he concluded that he -would not redeem from the Fritz mortgage unless he could secure title to the 40 acres owned by David R. Miller. It clearly appears from the record that the 40 acres so owned was worth about the same amount as the 116% acres owned by plaintiff ($5,500 to $6,000). Plaintiff sent his lawyer back to Chicago on the 20th of February and his said lawyer that evening interviewed Miller and his wife and presented to them a warranty deed of the 40 acres to plaintiff for execution, telling them, it is claimed, that plaintiff Klein would not redeem without said deed, in which event neither Klein nor the Millers would get the farm, but that it would go to Petersen and Thurston under their agreement with Fritz. The Millers refused to execute said deed that night but agreed to and did meet plaintiff Klein and his lawyer at the latter’s office on the morning of the 21st, the day during which redemption had to be made, otherwise the title in Fritz under the foreclosure would become absolute. On that morning the situation was as follows: Plaintiff owned 116% acres of the farm. Defendant David R. Miller and his wife, Louise, owned the other 40 acres. The Fritz mortgage, which with interest and costs amounted to about $7,300, was foreclosed, the same becoming absolute that day 'in default of redemption. Defendant David R. Miller had purchased the $3,000 mortgage and had made it subject to $600 of the $3,600 mortgage given to Klein as security for his promise to reduce incumbrances on the farm. So far as plaintiff knew that was the actual condition of the title on that morning. Upon leaving Michigan the 'night before he had left with his attorney a draft for $7,500 with instructions to redeem from the Fritz mortgage on the 21st only in case he received instructions so to do from the plaintiff, which it was understood would be given in the event only that plaintiff secured title to the 40 acres. There is a sharp dispute upon the record as to what occurred on the morning of the 21st in Chicago. ' It is asserted on behalf of the plaintiff that he advised the Millers that he would not redeem from the Fritz mortgage unless he had absolute title to their 40 acres, and that, confronted with the alternative of seeing the title to their 40 acres go to him or to Thurston and Petersen, who had by their bill charged them with fraud, they expressed their willingness to convey the title to him by a quitclaim deed. On the part of the Millers it is asserted that plaintiff advised them he could not redeem from the mortgage unless he had a legal title to the entire 156% acres and that if they would execute the quitclaim deed to him of the 40 acres he would make the redemption and immediately thereafter reconvey to them their 40 acres. They claim that they advised him that they had already deeded the 40 acres to Frank Rogers, a stepson of David R. Miller, and therefore could not properly deed to him, but were advised by his attorney that the execution of the quitclaim deed could not injure them as it conveyed no more title than they had. Whatever may be the actual facts as to what occurred on that morning, the Millers, David R. and Louise, his wife, did execute a quitclaim deed to the plaintiff of the 40 acres, upon receipt of which plaintiff caused redemption to be made from the Fritz foreclosure. Immediately on the execution of his deed David R. Miller took a train leaving Chicago about noon and arrived at Allegan some time that evening. He found the register of deeds and there placed upon record a deed from himself and wife to his wife’s son, defendant Frank Rogers, covering said 40 acres, said deed being dated and acknowledged February 15,1917. This deed being without consideration, a second deed dated February 26, 1917, was executed wherein the consideration was mentioned as “$1.00 and other valuable consideration.” The first deed remained of record, however, with consideration as' named in the second deed inserted. At the same time he placed on record an assignment of the $3,000 mortgage from himself to his brother, defendant John H. Miller, bearing date February 15, 1917.
    Plaintiff filed his bill of complaint setting up the facts from his standpoint and prayed for a cancellation of the deed from David R. Miller to defendant Frank Rogers and of the assignment of the mortgage from David R. Miller to his brother, John H. Miller. From a decree granting the relief prayed defendants have appealed.
   Brooke, J.

(after stating the facts). On the morning of February 21st, when the parties hereto met, neither owed any duty to the other with regard to redemption from the Fritz mortgage. If neither redeemed plaintiff would lose about $8,000 he had invested in the 116% acres and defendant David R. Miller, assuming that he was still the owner of the 40 acres, would lose about $5,000. Plaintiff was financially able to redeem. We believe the record discloses that defendant Miller was not. The parties up to that moment had been dealing at arm’s length and in the transactions of that morning still continued to do so. If the deed from David R. Miller to his stepson, defendant Rogers, and the assignment from David R. Miller to his brother, John H. Miller, were executed as of the date they severally bear (and there is nothing in the record casting doubt on the authenticity of said date), it would seem to have been the manifest duty of defendant David R. Miller to have acquainted plaintiff Klein with the condition of the title. This he says he did and his assertion in this regard is substantiated by the testimony of his wife and that of his wife’s niece. We have no difficulty, however, in reaching the conclusion that in so testifying defendant David R. Miller and his witnesses were, to put it charitably, mistaken. It is inconceivable that plaintiff, acting in the presence of and under the advice of his attorney, would have accepted a quitclaim deed of the 40 acres with the knowledge that defendant Miller had already conveyed title thereto to defendant Rogers, and in reliance thereon have paid out $7,300, the amount required for the redemption from the Fritz foreclosure. We believe as did the learned circuit judge that defendant Miller carefully concealed from plaintiff the fact that he had deeded to Rogers and that in executing and delivering to plaintiff a quitclaim deed of the premises he did so with the purpose of inducing plaintiff to believe that he, plaintiff, would acquire title to the 40 acres through said deed if he made the redemption. This was an act of fraud, the fruits of which defendant‘David R. Miller should not be permitted to enjoy. The learned circuit judge found that the deed to Rogers and the assignment of the mortgage to John H. Miller were both without consideration. We have read this record with care and while defendant David R. Miller gave testimony tending to show that there was consideration for each of these instruments, the circumstances surrounding the whole transaction are such that we believe the conclusion reached by the learned circuit judge to be justified. As bearing upon this question it may be noted that the defense of the case was undertaken entirely by defendant David R. Miller and while he in terms disclaimed all interest in the litigation (except a moral one), we believe that he is the real party in interest. As consideration for the execution of the quitclaim deed plaintiff testified that he agreed to and afterwards did cancel the $3,600 note and mortgage. These papers when introduced upon the trial were found to be so canceled. It may further be noted that plaintiff’s title is still questioned and may be defeated in the Petersen suit.

Upon a consideration of the whole record we have reached the conclusion that the decree of the court below should be affirmed, with costs to appellee.

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


author: Fellows, J.

text:
    PERKINS v. JACKSON CUSHION SPRING CO.
    Master and Servant — Workmen’s Compensation Act — Accidental Injury.
    Where an employee was engaged in putting strips in metal frames by the use of a pair of pliers, and a bone felon developed from the use of the pliers by reason of the „ fact that shorter pieces than usual were being used and required the exertion of greater strength to put them in place, but there was no abrasion of the skin, and no evidence of any blow or any untoward or accidental happening producing said injury, it was not an accidental injury within the meaning of the workmen’s compensar tion act.
    Certiorari to Industrial Accident Board.
    Submitted April 8, 1919.
    (Docket No. 5.)
    Decided May 29, 1919.
    As to what are “accidental injuries” within the meaning of workmen’s compensation acts; see notes in L. R. A. 1916A, 29, 227; L. R. A. 1917D, 103.

      Claude H. Perkins presented his claim for compensation against the Jackson Cushion Spring Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, bring certiorari.
    Keversed, and award vacated.

      Kerr & Lacey, for appellant.
   Fellows, J.

Defendant Jackson Cushion Spring Company is an employer of labor operating under the employers’ liability act with defendant General Accident, Fire & Life Assurance Corporation, Ltd., as its insurer. They here contest an award of $45 for disability and $26 for hospital and medical expenses allowed to claimant who had worked for the employer for nearly six years. Claimant’s work consisted in putting strips in metal frames by the use of a pair of pliers. In this work a bone felon developed, resulting in disability for six and one-half weeks, and necessitating hospital and medical expenses to the amount of $26. The testimony shows that the strips were shorter than usual and required the exertion of more strength to put them in place. There was no abrasion of the skin resulting in infection but the infection developed between the bone and periosteum, th.e covering of the bone. This might have resulted from a blow or by continued pressure. There was no evidence of a blow. Was this an “accident” within the meaning of the act? I am unable to distinguish this case upon principle from that of Roach v. Kelsey Wheel Co., 200 Mich. 299. In that case the workman was employed in tearing down brickwork from around a boiler. The place had a temperature of 136 degrees. The workman suffered a heat stroke resulting in death. A majority of the court entertained the view that the workman—

“Was doing the work which he and his associates were employed to do exactly in the manner they expected to do it”

—and upon the authority of Kutschmar v. Briggs Manfg. Co., 197 Mich. 146 (L. R. A. 1918B, USB), and Johnson v. Mining Co., 199 Mich. 218, vacated the award. On the same day the Roach Case was decided opinions, in Tackles v. Bryant & Detwiler Co., 200 Mich. 350, and Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355, to the same effect were handed down. In the case of Kutschmar v. Briggs Manfg. Co., supra, Mr. Justice Brooke, speaking for the court, said:

“We are of opinion that an employee who receives an injury in the nature of a hernia, while engaged in his usual and ordinary employment, without the intervention of any untoward or accidental happening, is not within the provisions of the compensation act, which as we have held provides compensation for accidental injury only.”

In the case of Adams v. Color Works, 182 Mich. 157 (L. R. A. 1916A, 283, Ann. Cas. 1916D, 689), it was said in the unanimous opinion of the court, written by Mr. Justice Stone:

“We are of opinion that in the Michigan act it was not the intention of the legislature to provide compensation for industrial or occupational diseases, but for injuries arising from accidents alone.”

See, also, Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445.

In the instant case the workman was doing the work he was employed to do, had done for nearly six years, in the way he was employed to do it, and in the way it had been done by him for a long time. That the work done by a laborer one day is harder than on other days is not an accident within the meaning of the act. There is no evidence in the record of the intervention of any untoward or accidental happening producing the injury. There was no blow or sudden strain. The felon was developed by the continuous use of the pliers.

Under the authorities cited we are constrained to reverse the case.

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


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    O’BRIEN v. ALBERT A. ALBRECHT CO.
    1. Master and Servant — Workmen’s Compensation Act — Finding by Industrial Accident Board — Conclusiveness.
    While there was testimony that would have justified the industrial accident board in finding that a previous injury to plaintiff was the proximate cause of the later one, the finding of the board to the contrary will not be reversed where there was competent testimony to sustain such finding.
    2. Same — Hernia—Refusal of Operation — Release op Employer krom: Liability.
    Where an employee, an intelligent man, suffering with hernia' caused by an accident in defendant’s employ, refused the employer’s offer of an operation, which was advised by his own physician as well as by the employer’s physician, said operation being a minor one and unattended with danger to life or health, affording the only reasonable prospect of restoration of plaintiff’s capacity to labor at his trade, said employer was relieved, for the time being, at least, from liability to pay further compensation for said disability.

    3. ' Same — Total Disability — Excessive Award.
    On certiorari to review an award of $10 per week to plaintiff for total disability to work at his trade of carpenter while he was already receiving $7 per week from a former employer for partial disability, to work at the same trade, said award will be reversed and the case remanded for further proceedings, since the total compensation received by plaintiff for total disability is in excess of the amount authorized by the workmen’s compensation act, whether paid by one employer or two.
    Certiorari to Industrial Accident Board.
    Submitted May 1, 1919.
    (Docket No. 67.)
    Decided May 29, 1919.
    Thomas C. O’Brien presented his claim for compensation against Albert A. Albrecht Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.
    Reversed, and remanded.

      Kerr & Lacey, for appellants.

      Frederick T. Witmire (E. G. Martin, of counsel) for appellee.
    On December 28, 1914, plaintiff, a carpenter, then in the employ of Bryant & Detwiler Company, received a severe accidental injury to both feet and both ankles. Following the accident the Bryant & Detwiler Company, and its insurer, entered into an agreement with plaintiff for compensation for total disability at the rate of $9.45 per week. This agreement was approved by the board. This payment was continued for some time. It would appear that plaintiff’s condition improved somewhat and on January 18, 1916, the Bryant & Detwiler Company and its insurer entered into another agreement with plaintiff to thereafter pay for partial disability at the rate of $7 per week. This agreement was likewise approved by the board. The insurer of the Bryant & Detwiler Company continued payments under this agreement down to the time of the hearing of this ease before the industrial accident board, and so far as this record discloses are still making such payments. On September 27,1917, plaintiff, while in the employ of defendant Albert A. A1-. brecht Company, as a carpenter, and while earning $30 per week, suffered another accidental injury, resulting in a hernia. The testimony clearly establishes the tender of an operation for the hernia, that it could be performed without administering a general anaesthetic, by application of a local anaesthetic, that it would not endanger life and that plaintiff could not be cured of the hernia without it. The testimony also clearly establishes plaintiff’s refusal to submit to the operation. At the time of the hearing before the committee of arbitration, plaintiff was wearing a truss, getting along fairly well with it and was earning $18 per week for work other than as a carpenter. The industrial accident board awarded him $10 per week against defendant here for total disability. To review this award this writ of certiorari was allowed.

      On duty of injured employee to submit to surgical operation or other medical treatment, see notes in L. R. A. 1916A, 139, 259, L. R. A, 1917D, 174.

   Fellows, J.

(after stating the facts). Counsel for the defendants insist that the original accident which occurred while plaintiff was in the employ of Bryant & Detwiler Company was the proximate cause of the second injury and that there can be no recovery against the defendants, that the recovery should be against the Bryant & Detwiler Company under the holdings of this court in Cook v. Charles Hoertz & Son, 198 Mich. 129, Reiss v. Northway Motor & Manfg. Co., 201 Mich. 90, Cramer v. West Bay City Sugar Co., 201 Mich. 500, and Adams v. W. E. Wood Co., 203 Mich. 673. In each of these cases the industrial accident board found as a fact that the original accident was the proximate cause of the subsequent injury. There being testimony in each case to sustain such finding, this court affirmed the awards. In the instant case, while there is testimony that would have justified the board in finding that the original accident was the proximate cause of the second injury, there is also testimony justifying the finding that it was not. There is testimony in this record from which the board was justified in finding as it did that the accident arose out of and in the course of plaintiff’s employment with the defendant.

The physician of the company and the one of plaintiff’s selection both advised an operation for the hernia. Such operation is not attended with danger to life or health, and it appears to be undisputed that it affords the only reasonable prospect of restoration of plaintiff’s capacity to labor at his trade, that of a carpenter. Without it he may be able to labor at such light occupation as the condition of his feet and ankles will permit; but he cannot do heavy lifting as his trade of carpenter requires. During all the time he has refused and still persists in his refusal to submit to the operation advised by his own physician as well as the one in the employ of defendant. Plaintiff is an intelligent man, and whether such refusal is due to a defect of moral courage or not we are unable to say. The board did not find that his refusal was due to any ignorance or misunderstanding on his part and no such finding would be justified on this record. Under such circumstances the case is clearly distinguishable from Jendrus v. Detroit Steel Products Co., 178 Mich. 265 (L. R. A. 1916A, 381, Ann. Cas. 1915D, 476), Poniatowski v. Stickley Bros. Co., 194 Mich. 294, and Riley v. Mason Motor Co., 199 Mich. 233.

We appreciate the timidity with which the average person contemplates an operation, minor as well as major. But we also appreciate that in thousands of cases, operations, many of them of but minor degree, have restored incapacitated men to the army of wage earners, and put them in position to discharge their duty to their dependents, themselves and to society. We are impressed that under the undisputed evidence in the case it was the plaintiff’s duty to accept the tendered operation. His unequivocal refusal to follow the advice and judgment of both physicians with reference to the operation relieved defendants from further activities in that direction, and, for the time being at least, absolved them from liability. As was said by this court, speaking through Mr. Justice Kuhn in Kricinovich v. Foundry Co., 192 Mich. 687:

“Before the defendant is to be charged, in law or morals, with the duty to compensate him, the claimant should first discharge the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole.”

In both this case and that of Jendrus v. Detroit Steel Products Co., supra, this court quoted with approval the following language of Lord M’Laren in Donnelly v. Baird & Co., 1 B. W. C. C. 95:

“That if the operation is not attended with danger to life or health, or extraordinary suffering, and if according to the best medical or surgical opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him.”

In the Jendrus Case Mr. Justice STONE fully considers this question. That was a cage of a major operation of a very serious character. The workman was an ignorant foreigner, who refused for some time to consent to the operation, but who finally did consent. Under all the circumstances of that case it was held that the refusal to consent to the operation was not an unreasonable one.

Applying then the rule announced by Lord M’Laren and adopted by this court to the facts of the instant case, we are impressed that plaintiff’s refusal was unreasonable. The operation was not as serious a one as in the Jendrus Case. Indeed, the record discloses that it was not a serious case of hernia. The operation is not attended with danger to life or health; could be performed by the use of either a general or local anaesthetic; the doctors agree that it is advisable, and it is not disputed that it is the only thing that can be done to effect a cure. Until the plaintiff submits to an operation, which should be at the expense of defendants, he is not entitled to compensation from them.

On September 27, 1917, when plaintiff received the injury here involved, he was receiving $7 for partial disability from the Bryant & Detwiler Company. From that date to the hearing of this case he continued to receive this amount per week. Notwithstanding this fact the board made an award against these defendants for the payment of $10 per week for the same period. So far as we are advised plaintiff is still drawing $7 per week from the Bryant & Detwiler Company and has this award for $10 per week against these defendants. Both injuries occurred while plaintiff was following his trade as a carpenter. His disabilities are disabilities to continue in that line of employment. The maximum of compensation for total disability fixed by the statute is $10 per week, 2 Comp. Laws 1915, § 5489. It . must be obvious that a man cannot be more than totally disabled. It should be equally obvious that he cannot, receive compensation for more than total disability. Our statute does not provide for concurrent compensation. It fixes a maximum for total disability of $10 per week, and it cannot exceed that sum whether it is paid by one employer or by several.

The award will be vacated, and the case remanded for such proceedings as may be had not inconsistent with this opinion.

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


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      In re BROFFEE'S ESTATE.

      1. Wills — Probate Court — Jurisdiction—Objection Not Made Ground of Appeal.
    An objection that the commission of the foreign notary, before whom the petition for the probate of a will was sworn to, was not authenticated by a court of record, not having been made a ground of appeal from the order of the probate court, was unavailable in the circuit court.
    2. Same — Determination oe Intestacy No Bar to Will — Statutes.
    Under 3 Comp. Laws 1915, § 13832, the determination of the probate court in the original proceedings (183 Mich. 100) that deceased died intestate was not a bar to a later proceeding to probate the will.
    3. Same — Election of Remedies — Deed or Will — Estoppel.

      Held, that proponents by ineffectually claiming that the instrument now offered was a deed did not elect a remedy which prevents or estops them from now insisting it is a will, if such is its legal purport and effect.
    4. Same.
    An instrument testamentary in character, if executed with the formalities required by the statute, is admissible to probate as a will, although in form a deed.
    5. Trial — Conduct of Court — Attorney and Client — Instructions.
    Where the trial judge, in attempting to maintain the dignity of the court and the orderly conduct of the trial, was required to admonish contestant’s counsel on several occasions, but finally told the jury that they must, determine the case from the facts, and in effect told them that contestant should not be prejudiced by the conduct of her counsel, or anything that had been said by him, held, no cause for reversal.
    6. Appeal and Error — Counsel’s Brief — Expunged from Records.
    Where, in a supplemental brief of 24 pages, 22 pages are devoted to a discussion of counsel’s personal grievances against the judge, containing much that is impertinent and scandalous, said pages will be expunged from the records of this court.

      Error to Kent; Brown, J.
    Submitted April 24, 1919,
    (Docket No. 57.)
    Decided May 29, 1919.
    Ella B. Kelly and another presented for probate an instrument as the last will and testament of Bridget Broffee, deceased. The will was allowed in the probate court, and Elsie M. Curtis, guardian of Irene L. Broffee, appealed to the circuit court. Judgment for proponents. Contestant brings error.
    Affirmed.

      Frank L. Carpenter, for appellant.

      Hatch, McAllister & Raymond, for appellees.
   Fellows, J.

This case is a continuation of the controversy between heirs of Bridget Delia Broffee, which first came to this court in Broffee v. LeFils, 183 Mich. 100. That was an action of ejectment brought by Irene Lulu Broffee, a granddaughter of Mrs. Broffee, by her next friend, against Anna M. LeFils and Ella B. Kelly, daughters of Mrs. Broffee, and their tenants, for the recovery of her interest as heir-at-law in certain premises located in Grand Rapids. A reference to the report of that case will disclose the facts in detail, together with the instrument, there and here involved. In that case defendants made their defense upon the theory that they had acquired title by virtue of the instrument there set forth, which is in form a deed. This court there held that there was not sufficient evidence of delivery of the deed and that the construction of the instrument was for the court, and that the question of Mrs. Broffee’s intent was improperly left to the jury. We therefore reversed the case and granted a new trial.

Thereafter Mrs. Le Fils and Mrs. Kelly offered the instrument for probate as a will and it was admitted. Irene Lulu Broffee, by her guardian, Elsie I M. Curtis, appealed to the Kent circuit court from | such order and there contested the admission of the instrument to probate as a will, Upon the trial in the circuit court the instrument was sustained by the jury as Mrs. Broffee’s will, and contestant brings the case here for review. Her counsel groups and considers the assignments of error under the following heads:

“(1) Jurisdiction and powers of probate courts, and probate proceedings.
“(2) Election of remedies and day-in-court.
“(3) Execution of wills.
“(4) Juridical'abuse of counsel, etc.”

The petition for admission of the instrument to probate was sworn to before a notary public of Douglas county, Nebraska. There was no certificate of a court of record of that county to the effect that he was a notary public. This was not made a ground of appeal from the order of the probate court and the trial judge correctly held that this objection to the proceedings, was not available.

We do not agree with contestant’s counsel that the determination of the probate court in the original proceedings there that Mrs. Broffee died intestate is: a bar to this proceeding, and forecloses that court from entertaining a petition for the probate of a will. Nor do we agree that proponents, by ineffectually claiming that the instrument' was a deed, elected a remedy and thereby are prevented or estopped from insisting that it is a will if such is its legal purport and effect. In re Butts’ Estate, 173 Mich. 504, the case most strongly relied upon by contestant’s counsel, is not in point. This, court there had before it the question of whether a probate court, having admitted to probate an instrument, as and for the last will of a deceased person, could subsequently vacate such order and admit as such last will an instrument of later date. The general rule of other jurisdictions authorizing such action was held not to have been adopted in this State and the authorities were cited. That case and the authorities cited proceed upon the ’theory that the determination of the probate court is a finality; that its proceedings are statutory, and that except as permitted by statute the probate court may not vacate its judgments or again hear the same matter. But where the estate is administered as an intestate estate the statutory authority is expressly granted to the probate court to thereafter admit to probate a will. Section 13832, 3 Comp. Laws 1915, provides:

“If, after the granting of letters, of administration by any probate court, on the estate of any deceased person, as if he had died intestate, a will of such deceased person shall be duly proved and allowed by such court, the first administration shall, by decree of said court, be revoked, and the powers of the administrator shall cease, and he shall thereupon surrender his letters of administration into the probate court, and render an account of his administration, within such time as the court shall direct.”

The instant case falls within this statute. Where a will has 'been- admitted to probate there is no statutory authority or common law power in the probate court to admit another will to probate. Where the estate is administered as intestate there is statutory authority for the later probating of a will.

We do not perceive in what manner these proponents have elected a remedy or estopped themselves from propounding this instrument as a will. Where one having two or more inconsistent remedies deliberately selects one, courts have quite uniformly held that he was estopped from asserting others. This rule, however, does not apply to a mistaken remedy. But in the instant case these proponents in defending an action of ejectment claimed title to the land under the instrument in question' which was in form a deed and which was then supposed by them to be valid as a deed. They now claim title to the same land, from the same source, under the same instrument, recognizing it as testamentary in character and requiring only the action of the probate court to give it validity. They have from the first consistently insisted that they had title to the premises by virtue of this instrument; that in the former case they mistakenly supposed it was a deed does not preclude them from asserting in this proceeding its correct character.

The instrument contained the following clause:

“It is hereby expressly understood that this deed is not to be delivered or become operative except in case of the death of the party of the first part.”

This court has frequently held that language of like purport made the instrument testamentary in character and if executed with the formalities required by the statute authorized its admission to probate as a will although in form a deed. Lautenshlager v. Lautenshlager, 80 Mich. 285; In re Dowell’s Estate, 152 Mich. 194; Lincoln v. Felt, 132 Mich. 49; Leonard v. Leonard, 145 Mich. 563; Moody v. Macomber, 159 Mich. 657 (134 Am. St. Rep. 755). The testimony of Mr. Tucker, the scrivener who drew the instrument, tends to establish that all the formalities of due execution were observed. The other witness was deceased. As against this is the testimony of contestant’s counsel tending to discredit the testimony given by Mr. Tucker. The jury under a carefully prepared charge found for the proponents. We are not prepared to disagree with their conclusion.

Complaint is made of the treatment of contestant’s counsel by the trial judge and it is insisted that contestant’s case was prejudiced thereby. Many pages of the record are taken up with colloquy between court and counsel. From the very beginning of the trial counsel for contestant persisted in a course of conduct not conducive to the orderly conduct of the case and the due administration of justice, culminating in the expression used to opposing counsel: “Now, that is a contemptible statement, and it is a lie to boot.” Counsel admits in his brief that this language was unparliamentary. The trial judge, in attempting to maintain the dignity of the court and the orderly conduct of the trial, was required to admonish counsel on several occasions, and finally told the jury that they must determine the case from the facts, and in effect told them that contestant should not be prejudiced by the conduct of her counsel, or anything which had occurred between court and counsel or anything which had been said by him. From this record it may be inferred that contestant was more liable to be prejudiced by the conduct of her counsel than by anything said or done by the trial judge. We find nothing upon this record justifying a reversal for the conduct of the court. In a supplemental brief of 24 pages counsel has devoted 22 pages to the discussion of this question. Much not appearing in the record is here detailed. Counsel’s personal grievances are here aired. Much that is impertinent and scandalous is found. These 22 pages will be expunged from the records of this court. It is the right of counsel to assign error upon the conduct and statements of the trial judge, and to properly discuss such assignments of error. But this court will not tolerate the use of such assignments of error as a vehicle for abuse of the trial judge or to vent the spite of an unsuccessful attorney. The judgment is affirmed.

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


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    GETTLESON v. LEWIS.
    1. Brokers — Commissions — Failure of Sale — Notice op Be stricted Title,
    A broker who has notice of a seller’s restricted title is not entitled to a commission for the sale of the property which fails of consummation only because the buyer refused to take such restricted title.
    2. Same — Question for Jury.
    Where the question of the broker’s notice of such restricted titld was disputed, it should properly have been presented to the jury.
    On broker’s right to commissions on failure of employer’s title, see notes in 43 L. R. A. 593; 3 L. R. A. (N. S.) 576; 24 L. R. A. (N. S.) 1182; L. R. A. 1915E, 714.
    Error, to Wayne; Collingwood, J., presiding.
    Submitted April 16, 1919.
    (Docket No. 54.)
    Decided May 29, 1919.
    Assumpsit by Jack Gettleson against Amy Neal Lewis for commissions on the sale of real estate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      David N. Harper, for appellant.

      Charles E. Dufy and William G. Weber, for appellee.
   Fellows, J.

Plaintiff is a real estate broker in Detroit, and recovered a judgment in the court below for a commission claimed to have been earned by him. Defendant brings the case here upon a record containing 65 assignments of error, all of which have been examined and but one of'which is well taken. It will therefore be necessary to state only such facts as bear upon this assignment of error. The property involved is located at the corner of Cedarhurst and Woodward avenues, and defendant’s title was restricted, the restriction inhibiting its use for manufacturing purposes or the sale of liquor. The contract between the defendant and the purchaser, which was drawn by the plaintiff,, provided for the furnishing of an abstract and required a title “free and clear of all incumbrances and absolutely unrestricted.” The testimony tends to show that the sale failed of consummation due to the restrictions and that the down payment of $500 was returned by the defendant to the purchaser. The plaintiff testified that he did not know of these restrictions, while defendant and a witness produced by her testified that he did have such knowledge, that he had read and discussed the restrictions. Defendant’s counsel preferred the following request:

“If you find from the evidence that Jack Gettleson prior to May 12, 1916, knew of the restriction against the sale of liquor on the premises and permitted the words ‘absolutely unrestricted’ to be inserted in the agreement between buyer and seller, he cannot recover in this action.”

This request was refused and the defense was limited to the question of fraud between the purchaser and plaintiff.

While the language of the request is somewhat inapt, we are impressed that it fairly presented the claim of the defendant that the plaintiff could not recover if he had knowledge of the restrictions and with such knowledge procured a purchaser for and prepared a contract requiring an “absolutely unrestricted” title. Counsel do not disagree as to the rule that a commission is earned when a purchaser ready, willing, and able to buy on the terms specified, is produced. This rule is well recognized. But where the principal’s title is defective and the agent has knowledge of such defect and it is not such a defect as may be removed by the principal, the agent does not earn his commission by producing as a purchaser one who is willing to and does contract for only a good or a merchantable title or an “absolutely unrestricted” one. Appleby v. Sperling, 194 Mich. 681; Cain v. Masurette, 196 Mich. 7; 9 C. J. p. 629; 4 R. C. L. 313; Hynes v. Brettelle, 70 Mo. App. 344; Montgomery v. Amsler, 57 Tex. Civ. App. 216 (122 S. W. 307). In the case of Cain v. Masurette, supra, Mr. Justice Stone, speaking for the court, said:

“While the weight of authority is to the effect that it is no defense to an action brought by an agent against his principal to recover commissions for negotiating a sale of land that the principal does not hold title to the land, or cannot convey a perfect title (see 19 Cyc. p. 240, and cases cited in note), yet the decisions generally hold that where a broker, who at the time he makes his contract with the owner, knows of defects in the employer’s title, or who knows of facts sufficient to put a prudent person on inquiry, which, if followed with reasonable diligence, would have resulted in such knowledge, he is not entitled to recover where the sale failed because of such facts, unless it was the intention of the parties that the employer should subsequently perfect his title in order to be able to perform.”

In the instant case there is no claim that the title was or could be perfected, and the sale fell through by reason of the restrictions. The trial judge refused to give the sixth request either in the language requested or in substance and instructed the jury that plaintiff should recover unless the defendant has established fraud between plaintiff and the purchaser. The question of plaintiff’s notice of the defect in defendant’s title was a disputed question of fact. Under the authorities cited the plaintiff had not earned his commission if he, with knowledge of the d’efect here found, procured a purchaser for an “absolutely unrestricted” title, and himself inserted in the contract the requirement that defendant furnish such title.. For this error the case must be reversed and a new trial granted. Defendant will recover costs of- this court.

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


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    VAN ALLEN v. SPRAGUE.
    1. Justices’ Courts — Affidavits—Validity—Transcript of Judgment — Neglect to Date.
    Where the affidavit for a transcript of a justice’s judgment was properly signed and filed by affiant, the neglect of the justice to fin in the date was not a fatal defect.
    2. Homesteads — Exemption—Fraud—Creditors’ Bill.
    The decree of the court below setting aside a deed of a homestead of 40 acres from a father to his son as in fraud of creditors of the father, will be modified, on appeal, to exclude from the operation of the decree the homestead rights up to §1,500.
    Appeal from Ionia; Davis, J.
    Submitted April 29, 1919.
    (Docket No. 85.)
    Decided May 29, 1919.
    Bill in aid of execution by Herman Van Allen against Henry Sprague and another.. From a decree for plaintiff, defendants appeal.
    Modified, and affirmed.

      John Niehol, for plaintiff.

      Ellis & Ellis, for defendants.
   Fellows, J.

Defendant Henry Sprague and his wife, Emeline, owned as tenants by the entireties 40 acres of land in Berlin township, Ionia county. It was worth from $4,000 to $4,500 and was incumbered by a mortgage for $1,300. On March 31, 1917, Erneline departed this life. Plaintiff at this time held a justice’s court judgment against Henry. Before Erneline was buried and on April 2d, Henry conveyed the 40 acres to his son, defendant Gail H. Sprague. The consideration mentioned in the deed was “the sum of one dollar and the work and services rendered and the agreements herein stated.” It was further recited in the deed:

“The further consideration of this deed is that said second party is to care for and maintain said first party during his natural life and give him a good home on said premises, and said second party is to settle with L. Verna Simmons, and Glenn A. Sprague as agreed between the parties. It is agreed further that in case said premises are sold, second party shall give or furnish a good home for first party.”

The plaintiff filed a transcript of his judgment in the circuit court, issued execution thereon, caused a levy to be made on the premises, and filed this bill in aid of such execution. From a decree setting aside this conveyance as to plaintiff, defendants appeal.

It is undisputed that the affidavit for the transcript was prepared July 31, 1917, and that it was filed and sworn to before the justice on the next day, August 1st, and that on the latter date the transcript was filed in the circuit court and execution issued. The jurat to the affidavit is as follows:

“Subscribed and sworn to before me this........ ..........................day of July, A. D. 1917.
“Henry C. Clark, “Justice of the Peace.”

On behalf of defendants it is insisted that this defect, the omission of the date, is not amendable; that the affidavit is jurisdictional; that the affidavit must show the amount due at the time, and although a few days may intervene the making of the affidavit and the filing of the transcript and issuing execution, no date in July being given as the date the affidavit was sworn to, and the transcript being filed August 1st, the levy was not a valid one and these proceedings have no valid foundation and must fail. We are impressed that the solution of this question must turn upon whether this defect could be cured by amendment. If the jurat was amendable the trial court could permit the amendment or this court on appeal could amend to save the decree. Sections 12478, 12480, 3 Comp. Laws 1915; Smith v. Pinney, 86 Mich. 484; Enright v. Insurance Co., 91 Mich. 238; Johnson v. County of Muskegon, 195 Mich. 722.

In the early case of People, ex rel. Dickinson, v. Simondson, 25 Mich. 113, the affidavit for appeal was not signed by the party and the jurat was not signed by the justice. It was held that the appeal was not invalid, that the justice might sign the jurat nunc pro tunc or a further return might be required to establish whether the affidavit had in fact been sworn to, and the distinction was recognized between affidavits sworn to before some other officer and those sworn to before the justice. As to the former it was held that the jurat must be signed; as to the latter it was said:

“But when the appellant has sworn to it before the justice himself, he has done all that can be required of him in respect to the affidavit, and the neglect of the justice to perform his duty, by signing a proper jurat, ought not to prejudice the rights of the appellant.”

This case was followed in Merrick v. Mayhue, 40 Mich. 196, where the proceedings involved were the filing of a transcript of a judgment of a justice of the peace, the same proceedings here under consideration. See, also, Wattles v. Wayne Circuit Judge, 117 Mich. 662 (72 Am. St. Rep. 590); Union National Bank v. Muskegon Circuit Judge, 117 Mich. 678; Wynkoop v. Grand Traverse Circuit Judge, 113 Mich. 381; Bradley v. Andrews, 51 Mich. 100. We are persuaded that the omission of the justice to insert the date in the jurat was not such a defect as rendered the proceedings void. The affiant signed and filed with the justice a proper affidavit. The neglect of the justice to fill in the date was not fatal.

Defendant Henry Sprague was in ill health at the time of the trial and was not called as a witness. Nor was his testimony taken by deposition. Defendant Gail H. Sprague and others of the family were called. The theory of the defense in the court below was and here is that defendant Gail H. had remained with his parents after reaching the age of 21, some ten years; that the conveyance in question as to that portion of the premises above the mortgage and homestead exemptions was in payment for past services, and as to the homestead was to pay for future care and support, anything remaining therefrom to be divided between the children of Henry at his death. There was testimony in defendant’s case that he was to have the 40 for his services to his parents; that there was due him at the time of the conveyance an amount equal to the value of the premises above the mortgage, figuring his wages at $25 per month, which in one part of his testimony he says was the agreed price, and there was testimony to support his claim. He admitted that his needs, have been provided from the farm, admitted the receipt of a horse from his father but claims it w;as given to him. The trial judge who heard and saw the witnesses did not give credence to his claim that he had earned and had coming to him the value of the premises above the mortgage and exemptions, but concluded that the conveyance was made as a consideration for future support and upon the authority of Rynearson v. Turner, 52 Mich. 7, and Walker v. Cady, 106 Mich. 21, sustained the bill. In determining the case he said:

“After being furnished with very studiously prepared briefs in the case I can come to no other conclusion than that the conveyance in this case, so far as the plaintiff in this case is concerned, was fraudulent.' The defendant has not made out a harmonious defense, and I am led to believe the case should be governed by the case in the 52d Michigan, page 7, and the 106th Michigan, page 25.
“The relief sought by the plaintiff in this case should be granted, and decree will be drawn accordingly.”

While this court hears the case de novo we must recognize the advantage possessed by the trial judge who saw the witnesses, heard their testimony, noted their demeanor on the stand, their candor or want of candor, and was thus able to measure their credibility. Peets v. Peets, 156 Mich. 87; Thompson v. Hurson, 201 Mich. 685; Crampton v. Crampton, 205 Mich. 233. A careful reading of all the testimony offered on behalf of defendants fails to convince us that the trial judge incorrectly weighed and measured their claims. The judgment involved was the renewal of a former judgment; the indebtedness was an old one. For many years during its existence defendant Henry Sprague was execution proof due to the title to the farm being held by him and his wife. Upon her death the title vested in him by right of survivorship. Before he buried his dead, he and other members of the family bestirred themselves so that the title was again placed where he was execution proof. While it was competent to prove by the attorney, who acted as scrivener, the circumstances of the transaction, what was told him by the parties is not evidence of the facts stated by them. We are disinclined to disturb the conclusion of the trial judge on the facts. But the decree as signed, we think, went too far. It set aside the deed in toto, and authorized the sheriff to sell the entire premises. To the extent of $1,500 these premises were exempt, and the defendant Henry Sprague could deal with such exempt property as he saw fit and no creditor could complain. It could not be sold to satisfy plaintiff’s claim, and its conveyance would not be in fraud of plaintiff’s rights. Fischer v. McIntyre, 66 Mich. 681; Anderson v. Odell, 51 Mich. 492; Cullen v. Harris, 111 Mich. 20 (66 Am. St. Rep. 380); Eagle v. Smylie, 126 Mich. 612 (86 Am. St. Rep. 562); Rhead v. Hounson, 46 Mich. 243.

The decree of the court below should therefore be modified so as to exclude from its operation, and to relieve from the levy, the homestead as to the value of $1,500. As so modified it will be affirmed. No costs of this court will be allowed.

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


author: "Fellows, J. Ostrander, J.

text:
    LISTER v. SAKWINSKI.
    1. Brokers — Principal and Agent — Duty ok Broker.
    A real estate broker in the employ of his principal, is bound to act for his principal alone, using his utmost good faith in his behalf.
    2. Same — Commission—Contract—Consideration—Validity.
    A promise by one of the principals in an exchange of real estate, after the negotiations were completed, to pay a commission to the other party’s broker, to whom he owed nothing, is void for want of consideration.

      On right of real estate broker who acts for both parties to commissions, see notes in 45 L. R. A. 44; 24 L. R. A. (N. S.) 659.

      3. Same — Construction of Contract.
    A clause in a contract signed by the principals in an exchange of real estate, acknowledging that certain brokers had brought about the sale and agreeing to pay the regular broker’s commission, construed, in view of’3 Comp. Laws 1915, § 11981, and to be for the purpose of making written evidence of agreement of the parties to pay their respective brokers the commission on their respective properties, and was no authority for the broker of one principal to maintain an action for commission against the other principal by whom he was not' employed.
    Error to Wayne; Murphy, J.
    Submitted April 23, 1919.
    (Docket No. 95.)
    Decided May 29, 1919.
    Assumpsit by W. Sherman Lister against Nicholas Sakwinski and another for commissions on the sale of real estate. Judgment for plaintiff. Defendants bring error.
    Reversed, and no new trial ordered.

      Charles Bowles, for appellants.

      Lucking, Helfman, Lucking & Hanlon, for appellee.
   "Fellows, J.

The defendants owned an apartment house located on East Grand Boulevard in the city of Detroit. They listed it for sale with a real estate agent named Claxton. One La Bounty owned a large farm in Alger county and listed the same for sale with the plaintiff. Defendants and Mr. La Bounty and wife with the assistance of their respective brokers, Claxton and plaintiff, concluded an exchange of their properties. It fairly appears that the apartment house was put in in the trade at $100,000. There was a mortgage on it at the time for $46,000, and La Bounty paid defendants $24,000 in cash and conveyed to them the Alger county farm. This farm was treated in the trade as worth $42,000 and there was a mortgage on it for $12,000, making its agreed value in the trade above the mortgage $30,000. La Bounty paid plaintiff for his services in the transaction $1,500, which was the regular commission on unimproved property, treating the value of the farm at $30,000. Plaintiff insisted that he was entitled to more commission out of the transaction than was Claxton as he had done more to bring about the deal, and Claxton agreed that he should have $600 out of his commission.' Pursuant to an order given by Claxton, defendant gave his check for this amount to plaintiff and settled with Claxton for the balance of $1,450 agreed to be due him for his services in effecting the deal. Subsequently plaintiff requested Claxton to join in a suit against defendants for recovery of a claimed unpaid balance of commissions. This Mr. Claxton refused to do on the ground that he had been paid in full his commission and had no further interest in the matter. Plaintiff brings this action and seeks to recover on the following clause found in the contract for the exchange of properties entered into by defendants and the La Bountys:

“The parties to this agreement hereby acknowledge that W. Sherman Lister and Frank W. Claxton brought about this sale and agree to pay to them the regular broker’s commission therefor upon their respective properties.”

It is the , theory of the plaintiff that by this provision defendants agreed to pay the regular brokers’ commission, three per cent, on improved property, to the brokers jointly; that Claxton having refused to join in this proceeding he may recover the three per cent, on the value of defendants’ property as agreed in the deal, such recovery being had under the provisions of the judicature act (section 2, chap. 12, Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12353), which provides that actions shall be prosecuted in the name of the real party in interest. This theory being accepted by the trial judge plaintiff recovered. Defendants by appropriate objections, motions for a directed verdict, and requests to charge assert various reasons in denial of their liability. We shall not consider all the grounds urged but will consider sufficient of them to dispose of the case.

It is the claim of the defendants that when the written contract was executed they were not, nor was either of them, under any legal obligation to pay the plaintiff any sum, that they owed him nothing, and if the contract is to be construed as claimed by plaintiff it must fail as to these defendants for want of consideration. It is their further claim that the language of the contract above quoted should be construed that each of the contracting parties agreed to pay their respective broker the regular commission on their respective properties, and that it should not be construed to require the defendants to pay the broker of the' other party, or to pay the brokers jointly any sum beyond that which they and their broker had agreed upon; in other words, that each of the parties should pay his own broker. The proofs conclusively establish that La Bounty has paid plaintiff his commission as broker for handling the deal for him. The proofs also conclusively establish that when defendants listed the apartment house with Claxton it was listed for sale at $70,000, and that Claxton’s commission at three per cent: would amount to $2,100; that he agreed to and did accept $2,050 in settlement of the commission, $600 of which amount he gave to plaintiff.

The plaintiff, Mr. Lister, was not a middleman in this transaction. He was a broker in the employ of Mr. La Bounty. He is not seeking here to recover a commission from his principal, his employer. He has been paid in full by his principal. He is seeking here to recover a commission from the party with whom his principal dealt. When plaintiff accepted employment from Mr. La Bounty as his broker the relations of principal and agent were established. Plaintiff’s duty was to his principal. Such services as he performed in negotiating and putting through the deal were performed for his employer and they were performed for no one else. That he performed more services, worked harder, devoted more time to the transaction than did defendants’ broker, Mr. Claxton, might appeal as it did to Mr. Claxton, but it created no legal liability on the part of defendants. Mr. La Bounty had employed him to perform these services, defendants had not. The services were performed for Mr. La Bounty, not for the defendants. When plaintiff accepted employment as Mr. La Bounty’s broker he was bound to act for Mr. La Bounty alone, using his utmost good faith in his behalf. 4 R. C. L. p. 270; and public policy does not encourage the collection of commissions by a broker from the party with whom his principal deals. Leathers v. Canfield, 117 Mich. 277 (45 L. R. A. 33); Pinch v. Morford, 142 Mich. 63. Neither the law nor good morals required the defendants to pay to the plaintiff or to any one except their broker, Claxton, any commission for putting through the deal.

When the parties had concluded their negotiations and met to put their engagements in writing these defendants owed the plaintiff nothing. There was no liability on their part to him. If, therefore, we accept the theory advanced by plaintiff’s counsel and accepted by the trial judge, that the provision of the contract above quoted was a promise on the part of defendants to pay a commission to plaintiff or to any one but defendants’ broker, Mr. Claxton, such promise was without consideration and no recovery can be had upon it.

But we are not persuaded when we take into consideration. the surrounding circumstances that the parties intended by this clause of their agreement to obligate themselves beyond the payment to their own broker of his commission. As we have already stated,, when defendants listed this property with Mr. Claxton it was listed at $70,000. He does not seem to have sought to take advantage of the fact that in the trade it was put in at $100,000. His failure to exact a commission on the latter figure does not inure to the benefit of plaintiff. Under the statute of frauds (8 Comp. Laws 1915, § 11981) an agreement to pay commission on the sale of real estate must be in writing. We do not consider the question of whether this agreement complies with the statute, but we entertain no doubt in light of all the surrounding circumstances that the insertion of this clause in the contract was for the purpose of making written evidence of the agreement of the parties with their respective brokers to pay to them — each of them — their commission on the respective properties.

The judgment of the circuit court is reversed, but with no new trial.

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

Ostrander, J.

I agree that a proper construction of the contract denies plaintiff’s contention, and upon this point concur in reversing the judgment.


text:
    BELAND v. CIGARMAKERS’ INTERNATIONAL UNION OF AMERICA.
    Insurance — Mutual Benefit Associations — Designation of
    Beneficiary.
    Where a wife’s will gave and bequeathed to the husband all of her estate of which she might die seized, or which she might be entitled to at the time of her death, held, since the husband was the sole heir of the wife and the making of the will was otherwise purposeless, to be the exercise of her right to appoint him beneficiary in a benefit policy in the cigarmakers’ union.
    On right to designate by will the beneficiary of benefit insurance, see note in 42 L. R. A. (N. S.) 1161.
    Case-made from Wayne; Davis, J., presiding.
    Submitted April 22, 1919.
    (Docket No. 73.)
    Decided May 29, 1919.
    Assumpsit by Peter Beland against the Cigar-makers’ International Union of America for the amount of a benefit certificate. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      A. P. Entenza, for appellant.

      Charles C. Stewart and William C. Gottman, for appellee.
   Fellows, J.

The material facts in this case are substantially identical with those in Smith v. International Union, 203 Mich. 249. The defendant here was defendant there and the provisions of its constitution here involved will be found in the opinion in that case together with its claim which is substantially the same in both cases. In the instant case plaintiff’s wife became a member of defendant in 1889 and was in good standing at the time of her death. She died on April 18, 1918, without having made a written designation of beneficiary except by her will, which was as follows:

“I give, devise and bequeath to my husband, Peter B eland, any and all estate of which I may die seized, or which I may be entitled to at the time of my decease.”

Here, as in that case, the plaintiff was the sole heir of decedent and there was no purpose in making the will, which was executed shortly before decedent’s / death, except to confer on plaintiff the death benefit; as was there said:

“This will was purposeless and could accomplish nothing in respect to deceased’s evident desire to leave his daughter everything he owned or had a right in relation to, except as- it served to confer on her his death benefit.”

In that case this court concluded that:

“Under the unquestioned facts and circumstances of this case and the provisions of deceased’s contract with defendant authorizing him in general terms to appoint his beneficiary by will, and it not appearing that he had appointed any other beneficiary, we are satisfied that he intended to and did exercise that right within the meaning of their agreement as fairly interpreted, and by this will has designated plaintiff as such beneficiary.”

The instant case is controlled by that case and it would be superfluous to enlarge upon or repeat what was there fully considered.

The judgment is affirmed.

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