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Per Curiam. On September 1, 1981, defendant, Gaylen Hayward, was convicted by a jury of second-degree criminal sexual conduct as charged, in violation of MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). After being sentenced to serve not less than 3-1/2 years nor more than 15 years in prison, defendant appeals as of right. Defendant was charged with engaging in sexual contact with a nine-year-old female. At the preliminary examination, the complainant testified that on the evening of December 12, 1980, defendant, on more than one occasion, rubbed her genital area with his hands. The complainant’s testimony was corroborated by the testimony of a 13-year-old male who was present at the time of the event. Prior to trial, the prosecutor filed a motion in which she sought, under MRE 804(a)(3), to have the complainant declared unavailable as a witness and to use the complainant’s preliminary examination testimony at trial as substantive evidence. After a hearing held on July 8, 1981, the trial court granted the prosecutor’s motion, finding that the complainant was unable to recollect the events of December 12, 1980: "I don’t know why this child can’t remember. I don’t think that’s important. Certainly psychiatric examination might shed some light on this why she doesn’t remember, but I don’t think that is critical to my decision. "The central fact as it appears to me — appeared to me, she did not remember the important facts of these incidents. This child is young enough. I find it difficult to believe that she’s trying to mislead this court. As far as her memory is concerned, I think that she does not remember. I think that’s not surprising, since this thing she relates in her preliminary examination indicates she’s suffered a traumatic experience, and for that reason alone she’s blocking it out. "I’m satisfied that she’s not misleading the court on her lack of memory, and you may have an order, Mrs. Hughes, indicating that the witness is not available, and so you may use her — testimony in the preliminary examination. — However, I’ll let you use that portion of the testimony today — for the impeachment — impeaching her testimony. I won’t let you use her whole testimony today. That part going to her — the issue of her lack of memory, I think that that is a question for me to decide, not the jury. For that reason, also, I’ll not let the child be called at trial to question her concerning her lack of memory. I don’t think that’s a jury question.” On defendant’s motion for a rehearing, a second hearing was held a month thereafter on the issue of the complainant’s inability to remember the events to which she testified at the preliminary examination. While reafiirming his ruling that the preliminary examination transcript of the testimony could be used at trial, the trial court ruled that the complainant’s testimony at the two hearings subsequent to the examination could be used to impeach the complainant. On appeal, defendant raises several issues. First, he maintains that the trial court erred in allowing the prosecutor, over objection, to place the preliminary examination testimony of the complainant in evidence at trial. The applicable evidentiary rules, MRE 804(a)(3) and MRE 804(b)(1), provide: "(a) Definition of unavailability. 'Unavailability as a witness’ includes situations in which the declarant— "(3) has a lack of memory of the subject matter of his statement; "(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: "(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Prior to the adoption of the Michigan Rules of Evidence by the Supreme Court, we held, in People v Thomas, that it is appropriate for a trial court to admit the prior recorded testimony of a witness who was unable to remember the events to which he testified at an earlier hearing. The Thomas Court relied upon People v Pickett, where the Supreme Court upheld the admissibility of the preliminary examination testimony of a prosecution witness who refused to testify at trial on grounds that he would incriminate himself. In a case decided subsequent to the adoption of MRE 804, we held that the prior recorded testimony of a witness who is declared to be unavailable as a witness because of lack of memory is admissible into evidence at trial. Our review of the record reveals that defendant vigorously and effectively cross-examined complainant at the preliminary examination. Prior recorded testimony of a witness is considered trustworthy because the witness testified under oath and the opponent had a fair opportunity and proper motive to examine the witness at the earlier proceeding. "Unavailability of a witness based on a failure of memory” is described by Professor McCormick in the following passage: "If the witness has lost his memory of the relevant matters, because of the failure of his faculties due to disease or senility, this is a good ground of unavailability. If the gap in the recollection or fading of memory is due merely to the lapse of time, the effect is the same, namely the inability of the witness to give to the court his former firsthand knowledge of the facts. In common sense it seems that the legal consequence, that is, the use of the former testimony, should likewise be the same. Some courts, however, have jibbed at this point, on the ground that this would open the door to a perjured claim of forgetfulness by a witness who learns that the adversary has discovered facts which give a new handle for cross-examination. The danger of the success of such an attempt, which would expose the witness to cross-examination on his motives and his memory, seems greatly outweighed by the need for the use of the former testimony when the assertion of forgetfulness is true. Forgetfulness by a disinterested witness of facts of no personal moment to him, in the course of a delayed lawsuit, is frequent and familiar enough. The inconvenience of this narrow view, that forgetfulness is not a ground of unavailability, it seems, should be avoided by treating lapse of memory if complete as a ground of unavailability, or if partial as a ground for admitting both the former, and the present testimony of the witness.” (Footnotes omitted.) In United States v Amaya the Fifth Circuit Court of Appeals held that the trial judge did not abuse his discretion in deciding that a witness who testified at a prior trial was unavailable to testify at a subsequent trial where, prior to the commencement of the second trial, the witness was involved in an automobile accident and sustained a loss of memory regarding his prior testimony. Similarly, in United States v Davis, the court held that former testimony of a witness was admissible where the witness testified at trial as to his inability to remember his prior testimony. The crucial factor in determining whether prior re corded testimony is admissible under MRE 804(a)(3) and FRE 804(a)(3) is not the unavailability of the witness; rather it is the ability of the witness to recollect the prior recorded statements. In the within matter, we conclude that the trial court did not abuse its discretion in applying the "unavailability of a witness hearsay exception” with respect to complainant’s prior recorded testimony. At two hearings held subsequent to the preliminary examination and at trial, defendant cross-examined the complainant regarding her claim that she was unable to remember the events of December 12, 1980. We find that the former testimony was sufficiently trustworthy to be admitted as an exception to the hearsay rule. Defendant also assigns as error the trial court’s admission of testimony concerning a statement made by defendant to the investigating officer, Dana Steidler, that he "preferred younger women or young girls that were inexperienced so he could teach them”. Defendant asserts that his sexual preferences were not relevant to the prosecution and, in fact, were highly prejudicial to his defense. As part of his investigation of the case, Steidler, a City of Hastings police detective, interviewed defendant. While not admitting that he engaged in sexual contact with complainant, defendant, after being advised of his Miranda rights, informed Steidler that he (1) possessed a collection of pornographic books, (2) considered most women to be whores, and (3) preferred young and inexperienced women. Prior to trial, defendant filed a motion to suppress testimony concerning the foregoing state ments, alleging that they were not freely and voluntarily made. Thereupon, a Walker hearing was conducted, after which the trial court suppressed, as irrelevant, all of defendant’s statements other than his stated preference for young and inexperienced women. It is noteworthy that defendant neither objected to nor requested a cautionary instruction concerning Steidler’s testimony in regard to defendant’s sexual preferences. Absent a showing of manifest injustice, specific objections to the admission of evidence cannot be raised for the first time on appeal. Although we are inclined to agree with defendant that his sexual preferences were not relevant to the charged offense, we do not find that manifest injustice was occasioned by admission of the evidence. Thirdly, defendant maintains that the trial court erred in permitting the prosecutor to impeach him with evidence of a prior conviction of attempted unlawful use of an automobile, an offense which carries a maximum one-year sentence. Essentially, defendant argues that it was improper to allow the prosecutor to impeach him with evidence of a misdemeanor offense that did not involve theft, dishonesty, or false statement. The trial court permitted impeachment of defendant with evidence of four prior convictions: two larceny in a building convictions, one larceny under $100 conviction, and one attempted unlawful use of an automobile conviction. On appeal, defendant does not dispute the propriety of the use of evidence of the three larceny convictions for impeachment pruposes. MRE 609(a) provides: "(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if "(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and "(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.” The foregoing evidentiary rule is sometimes held to have modified prior Michigan law which prohibited the use of evidence of prior misdemeanor convictions to impeach a defendant in a criminal case. Under MRE 609(a), evidence of a prior misdemeanor conviction involving theft, dishonesty, or false statement is admissible for impeachment if the trial court determines that the conviction is more probative on the issue of credibility than unfairly prejudicial to the witness. The elements of the specific intent offense of unlawful use of a motor vehicle are (1) the motor vehicle did not belong to the defendant, (2) having obtained lawful possession of the vehicle from the owner, the defendant used it beyond the authority which was given to him, and (3) the defendant must have intended to use the vehicle beyond the authority granted to him, knowing that he did not have the authority to do so. Unlawful use of a motor vehicle is a lesser included offense of unlawfully driving away a motor vehicle (UDAA), a felony commonly known as "joyriding”. The distinction between the two offenses is that UDAA (joyriding) requires the defendant to take possession of the motor vehicle without the owner’s permission, while the misdemeanor offense of unlawful use of a motor vehicle is committed when an individual, who has been given lawful possession of a motor vehicle, uses it beyond the authority which has been granted to him by the owner. A description of the felony offense of UDAA (joyriding) is embraced in the following passage: "The taking, using, or operating of a motor vehicle without the consent of the owner is made a criminal offense by specific statute in many jurisdictions. Although such a statutory offense may be designated larceny, the common-law definition of larceny is changed by eliminating the requirement of intent permanently to deprive the owner of his property. Such statutes have been enacted in order to cover, not a 'larcenous’ taking, but a 'wrongful’ taking without the consent of the owner. Such offense is separate and distinct from the offense of larceny, and does not supersede it. But it has been held to be a lesser included offense of larceny. "While the elements of the offense depend upon the wording of the statute, they usually consist of taking possession of a vehicle, driving or taking it away, willfulness, and lack of authority; proof of intent to permanently deprive the owner of the property is not required.” (Footnotes omitted.) As illustrated in Perkins, Criminal Law (2d ed), pp 272-273, joyriding statutes were enacted by various states in order to provide a criminal penalty for the unlawfully taking away, without intent to steal, of a motor vehicle: "The social problem back of this legislation is well known. When the automobile began to appear and was limited to the possession of a few of the more fortunate members of the community, many persons who ordinarily respected the property rights of others, yielded to the temptation to drive one of these new contrivances without the consent of the owner. This became so common that the term 'joyrider’ was coined to refer to the person who indulged in such unpermitted use of another’s car. For the most part it was a relatively harmless type of trespass, although it was quite annoying if the 'joyrider’ had not returned when the owner came back for his automobile. The chief harm was due to the fact that the 'joyrider’ was frequently not a skillful driver, and sometimes unintentionally damaged the car while using it. "It was when 'joy-riding’ was at its height that most of the legislative enactments providing a penalty therefor were passed and the mere prevalence of this type of wilful trespass is sufficient to explain the creation of this statutory crime. The severity of the punishment attached (the crime being a felony in many jurisdictions) is attributable to two factors: First, the trespass occasionally resulted in great damage to the car, as previously mentioned; second, the prevalence of this kind of trespass made it very difficult to secure convictions in cases of outright larceny of motor vehicles, because the claim of an intent to return usually seemed plausible.” From the foregoing discussion, it is apparent that the UDAA (joyriding) statute does not apply to one who takes an automobile with the owner’s consent but uses it in excess of the permission granted to him. This concept was articulated in State v Boggs, where the Iowa Supreme Court held that if the owner consents to allow another to operate his automobile, the person given lawful permission cannot be convicted of operating an automobile without the consent of the owner, notwithstanding that the use thereof clearly transcended the permission granted by the owner. Under MRE 609(a), the crime of unlawful use of a motor vehicle, a misdemeanor punishable by imprisonment for not more than two years, may be used to impeach a defendant in a criminal case, since the crime is punishable by "imprisonment in excess of one year”. However, since defendant herein previously had been convicted of attempted unlawful use of a motor vehicle, which carries a one-year maximum sentence, the offense could not be used for impeachment purposes unless it involved theft, dishonesty, or false statement. In our view, the act of using a motor vehicle without authority is a crime involving dishonesty. In Black’s Law Dictionary (4th ed), p 554, dishonesty is defined as "disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity”. Dishonesty has also been defined as "a disposition to deceive”, and "a lack of honesty, probity, or integrity in principle”. _ The Ninth Circuit Court of Appeals held that, within the evidentiary rule permitting impeachment by proof of commission of a misdemeanor involving dishonesty or false statement, evidence of an offense which entails an element of misrepresentation or falsification could be used for impeachment. We hold that unlawful use of a motor vehicle is an offense involving a breach of trust, misrepresentation, or an inclination to deceive, because the actor, who had lawful possession of another person’s motor vehicle, breached the trust reposed in him by using the vehicle in excess of the stated authority. Consequently, the trial judge properly permitted the prosecutor to impeach defendant with evidence of the prior conviction of attempted unlawful use of a motor vehicle. We note also that had we held it improper to allow impeachment by the use of the one-year misdemeanor, the error would have been harmless beyond a reasonable doubt. Affirmed. The Michigan Rules of Evidence were adopted on January 5, 1978, to be effective on March 1, 1978. 61 Mich App 717, 719; 233 NW2d 158 (1975). 339 Mich 294; 63 NW2d 681 (1954). People v J D Williams, 117 Mich App 505, 509-510; 324 NW2d 70 (1982). Lilly, Evidence, § 74, pp 251-254. McCormick, Evidence (2d ed), § 253(5), pp 611-612. 533 F2d 188 (CA 5, 1976), reh den 540 F2d 1086 (1976). 551 F2d 233 (CA 8, 1977), cert den 431 US 923; 97 S Ct 2197; 53 L Ed 2d 237 (1977). See, also, United States v Pfingst, 477 F2d 177 (CA 2, 1973), cert den 412 US 941; 93 S Ct 2779; 37 L Ed 2d 400 (1973). See Walden v Sears, Roebuck & Co, 654 F2d 443 (CA 5, 1981). Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Defendant’s objection to the testimony was not based on relevancy grounds; rather, he asserted that his statement to the investigating officer was involuntary. People v Peery, 119 Mich App 207, 211; 326 NW2d 451 (1982). See People v Renno, 392 Mich 45, 56; 219 NW2d 422 (1974). The statute prohibiting the taking or using of a motor vehicle without authority has been interpreted to cover a bailment or a rental agreement. People v Smith, 213 Mich 351; 182 NW 64 (1921); OAG, 1914, p 690 (April 27, 1914). People v Crosby, 82 Mich App 1, 3; 266 NW2d 465 (1978), lv den 406 Mich 971 (1979); CJI 24:2:01. MCL 750.414; MSA 28.646; MCL 750.413; MSA 28.645. UDAA was referred to as "joyriding” in People v Stanley, 349 Mich 362, 364; 84 NW2d 787 (1957), People v Helcher, 14 Mich App 386, 387; 165 NW2d 669 (1968), and People v Lerma, 66 Mich App 566, 567; 239 NW2d 424 (1976), lv den 396 Mich 848 (1976). See 9 ALR3d 633, 645; CJI 24:2:04; People v Blocker, 45 Mich App 138, 142; 206 NW2d 229 (1973), aff'd 393 Mich 501; 227 NW2d 767 (1975). 7A Am Jur 2d, Automobiles and Highway Traffic, § 349, pp 534-535. In Michigan, the first joyriding statute was enacted in 1907, 1907 PA 44, § 1. 181 Iowa 358; 164 NW 759 (1917). Gee v California State Personnel Board, 5 Cal App 3d 713, 719; 85 Cal Rptr 762 (1970). Tucker v Lower, 200 Kan 1; 434 P2d 320 (1967). United States v Ortega, 561 F2d 803, 806 (CA 9, 1977).	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J. H. Gillis, J. The question presented by this appeal is whether an action for legal malpractice may be validly assigned. We hold that it may not. Plaintiffs commenced this action alleging that defendant had committed legal malpractice during his representation of Linda Avery in a prior lawsuit. Following a bench trial, the court found in favor of defendant. Plaintiffs appeal. On January 1, 1972, a vehicle driven by Linda Avery collided with an automobile in which Gail Joos was a passenger. Gail Joos and several other parties in the Joos vehicle filed suit in tort against Linda Avery and Mickey Avery, the owner of the automobile. The Avery vehicle was insured by Auto-Owners Insurance Company, which retained William J. Drillock, defendant herein, to represent the Averys in the lawsuit. The coverage limits of the insurance policy were $40,000 per accident and $20,000 per person. Prior to trial of the Joos v Avery suit, all plaintiffs except Gail Joos settled for a total of $23,000, leaving $17,000 in available insurance benefits. The matter was tried and the jury returned a verdict in favor of Gail Joos in the amount of $65,000. Auto-Owners paid Joos the $17,000 of remaining benefits, plus interest. Linda Avery and Mickey Avery then executed an assignment of their rights against Auto-Owners to Gail Joos. Joos thereafter commenced the present action against Auto-Owners, alleging that Auto-Owners had refused in bad faith to settle the Joos v Avery suit within the policy limits. Linda Avery subsequently executed a document which purported to partially assign to Gail Joos her rights against William J. Drillock. An amended complaint was thereafter filed by Gail Joos and Linda Avery against Auto-Owners and William Drillock. The amended complaint repeated the allegation against Auto-Owners of a bad faith refusal to settle and, in addition, alleged that William Drillock had committed legal malpractice in his representation of Linda Avery during the Joos v Avery suit. The malpractice claim involved primarily Drillock’s alleged failure to notify Avery of settlement offers made by Joos, failure to settle the case within available policy limits, and failure to make proper discovery. Prior to trial of the instant case, the claim against Auto-Owners was dismissed pursuant to a settlement in which Auto-Owners paid $46,300 to Gail Joos and $400 to Linda Avery. Following a bench trial on the malpractice claims, the court ruled in favor of defendant, finding that no malpractice had occurred. We first note that, contrary to plaintiffs’ argument, the assignment issue is properly before this Court. Defendant Drillock challenged the validity of the assignment in the trial court, but the court never issued a specific ruling on the question. Under these circumstances, it was unnecessary to file a cross-appeal to bring the issue before this Court. The assignability of a legal malpractice action is apparently a question of first impression in this state. As a general rule, actions which are deemed to survive death are assignable under the common law. State Mutual Life Assurance Co of America v Deer Creek Park, 612 F2d 259, 265 (CA 6, 1979); Detroit v Bridgeport Brass Co, 28 Mich App 54, 59, fn 5; 184 NW2d 278 (1970), lv den 384 Mich 828 (1971). Under MCL 600.2921; MSA 27A.2921, "[a]ll actions and claims survive death”. However, survivability is not the only test. Other jurisdictions have held, for public policy reasons, that legal malpractice actions are not assignable. This was the holding in Goodley v Wank & Wank, Inc, 62 Cal App 3d 389; 133 Cal Rptr 83 (1976). The California Court of Appeals based its decision on the "uniquely personal nature of legal services and the contract out of which a highly personal and confidential attorney-client relationship arises”. 62 Cal App 3d 395. The court noted that an attorney’s duty to his client arising out of the professional relationship is a personal one running solely to the client. Because of the inherent nature of the attorney-client relationship it has been traditionally restricted to only the parties involved. The California court cited the following public policy considerations underlying its decision: "It is the unique quality of legal services, the personal nature of the attorney’s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment. The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty, and who have never had any prior connection with the assignor or his rights. The commercial aspect of assignability of choses in action arising out of legal malpractice is rife with probabilities that could only debase the legal profession. The almost certain end result of merchandizing such causes of action is the lucrative business of factoring malpractice claims which would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, promote champerty and force attorneys to defend themselves against strangers. The endless complications and litigious intricacies arising out of such commercial activities would place an undue burden on not only the legal profession but the already overburdened judicial sys tem, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client. "* * * [T]he ever present threat of assignment and the possibility that ultimately the attorney may be confronted with the necessity of defending himself against the assignee of an irresponsible client who, because of dissatisfaction with legal services rendered and out of resentment and/or for monetary gain, has discounted a purported claim for malpractice by assigning the same, would most surely result in a selective process for carefully choosing clients thereby rendering a disservice to the public and the profession.” 62 Cal App 3d 397-398. Similar reasoning was employed in Christison v Jones, 83 Ill App 3d 334; 405 NE2d 8 (1980), wherein the Illinois Court of Appeals held that a legal malpractice action was not assignable and was therefore not an asset of a bankrupt’s estate. The court noted that while survivability of an action is the usual test to determine assignability, it is not the sole test. Rather, the assignability of a cause of action must be based upon an analysis of the claim sought to be assigned as well as upon the public policy considerations involved. The court made the following observations concerning the dual nature of a legal malpractice cause of action: "It is primarily a tort action for negligence based upon an attorney’s failure to exercise a reasonable degree of skill and care in representing his client. (Smiley v Manchester Ins & Indemnity Co, 71 Ill 2d 306; 375 NE2d 118 [1978]). Yet, the duty allegedly breached in such an action arose out of the establishment of the attorney-client relationship by a contract for legal services. As we noted previously, the injuries resulting from legal malpractice are not personal inju ries, in the strict sense of injuries to the body, feelings or character of the client. Rather, they are pecuniary injuries to intangible property interests. While focus on these aspects of the malpractice cause of action might indicate placement of it under the class of tort actions for injury to personal property, such placement overlooks the personal nature of the relationship, with attendant duties, that exists between an attorney and client. It is a breach of those duties within the relationship which forms the real basis and substance of the malpractice suit. "* * * We find that the personal nature of the relationship and the duty imposed upon the attorney, coupled with public policy considerations surrounding that relationship and any potential assignability of breaches thereof (giving rise to causes of action in legal malpractice) lead us to conclude that the legal malpractice claim is not subject to assignment.” 83 Ill App 3d 338-339. This Court finds the reasoning set forth in Goodley, supra, and Christison, supra, convincing. See, also, Chafee v Smith, 98 Nev 222; 645 P2d 966 (1982). In view of the personal nature of the attorney-client relationship and the public policy considerations discussed above, we conclude that a legal malpractice cause of action is not subject to assignment. Linda Avery’s attempted assignment to Gail Joos of her legal malpractice claim against William Drillock was therefore invalid. The remaining discussion pertains to plaintiff Linda Avery only. In a prior agreement noted earlier in this opinion, Linda Avery and Mickey Avery assigned their rights against Auto-Owners to Gail Joos. Since the terms of that assignment effectively released Linda Avery from liability on the excess judgment, i.e., the amount by which the Joos v Avery judgment exceeded the available policy limits, the amount of the excess judgment plainly does not constitute damages recoverable by plaintiff Avery. However, Avery has alleged that defendant Drillock’s malpractice resulted in damages to her above and beyond the excess judgment. It is therefore necessary to review the trial court’s findings regarding the malpractice issue. In the previous appeal of this case, a panel of this Court stated: "We do not hesitate to hold that under the allegations of facts before us, an attorney has, as a matter of law, a duty to disclose and discuss with his or her client good faith offers to settle.” Upon a careful review of the record and briefs, we hold that the trial court clearly erred in determining that no malpractice occurred. Plaintiffs established by a preponderance of the evidence that defendant breached his duty to disclose and discuss settlement offers with Avery. The case is therefore remanded to the trial court for a determination of the amount of damages, if any, incurred by plaintiff Avery as a proximate result of defendant’s malpractice. The judgment of no cause of action as to plaintiff Gail Joos is affirmed for the reasons stated herein. The judgment as to plaintiff Linda Avery is reversed and the case is remanded for a determination of damages, if any. Affirmed in part, reversed in part, and remanded. No costs, neither party having prevailed in full. The assignment provided: "I, Linda K. Avery, do hereby partially assign my claim for malpractice against William J. Drillock in the handling of the case against me by Gail A. Joos to Gail A. Joos, the Plaintiff, under the terms and conditions set forth in my previous assignment to Gail A. Joos wherein I assigned to her my claim against Auto-Owners’ Insurance Company. "This Assignment is intended to be a partial Assignment and to apply to the Judgment, interest, and costs of the above-named case. Linda K. Avery retains to herself her claim against William J. Drillock for his malpractice in handling the above-named case above and beyond the Judgment, interest, and costs entered against her in the above-named case.” The trial court originally dismissed plaintiffs’ action for failure to produce expert testimony. This Court reversed. Joos v Auto-Owners Ins Co, 94 Mich App 419; 288 NW2d 443 (1979), lv den 408 Mich 946 (1980). Our opinion does not involve the prior assignment except to the extent the terms thereof were incorporated by reference into the subsequent assignment of Linda Avery’s rights against William Drillock. "2 We express no opinion as to whether plaintiffs can prove their allegations by a preponderance of the evidence. We merely state that if they can, then they are entitled to a judgment.” Joos v Auto-Owners Ins Co, 94 Mich App 419, 424; 288 NW2d 443 (1979), lv den 408 Mich 946 (1980). The assignment provided in part: "It is agreed that the said Plaintiff will pursue the claim of the Defendants against-Auto-Owner’s for their failure to settle said case, and that the Plaintiff will make no attempt to execute against the said Defendants or either of them personally other than pursuing the claim against Auto-Owners until a settlement or final adjudication of said claim is made. At the termination of the litigation against Auto-Owner’s Insurance Company, irrespective of the outcome of said litigation, the Plaintiff shall execute a total and final release of the said Defendants, Linda K. 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Per Curiam. Plaintiffs appeal from the trial court’s order granting Williams Brothers’s motion for summary judgment, GCR 1963, 117.2(3). In the early morning of November 19, 1977, Pamala Karrar, an 18-year-old high school senior, left her parent’s home for work at the Tick-Tock Restaurant in Hastings. On her way, she drove down a portion of Usborne Road between Vedder Road and Brown Road. At some time, the wheels on the passenger side of her vehicle left the pavement and dropped onto the shoulder. At that point in the road, the pavement was three inches above the gravel shoulder. She continued 176 feet with her passenger side tires on the shoulder and then attempted to turn the wheels back onto the pavement where the pavement dropped 5-1/2" to the shoulder. After she returned all of the tires to the pavement, Ms. Karrar’s vehicle left the opposite side of the road, slid and rolled down the embankment and crashed into a tree. As a result, Ms. Karrar suffered serious injuries. The portion of the highway on which the accident occurred had recently been repaved by Williams Brothers Asphalt and Paving Company, Inc., defendant herein. Williams Brothers had entered into a contract with the Michigan Department of State Highways to repave that portion of Usborne Road. The contract did not require Williams Brothers to grade the shoulders after completion of the project. Under the contract, the Barry County Road Commission was to replace the gravel shoulders and to warn motorists of the low shoulder condition. Williams Brothers commenced its repaving project sometime in October, 1977, and completed its work and left the site on October 26, 1977. The job was inspected and approved by the area engineer for the Federal Highway Administration on November 17, 1977. . Between the completion of the repaving project and the time of the accident 24 days later the road commission had not replaced the shoulders. Nor had the road commission posted warnings of the low shoulders. On November 16, 1979, plaintiffs instituted this action against the county board of road commissioners and Williams Brothers. Plaintiffs alleged that Williams Brothers had been negligent because it neither replaced the shoulders nor warned motorists of the dangerous condition. On March 5, 1982, Williams Brothers moved for summary judgment pursuant to GCR 1963, 117.2, subds (1) and (3). On July 3, 1982, plaintiffs moved to amend their complaint to add counts of gross negligence, wilful and wanton misconduct, and intentional nuisance against Williams Brothers. On July 9, 1982, oral arguments were heard on Williams Brothers’s motion for summary judgment. At the conclusion of the hearing, the trial court granted summary judgment pursuant to sub-rule 117.2(3) as to all counts, indicating that at the same time it was granting plaintiffs’ motion to amend. Plaintiffs contend that the trial court erred in granting summary judgment because Williams Brothers’s affidavit was insufficient. A motion brought under GCR 1963, 117.2(3) must be supported by an affidavit. Those affidavits are governed by GCR 1963, 116.4, 116.5, and 116.6. GCR 1963, 116.4 states in pertinent part: "Supporting and opposing affidavits shall be made on personal knowledge and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion. Such affidavits shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts contained therein.” Plaintiffs argue that Williams Brothers’s affidavit failed to satisfy the subrule’s "personal knowledge” requirement. The affidavit was sworn out by Williams Brothers’s attorney. In it, he stated that he had attended the deposition of Jack Kineman, the project engineer on the repaving project, had reviewed the transcript of that deposition, and, as a result, could competently testify as to the contents of the deposition. The affidavit then listed various facts drawn from the deposition. It is well settled that attorney affidavits submitted upon information and belief are not sufficient to support a motion under subrule 117.2(3). See, e.g., Jones v Shek, 48 Mich App 530; 210 NW2d 808 (1973); Allstate Ins Co v Beauregard, 119 Mich App 103; 326 NW2d 439 (1982). Such affidavits are insufficient because they do not show that the affiant, if sworn as a witness, could testify competently as to the facts set forth in the affidavit. Jones v Shek, supra, p 532. In the present case, defense counsel did not submit his affidavit upon information and belief. But his affidavit has the same defect. He stated merely that he could testify as to the contents of Kineman’s deposition. Defense counsel had no personal knowledge of the facts related by Kineman. Were he sworn as a witness, defense counsel could offer only inadmissible hearsay. Thus, the affidavit was insufficient to support a motion under subrule 117.2(3). Under some circumstances, however, the party moving for summary judgment may be excused from filing an affidavit that complies with subrule 116.4. See GCR 1963, 116.6; Brooks v Reed, 93 Mich App 166; 286 NW2d 81 (1979). Subrule 116.6 states: "When Affidavits Are Unavailable. Either party may state in his affidavit that he cannot present the material facts essential to justify his position because such facts are known only to persons whose affidavits he cannot procure. "The affidavit shall name such persons and state why their testimony cannot be procured, together with a belief and reasons therefor as to the nature of their probable testimony. Thereupon the court may make such order as may be just, either denying the motion or ordering a continuance to permit the affidavit to be supported by further affidavits to be obtained, or depositions to be taken, or answers to interrogatories to be furnished, or discovery to be had.” Williams Brothers argues that its attorney swore out the affidavit because Kineman was unavailable to do so. Even so, defense counsel’s affidavit does not fulfill the requirements set out under subrule 116.6. Thus, Williams Brothers’s failure to submit an adequate affidavit under subrule 116.4 cannot be excused. Allstate Ins Co v Beauregard, supra, p 108. Reversal of summary judgment pursuant to subrule 117.2(3) is required. Allstate Ins Co v Beauregard, supra, p 107. Williams Brothers argues, however, that an affidavit was not necessary to support its motion for summary judgment pursuant to subrule 117.2(1). A motion brought under that subrule does not require a supporting affidavit. Williams Brothers contends further that the trial court could have granted its motion pursuant to subrule 117.2(1). A motion for summary judgment on the ground that "the opposing party has failed to state a claim upon which relief can be granted” tests the legal sufficiency of a pleaded claim. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1982 Supp, p 142. The inquiry is whether the claim made is so clearly unenforceable as a matter of law that no factual development thereunder could possibly justify a right to recovery. Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981), lv den 414 Mich 858 (1982). Williams Brothers maintains that the plaintiffs’ negligence claim is legally insufficient for want of a duty between itself and Pamala Karrar. However, the. complaint alleges such a duty and it is not clear that no factual development could establish that duty. Accordingly, summary judgment as to all counts is reversed. However, we consider plaintiffs’ remaining issues because they may arise on remand. Plaintiffs argue that the trial court erred in ruling that, on the undisputed facts, Williams Brothérs was not negligent as a matter of law. The trial court found that the facts upon which the plaintiff must rely to establish his case are undisputed. Those facts, the trial court found, are: (1) Williams Brothers completed its part of the construction contract; (2) the contract required the county road commission to grade the shoulders; (3) the shoulders had not been graded; and (4) the accident happened because the shoulders had not been graded. On these facts, the trial court ruled that Williams Brothers could not have foreseen that the road commission would not have graded the shoulders and that that failure would result in Ms. Karrar’s accident. When faced with a motion for summary judgment, "the court should give the benefit of any reasonable doubt to the opposing party, and should not grant summary judgment unless it finds that 'it is impossible for the claim * * * to be supported at trial because of some deficiency which cannot be overcome’. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316, 320 (1973). Inferences are to be drawn in favor of the one opposing the motion, and the court is to consider the affidavits, pleadings, depositions and other documentary evidence submitted by the parties when determining whether or not to grant summary judgment. Gamet v Jenks, 38 Mich App 719, 723; 197 NW2d 160, 163 (1972). See also McLaughlin v Consumers Power Co, 52 Mich App 663, 666; 218 NW2d 122, 124 (1974).” Sanders v Clark Oil Refining Corp, 57 Mich App 687, 691-692; 226 NW2d 695 (1975). A claim for negligence has six elements: (1) duty; (2) general standard of care; (3) specific standard of care; (4) cause in fact; (5) legal or proximate cause; and (6) damage. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). In the present case, the element which the trial court found could not be supported at trial because of some intractable deficiency was "duty”. The question of duty is one for the court. Moning, supra, pp 436-437; Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981); Smith v Allendale Mutual Ins Co, 410 Mich 685, 714, fn 22; 303 NW2d 702 (1981). The existence of facts giving rise to the duty, however, is for the factfinder. Smith v Allendale Mutual Ins Co, supra, pp 713, 714-715, fn 22. Thus, where "there 'is no genuine issue as to any material fact’ relevant to the existence of an asserted duty, the trial court may determine as a matter of law that no cause for action exists”. Miller v Miller, 373 Mich 519, 524; 129 NW2d 885 (1964). The Supreme Court has recently defined the concept of "duty” as it is utilized in a negligence action: " 'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect to conform to a particular standard of conduct toward another. Prosser, Torts (4th ed), § 53, p 324. The terse legal conclusion that a duty is owed by one to another represents a judgment, as a matter of policy, that the latter’s interests are entitled to legal protection against the former’s conduct.” Antcliff v State Employees Credit Union, 414 Mich 624, 630-631; 327 NW2d 814 (1982). In negligence cases, the duty is to conform to the legal standard of reasonable conduct in light of the apparent risk. Antcliff, supra, p 631; Moning, supra, p 437. The question of duty is, in part, one of foreseeability. Moning v Alfono, supra, p 439. It seems undisputed that Williams Brothers could have foreseen that the lack of a shoulder on a highway would be dangerous to motorists. The primary issue, however, is whether it could have foreseen that the road would have remained in that dangerous condition 24 days after the completion of the paving project. That question, in turn, depends on whether the road commission’s failure to perform its part of the contract within that time period was foreseeable. Plaintiffs have not pointed to any undisputed facts suggesting that Williams Brothers should have anticipated that the road commission would have failed to warn motorists of the drop-off and failed to correct the condition within the time period preceding the accident. Plaintiffs make much of the fact that Williams Brothers knew there would be some delay in repairing the shoulder. While that fact may have made a three to four week delay in repairing the road foreseeable, it does not make foreseeable the road commission’s failure to post warnings of the hazard. Inasmuch as the accident could not have been anticipated unless the road commission’s failure in both respects was foreseeable, the court correctly concluded that Williams Brothers owed no duty to Pamala Karrar. The trial court did not err in deciding that, on the undisputed facts, Williams Brothers was not liable for negligence. Consequently, the court also did not err in ruling that Williams Brothers was not liable for gross negligence and for wilful and wanton misconduct. Plaintiffs also argue that the trial court erred in ruling that, on the undisputed facts, Williams Brothers was not liable for intentional nuisance. . Nuisances are divided into two categories, nuisances per se and nuisances in fact. Gerzeski v Dep’t of State Highways, 403 Mich 149, 158; 268 NW2d 525 (1978) (opinion of Moody, J.). The latter category is divided into intentional nuisance and negligent nuisance. The Supreme Court in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952), citing Beckwith v Town of Stratford, 129 Conn 506, 511; 29 A2d 775 (1942), defined intentional nuisance: "A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.” Whether or not a condition constitutes an intentional nuisance is a question for the trier of fact. Gerzeski, supra, p 160. The trier of fact must determine, first, whether the particular thing or act constitutes a nuisance and, second, whether the nuisance was created intentionally. Id. Because it is undisputed that the condition of the highway at the time of the accident was created intentionally by Williams Brothers, the primary question is whether a genuine issue existed as to whether that condition is a nuisance. In Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970), the Court defined nuisance as follows: "Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.” It is beyond dispute that the drop-off from the pavement ranged from three to five inches after Williams Brothers completed the repaving project. Thus, a jury question exists as to whether the highway was in a "dangerous, offensive or hazardous condition”. It cannot be said that no genuine issue as to any material fact relevant to the claim of intentional nuisance existed. The court erred in granting summary judgment on the intentional nuisance count. Reversed and remanded for proceedings consistent with this opinion. No costs, neither party having prevailed in full.	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Wiest, C. J. Defendant was convicted of feloniously having in his possession “five skeleton keys, a time bomb outfit and two steel rods,” adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes and other depositories, in order to steal therefrom, well knowing the implements to be adapted and designed for such purpose and with intent to use and employ the same for breaking and entering. We have stated but the substance of the charge. Defendant was convicted and sentenced to prison for an indeterminate term of 5 to 10 years. Defendant assigns error upon rulings of the trial court, remarks of the prosecuting attorney, and insists the verdict is against the great weight of the evidence and the trial court was in error in not granting a new trial. The evidence at the trial disclosed that the “five skeleton keys,” were common house keys, the “time bomb outfit,” was a cheap alarm clock with a battery rigged up to ring the bell, and the “two steel rods” were knitting needles. The prosecution claimed the house keys were adapted to unlocking common locks; the alarm clock and battery could be arranged to set off an explosive and the knitting needles could be used to push a key out of a lock or turn it in the lock. The statute under which defendant was prosecuted provides: “Every person who shall knowingly have in his possession, any engine, machine, tool or implement, adapted and designed for cutting through, forcing or breaking open any building, * * * knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ the same for the purpose aforesaid.” * * * 3 Comp. Laws 1915, § 15334. Three essential elements are involved in this crime: First. The tool or implement must be adapted and designed for breaking and entering. Second. It must be in the possession of one who has knowledge that it is adapted and designed for the purpose of breaking and entering. Third. It must be possessed with intent to use or employ the same in breaking and entering. Are common house keys, an alarm clock with a battery to ring its bell, and knitting needles, in and of themselves, burglar’s tools? To ask the question is to answer it. Such things are not designed for breaking and entering but for an entirely different purpose. It is not enough, to constitute their possession criminal, to say that they may be employed in breaking and entering. This statute has some provisions against strained use thereof which seem to have been overlooked in this prosecution. The term “adapted and designed” means something more than mere common household articles capable of use in breaking and entering. To come within the statute, the tools must not only be adapted, that is, capable of being used in breaking and entering, but as well designed, that is, contrived or taken to be employed 'for such purpose. Keys and tools may be so contrived as to clearly indicate the criminal purpose of possessing them. But house keys, and an alarm clock with a battery to ring its bell, and knitting needles, in a home, serve a legitimate purpose, and bear a harmless character, for they have been contrived for a useful purpose, and they afford no basis for an inference of- possession for a criminal purpose. They remain house keys and clocks and needles, unless intended to be used for the purpose of breaking and entering. It is not enough that they may be used in breaking and entering, but the intent to so employ them must appear in order to constitute the crime here charged. Keys, of course, are designed to open locks, and one may have as many house keys in his home as he may desire, and if he has more keys than locks, that fact justifies no inference that they are burglar’s tools. It is not a crime to have house keys, an alarm clock and knitting needles in a home. It is a crime to have keys, bombs and rods for the purpose of breaking and entering. There is no evidence in this record, and no circumstance disclosed, warranting any inference that defendant possessed the keys, clock and knitting needles for the purpose of breaking and entering. The trial judge instructed the jury that, in order to find the defendant guilty, they would have to find “that he had the intent to use and employ them (the keys, clock and needles) for the purpose of committing a larceny upon a building, vault, safe or other depository that he was to break into.” There are cases where the tools and implements are so clearly contrived and adapted for breaking and entering as to warrant a finding that their possession could not possibly be for any other purpose, but house keys, an alarm clock and knitting needles bear no such villainous character. The police explained how this alarm clock and battery could be arranged to set off a bomb. We apprehend from such explanation that any alarm clock can be so arranged. That an alarm clock may be made to serve a nefarious purpose does not make it unlawful to have such a time piece and a battery to ring its bell. Knitting needles are not burglar’s tools. The motion to discharge the defendant should have been granted. The police went to the home of defendant at midnight, upon suspicion that he had been concerned in burglaries, having been informed he was seen in the neighborhood of a house burglarized a few days before. When they got to defendant’s house they rang the door bell and when asked what they wanted said they wanted to talk with defendant. Defendant left the door for a moment and then came back, opened it and the police stepped in, and a free-for-all fight took place. The police claimed the defendant and his wife started the fight. After the fight was quelled, defendant was sent to the police station and his wife to a detention place for women, then the police searched the house, and found the “skeleton keys” and the knitting needles in a locked bureau drawer and the alarm clock, performing the ordinary function of a time piece, peacefully ticking the right time. A motion for the return of the articles so seized was made and denied by the trial court. The point is made that the police had no right to search the house. The police had no warrant for the arrest of defendant and no warrant for the search of his house. The disclosed reason for suspicion of defendant would not have been sufficient to procure a search warrant or a warrant for his arrest. The search made was unlawful and the motion to suppress the fruit of the search should have been granted. If the police went there to talk with defendant and obtained entrance to the house for that purpose, then, of course, they did not go there to search the premises. The fight with defendant and his wife did not operate to open the house to search. The police had all the information, upon which they acted, in time to apply for a search warrant in due course, but had they applied, their information, as disclosed by this record, would have fallen far short of authorizing the issuance of a search warrant. We do not feel called upon to enlarge upon this feature of the case for the reason that, even though the evidence was lawfully before the court, the defendant, under this record, should have been found not guilty, and the court should have so instructed the jury. The other errors alleged have been considered and only one calls for consideration. The prosecuting attorney offered to show that a boat in’ which it was claimed the defendant escaped from Canadian officers blew up. An objection to this was sustained. The statement is claimed to have been prejudicial to defendant. We think the point well taken. The only purpose of such testimony would have been to set the jury against defendant and was so clearly inadmissible and prejudicial to inject it by way of statement before the jury, and so inexcusable, as to constitute reversible error. People v. Hunter, 218 Mich. 525. Defendant was in court to meet a specific charge and the insinuation that he was acquainted with explosives was a highly prejudicial suggestion to the jury in connection with the theory that the alarm clock could be used to touch off a bomb. The conviction is reversed and a new trial granted. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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McDonald, J. This case involves the constitutional right of the defendants to hold the office of county road commissioner of Baraga county, Michigan. The proceedings are by quo warranto instituted in this court by the attorney general for and in behalf of the people. No question of fact is raised by the record. On the 7th day of April, 1922, there was a vacancy in the offices of the three road commissioners of Baraga county. Assuming to act under the provisions of chapter 4 of Act No. 203 of the Public Acts of Michigan for the year 1917 (Comp. Laws Supp. 1922, § 3848 [24] et seq.), the probate judge, county clerk and prosecuting attorney appointed the defendants to fill the vacancies. They qualified and assumed the duties of the office. ' Six days later, on the 13th day of April, 1922, the board of supervisors, acting under authority of section 4354,1 Comp. Laws 1915, appointed William Burke, Christian Jenloft and Gustav Lundberg to fill the vacancies. They qualified and are ready to assume the duties of the office. The question involved is whether the board of supervisors has the right to fill vacancies in the office of road commissioner of the county, or whether that right belongs to the probate judge, county clerk and prosecuting attorney. Section 4354, 1 Comp. Laws 1915, authorizes the board of supervisors to fill such vacancies. Subdivision 2 of sec. 5, chap. 4 of Act No. 203 of the Public Acts of 1917 (Comp. Laws Supp. 1922, § 3848 [28]), known as the “Michigan election law,” imposes that duty on the probate judge, county clerk and prosecuting attorney. The plaintiff contends that chapter 4 of Act No. 203 of the Public Acts of 1917, which relates to the filling of vacancies in public offices, is unconstitutional because it is not indicated in the title of the act as required by section 21 of article 5 of the Constitution of the State of Michigan. The title of the act is as follows: “An act to provide for the holding of elections, to prescribe the manner of conducting and to regulate elections, to prevent fraud and deception in the conducting of elections and to guard against abuses of the elective franchise.” It would not be possible to embrace in the title the various objects intended to be accomplished in the 25 chapters of the act in question. It is sufficient, as this court said in Loomis v. Rogers, 197 Mich. 265: “If provisions in the body of 'the act not directly mentioned in the title are germane, auxiliary or incidental to that general purpose.” The general purpose of the act is to provide means for choosing public officers. The means provided is by popular elections. Of course, it is understood that in the interval between elections vacancies will occur in various offices. Some will.die; a few may resign. Unless these vacancies can be filled before the next election, the general purpose of the act will not be fully accomplished. Is it not then an essential part of the general purpose to provide means for filling such vacancies? To make the law effective this must be done. As is aptly stated by counsel for defendants in their brief: “It suggests no violence to the understanding to assume that an act which properly includes provisions ‘to prescribe the manner of conducting and to regulate elections/ should include provisions with relation to the filling for the time being of vacancies arising in the offices to be so filled. Such provisions naturally, and as a matter of common sense, suggest themselves to the understanding as an essential part of the general object. * * * It is a necessary part-of the system of choosing officers that provision of some kind should be made for filling the offices in case the original choice in the manner provided becomes abortive by the occurring of a vacancy by death or otherwise.” But this applies only to the filling of vacancies in elective offices. It cannot be said that the filling of vacancies in appointive offices is an essential part of the general object of this act; for officers originally selected by appointment are in no way affected by popular election laws. The filling of vacancies in appointive offices is therefore not germane to the general purpose of an act which has only to do with elective officers. Chapter 4 of the act entitled “filling of vacancies in office” is in part unconstitutional. In as far as it provides for the filling of vacancies in appointive offices, it is unconstitutional; In as far as it provides for the filling of vacancies in elective offices, it is constitutional. County road commissioners are appointive officers; they do not acquire their office through the means provided by this act for the election of other officers. It follows, therefore, that the probate judge, county clerk, and prosecuting attorney of Baraga county, can not legally fill the vacancies existing in the office of road commissioner, and that the defendants are unlawfully holding such offices. Judgment of ouster will be entered. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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Bird, J. Defendants, Arthur Dugrey and wife, were the owners of a vacant lot in the city of Detroit. In July, 1919, they entered into a written contract with defendant Ferguson Construction Company to construct a house and garage thereon for the consideration of $9,250. A week or so thereafter the Ferguson Construction Company made an agreement with plaintiff to construct the building and garage on the basis of cost, plus 10 per cent. Plaintiff went forward with the work until he had it “roughed in.” Up to this point it had cost him $5,229.90. He was unable to carry the work farther by reason of the fact that the Ferguson Construction Company defaulted in making its payments. He received practically all of his pay for materials and work which he had furnished up to the middle of September. After that he did work amounting to $620.93, plus the bill of a subcontractor for wiring the house. On December 9th he filed a lien for work and materials in the sum of $620.93. This did not include the bill for wiring, which was $159.69. Upon the hearing to enforce the lien the trial court dismissed his bill, holding that his lien was not filed within the 60 days allowed by the statute. From the testimony it appears that the last work done by plaintiff personally was on September 26th. If the time be computed from this date, the lien filed on December 9th was invalid because too late. If the time be computed from the last work done by the subcontractor, on October 22d, the lien was filed in season. Defendants insist that plaintiff did not elect to include the subcontractor’s bill in his claim for lien, therefore he could not have the benefit of the last day of his work, and it is further insisted that if it is to be included, then plaintiff did not comply with the statute in his affidavit for a lien in stating the correct amount due. There appears to be no controversy about the amount of these bills. It is conceded that plaintiff employed the subcontractor and was liable for his bill and was obliged to pay it if the subcontractor did not enforce his lien against the premises, which he did not do. Plaintiff had a right to include the subcontractor’s bill in his statement of lien. Hatpin v. Garman, 192 Mich. 71. He intended to include it, but, by oversight, it was omitted. The subcontractor’s bill was as much a part of plaintiff’s bill against the premises as the work he did personally, and the time for filing a lien should be computed in this case from the day the subcontractor finished his work. The lien law does not contemplate that a contractor’s bill for work or materials furnished at different times for a particular job will be broken up into separate items and the items treated separately. The different items of the account will be treated as a unit. Union Trust Co. v. Casserly, 127 Mich. 183. The fact that by the omission the. affidavit did not state the amount actually due plaintiff did not in any way prejudice the owner or other lien holders. True, the statute (3 Comp. Laws 1915, § 14800), provides that “a just and true statement or account of the demand due him” shall be stated. This court has occasionally criticized some statements of liens which overstated the amount due because it was evidently the intent of the legislature to keep such accounts from being overstated to the detriment of the owner or other persons claiming liens. When the account is understated it results in no loss to anyone except to the lienor, who loses the lien against the premises for that part of his claim which has been omitted. There appears to be no conflict as to the facts in the case and there is no charge of bad faith on the part of plaintiff. The defendants are in no wise harmed by plaintiff’s failure to claim a lien for the whole amount due him. Under these circumstances, we are of the opinion that the chancellor was .in error in disposing of the case as he did. The decree will be reversed and one filed in keeping with this opinion. The plaintiff will recover his costs in this court. Fellows, C. 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Clark, J. Orson F. Wickham, a bookkeeper in the Sand’s Bank at Pentwater on November 1, 1918, made and executed a deed of his house and lot in that village and signed a bill of sale of his household goods and some other personal property. The acknowledgment was taken by Eugene W. Shober, another employee in the bank. Mr. Wickham’s daughter, Abbie I. Hunt, was named as grantee in the deed and as vendee in the bill of sale. His wife died October 15, 1918, and the daughter, leaving her home in Massachusetts, remained with the father from that date until April, 1919, when she returned to her home, remaining there until June, 1920, when she and her husband moved to Pentwater and lived with the father in his home until his death, August 25, 1920. Mrs. Hunt caused the deed to be recorded soon after the father’s death. The administrator of his estate, claiming that there were not sufficient assets to pay creditors, filed this bill to set aside the deed and the bill of sale alleging that there had been no delivery. Plaintiff had d.ecree. Defendant has appealed. The only question presented is that of delivery. Plaintiff had testimony by Mr. Shober: “I can’t really say what was done with that deed after I witnessed and acknowledged it. ■ “Q. Was Mrs. Hunt there? “A. Not that I remember; no, sir. “Q. Did you ever see any delivery of this deed to Mrs. Hunt? * * * “A. I did not, that I remember. “I next saw the deed after Mr. Wickham’s death, when I handed the papers to Mrs. Hunt. * * * “Mr. Wickham told me, — he had these papers in an envelope and he showed me where he put them in the safe and he said: Tf anything happens to me, these belong to Mrs. Hunt — these papers in here’ and, of course, when I handed this envelope to Mrs. Hunt this deed was in it. There was a bill of sale of some personal property. I handed these papers to Mrs. Hunt within a week after Mr. Wickham’s death. * * * “I do not know what Mr. Wickham did with those that day. I do not know whether he took them out of the office or not. I do not know whether he delivered them to Mrs. Hunt that day. * * * “Q. They were in an envelope marked something like this, ‘The Personal Papers of Abbie I. Hunt,’ weren’t they? “A. ‘Personal Papers of O. F. Wickham for Abbie I. Hunt,’ I think was the it was marked. * * * “He didn’t show me the contents, he just said, T am putting this envelope here,’ and showed me where he put it in the corner of the safe. He said: Tf anything happens to me these belong to Abbie.’ “Q. You don’t know whether that deed was there or not? “A. I do not. “Q. You don’t know whether Mrs. Hunt put it there or not, as a matter of fact, do you? “A. I don’t know.” With, this testimony the plaintiff rested. Defendant gave the following testimony without objection: “After his death I went to the office to get this deed. “Q. Where did you find the deed? “A. The deed was in the safe contained in the large vault in Mr. Sand’s office where my father had worked. “Q. Who put it there? “A. I did. “Q. When did you put it there? “A. I put it there the afternoon of November 1, 1918. “Q. Who was present when you put it there? “A. Miss Olive Christiansen was present in the office at that time. “Q. This bill of sale that has been spoken of here, who owned that personal property? “A. My mother did. “Q. It was your mother’s at the time of her death, was it? “A. Yes, sir. * * * “Q. Did you, yourself, put the deed in the vault? “A. I did. “Q. What did you put it in? “A. I put it in a large manilla envelope containing my own personal papers. “Q. And were there any other papers belonging to you, there? “A. Yes, sir. “Q. I will ask you whether or not you kept some of your private papers in that place. “A. I did. “Q. And had you for some time? “A. I have. “Q. I will ask you in relation to the bill of sale that has been spoken of, — who put that in the— “A. I did. “Q. When? “A. November 1, 1919.” Defendant’s husband testified that the father had often written to defendant urging her to move to Pent-water, saying: “The place is yours and I need you.” The letters were not produced. It also appears that after defendant’s coming to live with her father in June, 1920, she and her husband kept their private papers with those of the father in the bank and that Mr. Hunt had access to the vault. Mr. Hunt testified: “The papers were all together, Mr. Wickham’s and Abbie’s and mine all were in there, with a rubber band around them.” Mr. Shober and'Miss Christiansen had no recollection of seeing defendant in the bank November 1, 1918. As regards the testimony of defendant, received without objection, the estate can have no benefit of section 12553, 3 Comp. Laws 1915, prohibiting an opposite party testifying to matters equally within the knowledge of a deceased person. The testimony was received without objections, so the protection of the statute, if applicable, was waived. See Newton v. Freeman, 213 Mich. 673. Defendant claims delivery on November 1, 1918, the day the papers were made, and that she then placed such papers in the bank vault in a manilla envelope containing her private papers. All the other evidence in the case indicates that neither she nor her husband kept any papers at the bank before June, 1920. Mr. Shober’s testimony is to the effect that the envelope containing the papers which he gave to defendant after Mr. Wickham’s death was the same one that Mr. Wickham had placed in the vault when he said, “If anything happens to me these belong to Mrs. Hunt— these papers in here.” His testimony that the envelope was indorsed “Personal Papers of O. F. Wick-ham for Abbie I. Hunt” was not specifically denied. And defendant did not produce the envelope. That Shober did not know what may have been done with the papers in the meantime has no great significance for defendant claims delivery on November 1st and does not claim to have had the papers actually in possession from November 1, 1918, until about August 31, 1920, nor that they were out of the bank or otherwise disturbed during that time. Neither Mr. Shober nor Miss Christiansen had any recollection of defendant’s coming to the bank on the day in question. And there is no explanation or reason given by defendant for her claimed leaving the deed, unrecorded, in the bank until after her father's death. Nor for its being left there for upwards of a year while she lived in another State. Doubtless it was the father’s desire that his daughter should have the home, but, as we said in Clay v. Layton, 134 Mich. 317, to give effect to that desire we may not override established rules and principles essential to the protection of the rights of heirs. The trial judge had the advantage of seeing the witnesses and hearing their testimony. We are not persuaded that he was wrong in holding that there had been no delivery. See Clay v. Layton, supra; Reason v. Jones, 119 Mich. 672. The decree is affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Sharpe, J. The plaintiff sued upon two promissory notes executed by the defendant corporation and indorsed by the individual defendants. A verdict was directed against the defendants except Martha L. Garson, and directed in her favor. Plaintiff reviews the judgment as to her by writ of error. The plaintiff introduced the notes sued on and rested. Counsel for Martha L. Garson then offered in evidence a deposition of her husband, Harry I. Garson, taken in California. In it he testified that he and Martha L. Garson were married on January 25, 1904, and that they have since that time been husband and wife. Plaintiff insists that this testimony was incompetent under the statute which forbids a husband from being “examined as a witness for or against his wife without her consent.” 3 Comp. Laws 1915, § 12555. When objection was made, counsel for Mrs. Garson stated to the court: “I appear as attorney of record in this case for Martha L. Garson — I have authority and the only way she can speak in this case is through me. I have full authority to make that waiver. The waiver is very explicit in every way, and for her to make it, she has got' to speak through her attorney.” Mrs. Garson was not present at the trial. We think her consent could be expressed by her counsel. The authority of an attorney is discussed in 6 C. J. p. 637. It is there said: “Whatever is done in the progress of the cause by such attorney is considered as done by the party, and is binding upon him, even where the attorney is employed only to conduct the trial.” Hubbell v. Grant, 39 Mich. 641, is not controlling. It was there held that consent on the part of the wife may not be implied by her silence. Here the consent was expressly given by her attorney of record and the husband was called as a witness on her behalf. When the defense rested, counsel for plaintiff offered to prove that at the times the notes, of which those sued on were renewals, were given Mrs. Garson was one of the original incorporators of the defendant corporation, assisting in its management and drawing a salary therefrom; that she was the owner of substantially all the stock of the Broadway .Strand Theater Company and the Broadway Feature Film Company, and was an active officer in each of those companies; that the film company was organized for the purpose of obtaining lease' rights of films and pictures; that the theater company was organized for the purpose of conducting a moving picture theater; that contract relations existed between all these cor-porations and that the original loan was made to enable the defendant corporation to carry out its contracts with the other corporations and inured to the benefit of Mrs. Garson as a large stockholder therein. This offer was refused, the court holding that such proof would but tend to establish the fact that her obligation was that of a surety and such an obligation is not binding upon a married woman unless it be for the sole benefit of her separate estate. The law of this State on this question is, we think, well settled. In the early case of Russel v. Savings Bank, 39 Mich. 671 (33 Am. Rep. 444), an effort was made to hold a married woman liable as indorser on a note given by a corporation in which she was a stockholder. Attention was called to the statute (3 Comp. Laws 1915, § 11485) which removed her disability to contract with reference to her own property. After considering the nature of a contract of surety-ship, the court said: “But it is said that in this case the suretyship was for the benefit of a corporation in which Mrs. Russel was a stockholder, and therefore she must be supposed to have had in view in making it her own interest in the corporation. Mrs. Russel, however, was not identified with the corporation otherwise than as having an interest in it; the legal identity of each was distinct, and contracts for the benefit of the corporate estate were in no sense contracts for the benefit of the estate of one of its corporators. Talbot v. Scripps, 31 Mich. 268. It is true that if it resulted advantageously,- it might eventually bring incidental' benefit to the stockholders, but on the other hand it might also bring incidental injury; and whether beneficial or injurious, the result would have been indirect and circuitous, following not directly a contract made on her own behalf, but remotely a contract made on behalf of another. “It is not enough that such possible indirect benefits are looked for, in a contract of suretyship, for these may be in view in many cases, and especially when the wife becomes surety for the husband. The test of competency to make the contract is to be found in this: that it does or does not deal with the woman’s individual estate; possible incidental benefits cannot support it.” See, also, Caldwell v. Jones, 115 Mich. 129; Detroit Chamber of Commerce v. Goodman, 110 Mich. 498 (35 L. R. A. 96). Plaintiff’s counsel relies on Alpin v. Wade, 89 Ark. 354 (116 S. W. 667), in which it is held: “Therefore, when she signs a note as surety for the corporation in which she has purchased stock on her own account with funds of her separate estate, she becomes liable, in case of default of the corporation, for the debt which she has made her own.” In view of our decisions, we are unwilling to follow this holding. Married women are now so frequently engaged in partnership and corporate business ventures that it may be desirable to further remove the disability ereatéd by the common law, but such action must be taken by the legislature and not by the courts. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit.	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Fellows, C. J. Plaintiff is located at Pittsburgh, Pennsylvania. It is a wholesale dealer in coal. We do not understand from the record that it is an operator. Defendant is located at Detroit. It is a wholesale and retail dealer in coal. In 1918 coal was a scarce commodity in the market. Defendant’s secretary, Mr. Jones, visited Pittsburgh looking for coal to supply its customers. While there he called at the office of plaintiff and there saw a box of “Creek coal” containing about a hundred pounds. Creek coal is reclaimed anthracite which comes down the river from the washers and is taken out of the stream with grab-buckets from the bottom of the river. It is dumped into a hopper, from there to a conveyor where it is washed and cleaned of impurities as far as could be. It is used with bituminous coal largely for steam purposes. It is not used ordinarily and may lie in the river for years. Only in case of acute coal shortage is it reclaimed. Mr. Jones took home with him some of this Creek coal in a cigar box and exhibited it to defendant’s customers. Five of them ordered a car each, and defendant ordered five cars of plaintiff. They were shipped by it to defendant’s customers. The price was $2.25 per ton. The coal proved unsatisfactory to defendant’s customers and it declined to pay for it. Up to this point there is no substantial disagreement in the testimony. As the brief of defendant’s counsel is bottomed almost entirely on the claim that the transaction here involved was a sale by sample and that the court should have so held as matter of law, it becomes of prime importance to determine whether that question was for the court or for the jury. The determination of that question will determine numerous assignments of error. We have stated in outline some of the undisputed facts. We now take up some of the conflicting claims. Mr. Jones testifies in substance that he knew nothing about Creek coal, that Mr. Woodruff, president of plaintiff, explained to him the way it was reclaimed, that he took the sample home for the purpose of showing defendant’s customers, and he insists that it was a sale by sample. If his testimony was all there was in the case the court would doubtless have been justified in holding’ that the sale was a sale by sample. But Mr. Woodruff was sworn and his testimony was in sharp conflict with that given by Mr. Jones. He claims that he fully explained to Mr. Jones what Creek coal was, how it was reclaimed, and very thoroughly explained to him that it could not be burned with ordinary grates because of its fineness, that it would fall through before it would burn and that it should be used with bituminous coal; that Mr. Jones asked if he could take a sample and he told him he could, and— “Mr. Jones looked over this dishful of coal; asked about the heat value of the coal. We had some specials of analysis that had been taken for customers- of the Shamokin Valley, which we showed him, especially how they ran in volatile and ash. and BTU, heat units of coal, and we told him at the time we didn’t sell on analysis or didn’t sell on sample. We never sell coal that way.” We shall not discuss the law applicable to sales by sample; a valuable note will be found in 70 L. R. A. 658. If Mr. Woodruff told Mr. Jones when he took the sample and had the conversation with him that they did not sell by sample, a sale by sample could not be implied. The testimony’ being in sharp conflict, as we have pointed out, the court very properly left to the jury the disputed question of fact as to whether the sale was a sale by sample or not. Defendant’s counsel asked to have the following special question submitted to the jury: “Was the bulk of the coal shipped by the plaintiff to the defendant, or its customers equal to or like the sample furnished the defendant? Your answer will be ‘Yes’ or ‘No.’ ” In Kosnicki v. Railway Co., 217 Mich. 245 (on rehearing page 251), having reference to the statute permitting the submission of special questions to the jury (3 Comp. Laws 1915, § 12611), we said: “In construing that statute it has been repeatedly held that the question must be so framed as to call for an answer which may be controlling on the main issue.” • The controlling question in the instant case was whether the sale was a sale by sample or not. The special question in effect assumed that the sale was a sale by sample and asked for a “Yes” or “No” answer on a question not controlling. We think the trial judge properly refused to submit the special question to the jury. Defendant produced numerous witnesses who testified that the coal shipped was worthless. Among them were defendant’s customers who had purchased this coal from defendant. Some of them brought into court samples of the coal. Plaintiff’s counsel asked permission, which was granted, that it be permitted to take from these samples sufficient for an analysis. The samples were analyzed by a competent chemist who testified to a rather high heat unit content. All this was done over defendant’s objection. In view of the fact that defendant’s witnesses had pronounced the coal worthless, and in view of the fact that plaintiff’s testimony tended to show that it was valuable coal when used with other coal and with proper grates, we think this testimony and the proceedings were proper. It is insisted that the court erred in charging the jury that if they found the sale was a sale by sample the coal delivered must be of the same character and quality as the sample. Defendant insists he should have used the words “character, quality, kind and grade.” This objection is supercritical. The charge was a fair one to the defendant and fairly covered all the instructions it was entitled to. The case was strictly one of fact on the controlling’ question and the verdict was not against the overwhelming weight of the evidence. Assignments of error not specifically discussed have been examined and found to be without merit. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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McDonald, J. This is an action for breach of the covenants of a warranty deed executed in 1912 by the defendant, Gustave Rogge, to the plaintiffs. It is undisputed that at the time of the conveyance the defendant did not own the premises; that they were previously owned by his wife, Wilhelmina Rogge, and that she died prior to the giving of the deed. Upon her death the title vested in her children, who were also the children of defendant, Gustave Rogge. The plaintiffs built a residence on the premises, and on the 1st day of June, 1920, sold out to Gustave Trushkowski and wife. At the time of this sale an examination of the abstract disclosed the defect in the title, and notice at once was given the defendant. He sought to secure quitclaim deeds from the heirs, but they refused to execute any conveyances unless they were paid the sum of $3,000 by the plaintiffs. After considerable negotiations they agreed to accept, $2,500, but before turning over the deeds insisted that their father be released from all liability in connection with the transaction. For this purpose a release was prepared and signed by one of the plaintiffs, Charles Doebler. The purpose of this suit is to recover the money paid to the heirs to secure the outstanding titles. To the declaration filed, the defendant pleaded the general issue with a . notice of the written release. The case was tried by the court without a jury and findings of fact and conclusions of law were made and filed. Holding that the release was a complete bar to the plaintiffs’ right of recovery, the circuit judge entered a judgment of no cause of action. From this judgment the plaintiffs appeal. The important question presented by this record is as to the validity of the release. It is conceded that the grantor had no title at the time of the execution and delivery of the deed, that the title was in his children as heirs of his deceased wife, and that the plaintiffs were compelled to purchase this outstanding title for $2,500. These undisputed facts would entitle them to their damages unless the release be considered a bar to their recovery. The claim of the plaintiffs that it was secured through fraud and executed under duress is not sustained by the evidence. The objection that it was without consideration presents a more serious question. The consideration recited in the release is as follows: “The consideration for which this release is given is the securing by Gustave Rogge, of a good and valid conveyance of the said above described premises, by the heirs of Wilhelmina Rogge, deceased.” As an additional consideration the defendant was allowed to show by parol evidence that Mr. Rogge was instrumental in securing a reduction of $500 in the amount which plaintiffs were compelled to pay the heirs. There is no evidence of any agreement or understanding that plaintiffs were to release defendant from liability for such service. All negotiations for the purchase of outstanding titles were carried on by the attorney representing the heirs, and the attorney for the plaintiffs. Both were witnesses on the trial, and we must look to their testimony for the material facts on the question under consideration. Neither of them testified to any agreement as to the release other than that incorporated in the instrument. The attorney for the plaintiffs denied any knowledge of the release until it was presented at the time of the final settlement. The attorney for the heirs testified: “There was an understanding between Mr. Bloom and I as to the release. He saw the release, I submitted it to him, and that was part of the transaction, this release. There would be no deeds signed unless that release was given.” The release referred to is the one in question. It is in writing. It was made after many conferences by the attorneys alone, and it is fair to assume that it contains all of the agreements of the parties. It recites the services which defendant, Rogge was to render in consideration for the promise of the plaintiffs to release him from liability. He was to secure deeds from the heirs. From his own testimony, it is not certain that he had anything to do with securing the deeds, but if he did he was only doing what he was legally bound to do. He had by warranty deed conveyed property to which he had no title, and was legally liable for the damages which his grantees had suffered. Securing deeds for which plaintiffs were compelled to pay, and which it was his duty to furnish without expense to them, can hardly constitute a consideration for his release. The plaintiffs received no benefits; they had already a legal right to a good title. The defendant suffered no detriment in doing that which already he was legally obliged to do. He paid nothing, gave up no advantage or thing of value, but received a benefit at the expense of the plaintiffs, who were compelled to pay $2,500 for a title which he had agreed to furnish and defend. While it is not necessary that he should have paid anything in money, it is necessary that he should have done something in addition to that which he was legally bound to do. “The detriment which will constitute a consideration for a promise need not be an actual loss to the promisee. It is sufficient that he does something that he is not legally bound to do. * * * The rendition of services by one who is not legally bound to render them is a sufficient consideration.” 6 R. C. L. pp. 656, 657. It is too well settled to require the citation of authorities that doing what one is legally bound to do is not a consideration for a new promise. The circuit judge in his findings made no reference to the question of the sufficiency of the consideration. He based his conclusion of law as to the validity of the release on the fact that the plaintiffs voluntarily and freely executed it with a full knowledge of the facts and its legal effect. On the undisputed evidence, the plaintiffs were entitled to a finding that the release was without consideration and was not a bar to their recovery. The judgment of the circuit judge is reversed and a new trial granted. Plaintiffs will have costs. Fellows, C. J., and Wiest, Bird, and Steere, JJ., concurred with McDonald, J. Clark, J. The holding of the trial court that the release was a bar to recovery here is right. The judgment should be affirmed. Sharpe, J., concurred with Clark, J. Moore, J., did not sit.	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Steere, J. Plaintiff had judgment against defendant for damages sustained in a railway crossing accident at Republic avenue in the city of Alma, Michigan. Defendant seeks review and reversal on various assignments of error, the one most stressed being that plaintiff’s contributory negligence precluded recovery. The accident occurred about 10:20 a. m. of October 5, 1920, at the intersection of Republic avenue with defendant’s right of way through the city of Alma, which runs in an easterly and westerly direction and is 100 feet wide at that point. Its main line is in the center of the right of way with a side or switching track paralleling it between 8 and 9 feet further south. Plaintiff was a physician 48 years of age who had practiced his profession in the city of Alma for upwards of 20 years, and was familiar with conditions at and in the vicinity of the crossing where he was injured. Shortly before the accident occurred he drove into Alma from the east in a Dodge coupé with' the windows down and wind-shield up, going west along Superior street, which is the main thoroughfare east and west through the city. On reaching Republic avenue, which intersects Superior street at right angles, he turned and drove north on that avenue towards the Pere Marquette railway where he saw a freight train moving slowly west on the sidetrack past the crossing. From the center of Superior street along Republic avenue to the center of defendant’s right of way is 267 feet. Defendant’s line bears somewhat northeasterly and southwesterly through that section of the city at an angle to Superior street which it reaches near Grover avenue about 80 rods west of Republic avenue. Plaintiff drove up to within 13 or 14 feet of the freight train where he stopped close by a witness named Birmingham who sat in his car just east' of him waiting to cross and talked with him for a short time. When he arrived there all but one or two cars of the freight train had passed the crossing. It consisted of an engine at the west end followed by three gondola coal cars about 8 feet high from the track, a tank car about the same height and at the rear 3 box cars about 12 feet high from the track, the train being in all about. 340 feet in length. From where he had stopped his view to the west along the main track, closely paralleling the siding on its north, was necessarily cut off by the close passing freight train within the angle of his vision which it blanketed to the west along the main track. After it had cleared the street he started his car, looking as he testified east and west, and drove past the rear of the freight train onto the main railroad track just in time to be struck by a fast passenger train from the west running on schedule time of which he admitted he knew but said he did not recall having it distinctly in mind at that time. His coupé was struck about the middle by the engine of the train and thrown or carried upwards of 50 feet with him in it, injuring him severely and wrecking the coupé. The grounds of negligence alleged against defendant in plaintiffs declaration and in issue on the trial were excessive speed and failure to give the crossing signals. The engineer and fireman, as well as others who saw the oncoming passenger train and collision at the crossing, testified that the crossing signals were given by whistle of the locomotive and the engine bell ringing as the train approached, while plaintiff testified that he listened for them and they were not sounded and others near the scene of the accident gave evidence to like effect. The estimates of various witnesses as to the speed of the train ranged from 15 to 25 miles an hour. The conflicting testimony clearly made these issues questions of fact. The accident occurred about a mile and a half east of defendant’s railway station at Alma just west of the Republic Motor Truck Company’s factory which is located south of the railway and north of Superior street on the east side of Republic avenue. The long-triangle to the west, formed by defendant’s right of way as an hypothenuse on its northerly line, Superior street running directly east and west on its south and Republic avenue running north and south on its east, furnished comparatively few obstructions to a westward view over it from Republic avenue. On this triangle there were along and near Superior street a warehouse, or “shed” as plaintiff called it, á coal pile and two lumber piles. The warehouse was at the northwest corner of Superior street and Republic avenue. North of it in Republic avenue on the west side were a guy pole and two electric poles. North of it west of the avenue were a clump of bushes and two trees, one being an elm 3 inches in diameter near a fence extending west along the right of way for a short distance. Plaintiff testified that on entering Republic avenue from Superior street his view of the railroad to the west was at first obstructed by the shed and coal pile, but after he passed these obstructions he had a clear view to the west in which direction he looked and drove slowly north towards the passing freight train watching the tracks, and stopped his auto within 13 or 14 feet of the freight train passing on the side track where he looked in both directions and also at the passing freight train. The freight train had switched onto the side track just east of Republic avenue, leaving a brakeman to close the switch, and after it cleared the crossing stopped for him to get on before proceeding. Plaintiff testified: “It stopped right by, almost in the line with the transmission poles at the west margin of the road, almost even with the line of poles; the rear end stopped I should say about 18 feet from my car on an angle, the rear of the freight train was northwest of me. * * * I thought may be it would back up or go forward, but it stopped and seemed to be standing still so I looked to the east and west to see if there was any reason why I shouldn’t cross and I was a little crazy to cross but I was pretty sure that they would ring the bell or blow a whistle if they were going to back up and they didn’t so I went ahead.” While plaintiff was sitting in his auto watching for the rear car of the freight train to clear the crossing the brakeman who had dropped off to close the switch ran across the road directly in front of him and jumped on to the rear car, signaling the engineer just before he reached it to go ahead, which he did. Plaintiff admitted seeing him, but said he was not clear that he saw him “going over there and getting on the train.” Of the train with which he collided he said, “I don’t remember seeing the passenger train at all. I don’t remember hearing it at all.” His motor was then making some noise, and also the freight traini which had started up as well as the approaching passenger train. Plaintiff testified that as he passed the rear of the freight train he looked to the east and being asked if he looked to the west answered, “I didn’t have time to I don’t believe. I can answer that question I think I did.” He also testified elsewhere upon the subject: “I looked for a train, I didn’t see one. You see as the freight train went down it obstructed my view farther. I think I could see down the track before this balance went by, I could see on the south side of the freight train from the position I sat in.” Amongst others who testified to hearing and seeing the approaching passenger train from different points in that vicinity, a witness called by plaintiff named Walker was standing by a post 100 feet south of the south rail and saw him drive up and stop close to the passing freight train. He testified that while yet standing by the post he heard the whistle of the passenger train, which he first saw coming from down near Grover avenue about 80 rods away, and he continued to see it until it passed out of his sight behind the freight train. Then noticing plaintiff start his auto he ran forward in an effort to stop him, and “hollered at him,” but could not make him hear or reach him in time, although he was within about 50 feet of him when the accident occurred. Plaintiff was a man of mature years with unimpaired sight and hearing. He was thoroughly familiar with this crossing and knew that a passenger train was due from the west to pass over the main track just north of the siding upon which the freight train was passing from the east at 10:20 a. m., the time hq was about to cross. He knew that except for the moving freight train his view to the west was unobstructed, and that from but a comparatively short distance south on Republic avenue he could see an approaching train a quarter of a mile to the west. He knew if he observed what was transpiring close around him when he started to cross that the freight train had picked up its brakeman and started on. Close up to the south side of the track at the rear of the freight train he knew it cut off his view of the main track for a considerable distance at least to the west and that it would, as he states, obstruct his view farther as it went down to the west. Knowing all this, it was his duty to take reasonable precautions before driving upon the track to avoid the possible danger confronting him, which he could easily have done by stopping 100 feet south of the siding near where his witness Walker stood or by waiting until the freight train had gone sufficiently far to give him a safe view down the main track. Conceding that he was alert in looking and listening where he stopped, his own testimony shows that he stopped, looked, and listened at a place and time where he could neither see nor hear the' approaching train which was close upon him when he started to cross, while others in various locations near by with no such incentive to observe saw and heard it coming in the distance. He did not stop, look, and listen long enough at the last clear chance which could avail him, but, as he states, “a little crazy about crossing,” and anxious to proceed on his way, he stopped close behind a moving obstruction which blanketed his vision of the main track to the west over which a train was then due, and, without waiting for his view to clear in that direction, proceeded to cross the danger zone as many others have done regardless of possible danger near in the direction they could not see. Without again reviewing the rule and reasons therefor stated in Colborne v. Railway, 177 Mich. 139; Sanford v. Railway Co., 190 Mich. 390, and analogous cases, we are of opinion this case falls within that class, and plaintiff has by his own evidence shown himself guilty of contributory negligence precluding recovery. For plaintiff it is contended that this cause is within an exceptional class recognized by this court, where owing to proof of unusual stationary obstructions to a view along the track and confusing or misleading conditions of some kind at a dangerous crossing created by defendant, it has been held that whether under the exculpating circumstances shown claimed observations and other precautions taken before attempting to cross were such as reasonably careful and prudent men would and should take when in like situations was for the jury. In support of this contention Nichols v. Railway Co., 203 Mich. 372, is particularly urged, amongst kindred cases cited, as answering all opposing meritorious questions, raised by the defense and sustained by the other cases referred to. It may be first noted that in this case there was but a temporary passing obstruction which cut off plaintiff’s clear view along the track to the west from the stopping point he selected. He was a traveler upon a public highway about to pass over a railroad crossing. As such it was his duty when a transient or temporary obstruction to his view intervened to wait in a place of safety until it was so far removed that he could ascertain with reasonable certainty that it was safe for him to proceed over the crossing. Baltimore & Ohio R. Co. v. Mangus (Ind. App.), 126 N. E. 863. In the Nichols Case the obstructions to plaintiff’s view were fixed objects, buildings and dead freight cars spotted close to the highway. Unusual conditions contributed to the accident. The railroad was double tracked. After an east-bound train had passed, claiming they carefully looked and listened and could not hear or see any approaching west-bound train from where they stopped) 10 feet north of the track, they proceeded to cross and were struck by a westbound, fast running, wild or special train consisting of an engine and caboose. In the majority opinion holding plaintiff’s negligence a question for the jury, it is said in part: “Where plaintiff stopped, her view of the track to the east of the crossing was so completely obscured by the buildings of the milling plant and by the cars on the side track that she could get no view of the westbound track until she passed the cars on the side track, as they stood very close to the highway. Had she stopped further north the view would have been no better. The distance between the side track and the west-bound track was less than 20 feet, and counsel argues that plaintiff should have driven into that space and stopped. We do not think we can say as a matter of law that plaintiff was guilty of contributory negligence for not driving onto the side track or into the space between the west-bound track and side track to make observations before proceeding to cross the tracks. Ordinarily when one gets within 10 feet of a railroad track and stops, his sense of hearing, if normal and diligently used, will determine whether it is safe to proceed. This crossing at the time, however, was beset with many difficulties (stating some of them). * * * Counsel urge that this case is ruled by Sanford v. Railway Co., 190 Mich. 390. * * * Had Sanford exercised the care that the plaintiff did in stopping his car he probably would not have been in collision with the train.” We think equally strong controlling distinctions are discernible in the other cases relied on by plaintiff. It was the opinion of the trial judge that but for the Nichols Case, the Sanford Case would be controlling. In the instant case the crossing was not “beset with many difficulties.” The view was clear and unobstructed in each direction along the railroad from near it on the highway save for the passing freight train. Had plaintiff waited but a fraction of a minute in his place of safety for it to so far pass that he might ascertain with reasonable certainty it was safe to proceed, as was his duty, the accident would have been avoided. He was not only familiar with the location, but twice testified that he knew there was a passenger train due from the west on that line at 10:20 a. m. He stated he returned to Alma that forenoon a little after 10 o’clock and drove through the city to this crossing which, as the facts show and he would have realized had he been reasonably alert to the situation, brought him there about the time that train was due. Stopping where he could not see or hear it approaching the crossing, according to his own testimony, and without waiting for a moment or so until he could have seen, he drove past the rear of the freight train directly in front of the east-bound train running on schedule time. The conclusion is unavoidable that the accident which befel him was, under the circumstances and in view of his knowledge as to conditions, largely imputable to his own contributory negligence. The judgment is reversed, with costs, and a new trial ordered. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.	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Bird, J. Defendant operates a baking business in the city of Detroit and delivers its product to its customers in covered delivery wagons propelled by electricity. On the morning of July 26, 1920, one of the delivery wagons was being propelled in an easterly direction on Rowena street, in charge of Mr. Fred W. Brewin. When the wagon reached 978 Rowena street, where the mother of plaintiff lived, she and her son, 10 years of age, came out and hailed him. Brewin stopped the car, put on the brake and got out to wait upon her. While Mrs. Jackson was making her purchases some of the other children of the neighborhood came up, including the plaintiff, who was 5 years old. After the purchases were made Brewin carried them to the house, 20 feet away from his car. When he got to the house he heard his gong sound. He looked back but from where he stood he could not see the front of the car. He called to the children to stop sounding the gong and ordered them away from the car. Mrs. Jackson, mother of plaintiff, also warned them away. As he started to return to the car he saw it moving away. He-ran and caught up with it and turned off the power, and as he did so he saw a boy leave the car from the south side and step on to the forward wheel. He was thrown down and squeezed between the wheel and the curb and quite seriously injured. Subsequently plaintiff brought this suit by his next friend to recover for his injuries. The negligence charged was the failure of Brewin to remove the plug, or sometimes called the switch, which connected the electric current with the motor. The case was tried out and a jury assessed plaintiff’s damages at the sum of $5,000. After plaintiff’s case had been submitted the defendant contended: («■) That there was no negligence shown on the part of the driver of the car. (&) That any alleged negligence on his part was not the proximate cause of the injury. (c) That the electric delivery wagon was not an attractive nuisance, as the term is legally defined. For these reasons a directed verdict was requested. On the morning in question defendant’s servant, Brewin, was going down Rowena street with an ordinary covered delivery wagon, delivering baked goods. There was nothing unusual in this as he had been over the route every other day for several weeks. The proofs do not show that there was anything unusual about his delivery wagon. There was nothing about it that would distinguish it from other delivery wagons propelled by electricity, except possibly the ringing of a bell to attract the attention of his customers. On his way plaintiff’s mother hailed him and he stopped, set the brake and waited upon her. When his attention was called to the fact that children were about the front of the car, by reason of the sounding of the gong, he at once ordered them away and started back to his wagon. He did not know that children had climbed onto the front of the car. The gong sounding did not convince him -of this because the gong could be reached by one standing on the ground. It is not easy to discover what Brewin did or failed to do that would constitute negligence.. Plaintiff suggests only one thing and that was his. failure to remove the switch plug when he got out of the car. Had Brewin stopped, intending to leave the car in the highway for a considerable time where children were playing about, that argument would have force, but in this instance he did not intend to stop but a few moments and did not intend to get out of view of the car. The power was turned off, the brake was set and there was no danger of the ear starting unless someone turned on the power. The car was in the street where it had a right to be. Brewin had no reason to anticipate that the children would board the car and start it. Children had frequently come out to the car on his previous trips, but had never climbed onto the car and had not been in the habit of playing in or meddling with it. The car was not of such a character as to be classed among the attractive nuisances which are considered by Powers v. Harlow, 53 Mich. 507, 515 (51 Am. Rep. 154), and other cases following it. Such vehicles are common and are seen daily upon the streets of cities. Plaintiff’s counsel cite us to the following cases, which, it is insisted, control this one: Lee v. Bill Posting Co., 190 App. Div. 742 (180 N. Y. Supp. 295); Gumbrell v. Claussen-Flanagan Brewery, 199 App. Div. 778 (192 N. Y. Supp. 451); Albano v. Tapley & Co., 199 App. Div. 916 (190 N. Y. Supp. 910). These cases are similar on the facts, but they are distinguishable from the present one in this: In the cases cited the electric vehicles were left standing in the street some considerable time and the drivers went out of sight of them and remained out of sight of them for quite a period, and in some of the cases children had been in the habit of getting into the machines and playing in them on former occasions. These elements are not present in the case we are considering. If Brewin had left his wagon standing in the street and gone out of sight of it) and remained away for a considerable period while children were in the habit of playing in and around it, a different question would be presented. The facts in the present case are more similar to those in Vincent v. Crandall & Godley Co., 131 App. Div. 200 (115 N. Y. Supp. 600). The driver of the electric wagon stopped, set the brake and went into a store to deliver goods. While he was gone some young boys, who had climbed onto the truck, started it. It ran into a drug store and caused considerable damage. In disposing of the case the court said, in part: ‘T do not think the judgment can be sustained. Power machines are recognized as legitimate, and the condition of the machine in question, as left by the chauffeur, must be regarded as analogous to that of a horse and wagon securely tied. In either case, overt acts of wilful wrongdoers are necessary in order to change the physical condition and work mischief; and it cannot be assumed as matter of law that they are more likely to exist in one case than in the other. In this instance the proximate cause of the plaintiff’s damage was the wilful act of the boys who started the truck, just as it would be, had they wilfully untied a horse and driven it into the drug store. The same view is well expressed in the case of Berman v. Schultz, 81 N. Y. Supp. 647, where it was held by the appellate term that the act of boys, in turning the starting lever of an electric truck, left standing at rest in a public street by its operator, with the power off and the brake on, while he was making a delivery of goods to a customer, must be deemed the proximate cause of a resulting accident, exempting the owner from liability.” Other similar cases to the present one cited by defendant are Berman v. Schultz, supra; Rahd v. Duquesne Light Co., 255 Pa. 409 (100 Atl. 262, L. R. A. 1917D, 864); Frashella v. Taylor, 157 N. Y. Supp. 881; Lazarowitz v. Levy, 194 App. Div. 400 (185 N. Y. Supp. 359). In the present case, we are of the opinion that no facts were shown which should have been submitted to the jury on the question of defendant’s negligence. So far as Brewings conduct appears by the proofs he did no different than the ordinarily careful and prudent man would have done under similar circumstances. The accident was caused by an independent intervening, cause, namely: The starting of the car by the children. This was the proximate cause of the accident. The accident was an unfortunate one for the little fellow, but we do not see how it can be legally charged to the negligence of the defendant. We think the court was in error in refusing to direct a verdict for the defendant, as requested. The judgment will be reversed and a new trial ordered. Defendant will recover its costs in this court. Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, and Steere, JJ., concurred, Moore, J., did not sit.	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Sharpe, J. Plaintiff’s agent procured from defendant an order for a carbide lighting system for his farm buildings. The order contains the usual warranty of material and workmanship. It further provided: “It being understood that this instrument, upon such acceptance, covers all the agreements between the purchaser and the company and that no agent or representative of the company has made any statements or agreements, verbal or written, modifying or adding to the terms and conditions herein set forth.” The order was dated December 2, 1920, and was accepted by the plaintiff on December 10, 1920, and notice thereof communicated to defendant. On January 3,1921, plaintiff shipped the apparatus to defendant. He refused to accept it, and plaintiff brings this suit to recover the price fixed in the contract, $354.35. The defendant was permitted to offer testimony tending to prove that at the time he gave the order he told plaintiff’s agent that his basement was small and that it contained a furnace and that the agent said to him that he “could set it (the plant) right beside the furnace, that I could go around with a light of any kind, couldn’t make it explode.” He also offered proof that his brother, who had purchased a similar plant, after its installation discovered a card hanging in the basement near the plant on which in part appeared the following: “Important Notice. “Do Not Take a Light or Fire op Any Kind About This Generator. “Generator should not be placed nearer than fifteen feet to a furnace or stove. * * * “Tack this card up in a conspicuous place near your machine.” Mr. Watts, a neighbor, testified that he had purchased a similar plant from plaintiff and that included in the shipment was a card similar to that found by the brother. Defendant also offered proof that it was impossible to place the generator included in his order in his basement without having it less than 15 feet from the furnace; that he refused to accept the shipment and notified the plaintiff of such action. Plaintiff’s attorney objected to the introduction of this proof, moved to strike it out at the conclusion of the proofs, and also moved , for a directed verdict, which objection and motions were overruled. The court instructed the jury, in effect, that if the defendant had established the facts testified to as above indicated he would not be liable. A verdict for defendant resulted. There is a marked distinction between representations made by a selling agent as to facts which induce the purchaser to enter into a contract and warranties expressly or impliedly embodied in the contract. A representation is thus defined: “In the law of contracts in general, a statement, incidental to a contract, relative to some fact having reference thereto, and upon the faith of which the contract is entered into.” 84 Cyc. p. 1619. In our uniform sales act (3 Comp. Laws 1915, § 11843) an express warranty is defined as: “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.” Warranties that will be implied will be found in the section following. The rule is firmly established in this State that— “Representations in the nature of warranties antecedent to the contract cannot be urged as fraud in eases where the contract is in writing, and contains specific warranties.” Bates Tractor Co. v. Gregory, 199 Mich. 8; Youngs v. Advance-Rumely Thresher Co., 215 Mich. 682. The representation here relied on to establish fraud is not in the nature of a warranty. It was in no way related to the character, quality or title of the thing ordered or its efficiency or suitability to perform the service expected. In order to install the plant, defendant must have a place to put it. The natural place was the basement of his house, which was to be lighted by it. The assurance of plaintiff’s agent that it could be safely installed therein was in no way a warranty within the statutory or generally • accepted definition of that term. Whether it could be safely placed near the heating plant was a matter of which plaintiff’s agent had full knowledge and defendant no information. To secure such information, defendant made inquiry of the agent. Had defendant been informed of the necessity of having a 15-foot space between the generator and the furnace, he might have and probably would have under the proofs declined to give the order by reason of the expense to which he would be put in the enlargement of his basement. If he was induced to sign the order by a false statement in the nature of a representation, he would be justified in rescinding the contract. The understanding of the parties, expressed in the order, that it covered all agreements between the parties and that “no agent or representative of the company has made any statements or agreements, verbal or written, modifying or adding to the terms and conditions herein set forth” —did not preclude the defendant from relying on this defense. Peck v. Jenison, 99 Mich. 326; J. B. Millet Co. v. Andrews, 175 Mich. 350; Mishler v. International Harvester Co., 188 Mich. 104. We think the proof submitted tending to show that the generator could not be safely installed in defendant’s basement was admissible and sufficient to justify the verdict. The plants purchased by defendant’s brother and Mr. Watts were similar to that ordered by the defendant. The proofs show that Union carbide was to be used in the generator. The manner in which an accident may occur in its use is detailed in Charron v. Union Carbide Co., 151 Mich. 687, wherein it is said: “When water or considerable dampness comes in contact with the carbide it generates a dangerous gas, and when mixed with air, a spark would ignite it and cause a severe explosion.” That such danger was known to both defendant and plaintiff’s agent is apparent, else no inquiry as to where the generator could be safely placed would have been made. The assurance was given that it could be so placed in close proximity to the furnace. Before the shipment to defendant arrived, he was informed that the notice which accompanied the shipment of the two similar plants contained the warnings that— “Generator should not be placed nearer than fifteen feet to a furnace or stove. * * * “An open light should not be permitted nearer than ten feet to the generator.” What would a prudent man do in view of the probable danger if he placed the generator within 15 feet of the furnace? If unable to install the plant as others who had purchased similar plants were warned they must do, we think he was justified in rescinding the contract and refusing to accept the shipment. The issues were fairly submitted to the jury. We find no reversible error in the record. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.	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Moore, J. The plaintiff is the owner of gas mains, located in the streets of the defendant city. The city let a contract to the other defendant to build a sewer at a depth of 17 feet. The plaintiff charges that the breaking of certain of its gas mains and service pipes was due in part to: (1) Negligent back-filling. (2) Insufficient tamping, immediately beneath the main; and (3) The removal of sheet piling without refilling and properly tamping the space occupied thereby. The defendant denied all of the plaintiff’s claim of negligence. At the close of the testimony a request was made for a directed verdict, counsel contending in part as follows: “I assume that the exclusive control of the streets of this city is in the city; we have had propositions many times and very thoroughly threshed out in Illinois and our courts have held in one case, in several cases, that even where there is a common-law vindication, that the exclusive control of the use of the street is still in the public, for the public uses; any right by which the gas company, a public service corporation, _ is in this street, is in the nature of a license, that it has no ability to claim that its pipe, when once laid, must lay there inviolate; that its right to maintain the pipe is at all times subject to the paramount right of the city to require its pipe to be removed or adjusted, or such things done with them as may be necessary in the exercise of the governmental powers of the city in serving a higher public need; now, the erection of a sewer would in any case have a higher right than a public service corporation. In this case the gas mains must give way, and my proposition is that the duty was involved upon this public service corporation, knowing, as it is admitted on the stand here, before that work was started by Pontarelli, that this sewer was to be constructed, it would become this corporation’s duty to go in there and see that its own mains were protected, taken care of, removed if necessary, put in such shape so they would not interfere in any way with the construction of this sewer, 17 feet down. My next proposition is that in doing that work, Mr. Pontarelli, under the contract, was exercising the city’s governmental powers, paramount of rights of this gas company.” The trial judge declined to direct a verdict and charged the jury in part as follows: “I charge you, gentlemen, that the plaintiff had the right to have its gas main there in the street and defendants had the right to construct the sewer there in the_ street, notwithstanding the fact that plaintiff’s gas main was here; the right of the plaintiff to maintain its gas pipe on Western avenue is subject and subordinate to the paramount right and power of the city of Muskegon to construct the sewer in question and in this respect the defendant Pontarelli is not chargeable with any negligence because of the fact that the city located the line of the sewer in question, and the question for you to determine, or one of the questions for you to determine, is whether the defendants there in doing the work of building the sewer, so carelessly, negligently and tmskillfully performed the work in the manner charged by plaintiff, as to cause injury and damage to plaintiff’s gas main and service pipes and cause leakage of gas. If defendant did carelessly, negligently and unskillfully perform the work in the back-filling of the trench, in insufficient tamping of the part of the trench immediately beneath the gas main, or in the removal of sheet piling without refilling and properly tamping the space which had been occupied thereby, and that such carelessness, negligence and unskillfulness on the part of the defendants, if any, resulted in damage to the plaintiff’s gas main and service pipes, and if you find that the damage, if any, did not result by reason of any negligence of the plaintiff that contributed to such injury, then the plaintiff is entitled to recover the damage which you may find from the evidence it has suffered, to which I will hereafter call your attention. “If you do not find that the plaintiff has established by a preponderance of the evidence that the defendants, or either of them, were negligent in the manner I have stated, or if you do not find that plaintiff has established by a preponderance of the evidence that plaintiff was free from negligence contributing1 to the injury or damages, then plaintiff cannot recover and your verdict should be for the defendants. “The contractor, Pontarelli, was not an insurer of the safety and security of such gas pipes, in the construction of his sewer; his only duty was to do the work of constructing the sewer with reasonable and usual care, in the usual and customary method of doing such work; if you find from the evidence that the defendant Pontarelli did the work- of constructing the sewer in the usual and customary manner and in a careful and skillful manner, then the plaintiff cannot recover. The right of the plaintiff to have its gas main in the street is subordinate to the paramount and superior right of the defendant; Pontarelli, under his contracts with the city, to lay the sewer in question, cannot be charged with any negligence if he did his work in the usual and customary way of doing that type of work, under similar circumstances and in a careful and skillful manner. If you find from the evidence that the injuries claimed by the plaintiff resulted solely from the performance of the sewer contract and doing the sewer work in the usual and customary way, in a careful and skillful manner, then the plaintiff cannot recover. The plaintiff must prove, gentlemen, negligence on the part of the defendants and the jury cannot presume or find negligence from the mere fact of injury to the pipe; if the testimony shows that the injury to the pipe, if any, might have been brought by other causes, as well as by the acts of the defendants, then the jury is not authorized to guess as to which was the cause.” There was much more of the charge than we have quoted. The plaintiff claimed damages aggregating about $16,000. The jury returned a verdict of $8,628.37. The case is brought here by writ of error. Counsel claim, we will quote from the brief: “There was an entire failure to prove negligence. The evidence as to the damages claimed is too speculative and uncertain. We respectfully submit that the case, as attempted to be made by the plaintiff, is too inconclusive to sustain the judgment. The motion to direct the verdict for the defendants should have been allowed. There was no competent evidence to submit to the jury either the question of negligence or the question of damage.” As to the claim there was no negligence. There was testimony that the backfilling and tamping was not properly done. We quote some of it: “I had charge of the inspection of that job from the inception to its completion. I had difficulty with Mr. Pontarelli in relation to the back-filling of the trench. He seemed to want to use methods of his own which were not fit. He would want to just tamp it and he didn’t want to do that right. Getting down to his back-filling, he didn’t want to do that right and there was the difficulty I had with him. That trouble existed during the entire job. I didn’t think he did this back-filling in a proper manner, because there was not enough dirt put back in. * * * Some of the filling was O. K. and some of it was not fit at all. It was not put back in layers and tamped like it should and was not wet down like it should have been. It was too loose. The dirt was not put in in layers as the contract called for and tamped down. * * * If this back-filling had been done properly, assuming that the gas mains prior to that time were in proper condition and this trench work and sheet piling had been properly done and the filling and the tamping and the watering, or whatever you term it, had been properly done, I think these mains would have been left in good condition.” The testimony was in sharp conflict and presented a question for the jury. It is said the question of damages was too speculative to justify a verdict. It is true that there was no way to meter the escaping gas, and that it could not be said to an absolute certainty how much escaped because of the breaks in the main, but it does not follow that a wrongdoes may escape all liability because of the difficulty of establishing the extent of his wrongdoing. See Hitchcock v. Knights of Maccabees, 100 Mich. 48 (43 Am. St. Rep. 423); Eesley Light & Power Co. v. Commonwealth Power Co., 172 Mich. 78. The other assignments of error have had our attention. We think it unnecessary to discuss them. The case was tried with great care. We find no reversible error. The judgment is affirmed, with costs to the plaintiff. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.	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Wiest, J. This is a bill of interpleader filed by plaintiff, an unincorporated fraternal beneficiary association, to have it determined whether the beneficiary certificate issued to William L. Mahon in March, 1905, should be paid to Elizabeth M. Mahon, the designated beneficiary therein, or to the administrator of Mr. Mahon’s estate for distribution to his heirs at law. At the time the insurance was taken out defendant Elizabeth M. Mahon was the wife of William L. Mahon. In April, 1916, upon her application, Mrs. Mahon was granted a divorce with a property provision in lieu of dower. Mr. Mahon died in June, 1918, without changing the beneficiary. About a year before his death he transferred his membership from division No. 9 to division No. 1, and, under the bylaws of the order, it was necessary to make record in the division to which he transferred' of the name of the beneficiary, and there appears in the “will book,” as of February 1. 1918, the following entry: “Name: William L. Mahon; occupation, freight cashier, Grand Trunk Railroad; age, 49; residence, 84 Linsdale avenue; entrance, Feb. 1,1918; beneficiary, Elizabeth Lennon Mahon, wife; transferred from division 9, Wayne división.” The recording secretary of division No. 1 testified that the above entry was made by Mr. Mahon and is all in his handwriting with the exception of the word “wife.” Mrs. Mahon’s maiden name was Lennon. Mr. Patrick J. Murphy, one of the national directors of the association, testified: “Q. Is there anything in the constitution or by-laws to your knowledge, Mr. Murphy, that would prevent the payment of the above benefit to the divorced wife of a member? “A. Why, divorce was unknown to our people and we have made no provision for such a contingency. “Q. When you say, ‘to our people’ what do you mean by that? “A. Members of our organization.” He further testified: “As I understand the laws of the Catholic church, if he had himself secured a divorce he would not have been entitled to the benefits of our organization. * * * “Q. Is there anything in the constitution and bylaws or otherwise which prevent payment of the death benefit to a person that is not a Catholic? “A. No, the section of the by-laws that I have just read to you places no such limitation. That section reads, ‘Death benefits shall be paid to such person or persons as the deceased member shall ordain.’ ” It is the claim of the appealing defendants that the divorce terminated the rights of Elizabeth L. Mahon; that she ceased to be dependent upon William L. Mahon after the decree of divorce, and to allow her to recover on this certificate would defeat the purpose, of the organization declared in the preamble of the constitution as follows: “Its work covers every lawful demand of friendship between its members and the protection of all dependent on them.” It is evident that Mr. Mahon was in accord with the attitude of the Catholic church toward divorce. The association, also in accord with the Catholic church, did not recognize divorce, and therefore did not provide for change of beneficiary in case of divorce. We find no statute and no provision of the laws of the plaintiff association limiting the payment of death benefits to a particular class of persons. Act No. 256, Pub. Acts 1917, revised and consolidated the laws relating to insurance, and, while section 6, chapter 4, part 3 (Comp. Laws Supp. 1922, § 9100 [194]), provides that the payment of death benefits shall be confined to wife, etc., section 29 (Comp. Laws Supp. 1922, § 9100 [219]) of the same chapter exempts societies from the provision of this law which limit their membership to any one religious denomination. Article 13, § 8, of the by-laws of the association provides: “Death benefits shall be paid to such person or persons as the deceased member shall ordain, or if said member has not so ordained, then to the administrator, executor or guardian appointed by the probate court of the county in which the said member resides.” We are urged to consider the purpose of the association, declared in the preamble of its constitution, as barring any beneficiary interest in case of divorce procured by the beneficiary. This preamble provides: “The purpose of this order is to promote the friendship, unity and Christian charity of its members, and preserve the spirit of Irish nationality. “Its membership is confined exclusively to practical Catholics, of Irish blood or descent, who love Ireland and revere the Catholic church. “Its work covers every lawful demand of friendship between its members and the protection of all dependent on them. The sick and infirm shall be cared for and the widows and orphans protected. Education and every virtue of Christian citizenship for which the Irish race is renowned shall be fostered, and by every necessary sacrifice and effort sufficient funds and property shall be contributed, collected, obtained and used to carry forward permanently, to the honor of the Irish race, the broad principles of the order herein proclaimed.” Considering this preamble and the by-laws as a part of the contract, we find nothing to prevent Mrs. Mahon from continuing as beneficiary after the divorce. Mr. Mahon was at liberty at any time to change the beneficiary. The by-laws left the designation of the beneficiary and the right to change the same at will to Mr. Mahon. He never elected to make any change of beneficiary but rather indicated by his every disclosed act that he did not care to make a change. In the absence of a controlling statute or by-law or some contract provision on the subject the designation of the wife by name as the beneficiary is not abrogated ipso facto by a subsequent decree of absolute divorce granted the wife. So far as this question is concerned there is no distinction between old line insurance where right to change the beneficiary is reserved and benefit associations where the right to change the beneficiary is a part of the law of the association. The right to change the beneficiary prevents any vested right in a designated beneficiary pending the death of the insured; We are asked to hold that the designation of the beneficiary was testamentary in character, and the reason for the designation was the marital relation and when the reason was no longer applicable, and there had been a judicial adjustment of property rights, the law of wills, as announced in Lansing v. Haynes, 95 Mich. 16 (35 Am. St. Rep. 545), should be applied here, and the designation of the beneficiary be held revoked by the divorce. This we cannot do. The reason why this cannot be done is well stated in Ladies’ Auxiliary of Ancient Order of Hibernians v. Flanigan, 190 Mich. 675. It has been held that a beneficiary designated by the mere status of “wife” loses such status and designation in case of divorce. 2 Joyce on Insurance (2d Ed.), § 818: “But a divorce does not terminate the rights of the woman in a benefit certificate on a man’s life where it is.made payable to her by name, and the statutes permit such certificate to be issued in favor of the wife or legatee, while no attempt is made to change the beneficiary after the divorce.” See, also, White v. Brotherhood of American Yeomen, 124 Iowa, 293 (99 N. W. 1071, 66 L. R. A. 164, 2 Ann. Cas. 350, 104 Am. St. Rep. 323); Schmidt v. Hauer, 139 Iowa, 531 (111 N. W. 966); Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Courtois v. Grand Lodge A. O. U. W., 135 Cal. 552 (67 Pac. 970, 87 Am. St. Rep. 137); Filley v. Insurance Co., 91 Kan. 220 (137 Pac. 793, L. R. A. 1915D, 130); Overhiser v. Overhiser, 63 Ohio St. 77 (57 N. E. 965, 50 L. R. A. 552, 81 Am. St. Rep. 612); Farra v. Braman, 171 Ind. 529 (86 N. E. 843); Brown v. Grand Lodge A. O. U. W., 208 Pa. St. 101 (57 Atl. 176). In the circuit decree was entered in favor of Mrs. Mahon. The decree is affirmed, with costs. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Fellows, C. J. Plaintiff brings this action of ejectment to recover possession of certain premises located in Grand Rapids. To the declaration is attached a copy of a deed conveying the premises to the plaintiff as grantee and executed by the Haney School Furniture Company and the recited trustees of said corporation other than the grantee, said company’s charter having theretofore expired. Defendant appeared specially and moved to dismiss on the grounds, so far as important here, that a receiver had been appointed for said company, and that the grantors and grantees in the deed were parties, to the receivership proceedings and were restrained from interfering with the receivership proceedings or the property in the hands of the receiver and that the deed was, therefore, one executed in contempt of court and void. The motion was granted and the suit dismissed. Plaintiff here prosecutes this writ of error. Some preliminary questions are presented by defendant’s motion 'to dismiss the writ of error, which motion was deferred until the hearing of the case and which will first be disposed of. The writ of error will not be dismissed for the failure to settle a bill of exceptions or a case-made. King v. Harrigan, 142 Mich. 477; Miley v. Grand Traverse Circuit Judge, 217 Mich. 415. Parties may assign error on the record under Supreme Court Rule No. 11. Where no bill of exceptions is settled and no case-made, error can be assigned only on the record. In the instant case the record is returned with the writ of error and it was highly improper to print in the printed record anything not contained in the record in the court below. To this we will refer later. The writ of error will not be dismissed, but only the assignment of error (the assignments of error having accompanied and been filed with the return to the writ of error), which assigns error on the record, will be considered. The only assignment of error we can consider, the second, is as follows: “The court erred in decreeing such a deed to be void on a motion to have the said plaintiff’s ejectment suit dismissed he had brought against said defendant, Grand Rapids Trust Company on such a motion, before a trial had on1 the merits of the case.” By this assignment of error plaintiff raises the question of the right of the court to dispose of the ease and dismiss the suit on the motion which raised the question heretofore adverted to. In Pagenkoff v. Insurance Co., 197 Mich. 166, we fully considered the section of the judicature act here under consideration (3 Comp. Laws 1915, § 12456), and we there held that while the motion to dismiss was a substitute for former demurrers, pleas in abatement and pleas to the jurisdiction, it was not permissible to try out the merits of the case on affidavits filed with the motion to dismiss. In. that case the action was on an award, which by affidavits it was made to appear had been set aside on appeal. It was held that such a defense could not be raised on motion to dismiss. In Vyse v. Richards, 208 Mich. 383, we held that former adjudication should be pleaded in bar and could not be raised by motion to dismiss. Referring to the Pagenkoff Case, we there said: “We there pointed out that the motion to dismiss now performs the function of a demurrer, a plea in abatement, and a plea to the jurisdiction, but that it does not perform the function of a plea in bar, and that defenses which formerly required a plea in bar cannot be made under the summary proceeding of a motion to dismiss.” This section of the judicature act has also been considered in the following cases: Sayre v. Railway Co., 199 Mich. 414; Gunn v. Gunn, 205 Mich. 198; Thomas Canning Co. v. Canners’ Exchange, 202 Mich. 64; Selznick Enterprises v. Garson Productions, 202 Mich. 106. An examination of the cases cited and the reasoning underlying them demonstrates that the trial court erred in dismissing this suit on the motion. Plaintiff seeks to recover in ejectment the premises in question' to which he claims to hold a deed. As against that deed and plaintiff’s right to recover defendant insists that the premises have been placed in the hands of a receiver in another case pending in the Kent circuit and that the grantors of the deed have been restrained from interfering with such possession, and that whatever title, if any, plaintiff has he has acquired in contempt of court and such deed is void. Upon a trial of the merits such defense may be made by defendant but it can not be made in a summary manner by motion to dismiss. The conclusion we have reached requires a reversal of the case. Defendant will have the usual time to file its pleadings. As is customary where the reversal is with a new trial, appellant will recover costs. But he should not recover the entire costs of printing the record before us, the major portion of which contains matters which are not properly before the court; The proper record in this case consists of the declaration with the attached exhibit, rule to plead, defendant’s special appearance and motion to dismiss, the judgment dismissing the case, the assignments of error, the index. These would have required a record of not to exceed 15 pages; everything else in this printed record of 94 pages has no place there; cost of printing record will be fixed at 15 pages only. A judgment in accordance with this opinion will be here entered. Wiest, McDonald, Clark, Bird, Sharpe, and .Steere, JJ., concurred. Moore, J., did not sit.	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Sharpe, J. On July 7, 1900, the defendant company issued to Walter S. Fillius a policy of life insurance in the sum of $1,000, in which the plaintiff, his mother, was named as beneficiary. The insured was unmarried. His occupation was that of a sailor on the Great Lakes. His mother received a letter from him, dated July 5, 1904, written at Sault Ste. Marie and directed to her at her home in St. Ignace. After a time the plaintiff and her husband, who was a marine engineer, tried to locate him, but were unable to do so. It appeared that he had made two trips on the steamer Douglas Houghton after July 5th, but left that steamer about September 1st at Ashtabula, Ohio, and no trace of him was thereafter found. It appears from the correspondence that, pursuant to proceedings taken by the plaintiff, the probate court of Mackinac county on March 8, 1915, declared the insured to be legally dead. In July, 1920, the attention of the home office of defendant was called to the disappearance of the insured. Proofs indicated by the facts above stated were furnished. The company finally declined to pay the full amount of the policy, but, as a compromise, wrote that it was— “willing to pay such an amount as would have been payable at the end of the endowment term if the assured were living; namely, $36.00,” and $50 in addition thereto. This action to recover was commenced on March 7, 1921. Trial was had before the court without a jury. Findings of fact and conclusions of law were filed. To these defendant prepared certain amendments and filed exceptions. A judgment was entered for the face of the policy and interest from the commencement of suit, $1,041.66, which defendant here reviews by writ of error. We consider the assignments discussed by counsel. Presumption of Death. Section 329, 1 Comp. Laws 1915, provides: “If any person shall' disappear and his whereabouts remain unknown for the space of seven years, and no knowledge of such person can be procured for such space of seven years, he shall be presumed to be dead.” * * * We have not assumed to set out in full the proof offered by plaintiff tending to show that the insured had disappeared and that his whereabouts' remained unknown. In our opinion it fully justified the finding that he was presumed to be dead. 17 C. J. p. 1166; John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 41; Bailey v. Bailey, 36 Mich. 181; Samberg v. Knights of Maccabees, 158 Mich. 568 (133 Am. St. Rep. 396); Woolfitt v. Histed, 208 Mich. 308; Ferrand v. Reserve Ass’n, 217 Mich. 441; 5 Joyce on Insurance (2d Ed.), § 3772. Statute of Limitations. The plea gave notice of the defense of the statute of limitations. Under section 12323, 3 Comp. Laws 1915, an action on this policy must have been commenced— “within six years next after the causes of action shall accrue, and not afterward, except as hereinafter provided.” Section 12327 provides: “If at the time when any cause of action shall accrue against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into this State.” * * * The purpose of this section is to secure to the plaintiff the same time in which to commence his action against an absent or nonresident defendant that he would have if the defendant were an actual resident of the State. Gray v. Jones, 80 Mich. 504. Both absence and nonresidence where defendant is a nonresident are necessary to suspend the operation of the statute. Campbell v. White, 22 Mich. 178; Belden v. Blackman, 124 Mich. 667. At the end of the seven-year period after the disappearance of the insured, he was in law “presumed to be dead.” Plaintiff’s right to institute proceedings on the policy then accrued. “A cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable.” Palmer v. Palmer, 36 Mich. 487, 494 (24 Am. Rep. 605). “It may well be held that the cause of action accrues to a plaintiff at the earliest time when he may, of his own volition, institute proceedings.” In re King’s Estate, 94 Mich. 411, 428. The statute would therefore have commenced to run in 1911 and would be a bar, unless the cause of action is saved by the provision in section 12327. Defendant claims that the declaration, which avers the disappearance of the insured in 1904, and the fact that under the statute he was presumed to be legally dead seven years thereafter, show prima facie that her cause of action is barred by the statute, and calls attention to the rule: “Where it appears that the cause of action is prima fade barred, the burden of proof is upon the party seeking to enforce the cause of action to show facts taking his case out of the operation of the statute.” 8 Encyclopedia of Evidence, p. 320. This rule is supported by our own cases. Ayres v. Hubbard, 71 Mich. 594, and Belden v. Blackman, supra. See, also, 25 Cyc. p. 1425. The difficulty in here applying it is that we must conclude that the prima facie case made by plaintiff shows that the cause of action was barred. A copy of the summons by which the action was commenced does not appear in the record. The title to the cause as stated in both the declaration and plea describes the defendant as a foreign corporation. In the policy offered in evidence by plaintiff it is described as the “¿Etna Life Insurance Company of Hartford, Connecticut.” It thus appeared on the face of the proceedings that defendant was a foreign corporation at the time the contract was entered into and also at the time the action was commenced. To set the statute of limitations in motion, it must appear that defendant had complied with the statutory provision for service of process upon it in this State. 2 Comp. Laws 1915, § 9280; Act No. 256, Pub. Acts 1917, part 2, chapter 2, § 4 (Comp. Laws Supp. 1922, § 9100 [69]). It would then be considered, for the purpose of being sued, as domiciled within the State. 25 Cyc. p. 908. The record contains no proof that defendant had become domiciled by complying with these statutes. The fact that it issued this policy in 1900, coupled with the further fact that plaintiff was enabled to obtain service on it in 1921, in our opinion raises no presumption that it was domiciled in the State in 1911 or thereafter before 1921. The rule is thus stated in 14A C. J. p. 1402: “To entitle a corporation to the benefit of the statute of limitations of a State other than that of its creation, it must affirmatively appear that it maintained an agent in such State upon whom service of process could have been made during the time necessary for the action to become barred. No presumption will be indulged that the corporation has been at all times amenable to process so as to enable it to take advantage of the domestic statute of limitations.” It is supported by our own cases. Conrad v. Nall, 24 Mich. 275; Campbell v. White, supra; Sproat v. Hall, 189 Mich. 28. See, also, Hubbard v. Mortgage Co., 14 Ill. App. 40; Taylor v. Union Pacific R. Co., 123 Fed. 155; Pierce v. Southern Pacific Co., 120 Cal. 156 (40 L. R. A. 350). The burden was. on defendant to show that it was domiciled in this State. Plaintiff’s claim was not barred on the proofs submitted. Proofs of Loss. It is insisted that the neglect to submit proofs of death within a reasonable time after the insured was presumed to be dead bars recovery. The policy provides for payment in the event of the death of the insured, “on surrender of this policy * * * within sixty days after satisfactory proof of the death of the said insured.” It contains no stipulation as to the time after death when such proof must be furnished. Section 4 of Circuit Court Rule No. 23 provides: “In a suit upon a policy of insurance, if the defendant shall rely, in whole or in part, upon any breach of any of the conditions, agreements, representations or warranties of the policy or application therefor, or upon the failure to perform or make good any promise, representation or warranty, or upon the failure to furnish any proof of loss, as required by the policy, there shall be added to the plea a notice plainly indicating the nature of the defense relied upon.” No notice of this defense was given. After the proofs were closed and after defendant’s counsel had moved for a directed verdict in favor of their client, they asked the court for permission to amend the plea to give notice of this defense. The motion was denied, the court holding that— “it does not appear to the court that the defendant has lost anything — lost any means of defense — or has súffered any other actual disability because of the delay ; and I do not think that the amendment would be in furtherance of justice.” While error is assigned upon the denial of the motion for leave to amend, counsel do not discuss it in their brief. Our statute of amendments (3 Comp. Laws 1915, § 12478) permits amendments to pleadings “for the furtherance of justice” at any time before judgment rendered. The defense sought to be interposed in no way affected the merits of plaintiff’s claim. The denial of the motion was within the discretion of the trial court and will not be reviewed by this court. Ripley v. Davis, 15 Mich. 75 (90 Am. Dec. 262); Shank v. Woodworth, 111 Mich. 642. Objections to Testimony. Objection was made to the introduction of certain letters claimed by plaintiff to establish a waiver. As the trial court did not base any .conclusion of law,' nor do we, on the waiver of any rights by the defendant, the admission of the letters, even if erroneous, constitutes no ground for reversal. We have considered all the assignments discussed by counsel. No reversible error appearing, the judgment entered is affirmed. Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. FELLOWS, C. J., concurred in the result. Moore, J., did not sit.	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Sharpe, J. Samuel F. Dobbins, late of the city of Marshall, executed a last will and testament on December 28, 1911. He died on February 21, 1917. In the sixth paragraph of the will he provided that all his estate, except as to sums theretofore specifically bequeathed, should be turned over to plaintiffs as trustees, to be administered as thereafter provided. In the ninth paragraph he directed that— “the net rents, issues and profits arising from said trust estate (except dividends, if any, paid upon the stock of the Marshall Furnace Co. belonging to said estate), be divided equally, share and share alike, in each year, among Dale M. Dobbins, Charles W. Dobbins and Samuel F. Dobbins, Jr., my said three sons,” with provision in the event of their death. The paragraph concluded: “All dividends accruing to my said trust estate from stock by it held in said Marshall Furnace Company shall be treated as a part of the corpus of said estate, and shall not be included in the annual distribution above provided, but shall be placed upon interest as hereinafter provided, and the interest arising therefrom shall be included in computing and making up the sum for such annual distribution.” The eleventh paragraph reads as follows: “At the end of a period of five (5) years after the date of my decease, I hereby direct that forty-five (45) per cent, of the stock of said Marshall Furnace Company, of which I may die seized or* possessed, and then belonging to said trust estate, shall be' apportioned as follows: One-third (1/3) of said forty-five (45) per cent, of the said stock shall be immediately assigned and delivered by my said trustees to my son, Dale M. Dobbins, to then become his absolute property; one-third (1/3) of said forty-five (45) per cent, of said stock shall be immediately assigned and delivered by my said trustees to my son, Charles W. Dobbins, to then become his absolute property; one-third (1/3) of said forty-five (45) per cent, of said stock shall be immediately set aside (but shall not be assigned), and the income therefrom shall thereafter be paid annually by my said trustees to my said son, Samuel F. Dobbins, Jr., during his lifetime (but the said stock shall not become his property), and upon the decease of my said son, leaving issue him surviving, said stock shall be by my said trustees immediately assigned and delivered absolutely to such surviving issue of my said son, Samuel F. Dobbins, Jr. In case said Samuel F. Dobbins, Jr., shall leave no issue him surviving, then, upon his decease, the said stock shall be immediately transferred and delivered by my said trustees to my sons, Dale M. Dobbins and Charles W. Dobbins, in equal shares, or to the survivor of them if either of them shall have deceased without issue; and in case either of them shall have deceased, leaving issue, then such issue shall take the share of such deceased son by right of representation. In case either said Dale M. Dobbins, or said Charles W. Dobbins shall decease without surviving issue prior to said forty-five (45) per cent, of apportionment of said stock, then the survivor of them shall receive the portion of stock which otherwise would have been taken by such deceased son. In case of death of either said Dale M. Dobbins or Charles W. Dobbins, leaving issue, then such issue, if still surviving, shall take the share of his father by right of representation.” The fourteenth paragraph reads: “I further direct my executors hereunder and my said trustees not to sell or otherwise dispose of any of the stock of said Marshall Furnace Company forming a portion of said trust estate, except in the event that such sale shall be absolutely necessary to meet the debts and necessary expenses of said estate after all other available assets thereof, of every nature whatsoever, shall have first been exhausted.” At the time of his death testator owned 1,070 shares of stock in the Marshall- Furnace Company. On February 21,1922, when the five-year period mentioned in the eleventh paragraph of the will expired, one-third of 45 per cent, of this stock (160.5 shares) was set apart as a separate trust fund, the income of which was payable to Samuel F. Dobbins, Jr. On May 24, 1922, a stock dividend of 30 per cent, was declared from surplus accumulated prior to February 21st of that year, no profits having been made between those dates. The plaintiffs, as trustees, seek direction as to the manner in which this stock dividend shall be dealt with by them. Samuel F. Dobbins, Jr., claims that it is to be treated as income upon the stock held in trust for him and as such turned over to him by the trustees. The two brothers, though not made parties, appeared voluntarily and express consent that it be so treated. The trial court held that the stock dividend belonged to the corpus of the trust fund, to be held intact for the remaindermen. The decree, in accordance with this holding, provided: “That said 48.15 shares arising from said stock dividend be held together with, and as a part of, said separate trust fund of one hundred sixty and one-half (I6Q14) shares in the hands of said trustees, and that said defendant be paid the dividends arising thereon, if any, hereafter declared and paid thereon out of profits of said Marshall Furnace Company earned subsequently to the 21st day of February, 1922, for and during the period of his natural life, and that the corpus of said separate trust fund so constituted, aggregating 208.65 shares, be held by said trustees, intact, for the benefit of the remaindermen, as in said will provided.” Samuel F. Dobbins, Jr., appeals. Counsel agree that if application of the dividend be made as matter of law, the authorities, as pointed out in Poole v. Union Trust Co., 191 Mich. 162 (Ann. Cas. 1918E, 622), are not in harmony. But they also agree, as was there held, that the application should be made by reference to the will itself if the intent of the testator can be ascertained therefrom. In the ninth paragraph specific provision is made as to what shall be done with “dividends accruing” from stock of the furnace company held by the trustees. It “shall be treated as a part of the corpus of said estate.” The interest thereon was to be included in making up the annual sum to which each of the three brothers was entitled by distribution. Each of them would receive the same distributive share. In the eleventh paragraph provision is made for the distribution of 45 per cent, of the stock held in the furnace company “at the end of a period of five years” after the death of the testator. The trustees then held 1,070 shares of such stock; 45 per cent, thereof was 481.5 shares. Dale and Charles were each entitled to, and the trustees assigned and delivered to each of them, 160.5 shares. The desire that the three brothers should receive the same amount of income is again clearly apparent. The remaining 160.5 shares are set apart in a separate trust fund, the income therefrom to be “paid annually” to Samuel. The only preference accorded to Dale and Charles over Samuel was in the vesting of the title in them of the shares assigned to them. They might, if they so chose, dispose of them at any time. The only money income which could be received from this stock was the amount of the cash dividends which might from time to time be paid by the furnace company. Without discussing or deciding whether a stock dividend is income, we are impressed that the income to which Samuel was entitled from the stock held in trust by the trustees was cash income only. It was the purpose of the testator to provide for the subsistence of this son by securing to him the moneys which the trustees should receive as income or profits from the stock set aside for that purpose. The entire will discloses a fixed purpose on his part to so provide that the stock of the furnace company shall be kept by the trustees during the five-year period, and thereafter by them and his sons Dale and Charles so that control of the affairs of the furnace company by them should at all times be secured. This purpose is evidenced by the tenth paragraph in which he attempted “to create and direct a testamentary voting trust,” the legal effect of which was considered in Billings v. Marshall Furnace Co., 210 Mich. 1 (9 A. L. R. 1239), wherein this section is quoted. It seems clearly to have been his intent that Samuel should not have any of this stock within his control so that it might be disposed of by him. To hold that he was entitled to the stock issued as a dividend would place him. in a position to dispose of it and thus defeat the plain intent of the testator as evidenced by a consideration of the entire will. The decree is affirmed. No costs are allowed. The costs and expenses of the trustees on this appeal will be paid out of the general trust fund of said estate in their hands as an expense of administration. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit.	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Clark, L Defendant’s wife left him against his. will and accepted employment as a waitress in a. restaurant in Detroit. She was a friend and companion of the head waitress, Lena Belle Collins. Defendant was jealous. Being troubled by reports of •misconduct of his wife and of her 'associating with Mrs. Collins, he sought an interview at the restaurant.. When refused he left, returned shortly with a pistol* entered the restaurant, shot but did not kill Mrs, Collins, shot and killed his wife, and attempted suicidé. In a trial for murder of his wife he was acquitted, the defense being insanity. For shooting Mrs. Collins, he was charged with and convicted of assault with intent to kill and murder. There was a like defense. Judgment was entered. Defendant brings error. Na serious question is presented. Judge Heston sat in the trial of defendant on the charge of murder. At the opening of the instant trial defendant’s counsel objected to Judge Heston’s sitting “on account of the remarks alleged to have been made by Your Honor to the jury after the last acquittal and printed in the several newspapers of the city.” The objection was overruled. For having sat in the former trial, the judge was not disqualified. See People v. Ferrise, 219 Mich. 471. It is said that a heading of the record will indicate prejudice on the part of the judge. We do "not so find. The record shows commendable fairness and impartiality on his part. It is urged that in this trial the court erred in receiving testimony that defendant after shooting Mrs. Collins also shot his wife. It was properly received as a part of the res gestas and to characterize the act charged. And defendant contends that proper instruction was not given relative to the consideration of such testimony. But the jury was instructed: “Now, gentlemen of the jury, we are trying this defendant for assault with intent to kill and murder Lena Belle Collins on June 5th, and that is the only charge preferred against him here. You are to determine that one question, and that question alone.” The contention is therefore without merit. In opening, the prosecuting attorney said it would-be shown that defendant after shooting the others attempted to take “his own worthless life.” Objection being made, the court stated that the word “worthless” was improper and ordered it stricken. Of the remark the prosecuting attorney later said: “I submit that was corrected at the time and stricken from the record, and I duly apologized for it, and I am sorry that I made it.” The incident does not constitute reversible error. We have considered the other questions raised. No reversible error appears. The judgment is affirmed. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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Wiest, J. Bill to restrain defendant company and its incorporators from doing business under the same name as the defunct corporation of which plaintiff is receiver, and from receiving any mail addressed to the Haney School Furniture Company. The defendants, by answer, set up the dissolution of the old corporation, asserted the right to take the name because there was no existing corporation of such name, denied the power of the court to appoint a receiver, and denied the material averments in plaintiff’s bill. Upon the bill and answer a temporary injunction was granted, awarding plaintiff all the restraint possible under a final decree. Defendants bring the case here by appeal. Plaintiff moved for a dismissal of the appeal, but in the brief filed waives such motion. The Haney School Furniture Company, of which plaintiff is receiver, was incorporated June 7, 1889, and its charter expired by limitation and no reorganization on June 7,1919. Plaintiff was appointed temporary receiver of that company April 17, 1922, and permanent receiver May 22, 1922. June 20, 1922, the defendant Haney School Furniture Company was organized by articles of incorporation duly filed. Plaintiff claims: “First. That defendants are guilty of actual fraud, which may be restrained by a court of equity. “Second. That defendants have violated their duty to the public for the purpose of confusing said company and its product with the company under receivership, and its product. “Third. That this trade name and good will are assets which equitably belong to the creditors of said company. “Fourth. That defendants’ use of said name would result in unfair competition as against plaintiff as receiver of said Haney School Furniture Company.” The injunction cannot stand unless it can be held that the right to the corporate name as representative of an existing good will is an asset in the hands of the receiver and capable of being sold. The corporation was a creature of the law, and when it finished the course fixed by law its name was no longer that of an existing corporation. The bill shows no exclusive products to which the name has attached a trade meaning. Defendants have a right to manufacture the same products at will. The purpose of defendants in taking the name is immaterial if they have kept within the law. It is said the defendants have seized the name to fool the public. If so, that fact is of no concern to the receiver unless it interferes with something he can sell and pass to others. The receiver cannot carry on the business of the old corporation, and, therefore, it is inconceivable that defendants’ use of the name will result in unfair competition as against plaintiff as receiver. From June, 1919, to June, 1922, the corporation continued as a body corporate only for the purpose of prosecuting and defending suits by or against it, to gradually settle and close its affairs, and to dispose of and convey its property, but not for the purpose of continuing the business for which it was organized (3 Comp. Laws 1915, § 11335; Comp. Laws Supp. 1922, § 9053 [32]). After the expiration of the three-year period of grace the old company was an extinguished entity incapable of transacting the business for which it was organized or of possessing a business with a good will or corporate trade name. The name did not survive the business of which it was but a permitted designation. The books are full of cases like those cited by plaintiff, enjoining the taking of the name of an existing corporation. Our statute forbids it (2 Comp. Laws 1915, § 9018, subd. 1; Comp. Laws Supp. 1922, § 9053 [13]). It must, however, be the name of an existing corporation. No case has been cited, and our search has revealed none, like the one at bar. The point relative to the name was mentioned in People v. Sticky Fly Paper Co., 144 Mich. 221, but was not decided, and was urged in State, ex rel. New Arlington Hotel Co., v. Hinkle, 115 Wash. 298 (197 Pac. 4), but was not decided. See, also, 14 C. J. p. 332; 14A C. J. p. 1099; Metropolitan, etc., Telegraph Co. v. Metropolitan, etc., Telegraph Co., 156 App. Div. 577 (141 N. Y. Supp. 598). To invoke redress there must be an existing corporation with invaded rights, or with rights of creditors to be worked out in the process of dissolution. The corporation was stricken with the paralysis of certain dissolution, June 7, 1919, for thereafter it could not continue the business for which it was organized, but was given three years in which to wind up its affairs. Notice of its dissolution by reason of termination of its existence by limitation was required to be filed with the secretary of State by a , majority of the members of the last board of directors. Comp. Laws Supp. 1922, § 9053 (33). We assume from the allegations of the bill that the receiver was appointed under the provisions of 3 Comp. Laws 1915, § 13571 et seq., relating to the winding up of the affairs of a corporation whose term of existence, as fixed by its articles of association, and whose further term for winding up its business allowed by law has expired. While this statute grants power to appoint a receiver, and speaks of the corporation, it is not an extension of the corporate existence beyond the three-year period allowed by law for winding upt its affairs. The protection of a trade name extends only to the party entitled to use it in the trade. In Mayer, etc., Junk Co. v. Chemical Co., 35 App. Cas. D. C. 425, it was said: “The terms ‘good will’ and ‘business’ are not synonymous. Good will, like a trademark, is but an incident to, and can have no existence apart from, the business in which it had its origin. ‘It is tangible only as an incident, as connected with a going concern or business having locality or name, and is not susceptible of being disposed of independently.’ Metropolitan Nat. Bank v. St. Louis Dispatch Co., 149 U. S. 436 (13 Sup. Ct. 944). In this case'the Southern Fertilizing Company wound up its affairs and abandoned its business. Necessarily, its good will became extinct. There was nothing tangible to which it might attach.” In the case at bar there was no piracy of the name. The old corporation selected the name for use in designating the entity so long as the entity legally existed and no longer. The old corporation no longer exists for any business purpose. Therefore, it can possess no good will because it can render no service to those entertaining a liking for its former products. Good will cannot exist without a going concern with a business capable of being continued to supply the wants of customers who have formed a liking for its output and management. There must be a running plant and the probable retention of customers to constitute good will. We recognize the value of good will to a going business, and its value as an asset in case of sale of such a business, but we cannot extend the holdings with reference to such recognized value to a business terminated by operation of law. The injunction restrained defendant company from receiving any mail addressed to the Haney School ^Furniture Company, and ordered such mail to be delivered to the plaintiff. Defendant is within its rights in the use of the name and it has a right to receive mail addressed to it, but mail received, if any, for the receiver must be turned where it belongs. Plaintiff moved to strike from the record certain so-called exhibits not before the circuit judge at the hearing. The record contains matter we cannot consider upon this appeal, and defendants' costs for printing the record will be limited to 19 pages. The temporary injunction should not have been granted, and is dissolved, and the case is remanded to the circuit court for such proceedings as plaintiff may be advised, not inconsistent with this opinion. Defendants will recover costs. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Fellows, C. J. Plaintiff is a corporation organized and existing under the laws of this State. On February 20, 1919, its board of directors directed its president to secure the approval of the Michigan securities commission of the sale of an additional stock issue and authorized its officers to sell such stock at par without commission. The securities commission approved the sale of the stock and the president of the company proceeded in an effort to sell the stock. He interested defendant and he agreed to purchase 50 shares of the par value of $10 per share and executed the following instrument: “April 1, 1920. “I hereby subscribe for 50 shares of the capital stock of the Peck Iron & Steel Works, a corporation organized under the Michigan laws, with a capital stock ($60,000) sixty thousand dollars, $40,000 of which is to be fully paid and non-assessable, of the par value of ten ($10) dollars per share, to be paid in the following manner: Fifty per cent, in five months and balance in six months from this date. (Signed) “E. F. Boomerscheim." Defendant refused to take or pay for the stock and this action was brought some time after the maturity date of the agreement. The trial resulted in a directed verdict, and judgment for the plaintiff. Several interesting questions are discussed by counsel which we do not deem it necessary to decide on the state of the record. Plaintiff’s counsel concede the general proposition urged by defendant’s counsel that a subscription for stock must be accepted by the corporation to make a binding contract, but insist that where, as appears by this record, the corporation offers the stock and the purchaser accepts the offer there need not be an acceptance of the acceptance; citing Southwestern Slate Co. v. Stephens, 139 Wis. 616 (120 N. W. 408, 29 L. R. A. [N. S.] 92, 131 Am. St. Rep. 1074). We need not decide this question as it was conceded on the trial that plaintiff’s president accepted the subscription and we come at once to the contention of defendant’s counsel that this was not sufficient, that there must be action by the board of directors accepting the subscription in order to make a binding contract. This question has been settled by this court adversely to defendant’s contention in the case of Toles v. Duplex Power Car Co., 219 Mich. 466, a case handed down since the trial of the instant case and which had not appeared in the Advance Sheets when appellant’s brief was filed. On defendant’s direct-examination he testified that it was represented to him that the company had orders enough and material on hand and business enough ahead so that he need not worry about paying for the stock, that the dividends would take care of it. Upon cross-examination he quite materially modified his claim as to what the representations were, and his cross-examination fairly ¿stablished that the statements as to anticipated dividends were based on anticipated new business and were promissory in character. In discussing a motion made by plaintiff’s counsel to strike out defendant’s testimony on the question of fraud, defendant’s counsel-insisted upon the right to go to the jury on that question based on defendant’s testimony in chief and the representations he then claimed had been made. The court then challenged his attention to the fact that the duty rested on him to establish the falsity of the representations: Defendant’s counsel did not offer to make such proof but insisted that the duty rested on the plaintiff to show what material and orders it had on hand at the time the stock was sold to defendant. The trial judge struck out the testimony and directed a verdict for plaintiff on the ground that the statements were promissory, basing his ruling on the cross-examination alone. We do not agree with his reasons, but the ruling was correct. We have frequently held that where the testimony of a witness given on cross-examination is in conflict with that given on direct-examination, it is for the jury to determine which, if either, version they will believe. But the burden rested on the defendant not only to establish that the representations were made but also to establish that they were false. Defendant made no proof that the representations were in fact false and offered no such proof when his attention was challenged to the rule. He can not under these circumstances complain of a ruling which withdrew the question of fraud from the. jury even though the reason for the ruling was erroneous. Defendant claimed that he had been released from the contract by the president of the company. The trial judge correctly held that there was no consideration for the release, and no proof that the president had authority to release defendant. Finding no reversible error on the record, we are constrained to affirm the judgment. Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred. Sharpe, J., did not sit.	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McDonald, J. This action is brought by the plaintiff, a banking institution of Covington, Kentucky, to recover on three promissory notes given by the defendants, payable to one Luther B. Watson, and discounted by him at plaintiff’s bank. The case has been to this court before and is reported in 207 Mich. 329. The facts are there fully stated. On the first trial there was a directed verdict for the plaintiff. The defendants appealed. The judgment of the circuit court was reversed because there was no evidence as to “when this account to the credit of which these notes were placed was drawn upon or exhausted; whether before or after the maturity of the notes, or before or after notice of the fraud, or protest.” At the close of the testimony in the instant case both parties moved for a directed verdict. The motions were denied and the case submitted to the jury. The verdict was for the defendants. Counsel for the plaintiff then made a motion for a judgment non obstante veredicto. This motion was denied, and judgment entered on the verdict. From this judgment the plaintiff appealed. In this record the evidence is undisputed that the bank took the notes and credited Mr. Watson’s account with the proceeds, amounting to $2,079.40, after which, with his consent, it charged his account with the indebtedness of the Jiffy Starter Company. This' left an overdraft in his account of $97.38, which he paid. All of this was done before the maturity of the notes, and before there was any notice of fraud or of protest. The notes were valid on their face. Under these circumstances, the bank was a purchaser in good faith and for value. The case is controlled by Fredonia Nat Bank v. Tommei, 131 Mich. 674, and by Central Savings Bank & Trust Co. v. Stotter, 207 Mich. 329, and cases cited therein. The claim that Mr. Watson was not an indorser on the notes of the Jiffy Starter Company, in payment of which the proceeds of the notes in question was applied, and that he was under no legal obligation to pay them, is without material bearing on the controlling question in the case. The bank claimed that he was under a moral obligation to pay them or to see that they were paid, because it was on the strength of his financial standing and his connection with that company that credit was extended. In any event, he consented that the proceeds of the notes in question should be used to discharge the indebtedness of the Jiffy Starter Company. In view of the undisputed testimony showing that the plaintiff was a good faith purchaser for value, it was the duty of the court to so hold as a matter of law, 'and to have. directed a verdict for the plaintiff. Failing in this, he should have entered a judgment for plaintiff non obstante veredicto. Because of this error the judgment is reversed, with costs to the plaintiff. The case is remanded and a judgment notwithstanding the verdict will be entered for the plaintiff by the circuit judge. Fellows, C. J., and- Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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T. M. Burns, P.J. On December 3, 1981, defendant was convicted of attempted breaking and entering an unoccupied dwelling, MCL 750.110, 750.92; MSA 28.305, 28.287, and of being a fourth-time felony offender, MCL 769.12; MSA 28.1084, and was subsequently sentenced to from 3 to 15 years imprisonment. He appeals as of right. During the early morning hours of August 5, 1981, two Michigan State Police Troopers and two Brighton City Police Officers received a report that a sporting goods store was being burglarized. After they arrived, they saw someone behind the store, running away from them. After a short chase, they caught the defendant. A door to the sporting goods store was standing open and both a nitrogen bottle and a motorcycle had been moved from their places. Nothing, however, was taken. Sometime previously, defendant had worked at the store. Defendant testified, on the other hand, that he had been hitchhiking that night when a car passed and some teenage boys had spit at him. After defendant responded with an obscene gesture, the car stopped and the teenagers started chasing defendant. He then hid behind the sporting goods store. However, the police arrived immediately and arrested him. Defendant was originally charged with breaking and entering an unoccupied dwelling with intent to commit larceny. MCL 750.110; MSA 28.305. In addition to charging the jury on both breaking and entering and attempted breaking and entering, the trial judge instructed the jury on entering without breaking. MCL 750.111; MSA 28.306. However, he refused to instruct the jury on either larceny in a building, MCL 750.360; MSA 28.592, or attempted larceny in a building. Defendant now claims that this refusal was erroneous. We agree. In People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), the Supreme Court ruled that: "If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error.” The trial court must always give an instruction for a necessarily lesser included offense and must give an instruction for a cognate lesser included offense if the evidence would support such a conviction. Id. Larceny in a building is a cognate lesser included offense of breaking and entering with intent to commit larceny. People v Brager, 406 Mich 1004; 280 NW2d 826 (1979). The elements of larceny in a building are: 1) an actual or constructive taking, 2) an asportation, 3) with a felonious intent, 4) of someone else’s property, 5) without that person’s consent, 6) in a building. People v Phebus, 116 Mich App 416; 323 NW2d 423 (1982); People v Wilbourne, 44 Mich App 376, 378; 205 NW2d 250 (1973). In the present case, all six elements were shown. The sporting goods store is a building; the store’s owner testified that not only did he not give anyone his consent to take anything but the property in the store was his. As such, the felonious intent can be inferred. The evidence also shows that a motorcycle was moved. Moving it supplied both the actual taking and the asportation elements. A person need not remove the item from the building to be guilty of this offense. People v Fisher, 32 Mich App 28, 32-33; 188 NW2d 75 (1971). Abandoning the property is not a defense. People v Bradovich, 305 Mich 329; 9 NW2d 560 (1943); People v Patricia Williams, 63 Mich App 531; 234 NW2d 689 (1975). Therefore, if defendant had originally been charged with and then convicted of larceny in a building, the evidence would have been sufficient to convict. On the other hand, attempted larceny in a building is a necessarily lesser included offense of breaking and entering with intent to commit larceny. People v Page, 73 Mich App 667; 252 NW2d 239 (1977). As such: "The elements of attempted larceny in a building are: (1) felonious intent to commit a larceny; and (2) an overt act of going beyond mere preparation. "Analyzing the elements, the felonious intent is the same, and the overt act can be the breaking and entering. The greater offense is completed upon the breaking and entering, while the lesser upon an overt act.” People v Keatts, 54 Mich App 618, 623; 221 NW2d 455 (1974) (Bashara, P.J., dissenting), rev’d 396 Mich 803; 237 NW2d 474 (1976). Since it is a necessarily lesser included offense, the trial court was bound to give it without looking at the evidence. Ora Jones, supra, 395 Mich 390; People v Wilkinson, 76 Mich App 109; 256 NW2d 48 (1977). Therefore, the issue is whether or not the failure to give the requested instructions for larceny in a building and for attempted larceny in a building is reversible rather than harmless error. We will analyze only the attempted larceny in a building question in this case. The case closest to the present is People v Trout, 95 Mich App 163; 290 NW2d 109 (1980). The defendant was charged with and convicted of breaking and entering an occupied dwelling. The trial court gave additional instructions for attempted breaking and entering, breaking and entering an unoccupied dwelling, and entering without breaking. However, it refused to give instructions for attempted larceny in a building, attempted breaking and entering an unoccupied dwelling, and attempted entering without breaking. Relying on People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977), this Court found harmless error. In Herbert Ross, this Court had ruled: "If the jury had doubts about defendant’s guilt of the charged offense but believed him to be guilty of some wrongdoing they could have found him guilty of one of the lesser offenses. They did not do so. We must conclude, therefore, that the jury had no reasonable doubt as to the defendant’s guilt of the charged offense.” 73 Mich App 592. See also People v Meyers (On Remand), 124 Mich App 148; 335 NW2d 189 (1983); People v Flinnon, 78 Mich App 380; 260 NW2d 106 (1977). A few months after Trout was released, the Supreme Court decided People v Richardson, 409 Mich 126; 293 NW2d 332 (1980). There, the defendant was charged with and convicted of first-degree murder. The trial court had instructed additionally on second-degree murder and voluntary manslaughter but had refused to instruct on the reckless use of a firearm or on involuntary manslaughter. Defendant testified that the gun had discharged accidentally. The Supreme Court reversed finding that, even though defendant claimed that he was not guilty of any crime, the failure to give the two requested instructions foreclosed from the jury the option of convicting him according to his own testimony. Recently in People v Rochowiak, 416 Mich 235; 330 NW2d 669 (1982), the defendant was tried and convicted of second-degree murder. Although the trial court gave an additional instruction for involuntary manslaughter, it refused to instruct for careless, reckless or negligent use of a firearm resulting in injury or death. In a 3 to 2 decision, the Supreme Court reversed: "While the arguments that it is highly unlikely that the jury would have convicted of reckless use and that Rochowiak’s theory of the case was presented to and rejected by the jury are most compelling, we are persuaded that had the jury been instructed on reckless use, in addition to involuntary manslaughter, it might have better understood Rochowiak’s theory, and have returned a verdict of guilty of involuntary manslaughter.” 416 Mich 247. The Supreme Court then established the following test for whether or not the failure to give an instruction for lesser included offenses is harmless: "The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with the defendant’s theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use, assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault).” 416 Mich 248-249. After reviewing both this Court’s and the Supreme Court’s decisions in this area, we find that the failure to give these instructions in fact prejudiced defendant. First, defendant was not convicted of the charged offense, breaking and entering, but instead of attempted breaking and entering, a five-year felony. It too strongly strains the cognate-lesser-included-offense doctrine to say that entering without breaking is in fact a lesser included offense of attempted breaking and entering. The jury was not really given a choice between the offense convicted of and the lesser included offenses for which instructions were denied. Therefore, we cannot say that the jury could have compromised on a lesser included offense if it had had any doubts about defendant’s guilt. In fact, after looking at the evidence in this case, the jury clearly compromised as it is. Second, defendant argued that he never entered the building. Only two of the five requested instructions fit this version — attempted breaking and entering and attempted larceny in a building. In People v Chamblis, 395 Mich 408, 423; 236 NW2d 473 (1975), the Supreme Court stated: "The fact that the evidence would also support conviction of the greater charged offense would not preclude the giving of the lesser included offense instructions.” In other words, the jury, the conscience of the community, may convict of the lesser offense even if the evidence more clearly shows that the defendant should instead be convicted of the charged offense. In People v Marshall, 115 Mich App 433; 320 NW2d 396 (1982), and in People v Baker #2, 103 Mich App 704; 304 NW2d 262 (1981), held in abeyance 412 Mich 859 (1982), this Court found harmless error where each trial court had instructed for an offense compatible with each defendant’s theory of defense and degree of culpability. In the present case, the jury did not reject any such offense. We conclude that defendant was denied a fair trial. Defendant next argues that he was also denied a fair trial when the trial court tape-recorded all of the jury instructions and sent the tape for the jury during deliberations. In People v Medrano, 101 Mich App 577; 300 NW2d 636 (1980), this Court affirmed where the trial court had sent a written copy of the instructions for the jury during deliberations. After it noted that the majority of jurisdictions allow such a practice, it cautioned against its use because the Supreme Court has not yet sanctioned it. But it affirmed because it failed to find prejudice in that particular case. In People v Small, 120 Mich App 442; 327 NW2d 504 (1982), this Court affirmed where the trial court sent a taped copy of the instructions for the jury during deliberations. The same result was reáched in United States v Braverman, 552 F2d 218 (CA 7, 1975), cert den 423 US 985; 96 S Ct 392; 46 L Ed 2d 302 (1975); United States v Homan, 680 F2d 1340 (CA 11, 1982); and United States v Watson, 669 F2d 1374, 1386 (CA 11, 1982): "When the jury is cautioned to consider the charge as a whole and the jury charge is accurate and complete, reversal solely because a taped or a written charge was provided to the jury is not warranted.” Although we are following these decisions, we, like they, caution against using this procedure before the Supreme Court specifically allows it. In Medrano, this Court noted: "The usefulness of written instructions is obvious. Even in simple cases, instructions tend to be long and complex, and it may be unreasonable to expect oral instructions to be fully remembered. Access to written instructions could promote jury efficiency by saving the time spent in recollection and debate over what the instructions were. * * * On the other hand, it is conceivable that written instructions might needlessly prolong deliberations. Jurors could endlessly reread a charge, debating real or imagined legal distinctions. Access could also cause undue weight to be given to particular portions of a charge.” 101 Mich App 584. These potential problems are more prevalent when using a tape recording. When using written instructions, the jury can receive a visual overview. Of course, this is impossible with a tape recording. The jury could very easily listen to only part of the instructions and unduly emphasize some part of the instructions. Therefore, we join Medrano and Small in recomménding that this procedure not be followed: "The better practice, if the trial court is faced with voluminous instructions and considers it too burdensome to repeat them, would be to contemporaneously tape-record the instructions when given in open court, then call the jury back into the courtroom to replay the instructions if the court deems it necessary. This practice would provide a record of the specific purpose to which the tape recordings were applied.” Small, 120 Mich App 445-446. Defendant next argues that the verdict card improperly imposed an order of deliberation on the jury and therefore violated his presumption of innocence. The Verdict card first listed the breaking and entering charge, then attempted breaking and entering, then breaking without entering, and last not guilty. However, we cannot believe that the order violated defendant’s presumption of innocence. At most, the verdict card, taken along with the jury instructions, suggested an order of consideration. This is not error. People v Handley, 415 Mich 356; 329 NW2d 710 (1982). Defendant last argues that he should have been charged as a second-felony offender rather than as a fourth-felony offender. The first two prior convictions were for two breaking and enterings; both occurred on October 28, 1978. Defendant claims that, because both of these breaking and enterings were from the same criminal spree, they grew out of the same transaction. A defendant may not be convicted as a third-felony offender if the two previous convictions involved one time, place, and subject and required the same evidence to convict of both. People v Lowenstein, 309 Mich 94, 100-101; 14 NW2d 794 (1944); People v Carson, 115 Mich App 202, 205; 320 NW2d 343 (1982); People v Ross, 84 Mich App 218; 269 NW2d 532 (1978). However, in the present case, as in People v Sears, 124 Mich App 735; 336 NW2d 210 (1983), and in People v Chaplin, 102 Mich App 748; 302 NW2d 569 (1980), rev’d on other grounds 412 Mich 219; 313 NW2d 899 (1981), the two prior convictions, although obtained on the same day, arose from separate transactions at different times and places and were provable through different testimony. They both could properly be used in a habitual offender information. Defendant also contends that the third prior conviction should not have been used because it was merely a two-year misdemeanor. However, this issue has been decided against defendant. People v Rice, 101 Mich App 1; 300 NW2d 428 (1980), rev’d on other grounds 411 Mich 883; 306 NW2d 102 (1981); People v Davis, 89 Mich App 588; 280 NW2d 604 (1979). ' Pursuant to People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), defendant’s convictions for attempted breaking and entering with intent to commit larceny and fourth-felony offender are vacated and this case is remanded with instructions to enter convictions for attempted larceny in a building and fourth-felony offender. If the prose cutor is persuaded that the ends of justice would be better served, the trial court, if notified before sentencing, shall vacate the attempted larceny and fourth-felony offender convictions, and grant a new trial on the attempted breaking and entering and fourth-felony-offender charges. Reversed and remanded with instructions to proceed according to this opinion. We do not understand that People v Robert Brown, 72 Mich App 749; 250 NW2d 522 (1976), concluded that attempted larceny in a building is not a lesser included offense of breaking and entering with intent to commit larceny. However, we choose to follow Page instead. People v Keatts, 396 Mich 803; 237 NW2d 474 (1976). Furthermore, the Robert Brown opinion also concluded that larceny in a building is not a lesser included offense of breaking and entering with intent to commit larceny. This holding was overruled in Brager, supra, and People v Kamin, 405 Mich 482, 496; 275 NW2d 777 (1979). Although the Court in Richardson, supra, found that the failure to instruct the jury on two lesser offenses was reversible error, we believe that Trout, supra, is distinguishable and our opinion in no way questions the continuing validity of Trout. Actually, only two Justices endorsed the reasoning of the majority opinion. He actually testified that he was not guilty of any of the charged offenses. But he clearly claimed that he never entered the building. Accordingly, this case is analogous to Richardson, supra. See Anno: Propriety and prejudicial effect of sending written instructions with retiring jury in criminal case, 91 ALR3d 382 (1979). Contra, Cornett v State, 436 NE2d 765 (Ind, 1982). In the present case, the trial court instructed: "You should consider all the instructions as a connected series, which together form the law you are to follow, and should not pick out one or some instructions and disregard the others.” We also note that the trial court did instruct on the presumption of innocence. Even though attempted larceny is a two-year misdemeanor, People v Frost, 120 Mich App 328; 328 NW2d 44 (1982), we do not need to vacate the conviction as a habitual criminal. People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979).	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Per Curiam. Plaintiffs appeal as of right from the trial court’s judgment of no cause of action rendered after a bench trial. Plaintiff Robert Mayer is a professional farmer of gladiolus. On April 9, 1979, one of plaintiffs’ farms suffered a devastating fire. Plaintiffs had been insured with defendant Hathaway Agency since 1974. Defendant Robert Kirkpatrick purchased the agency in 1976. Plaintiffs were insured through defendant Auto-Owners. After the fire Auto-Owners paid plaintiffs $301,000 and later authorized an additional $13,657 to cover loss of irrigation equipment. However, a loss of $180,000 was not covered by plaintiffs’ policy. Plaintiffs raise three issues on appeal. First, plaintiffs claim that the trial court erred in finding that Kirkpatrick was the agent of Auto-Owners and erred in finding that he was not negligent in handling plaintiffs’ insurance program. We cannot disturb these findings unless they are clearly erroneous. GCR 1963, 517.1. At trial, Kirkpatrick testified that he was an independent insurance agent and had the power to place insurance with various companies. An independent insurance agent, or insurance broker, is ordinarily the agent of the insured, not the insurer, 16 Appleman, Insurance Law & Practice, § 8722, pp 322-324., Kirkpatrick testified that he acted as the agent of the insured. Thus, we conclude that the trial court clearly erred in finding that Kirkpatrick was the agent of Auto-Owners. The court, however, did not clearly err in holding that Kirkpatrick was not negligent in handling plaintiffs’ insurance program. This issue may be analyzed under agency principles. Whether an agent has negligently dealt with the affairs of the principal depends upon the agreement with the principal, since the agreement defines the scope of the agent’s undertaking. 2 Restatement 2d, Agency, § 376, comment a, p 173. Plaintiffs alleged that Kirkpatrick failed to valúate properly plaintiffs’ buildings, personal property and commodities, resulting in inadequate insurance coverage. Kirkpatrick testified, however, that he never agreed to assume responsibility for assessing the value of these items. The testimony also shows, and the court so found, that Donald Mayer is an experienced businessman who would not assign the task of valuating his property to someone else. In light of this evidence, we cannot conclude that the trial court clearly erred in finding that Kirkpatrick was not negligent in handling plaintiffs’ insurance program. Second, the plaintiffs maintain that the trial court clearly erred in finding that Kirkpatrick had not misrepresented the nature of the fluctuating value coverage program. Donald Mayer testified that Kirkpatrick told him that this program would provide "blanket coverage” for items that fluctu ate. Kirkpatrick steadfastly maintained that Donald Mayer was aware that he had specific commodity coverage. Resolution of this factual issue depended upon the trial court’s assessment of the witnesses’ credibility. We give great weight to the trial court’s assessment of credibility and, on this record, perceive no reason for disturbing the court’s decision to believe Kirkpatrick’s testimony. Finally, plaintiffs argue that the trial court erred in finding that the language of the fluctuating value coverage endorsement was not ambiguous. Although ambiguous language in an insurance contract is always construed against the insurance company, Zurich Ins Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970), the question of whether an ambiguity exists is for the court, which may consider extrinsic facts. 17A CJS, Contracts, § 617, pp 1254-1256; Dykema v Muskegon Piston Ring Co, 348 Mich 129; 82 NW2d 467 (1957). The. only evidence tending to show ambiguity was Donald Mayer’s own testimony that he believed fluctuating value coverage to be nothing more than blanket coverage for fluctuating items. Against this testimony must be weighed Donald Mayer’s evident business acumen, his facility in adjusting his insurance needs periodically over the years in question, the specific language of the policy, the language of the endorsements referring to fluctuating inventory, Donald Mayer’s periodic alterations of his fluctuating value coverage, and Kirkpatrick’s own testimony that Donald Mayer knew exactly what he was getting. On this record, we cannot find that the trial court erred in ruling that the endorsement in question was not ambiguous. Affirmed. Costs to appellees.	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Wiest, J. A freshet in March,-1918, loosened the abutments to a highway bridge over Battle creek in the township of Brookfield, Eaton county, and let the bridge fall into the creek. The township officers closed the highway on each side of the creek, by erecting barriers at intersecting highways, and caused a temporary bridge to be constructed just north of the old bridge, with a detour or way from the highway to it, placed barriers across the highway near where the old bridge stood, and then removed the barriers at the intersecting highways. Plaintiff’s husband and his brother owned an automobile, and the evening of April 13, 1918, plaintiff and her husband, seated in the back of the automobile, with the brother as driver, and his intended beside him, started to drive to a dance, going over the highway in question. While driving at a rate of about 20 miles per hour the car approached the barrier at the west side of the old bridge opening. The driver did not notice any obstruction until about 5 feet from some old bridge planks across the road and he at once applied the emergency brakes but struck the planks, which turned the car completely around, threw plaintiff over into the opening where the bridge was out, and upon the ironwork of the old bridge where it lay in the creek, and then into the water, causing her serious injuries. She brought this suit to recover damages,.claiming the township was negligent in not placing a proper barrier at a reasonable and sufficient distance from the opening where the bridge had gone out, and in not maintaining red light signals of danger there in the nighttime. The testimony introduced in behalf of defendant tended to show that the detour from the roadway to the temporary bridge left the highway about 30 feet from the old bridge opening; that about 10 feet from the opening two or three planks were set on edge across the road, fastened to posts at each side and a pole placed across the road about waist high, resting on, the tops of the posts and a board nailed to the posts between the pole and the planks and across the road. No red light was placed at the barrier at night. The testimony in behalf of plaintiff tended to show that the detour was not observable at night, and was not indicated by any sign and the only visible objects in the highway, as one approached the old bridge opening, were planks lying flat across the road as though a part of the drive to the bridge, and placed within a few feet of the drop into the creek, and the danger was not, therefore, discoverable by the driver until the car was within five feet of the planks. Plaintiff had judgment and the case is here on writ of error. At the close of the proofs defendant moved for judgment on the ground that the driver of the car was guilty of negligencé, and such negligence was imputable to plaintiff; that the law required no warning by way of red lights at night, as the road was not closed, and that the barrier erected was sufficient. This motion was denied and the-issues submitted to the jury. Defendant, by requests to charge, and exceptions to the charge as given, brings before us all the pivotal questions in the case. Two witnesses gave testimony, without objection, relative to the position of the planks after the accident. When a third witness was asked about the position of the planks after the accident objection was made, and the question withdrawn, and counsel for defendant moved to strike out all such testimony on the subject. The court declined to do so. The position of the planks, after being struck by the car, could be of no aid to the jury, but we are not satisfied such testimony was harmful enough to constitute reversible error. The court instructed the jury: “I instruct you that that part of the highway wherein said bridge was washed away and from which a temporary road detoured from the east and west approaches thereof and around the north side thereof, was a closed road within the meaning of the statute, and it became and was the legal duty of said defendant through its officers to erect suitable barriers at the west and east ends of the closed portion and to conspicuously mark said barriers at night by red lights. It became and was also the duty of highway officials of said township having such work in charge to place notices in the form of plainly legible signs at either end of the closed portion of said highway to warn travelers along said highway of the dangerous condition thereof. And I instruct you further that the failure and neglect of said officials to comply with the above provisions of the statute is negligence on the part of said defendant township. “I instruct you that the evidence is undisputed in this case that the night was dark, that the highway to the west of said bridge was level and in good condition at the time of the accident, that the barriers were placed within a distance of from four to twelve feet from the west side of said opening into the river in said highway. It is further undisputed that no red lights were displayed at said barriers on the night in question or on any night previous thereto. _ I instruct you that this was not a compliance with the statute and constituted negligence on the part of the defendant township. “I instruct you further that the driver of said automobile was not bound to anticipate that the highway officials had been negligent in their duty or that they were approaching a dangerous condition of the highway. He had a right to assume, as does every driver of an automobile over an unfamiliar highway in this State, that if he was approaching a dangerous condition in said highway that the officials in charge would give him due and timely warning thereof. “I instruct you that if you find from the evidence that the driver when he approached said opening was in the exercise of ordinary care in the management of said automobile that plaintiff is entitled to recover.” It is insisted that this was error, and this brings up the principal question in the case. Act No. 165, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 4747 [19] et seq.), provides: “Section 1. The officials who may have in charge the work of constructing, improving or repairing roads in any county, good roads district or township in this State are hereby given authority to close any road or portion of any road, which is under process of construction, improvement or repair or upon which is located any bridge which is being constructed or repaired: Provided, That no road shall be deemed to be closed under the provisions of this act until suitable barriers have been erected at the ends of said road or of the closed portion thereof, and also at the point of intersection of such road or portion of highway with other roads. Said barriers shall be conspicuously marked at night by red lights. “Sec. 2. No road shall be closed under the provisions of this act until suitable detours around the same, or the closed portion thereof, are provided and are placed in reasonably safe and passable condition for traffic. Notices in the form of plainly legible signs shall be placed by the highway officials having such work in charge at either end of the closed high way or portion of highway and at such intermediate points along the detour, or detours, as may be necessary to plainly mark the same. Upon the completion of the work of construction, improvement or repair and as soon as the road or bridge constructed, im-i proved or repaired shall be in suitable condition for public travel, all barriers, marks and signs whatsoever erected under the provisions hereof shall be at once removed by the officials erecting or placing the same.” Defendant contends that with the detour and temporary bridge established the highway was not' closed within the meaning of the law. Authority is given to close a portion of any road “upon which is located any bridge which is being constructed or repaired.” With the bridge carried away there devolved upon defendant the imperative duty to close the approach to the pitfall created thereby. Does the provision of the statute requiring the barriers to be conspicuously marked at night by red lights apply only to barriers erected at the points of intersection with other roads? Necessity in each instance determines the portion of the road to be closed and the statute expressly recognizes necessity as a ruling guide in providing for the closing of a portion of the road. The statute serves two purposes; safeguards travelers and prevents intrusion upon roads under construction or repair. The going out of the bridge closed the road to travel at that point and the detour and temporary bridge were prepared in recognition of such fact. But, it is said, the road was not closed because the detour and temporary bridge permitted it to be used. This contention is answered by the provision in the statute that when any portion of a road is closed a detour shall be provided. The barriers erected across the roadway undoubtedly served to give warning in the daytime, but left discovery at night to the vigilance of one approaching over an apparently open highway. Boards and a pole across a road signal no warning when hidden by darkness; they, await discovery, but a red light at a barrier sends its warning of danger to meet every traveler. With good roads and fast moving vehicles the red light warning of danger, in case of obstruction or pitfall in the road, has become a necessity and the statute upon the subject is but a recognition of such need. With the bridge out the road was closed at that point, and the statute required a suitable barrier “conspicuously marked at night by red lights.” The failure to mark the barrier at night by red lights constituted negligence on defendant’s part, and the .circuit judge was right in so instructing the jury. The court also instructed the jury: “I instruct you that the township is not an insurer of the safety of persons traveling upon the highway, but is only required to keep and maintain the highway in a condition reasonably safe for public travel and if you find that the barriers erected by the defendant township at this point were sufficient to give reasonable notice to travelers on the highway that there was danger ahead, that the barriers across the highway at the point where this accident occurred were of ample size and so constructed as to be plainly visible to a person approaching from the west driving an automobile in the nighttime, provided the car was equipped with adequate lights, and the driver was watching the road in a careful manner and that it was observable at a sufficient distance ahead to enable, the driver of a car, equipped with adequate lights to have' seen the obstacle in time to have stopped, if he had his car under control, and that he could have seen this barrier had he looked, but that he did not see it until within about five feet of it and too late to stop and that the failure of the driver of this car to see this barrier until within five feet of it and too late to stop was negligence as a matter of law and this negligence is attributable to the plaintiff, she being a passenger of the car and that for this reason in case you so find, she cannot recover and your verdict should be for the defendant, no cause for action. “I instruct you that the law requires the driver of an automobile to have such lights as will show objects immediately in front of him and that he must have his machine under such control as not to run into obstructions that are visible in front of him in the highway and that if this barrier erected by the township was of such a nature that it was in plain sight and visible and the driver of the car in which plaintiff was riding, although he had sufficient lights, failed to observe the barrier and run into it and then into the river, that the defendant is not liable. “I instruct you that if the lights on the automobile in which defendant was riding were not sufficient to disclose barriers placed across the highway sufficient distance ahead to stop the car and avoid the obstruction, then the plaintiff cannot recover.” This related to the question of the contributory negligence of the driver of the car and the proximate cause of the accident and was favorable to defendant. The court instructed the jury that the negligence of the driver of the car, if he was negligent, was imputable to plaintiff. It appears that the car was driven without a license, and defendant requested the court to instruct the jury that such fact prevented recovery. This was properly refused. Spencer v. Phillips & Taylor, 219 Mich. 353. We find no reversible error, and the judgment is affirmed, with costs to plaintiff. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Fellows, C. J. The crucial questions in this case are of fact rather than of law. Plaintiff in his bill alleges former ownership of a house and lot in Highland Park and a vacant lot in Detroit which he alleges he was induced to convey to defendant for a half interest in a produce and teaming- business in Troy township, Oakland county, and that also relying on such representations he later purchased the other half of the business. He alleges in detail the representations he claims he relied upon and insists they were false and that he was defrauded out of his property. Defendant denies all the allegations of fraud and insists that he did not make the representations alleged, and that all statements made by him during the negotiations were true. Bessie O’Kelly is the wife of plaintiff. She asked and was granted permission to intervene in the case. She insists that the property conveyed by her husband was her property and asks that it be restored to her. The trial judge found the facts to be with the defendant. Plaintiff and the intervenor appeal although no brief has. been filed by plaintiff. We shall, however, consider both appeals. Plaintiff’s Appeal. A careful reading of this record convinces us that the trial judge was right and that the facts are as claimed by defendant. Mr. Davis had a fairly prosperous business which he expected to give up within a year on account of ill-health. The year prior to this transaction he did $28,000 of business; he so stated to plaintiff; he did not state to him that that amount was his profit for that year. He had regular customers; he told defendant who they were and what prices he was getting; the statements made by him with reference to the business were all true. Plaintiff admits his desire to purchase the business or an interest in it. He admits that for 30 or 40 days he was trying to induce defendant to sell to him. He says: “Yes, I had been about 30 or 40 days negotiating with Mr. Davis. I spent several nights there in an effort to induce him to sell the business. It took that long, about, for us to get together, we made several bargains but slipped' up on them. The bargains were started along about the last part of January, I think it was, about the middle of January when Mr. Davis started talking business. “Q. But the first part of January or the latter part of December, you kept on persuading, soliciting and requesting him to sell to you because he had made money enough in it? “A. Yes, sir, I sure did. I had stayed on the farm sometimes a day at a time, and talking with the help —Mrs. Blair, my wife’s friend Miss Strong, Dr. Bell, Mr. Sprung, and Mr. Davis.” The disinterested testimony shows conclusively that not only was he importuning defendant to sell but that he was importuning defendant’s employees to aid him in making the purchase and that both he and his wife went over the books and had full access to all the information desired. He says: “Mr. Davis offered me last year’s books to look over. I perhaps had them 4 or1 5 times of 20 to 30 minutes time. I had every opportunity to inquire of Miss Strong in connection with any item I was interested in particularly. I think she kept the books.” After securing a half interest in the business plaintiff opened negotiations for the other half interest, which he succeeded in purchasing on time. We are satisfied that defendant’s business was a prosperous one at the time he sold it to plaintiff but either through lack of sufficient working capital or mismanagement on the part of plaintiff or a change in times it proved unsuccessful in plaintiff’s hands. Plaintiff has not established the fraud alleged. The preponderance of the proof is with the defendant. The bill was properly dismissed. Intervenor’s Appeal. There being no fraud on the part of defendant in the transaction intervenor can not be awarded relief on that ground. But she claims that when she deeded the property to her husband she insisted that in the partnership contract between her husband and Mr. Davis which was prepared at the same time although not then signed by either, Mr. Davis being absent, there should be an agreement on Mr. Davis’ part not to engage in the same business. She claims that this clause was a material clause without which she would not have signed the deeds; that Mr. .Davis through his agent had knowledge that this clause was put in the partnership agreement upon her insistence; that such clause was afterwards stricken out by Mr. Davis and her husband, and that her husband was her agent, clothed with limited authority of which Mr. Davis had notice through his agent and that she is, therefore, entitled to the restitution of her property by Mr. Davis. We are not persuaded that intervenor’s claim can be sustained on this record. The disinterested testimony tends to show that this clause was inserted at the suggestion of the scrivener who drew the papers. Quite likely this claim is an afterthought on her part. But upon the record we do not see any reason to apply the doctrine of agency of the husband for the wife. The plaintiff was not acting as her agent. He was not acquiring the business for her but for himself. When defendant learned that the title to the property was in intervenor, he declined to have any dealings with her. Intervenor testifies: “He would have no business dealings with any woman whatever; he would not have anything to do with me.” She also says: “I owned the Highland Park property mentioned in the bill of complaint and also the vacant lot. I transferred them to my husband January 24, 1921.” It is unfortunate for intervenor that she deeded her property to her husband, unfortunate for them both that plaintiff failed to make the success of the busi ness that Mr. Davis had. But we fail to find any reason on this record which should require the defendant to respond to either of them. The decree will be affirmed, with costs of this court. Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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Fellows, J. This bill is filed for specific performance based on two writings known in the record as Exhibits A and B. Exhibit A is as follows: “Name of owner — Mrs. Chris Henning. “Address — 1452 Genesee avenue. “Description of property: Brick Building, 26x72 ft. 8 rooms upstairs, copper bath tub. Lot Gen. 150 ft. Holland 235, including blacksmith shop. Rent......................$10 Store......................$50 $60 $5,800 net to owner. 15 up. 35 down. Ass. $4500. Sale price $.................. Terms of sale — $2,000 down. “Welzeihn & Schulz, of Saginaw, Michigan, in consideration of their listing said property and endeavor ing to find a purchaser therefor, are granted the ex-elusive right to sell the same until 1st July, 1919, and said Welzeihn & Schulz are authorized to sell said property at the price, or prices, above named. In case of sale at the above named price and terms or at such other price and terms as may be agreed upon, said Welzeihn & Schulz shall retain or receive any amount exceeding five thousand eight hundred dollars. I agree to furnish abstract, tax history and merchantable title. “Dated Saginaw, Mich., April 30, 1919, “Signature: Mrs. Chr. Henning (Seal). “In presence of: if Exhibit B is as follows: “Saginaw, Michigan, May 12th, 1919. “Received of William C. Landskroener $100, being earnest money on the purchase of store building and land located on the southwest comer of Holland and Genesee avenues, better described as follows: A parcel of land in the S. E. % of section 30, town 12 north, range 5 east, described as follows: Commencing on the S. W. corner of Genesee and Holland avenues, running thence west along the south line of said Holland avenue, 235.33 feet, thence south at right angles to said Holland avenue 135 feet, thence east on a line parallel with Holland avenue 301.12 feet to the west line of Genesee avenue, thence northerly along the west line of Genesee avenue 150.16 feet to the place of beginning. Owned by Mrs. Christ Henning. Sale price to be $6,500 payable as follows: $2,200 upon execution and delivery of a land contract, balance in payments of $300 a year, this amount to include the interest at 6 per cent, per annum. “Welzeihn & Schulz guarantee to raise $2,000 on my property located at 609 Emily street, to be applied' on the purchase price of this property. _ “Mrs. Henning agrees to furnish abstract and tax history showing good merchantable title to said property. (Signed) “Welzeihn & Schulz, Agts.” It is the claim of the plaintiffs on the facts that defendant Mrs. Henning called Mr. Schulz of the real estate firm of Welzeihn & Schulz to her home to arrange for the sale of the property in question. That after some negotiations she agreed to sell at $5,800 giving as commission all sums received over that amount, and that Exhibit A upon one of the firm’s forms was then signed by her; that the firm afterwards negotiated a sale to plaintiff William C. Landskroener at $6,500 and he agreed to buy at that figure, made the down payment of $100 and received Exhibit B, and that plaintiff Minnie Landskroener, wife of William C., acquired an interest by assignment. It is their claim on the law that Exhibit A made Welzeihn & Schulz the agents of defendant Mrs. Henning with power to execute a binding contract in her behalf for the sale of the premises, and that Exhibit B was such binding contract which they are entitled to specifically enforce, they having tendered performance on their part. It is their further claim that they are entitled to invoke the doctrine of estoppel upon certain facts which we shall presently detail. It is the claim of defendant Mrs. Henning on the facts that she did not with knowledge of its contents execute Exhibit A; that she agreed to sell the premises for $8,800 net to her and that the figures were either read incorrectly to her or have been changed since she signed the paper. It is her claim on the law that Exhibit A did not give Welzeihn & Schulz power to bind her by an executory land contract and that she is not estopped under the facts to so claim. Welzeihn & Schulz are made defendants and file an answer in the nature of a cross-bill. Their claim as to the facts and law are in substantial accord with those of plaintiffs. They further insist that they have performed their brokerage agreement arid have produced a purchaser ready, willing and able to take the property on plaintiffs’ terms, that they have earned their commission and are entitled to decree for it irrespective of plaintiffs’ right to maintain their action. The trial judge found the facts to be as contended by defendant Mrs. Henning and dismissed their bill. As to the cross-bill of defendants Welzeihn & Schulz, he held that their remedy was in an action at law and dismissed their cross-bill without prejudice. Plaintiffs and Welzeihn & Schulz appeal. We are constrained to reach a different conclusion on the facts than did the trial judge. We are not persuaded that defendant Mrs. Henning has successfully impeached the written instrument admittedly signed by her. On the contrary we are persuaded that plaintiffs have established the facts claimed by them by a preponderance of the evidence. This necessitates the consideration of the interesting questions which counsel have submitted for our consideration. First and most important is whether Exhibit A should be construed as a listing agreement alone or does it carry with it the power to execute a binding contract of sale of the premises in question? The courts of many jurisdictions have had before them for consideration many contracts of varying phraseology involving the power of real estate brokers to sign binding contracts. Counsel in the instant case have been most diligent and have brought to our attention numerous decisions. As these cases deal with such a variety of expressions found in the different contracts, we feel it may be helpful to the profession to here list them. Plaintiffs’ counsel call our attention to the following cases: Stuart v. Mattern, 141 Mich. 686; Seberger v. Wood, 106 Neb. 272 (183 N. W. 363); Haydock v. Stow, 40 N. Y. 363; Peterson v. O’Connor, 106 Minn. 470 (119 N. W. 243, 130 Am. St. Rep. 618); Jackson v. Badger, 35 Minn. 52 (26 N. W. 908); Lyon v. Pollock, 99 U. S. 668; Littlefield v. Dawson, 47 Wash. 644 (92 Pac. 428); Johnson v. Dodge, 17 Ill. 433; Vanada v. Hopkins, 24 Ky. 285 (19 Am. Dec. 92); Hemstreet v. Burdick, 90 Ill. 444; Hedrick v. Donovan, 248 Ill. 479 (94 N. E. 144); Peabody v. Hoard, 46 Ill. 242; Minor v. Willoughby, 3 Minn. 225; Brady v. Fontenot, 132 La. 826 (61 South. 838); Rutenberg v. Main, 47 Cal. 213; Smith v. Allen, 86 Mo. 178; Golden v. Claudel, 85 Kan. 465 (118 Pac. 77); Jasper v. Wilson, 14 N. M. 482 (94 Pac. 951, 23 L. R. A. [N. S.] 982); Combes v. Adams, 150 N. C. 64 (63 S. E. 186); Rosenbaum v. Belson (1900), 2 Ch. Div. 267; Matherson v. Davis, 2 Coldw. (Tenn.) 443; Inhabitants of Nobleboro v. Clark, 68 Me. 87 (28 Am. Rep. 22); Valentine v. Piper, 22 Pick. (Mass.) 85 (33 Am. Dec. 715); Farnham v. Thompson, 34 Minn. 330 (26 N. W. 9, 57 Am. Rep. 59); Hunter v. Eastham, (Tex. Civ. App.), 67 S. W. 1080; Bacon v. Davis, 9 Cal. App. 83 (98 Pac. 71); Brown v. Griswold, 109 Wis. 275 (85 N. W. 363); Vermont Marble Co. v. Mead, 85 Vt. 20 (80 Atl. 852); Lee v. Lloyd, 181 N. Y. Supp. 295; Canada v. Casey, 35 N. Y. Supp. 1054; Stirn v. Hoffman House Co., 28 N. Y. Supp. 724. Counsel for Mrs. Henning call our attention to the following cases: Coleman v. Garrigues, 18 Barb. (N. Y.) 60; Gorsuch v. Berman, 270 Pa. 8 (112 Atl. 750); Yadwin v. Arnold, 94 N. J. Law, 500 (110 Atl. 903); Morris v. Ruddy, 20 N. J. Eq. 236; Marsh v. Buchan, 46 N. J. Eq. 595 (22 Atl. 128); Lindley v. Keim, 54 N. J. Eq. 418 (34 Atl. 1073); Stengel v. Sergeant, 74 N. J. Eq.. 20 (68 Atl. 1106); Carr v. Mazon Estate, 26 N. M. 308, 343 (191 Pac. 137); Craig v. Parsons, 22 N. M. 293 (161 Pac. 1117); Jasper v. Wilson, supra; Stark v. Rogers, 69 Colo. 98 (169 Pac. 146); Buckingham v. Harris, 10 Colo. 455 (15 Pac. 817); Johnson v. Lennox, 55 Colo. 125 (133 Pac. 744); Springer v. City Bank, 59 Colo. 376 (149 Pac. 253, Ann. Cas. 1917A, 520); Brown v. Hogan, 138 Md. 257 (113 Atl. 756); Slater v. Rauer, 43 Cal. App. 748 (185 Pac. 864); Duffy v. Hobson, 40 Cal. 240 (6 Am. Rep. 617); Armstrong v. Lowe, 76 Cal. 616 (18 Pac. 758); Church v. Collins, 18 Cal. App. 745 (124 Pac. 552); Salter v. Ives, 171 Cal. 790 (155 Pac. 84); Thompson v. Scholl, 32 Cal. App. 4 (161 Pac. 1006); McDermott v. Drumm, 96 Conn. 670 (115 Atl. 476); McCullough v. Hitchcock, 71 Conn. 401 (42 Atl. 81); Donnan v. Adams, 30 Tex. Civ. App. 615 (71 S. W. 580); Gould v. Rockwell, 105 Neb. 724 (181 N. W. 655); Lichty v. Daggett, 23 S. D. 380 (121 N. W. 862); Halsey v. Monteiro, 92 Va. 581 (24 S. E. 258); Glenworth v. Luther, 21 Barb. (N. Y.) 145; Grant v. Ede, 85 Cal. 418 (24 Pac. 890, 20 Am. St. Rep. 237); Shepherd v. Hedden, 29 N. J. Law, 334; Young v. Hughes, 32 N. J. Eq. 372; Siebold v. Davis, 67 Iowa, 560 (25 N. W. 778); Stewart v. Pickering, 73 Iowa, 652 (35 N. W. 690); Ballou v. Bergvendsen, 9 N. D. 285 (83 N. W. 10); Brandrup v. Britten, 11 N. D. 376 (92 N. W. 453); Weatherhead v. Ettinger, 78 Ohio St. 104 (84 N. E. 598, 17 L. R. A. [N. S.] 210); Robertson v. Allen, 107 C. C. A. 254, 184 Fed. 372; Dodd v. Groos, 175 Iowa, 47 (156 N. W. 845); Crumpacker v. Jeffery, 63 Ind. App. 621 (115 N. E. 62); Tyrrell v. O’Connor, 56 N. J. Eq. 448 (41 Atl. 674); York v. Nash, 42 Or. 321 (71 Pac. 59); Watkins Land Mortgage Co. v. Campbell, 100 Tex. 542 (101 S. W. 1078); Jones v. Howard, 234 Ill. 404 (84 N. E. 1041); Thorne v. Jung, 253 Ill. 584 (97 N. E. 1073); Furst v. Tweed, 93 Iowa, 300 (61 N. W. 857); Simmons v. Kramer, 88 Va. 411 (13 S. E. 902); Stone v. Indemnity Co., 217 N. Y. 656 (112 N. E. 1077); Larson v. O’Hara, 98 Minn. 71 (107 N. W. 821, 8 Ann. Cas. 849, 116 Am. St. Rep. 342); Ryon v. McGee, 2 Mack. (D. C.) 17; Carstens v. McReavy, 1 Wash. 359 (25 Pac. 471); Barnes v. Savings & Loan Society, 21 Wash. 448 (58 Pac. 569); Armstrong v. Oakley, 23 Wash. 122 (62 Pac. 499); Campbell v. Galloway, 148 Ind. 440 (47 N. E. 818); Shillinglaw v. Sims, 86 S. C. 76 (67 S. E. 906); Balkema v. Searle, 116 Iowa, 374 (89 N. W. 1087); Boyle v. Grassick, 2 W. L. R. (Canada) 284; Dickinson v. Updike (N. J. Law), 49 Atl. 712; Whitehouse v. Gerdis, 95 Neb. 228 (145 N. W. 338). These cases have all been examined but obviously a resumé of them cannot be undertaken. Numerous cases cited by plaintiffs’ counsel hold that the authority “to sell” in a brokerage contract carries with it the authority to do such acts as are necessary to carry out such power, including the authority to make on behalf of the principal a binding contract of sale. Others do not go so far and are in substantial accord with the doctrine announced in Rutenberg v. Main, supra, where it was said: “It is said Meinecke had power to find a purchaser satisfactory to the plaintiff, but none to make or sign the memorandum. It is true that the power of a mere broker is thus limited, although he be employed ‘to sell’ real estate, ¡because these words are construed with reference to the actual purpose of his employment. But if the language used, regarded in the light of the surrounding circumstances, clearly shows that the agency is intended to be more extensive than that of a broker, the court will so find.” That the courts will take into consideration the surrounding circumstances in construing such contracts is evidenced by the holding of the Supreme Court of the United States in Lyon v. Pollock, supra. In that case Lyon Was a resident of San Antonio, Texas, during the war of the rebellion. He there owned considerable property. He was an avowed northern sympathizer. He was apprehensive that his life was in danger and fled to Monterey, Mexico, where means of communication with San Antonio were hampered. Taking these things into consideration, together with the language employed in the letter, the court construed a letter written by him to confer authority upon his agent to enter into a contract of sale of his property located in San Antonio. The authorities cited by counsel for defendant Mrs. Henning in the main unequivocally hold that while the authority “to sell” found in brokerage contracts authorized the broker to find and produce a purchaser ready, willing and able to buy on the terms specified, that on doing so he has performed his contract and earned his commission, it does not authorize him to enter into a binding contract for his principal, that such authority must be specifically conferred. Language found in many different contracts are held not to grant such authority. An examination of the authorities cited is convincing that the correct rule is announced in Ruling Case Law (4 R. C. L. p. 262) as follows: “The most serious disagreement in the decisions arises over the question as to whether or not such a broker may enter into a binding contract of sale in behalf of his principal where he is not in express terms authorized to do so. Since it is generally conceded that his only duty is to find a purchaser who is ready, willing, and able to purchase upon the terms, specified, the overwhelming weight of authority is to the effect that a broker has no right to conclude and execute a binding contract unless such power is expressly conferred by the use of unequivocal expressions to that effect; that the employment of a real estate broker, as such, or the mere listing of property with him, or the direct instruction to find a purchaser, or any communication from the owner to the broker with respect to the sale of land, will be regarded as giving the agent only the authority to find a purchaser; and that no wider power than that is necessarily indicated by the words ‘to sell’ or ‘to make a sale/ it being a matter of common understanding that even though one uses such terms in soliciting the services of a real estate broker, nevertheless he reserves to him self the power to conclude the sale, unless there is an express provision to the contrary.” A valuable note will be found in 17 L. R. A. (N. S.) 210. The editorial writer there says: “A careful reading of the eases seems to warrant the statement that the question whether a real-estate broker has authority to make a binding contract of sale is generally one of intention, and .that the real controversy is not whether the actual grant of authority to sell gives the agent power to execute a contract of sale, but, rather, What form of expression will be deemed to establish an agency to sell, using the term in its broader sense? The inquiry to be determined, then, in each doubtful case, is whether the owner has shown an intention that his agent shall merely find a purchaser, or that he shall go further and actually effect a binding contract of sale. Since it is generally conceded that the only duty of a real-estate broker is to find a purchaser who isi ready, willing, and able to purchase upon the terms specified, the overwhelming weight of authority is that the latter intention is not inferred, except from the use of unequivocal expressions to that effect; and that the employment of a real-estate broker, as such, or the mere listing of property with him, or the direct instruction to find a purchaser, or any communication from the owner to the broker with respect to the sale of land, will be regarded as giving the agent only the authority to find a purchaser ; and that no wider power than that is necessarily indicated by the words 'to sell,’ or 'to make a sale.’ To use the often-quoted paragraph from Keim v. Lindley (N. J. Ch.), 30 Atl. 1063, and adopted in Keim v. O’Reilly, 54 N. J. Eq. 418 (34 Atl. 1073): “ ‘The mere employment of an ordinary real-estate broker to effect a sale of a parcel of land, even though the price and terms be prescribed, does not amount to giving present authority to such broker to conclude a binding contract for the same. Moreover, such authority is not usually to be inferred from the use by the principal and broker, in that connection, of the terms, “for sale,” or “to sell,” and the like. Those words, in that connection, usually mean no more than to negotiate a sale by finding a purchaser upon satisfactory terms.’ ” The same thought is quite tersely stated by the court of appeals of Maryland in Brown v. Hogan, supra, where it was said: _ “There are two distinct lines of cases on the question, but those which hold that a broker or agent has an implied power to make a contract of sale of real estate, when he is authorized to obtain a purchaser or to sell, are greatly in the minority.” The use of the words in Exhibit A, “and said Welzeihn & Schulz are authorized to sell said property,” etc., did not under the great weight of authority give them power to bind Mrs. Henning by Exhibit B, nor are we persuaded that the use of the words: “I agree to furnish abstract, tax history and merchantable title” evidence such intent. These words, or words of similar purport, are frequently found in listing contracts which come before us for consideration. We should not overlook the fact, in construing Exhibit A, that it was prepared by the brokers, not by Mrs. Henning, and was, as the testimony shows, on one of their printed forms commonly used by them in their brokerage business. ' We think Exhibit A must be construed as a listing contract only, and while it fixed their obligations inter se it did not authorize the brokers to bind Mrs. Henning by an executory contract of sale. It is not claimed by counsel that the precise question here involved has been in issue before this court. They, however, cite numerous cases from this court which by analogy are thought to be applicable. We shall consider but four of them. Stuart v. Mattern, 141 Mich. 686, relied on by plaintiffs’ counsel, is distinguishable upon its facts. This court there gave the force of authority to a letter written by defendant coupled with ratification by an acceptance of part payment, and part performance by placing the vendees in possession. Brittson v. Smith, 165 Mich. 222, relied upon by defendants’ counsel, was an action brought to recover for a broker’s commission. It was there said: “Upon the part of the plaintiffs the agreement would be performed when they produced a person able and willing to pay $6,400 or more for the place. Upon the part of the owner, the defendant, the contract would be performed if, when a purchaser was produced by the plaintiffs and $6,400 was paid or tendered him, he conveyed the farm with good title. The intending purchaser could not compel the owner of the farm to convey it to him, or to the plaintiffs.” Plaintiffs’ counsel are quite right in saying that the last sentence was not necessary to decision and must be regarded as dictum, and this is likewise true of the other two cases relied on by counsel for Mrs. Henning. The Brittson Case was followed in McGavock v. Ducharme, 192 Mich. 98, where it was said: “The defendant contends that, if Act No. 238, Public Acts 1913, does not affect the contract, it was invalidated by sections 9509 and 9511, 3 Comp. Laws (3 Comp. Laws 1915, §§ 11975, 11977), on the theory that the contract set up by the plaintiff was not one! for services, but one creating an interest in the land or power over it. But this theory was held untenable in Brittson v. Smith, 165 Mich. 222.” And in Cain v. Masurette, 196 Mich. 7, another commission case, it was said: “An agent undertaking to sell, and one undertaking to find a purchaser, are not to be distinguished, as in either case he is required to do no more than find a purchaser who is accepted, and who enters into a binding contract.” None of these cases militate against the conclusion we have reached. We are convinced that after plaintiffs had decided to buy the property Mrs. Landskroener went over to Mrs. Henning’s home, told her they were going to buy the place at $6,500, that Mrs. Henning expressed her pleasure that they were to be the purchasers as she had known Mr. Landskroener from boyhood, and told her if they had come to her she would have sold for less than the figure named. It is insisted that, relying on this talk, plaintiffs incurred expense in procuring from the bank a loan to make a payment on the contract, that they will be required to pay interest thereon and plaintiffs’ counsel invoke the doctrine of estoppel as a basis of relief. We do not think these facts estop Mrs. Henning from invoking the statute of frauds, she not having signed any memorandum, and, as we have shown, her broker not having authority to execute one for her. The plaintiffs are in no better or different position than they would have been had they made an oral agreement to buy the place and in reliance on such oral agreement incurred' the expense noted. Manifestly under such circumstances Mrs. Henning would not be bound nor would she be estopped from claiming she was not bound. There has been no part performance by being put in possession, coupled with fraud, as in Lyle v. Munson, 213 Mich. 250, nor has a deed been executed without protest from the grantor, as in Craig v. Crossman, 209 Mich. 462, nor has Mrs. Henning appealed to a court of equity to enforce an oral contract within the statute of frauds, as in Thompson v. Hurson, 201 Mich. 685, where it was held that, having appealed to a court of equity to enforce his equities under such a contract, plaintiff was estopped to invoke the statute of frauds against the equities of the defendant, nor has the purchase price or any part thereof been paid to Mrs. Henning. The case is not one for the application of the doctrine of estoppel. The trial judge was right in holding that the law side of the court was the proper forum to adjust the rights between Mrs. Henning and Welzeihn & Schulz. All that Welzeihn & Schulz could now recover would be a money decree; there are as between them no grounds for the interposition of equity. Had Mrs. Henning sought equitable relief and brought them into a court of equity they might there ask to have their rights determined, but none of the defendants invoked equitable jurisdiction, all were brought into a court of equity by other parties. Under these circumstances we think defendant Mrs. Henning may raise the question of jurisdiction. The decree will be affirmed, with single costs to appellee. Wiest, C. J., and McDonald, Bird, Sharpe, and Steere, JJ., concurred. Clark and Moore, JJ., did not sit.	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Shaebe, J. The defendants, 19 and 16 years of age respectively, tried together, review their conviction of murder in the first degree on writ of error. It is clearly established by the proofs that Paul DeLisle died at his home in Flint on December 10, 1921, and that his death resulted from poison by carbolic acid taken by him in a drink of whisky. The defendants were arrested, charged with the crime, and, as the prosecution claims, on December 11th made a voluntary confession of their guilt. This confession was made to two police officers of the city, one of whom asked defendant Austin questions and wrote both the questions and his answers on a typewriter, after which they were signed and sworn to by Austin. Summarizing, Austin stated that he and Thorpe had been working for DeLisle occasionally prior to that time; that they had both stolen money from DeLisIe; that DeLisIe had accused them of the theft and threatened to have them arrested; that on December 10th they went to DeLisle’s home at his request; they found him sitting in a chair in his house considerably intoxicated; that they went out on the lawn and “agreed to get even with him;” that he, Austin, went to the bam (Thorpe watching) and got a bottle of poison off a shelf and they both went into the kitchen and mixed the poison with whisky and put the mixture in a green beer bottle and pub it in a cupboard; that they poured out the balance of the poison, rinsed the bottle with hot water and with kerosene and put it back in the barn; that Thorpe then went into the room where DeLisIe was and asked him if he did not want a drink; that DeLisIe said he did and went into the kitchen and Thorpe showed him where the bottle was and DeLisIe— “took the bottle and placed it to his lips and drank about a cupful of it. He didn’t say anything, but he made an awful face, and he walked into the next room, and sat down on a chair.” Austin was then asked: e‘Q. How do you know it was poison? “A. I touched it to my lips. “Q. Did it bum? “A. Yes, sir. “Q. Did you think it was poison? “A. Yes. “Q. Then you and Clifford Thorpe intended to kill Paul DeLisIe because he threatened to arrest you and Clifford for taking his money? “A. Yes, sir.” He further stated that he and Thorpe found DeLisIe about two hours after and that he was then dead. He was further asked: ‘‘Q- Do you make this statement of your own free will without promise of reward or pardon? “A. Yes, sir. “Q. Have you been threatened in any way to make this statement? “A. No, sir. “Q. Were you in any fear when you made this statement? “A. No, sir. “Q. Is this statement the truth? “A. Yes, sir.” Thorpe was present when Austin was interrogated. His statement was taken and sworn to in the same way. The questions asked Austin were not repeated to him but he said he had heard Austin’s answers and that the facts as stated were true. He was, however, asked: “Q. Then you and Charles Austin intended to kill Paul DeLisle because he threatened to arrest you and. Charles Austin for taking his money? “A. Yes, sir.” The next day, the defendants, in conversation with a newspaper reporter, denied the truth of the confessions made by them, saying they were forced to make them, but there was proof that on the following day the confessions were, in substance, again repeated in the presence of the officers, and others. Both defendants were sworn as witnesses and testified that they were forced to make the confessions by threats and ill-treatment on the part of the officers. The assignments raise no question on the admissibility of these confessions. The weight to be given them was, of course, for the jury. The facts will be further stated in considering the errors relied on. The trial court instructed the jury that they must convict the defendants of murder in the first degree or acquit them. Defendants’ counsel insists that under the proofs the jury would have been justified in finding the defendants guilty of manslaughter. He preferred a request for such an instruction. Was there testimony to justify this request? Ivan Turner and Maurice Wickham, two young boys, aged 17 and 16 respectively, witnesses for the prosecution, came to the yard after DeLisle had drunk the poisonous liquid. There was some talk about drinking moonshine whisky. Turner testified on direct-examination: “Q. Did you see any bottles there? “A. While talking to Thorpe and Austin, just the one they brought out. Cliiford Thorpe brought out a bottle, a kind of a greenish colored bottle. It looked like this one here on the desk. The one marked Exhibit A. Thorpe brought that out. It was a little over half full. “Q. Do you know what was in it?' “A. I could not say for sure. Moonshine whisky was in it. I put it to my lips, but that is all. “Q. Why didn’t you taste it? “A. They started to make a fuss over it; one said it smelled like wood alcohol, the other carbolic acid, and I did not care to taste it. “Q. Did it burn you? “A. It stung a little but I don’t know what you call burn. It stung a little on my lips. That bottle there (Exhibit A) looks like the bottle Thorpe handed to me. “Q. Who else out there had a hold of that bottle while you were there? “A. Charles Austin, Maurice Wickham, and Cliiford Thorpe, and myself. Thorpe gave it to Austin when he first came out, Austin handed it to Maurice Wick-ham and Wickham handed it to me. Austin- said it smelled of wood alcohol and Maurice Wickham said it smelled like carbolic acid. When we were through with the bottle, Clifford Thorpe took it back to the house and started carrying in his wood.” On cross-examination he said: “Q. I want to ask yon when it was that this green bottle was among you boys? “A. It was just when I came home with the horse and I put him in the bam, I came out, and Maurice Wickham was kidding about getting a drink, and he (Thorpe) brought out this bottle to us, in the yard. That was the time I saw the green bottle. “Q. Why did Thorpe go into the house after that? What was said to him? “A. Maurice Wickham asked him if he had anything to drink and he said he thought they had some and he went in the house and got this bottle and brought it out, a green colored bottle, which looks like Exhibit A, pop bottle size. He handed it to Austin and Austin to Wickham. Austin said it smelled like wood alcohol. “Q. He didn’t say anything about it having poison or anything? “A. No, nor Clifford didn’t. There was no warning toi any of us boys there in the yard, by either Austin or Clifford, that the bottle contained poison. Nothing said about it at all. Some one gave it back to Clifford and he took it back into the house.” Wickham testified on direct-examination: “I was out in the back yard when the green bottle was passed around. Clifford Thorpe brought it out; that was five or ten minutes before I left. Clifford handed it to Austin, Austin back to Thorpe. Thorpe gave it to me. I smelled of it. * * * The one that was. handed to me, I should imagine, was about two-thirds full. It smelled like carbolic acid. * * * I was at the time familiar with the odor of carbolic acid. I don’t remember whether I handed it back to Thorpe or gave it to Turner. Austin said he thought it was wood alcohol, I think. He took a taste of it and spit it out. * * * “Q. Do you recall whether or not anything was said about them showing you: ‘you could not drink moonshine whisky,’ or something to that effect? “A. I think it was. “Q. Who said that and what was it? “A. Clifford said it when he brought the bottle out in the woodshed. He was going to show us we could not drink moonshine. He said he was going to show us we could not drink moonshine, that was before I smelled of it.” On cross-examination he said: “I have known Clifford quite a while; he and I and Austin were good friends. “Q. When you were offered this bottle of drink by Clifford or Austin or either of them, did they give you any warning of the danger of it? “A. No, sir, they were laughing then, they gave us no warning at all that it was dangerous to drink it. They said nothing about it being poison. Clifford said he would show me I could not drink moonshine bootleg whisky. “Q. You say that he said Paul had just drank some of it? “A. Yes, sir, he did when he went in the house. “Q. You had not any reason to suppose that either one of these boys wanted to kill you? “A. No, sir.” Roy Lawrence, a reporter for the Flint Daily Journal, was called to the police station about midnight, soon after the defendants had made the so-called second confession. He tells of an interview he had with the defendants as follows: “I asked Thorpe if he had any knowledge of this carbolic acid bottle being in the bam, and he said he knew that there was a bottle in the bam, but that he did not know what it contained. * * * I questioned particularly about whether they knew what was in that bottle, and they said that they did not know, and I asked them what was the purpose of mixing this stuff and they said they intended to dope him. “Q. Did they say why they wanted to dope him? “A. No, not that I recollect.” Both defendants as witnesses denied that they had any knowledge that the bottle taken from the barn contained carbolic acid or that , the liquid therein was poisonous. ■ Thorpe testified that after DeLisle had drunk from the bottle he, Thorpe, said to Austin: “ Tf that man ain’t crazy when he comes out, I don’t know where I am going next/ “Q. If that man ain’t crazy when? “A. When he comes out of his drunkenness.” Austin testified Thorpe said: “ ‘If this does not make the old man crazy, I will not live,’ — something like that.” The prosecution relies on the statute (3 Comp. Laws 1915, § 15192): “All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or. which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the State prison for life.” Attention is also called to the following language from the opinion in People v. Hall, 48 Mich. 482, 484 (42 Am. Rep. 477): “Murder by poison, under the statute, is always murder in the first degree, and the jury should have b.een so charged.” Reliance is also placed on People v. Repke, 103 Mich. 459, wherein this court held that when murder is committed and “there is no fact or circumstance that would reduce it below the first degree,” the jury should be so instructed. “Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the State, with malice prepense or aforethought, either express or implied.” Tiffany’s Criminal Law (How. 4th Ed.), p. 952. “Manslaughter is the unlawful and felonious killing of another without malice, either express or implied.” Id. 972. In 13 R. C. L. p. 784, involuntary manslaughter is defined as follows: _ “The crime is defined by the common law as the killing by one person of another person, in doing some unlawful act not amounting to a felony, nor likely to endanger life, and without an intention to kill; or where one kills another while doing a lawful act in an unlawful manner.” Neither murder nor manslaughter is defined in our statutes. The section above quoted simply classifies a murder perpetrated in a particular manner as murder in the first degree. It has no application until a murder has been established. Then, if the proofs show that it was perpetrated by means of poison, lying in wait, etc., the jury should be instructed that it is deemed murder in the first degree. Homicide is the killing of a human being by a human being. It may, or may not, be felonious. If felonious, it is either murder or manslaughter, dependent upon the facts and circumstances surrounding the killing. To ■constitute murder, the killing must have been perpetrated with malice aforethought, either express or Implied. The intent to kill will be implied when death results from poison intentionally administered. If it' appears that the poison was not administered with intent to take life, but to aid in the perpetration of another crime, or in order to accomplish an unlawful act, it is no less murder. But where it is not so administered, and where death as a result is so remote a contingency that no reasonable person could have taken it into consideration when. administering the poison and could not have contemplated that death would result therefrom, the homicide is manslaughter only. The statute classifies all murders perpetrated “by means of poison, or lying in wait, or any other hind of wilful, deliberate and premeditated Idlling” as murder in the first degree. Murder by poison is so included because it results from a wilful, deliberate and premeditated act. Administering poison with intent to kill is necessarily so. That the intent with which the poisonous substance is administered is material to the issue presented on such a charge was clearly recog nized in. People v. Thacker, 108 Mich. 652, and People v. MacGregor, 178 Mich. 436. In each of these cases this court held that the prosecution might show that the defendant, about the same time, was giving poison to another inmate of the household, as bearing upon the intent with which it was administered to the deceased person. The reasoning in Wellar v. People, 30 Mich. 16, and in People v. Droste, 160 Mich. 66, is instructive on the general rule that where there is testimony from which the jury might find the absence of such a felonious intent as is necessary to constitute murder, an instruction that they might convict of manslaughter should be given. On the record here presented, the jury should have been so instructed. The other errors relied on are not likely to arise on a new trial. No legal questions are presented on which counsel seriously disagree. Statements made by one of the defendants, though not in the presence of the other, are admissible. Of course, the jury should be instructed that they should not be considered in determining the guilt of the one not present. The rules governing such statements are clearly stated in People v. O’Brien, 68 Mich. 468. What the deceased had said to the witness Rosenberger, who testified to statements made by Austin, was hearsay and should have been received only to the extent necessary to a full understanding of what was said by this defendant, and the jury should have been instructed that it was not substantive proof of the fact. People v. Foley, 64 Mich. 148. Defendants’ counsel’s 17th request reads: “It is a maxim of the law, that ‘It is better for ninety-nine guilty men to go unpunished than for one innocent person to suffer unjustly.’ “This is only another way of stating the law of reasonable doubt, which lies at the foundation of all criminal prosecutions.” While counsel had a right to urge the jury to con sider the proposition stated, our attention is not called to any authority making it obligatory upon a court to state it as a rule of law to the jury. The judgment of the court is set aside and a new trial granted. The defendants will be returned to the custody of the sheriff of Genesee county to await such trial. Wiest, C. J., and Fellows, McDonald, Bird, Moore, and Steere, JJ., concurred. Clark, J., did not sit.	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Bird, J. In January, 1918, plaintiff, a young girl, 19 years of age, was married to defendant in Shanghai, China, where he was stationed as an officer in the United States navy. The following five years she spent much of her time with him in and about United States naval stations. In July, 1918, plaintiff filed her bill in the Calhoun circuit court praying for a decree of divorce on the ground of extreme cruelty. The principal specifications were drunkenness and nonsupport. There was one child, Ann Coyle, 5 years of age, who had been much in the care of her grandmother, Martha B. Warden, on account of the itinerant character of defendant’s occupation. Defendant entered his appearance in plaintiff’s suit, but filed no answer, and the bill was taken as confessed. The chancellor found the allegations of the bill supported and he granted a decree of divorce to plaintiff on September 9, 1918, and awarded the custody of the child, Ann'Coyle, to her grandmother, Mrs. Warden. Prior to defendant’s default both parties agreed upon a property settlement, and further that Mrs. Warden should be intrusted with the custody of the child. Something like a year thereafter, while plaintiff was getting ready to be remarried, it was discovered that she was in error in stating in her bill that she had been a resident of Michigan for two years immediately preceding the filing of her bill. In view of this, she filed a motion in the cause to have the decree vacated, ‘and, on October 14, 1919, she filed a second bill setting up the same causes that were set up in the first bill, and additional ones. By this time defendant was out of the jurisdiction of the court and preparations were made to get service by publication. While these preparations were going on the defendant, through his brother-in-law, Mr. Louis H. Hall, of New York, arrived at an understanding with plaintiff, whereby defendant’s appearance was entered and. both, Mrs. Warden and Mr. Hall, were to be made joint guardians, and the custody of the child to be divided between them; six months to one and the following six months to the other. Included in this arrangement defendant was to pay $100 per month for the care and support of the child. Subsequently, the second decree was granted and the agreement as to the custody of the child was incorporated into the decree. For a time the arrangement was observed. Following the granting of the decree plaintiff was remarried to a Mr. Hallock, of Evanston, Illinois, Mrs. Warden, the grandmother, was remarried to Dr. Wright, and went to Douglas, Arizona, to reside. In the fall of 1920 the child was returned to her mother in Evanston. When the six months’ period of her custody had expired the child was not returned to the custody of Mr. Hall, but this application was made in the cause under section 11408, 3 Comp. Laws 1915, by the mother, setting up the changed conditions and asking that the decree with reference to the custody of the child be amended so that she would have the custody of the child at least during the school year. The petition of the plaintiff shows, in substance, that she is happily married to Mr. Hallock; that he is a prosperous business man in Chicago and that they reside at Evanston or at Winnetka; that Mr. Hallock has become quite fond of the child and is willing she should reside with them; that the child is now attending the public school and is happy and being well cared for; that the grandmother is remarried and gone to Arizona to reside. Upon this petition the court took testimony and made a change in the decree in this: That instead of each being entitled to the custody of the child every alternate six months, the time was lengthened to one year. Plaintiff has appealed from this order. The proofs show that this young girl is in the public school, two blocks from her home in Winnetka; that the school is an excellent one and is located in a good neighborhood; that she is progressing with her studies and is happy with her playmates and in her home. In view of the showing made of the' changed conditions, we are all of the opinion that it is for the best interests of the child to be continued in this school and with her own mother. We have no doubt that the child would be well cared for and educated while in the custody of Mr. Hall. But when she is in the east she attends private school and has not the care and attention of her own mother. A girl of such tender years should have the care and love of her own mother, and if she is a suitable mother the statute gives her this right. Section 11484, 3 Comp. Laws 1915. And in addition to this, we are impressed that a public school in a good neighborhood is better for the girl’s development than a select or private school. These considerations lead us to conclude that the child should remain with her mother during the school year from September 1st to July 1st, and during the months of July and August she can go east and remain in the custody of Mr. Hall during those two months. Considerable discussion is indulged in in the briefs as to the breach of the agreement as to the girl’s custody and as to the grandmother’s lack of attention and as to plaintiff’s indifference to the welfare of the child in allowing her mother to have the custody of her when she secured her divorce. This discussion is not very important because it does not aid in determining what is for the best interests of the child. It is true, a contract was made by the parents as to the custody of the child, but even this contract, although recognized by the decree, must later give way if the best interests of the child demand it. Gittings v. Gittings, 197 Mich. 446; Weiss v. Weiss, 174 Mich. 431. It could hardly be expected that after the grandmother remarried and moved to a distant State, she would be able to give the child the care and attention that she did while living here. As to the indifference manifested by plaintiff in allowing the custody of her little girl to go to the grandmother rather than to her self, it may perhaps be excused in part owing to the fact that just at this time the “divine fire” had reached her heart and she was in that delirious, irresponsible period preceding her marriage to the man to whom she had given her heart. Her marriage followed. She has a good husband, a fine home and enough of this world’s goods to make them all comfortable. The husband is fond of the little girl and desires her to stay with them. When this change came the promptings of motherhood reasserted themselves and plaintiff is now ready to do what the natural mother should and wants to do. As we go along in life changes come to all and we think the changes wrought in this family fully justify the change in the decree. The decree will be amended by providing that the little girl, Ann, shall remain with her mother from September 1st to July 1st. During the months of July and August she shall be and remain in the custody of Mr. Louis H. Hall. In other respects the order made by the chancellor will be affirmed. No costs will be allowed either party in this court. Fellows, C. J., and McDonald, Sharpe, and Moore, JJ., concurred. Wiest, Clark, and Steere, JJ., concurred in the result.	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Wiest, J. One Tom McGarty went to Heyman Company, retail dealers in household goods at Grand Rapids, selected goods to the value of $141.55, entered into an agreement under which he was to have no title to the goods until they were paid for, paid down $10, and agreed to pay $8 a month, had the goods delivered, sold them to defendant, a second-hand dealer, and disappeared. Defendant admits buying the goods, claims he acted in good faith, had no notice of plaintiff’s rights, paid full value and cannot be held liable to plaintiff. This is an action in replevin, brought against the second-hand dealer, and, the goods not having been found on the writ, plaintiff had judgment for their value. The case is here on writ of error. The decisive question narrows down to whether the agreement between McGarty and plaintiff constituted a conditional sale in every particular, and, therefore, not necessary to be recorded, or a sale with retention of title as security. The agreement follows: “Sale Agreement Reserving Title P. 66880. “This agreement, made this 28th day of July, 1921, between the Heyman Company, a corporation, of Grand Rapids, Michigan, as .first party, and Tom McGarty, of the same place as second party, “Witnesseth: “1. First party agrees to sell to second party, upon the fulfilment of this agreement in every particular, personal property described on the back hereof. “2. Second party, in consideration thereof, and for the use of said property during the period covered by this agreement, agrees to pay to first party the full purchase price mentioned upon the back hereof, as follows: “Ten (10) dollars upon the signing of this agreement, and eight (8) dollars each month thereafter, until said purchase price has been fully paid. “3. It is hereby expressly understood and agreed between the parties hereto, that the title to the property mentioned upon the back hereof, shall be and remain in first party until all sums owing and unpaid upon this agreement have been fully paid. “4. First party agrees to deliver said property to second party at the address above given, upon the signing of this agreement, and to allow the same to remain in the possession of second party, so long as second party shall keep and perform the covenants and agreements by him to be kept and performed, and second party agrees not to remove said property from the said address without the written consent of first party. “5. First party agrees that upon the fulfilment of all the covenants and agreements by second party, by him to be kept and performed, to thereafter transfer and convey the title to said property to second party. “6. The parties further agree, that if second party shall fail to make any payment at the time herein specified, or in, any manner violates any of the terms of this agreement, that then and in such event, this agreement to sell said goods to second party, shall be void at the option of first party, and first party, without notice or demand to or upon second party, may take possession of said property, wherever the same may be, and the amount which at that time has been paid by second party to first party, shall be considered as so much paid for the use and rental of said property. “7. In case of default in any payments or other conditions in this agreement, by second party, the entire amount then unpaid upon and under this agreement, shall at the option of first party, become due and payable immediately without notice to second party. “8. It is also agreed, that first party shall have the right at seasonable times, and upon reasonable notice to second party, to enter the premises where said property is kept or stored for the purpose of making reasonable inspection thereof, so long as the title to said property shall remain in first party.” The learned circuit judge held the agreement was an executory one to sell the goods on the precedent condition of payment in the manner therein provided. If paragraph 7 had been left out of the agreement we would agree with the circuit judge, as the agreement up to that point contains nothing inconsistent with continued ownership in plaintiff, with the limited remedy in case of default of assertion of such ownership. But paragraph 7 provides for another remedy by making the whole sum due and payable at the option of plaintiff in case of any default. Unless, upon a consideration of the whole agreement this can be limited to the purpose of making deferred payments all due and payable in case of default in one, if MeGarty, after default, wanted to perform, then plaintiff could hold him for the whole debt so declared due and payable and have an action against him for such debt, and also the security of the goods so far as they would satisfy the demand. The agreement is susceptible of the latter construction and gives plaintiff a right of action to recover the agreed price for the goods wholly inconsistent with mere retention of title until paid for and the right, in case of default, to apply payments made to the use and rental of the goods. When a sales agreement permits recovery of the sum stipulated to be paid for goods, without passing title, it is consistent only with an absolute sale with reservation of title as a; lien to secure payment of the price. Young v. Phillips, 203 Mich. 566; National Cash Register Co. v. Paul, 213 Mich. 609. The agreement must be held one for security only. The agreement not having been recorded as a chattel mortgage, as it should have been, plaintiff cannot maintain this action against defendant who, it is conceded, purchased the goods from the vendee in good faith for a valuable consideration and without notice of plaintiff’s rights. National Cash Register Co. v. Paul, supra. The-judgment is reversed and a new trial granted, with costs to defendant. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred; Moore, J., did not sit.	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Steere, J. On June 3, 1921, plaintiff, who is an undertaker in the city of Grand Rapids, filed an injunction bill to restrain defendant, who was formerly his wife, from engaging in the undertaking business in her own name in said city. Defendant duly answered and hearing was had resulting in a decree denying the relief asked. The parties were married January 4, 1898, and lived together as husband and wife until September, 1917. Plaintiff was engaged in the undertaking business for several years before their separation and during that time defendant assisted him in establishing and conducting that business and becoming familiar with its duties. Prior to July 23, 1919, differences arose between them, resulting in a separation and property settlement agreement executed on that date by which plaintiff agreed to pay defendant $5,000, $1,000 down and the balance $10 per week, to turn over to her their household effects including a piano, and also an, automobile. Five days later, on July 28, 1919, she filed a bill for divorce charging extreme cruelty to which he did not appear and a decree on default was granted her October 6, 1919. It provided in substance for the payment and transfer of property as specified in their separation agreement. Plaintiff has since made the transfers of property specified and all payments provided for as they fell due. The settlement agreement entered into between the parties after their separation and prior to their being divorced provided in paragraphs 4 and 6 as follows: “4. That the said Marguerite G. Lyzen, party of the first part, does hereby agree to accept the foregoing provision and money and property in full settlement of any and all claims that she now has or may hereafter have against the said party of the second part, or in or to his estate, and in full settlement of any and all claims for alimony of every name and nature, and in full settlement of any and all dower rights that she now has or may hereafter have in and to any property of the said party of the second part, and does hereby release the said party of the second part from any and all claims for support or maintenance, it being the intention, understanding and agreement between the parties hereto that the foregoing provisions shall constitute a full and complete settlement of every right, interest or claim that either of said parties may have upon the other or in or to any of the property of either, now or hereafter. * * * “6. It is further understood and agreed that said first party shall not hereafter engage in carrying on the undertaking and funeral directing business in the county of Kent, and shall not use the name of Lyzen in carrying on any such business in said county, it being understood that this shall in no way prevent first party from working as an assistant or employee.” Upon the hearing their testimony showed and defendant admitted that after their separation and divorce she accepted employment on salary with the Berton A. Spring Company as an assistant undertaker and embalmer, and later engaged in business for herr self in the city of Grand Rapids under her own name published as follows: “Mrs. Grace Lyzen, Ladies’ and Children’s Embalmer and Funeral Director; Office and Chapel 129 East Fulton street.” Plaintiff plants his right to the relief asked on paragraph 6 of their separation and property settlement contract. We see no occasion to follow counsel in the discussion of the merits of defendant’s ground for divorce or her reasons for subsequently engaging in the business sought to be restrained, as the case in our opinion turns upon the validity of section 6 of the contract in the light of provisions of Act No. 329, Pub. Acts 1905, as amended (3 Comp. Laws 1915, § 15033 et seq.), entitled “An act relative to agreements, contracts and combinations in restraint of trade or commerce.” Section 1 of said act provides as follows: “All agreements and contracts by which any person, copartnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.” Exceptions to what precedes are provided in section 6 of the original act as follows: “This act shall not apply to any contract mentioned in this act nor in restraint of trade, where the only object of the restraint imposed by the contract is to protect the vendee or transferee of a trade, pursuit, avocation, profession or business, or the good will thereof, sold and transferred for a valuable consideration in good faith and without any intent to create, build up, establish or maintain a monopoly.” This section was amended in 1917, Act No. 171, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 15038), by adding: “Nor to any contract of employment under which the employer furnishes or discloses to the employee a list of customers or patrons, commonly called a route list, within certain territory in which such employee is to work, in which contract the employee agrees not to perform similar services in such territory for another engaged in a like or competing line of business for a period of ninety days after the termination of such contract or services.” The amendment covers a special line of employment under special circumstances involving so-called “route list” of customers or patrons within certain territory where thé employee worked, and can have no application to the facts involved here.' Neither can it be fairly said that the facts bring plaintiff within the original portion of section 6, for Lyzen was not in the separation settlement contract with his wife “a vendee or transferee of a trade, pursuit, avocation, profession or business, or the good will thereof sold for a valuable consideration in good faith,” etc. While defendant, during the time she assisted her husband, was through their domestic relations interested in the success of his business, she could scarcely be classed even as an employee and legally had no interest in it beyond her inchoate marital rights, and we are impressed that the section of their contract relied upon by plaintiff is within the purview of section 1 of the act in question, which distinctly declares “all contracts and agreements” in which any person agrees not to engage in any pursuit or business is against public policy and void. Counsel for plaintiff cite and quote from a line of authorities dealing with sale of a business or established professional practice together with good will, as to which contracts not to engage in the same enterprise in the locality where the business sold had been developed have been sustained by the courts. As no business was bought or sold in this case those authorities are readily distinguishable and call for no review in detail. In Grand Union Tea Co. v. Lewitsky, 153 Mich. 244, Act No. 329, Pub. Acts 1905, was before this court and is instructively discussed by Justice Blair in the opinion filed. A provision in a contract of employment was there under consideration by which the employee agreed not to engage in the line of his employer’s business within one year after leaving its employment. Such agreement was held on demurrer to plaintiff’s bill for an injunction a violation of the terms of the act and void as against public policy. Of the act it was said: “Construed together, the two sections (of the foregoing act) provide in substance, that all agreements not to engage in any avocation, employment, pursuit, trade, profession or business, except where the only object of the restraint is to protect the vendee or transferee of a trade, pursuit, avocation, profession or business or the good will thereof, sold and transferred for a valuable consideration in good faith, shall be void as against public policy.” Here not even a contract of employment is shown, or agreement of any kind for services beyond those contemplated by the marriage contract under which, in the absence of manumission, the wife’s services belong to the husband who was on his part bound to support and maintain her commensurate with their station in life and his ability to do so. There the prohibition held void under the statute was for one year. Here the prohibition, in a contract which was manifestly precursor to a full and final divorce be-,; tween them was for life. Of such agreements in general it is said in 6 R. C. L. p. 791, in part: “Agreements not to engage in a particular business or occupation are objectionable on two grounds — they tend to deprive the party restrained of the means of earning a livelihood, and they deprive the community of the benefit of his free and unrestricted efforts in his chosen field of activity. Not only does such restraint work injury to the public by depriving it of the industry of the restricted party in the vocation for which he is best adapted, as well as by the tendency thereof to throw the person so restrained upon the public for support, or compel him to expatriate himself and transfer his residence and allegiance to some other State or Country in order to pursue his occupation, but the tendency, of such restraint is to foster monopolies, prevent competition, enhance prices, and perhaps ultimately to enable organized capital to silence all, competition, become the sole producer, and place the public at its mercy. Considerations such as these are, no doubt, responsible for the enactment in some jurisdictions of statutes rendering void contracts whereby any one is restrained from exercising a lawful business or occupation except as specified in the statute.” Under the facts in this case it cannot in any sense be said that the purpose of the imposed covenant was to protect plaintiff in the enjoyment of a business which he had purchased from the covenantor. The decree dismissing plaintiff’s bill is affirmed, with costs. Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Moore, JJ., concurred. McDonald, J., did not sit.	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Steere, J. This case was commenced in justice’s court where plaintiff recovered a judgment of $400, and defendants appealed it to the Wayne county circuit court where on retrial before the court without a jury plaintiff was given judgment for $420, including $20 interest, and defendants have appealed to this court on various assignments of error, which are argued in their counsel’s brief under the following headings: “First. Complete and total failure of consideration for the agreement to pay commission. “Second. The defendants being only brokers, are liable for commissions only if the deal is actually closed. “Third. The verdict was against the weight of the evidence.” Return of the justice before whom the case was first tried shows plaintiff declared in assumpsit on the common counts, to which defendants pleaded the general issue. Plaintiff’s bill of particulars filed in justice’s court was: “To commission earned by plaintiff in procuring a purchaser for the property at the comer of Hastings and Willis streets, Detroit, $400.” Although other writings relating to the subject are spoken of in the testimony, including “Exhibit 2” which does not appear in the record, the only evidence in writing before this court relating to the transaction is Exhibit 1, which is as follows: “August 6, 1919, — I agree to pay Mr. H. Gonte, $400.00 commission on the deal, property will be closed, corner Hastings and Willis, sold to Mr. Morris Steinberg, from Paul Carowski. (Signed) “B. Rosenberg and “Samuel Karbel.” This was offered in evidence by plaintiff and admitted without objection. Thereafter no objection to this document was made by or for defendants during the trial beyond the contention, based on their own evidence, that it was without consideration and obtained by misrepresentation and fraud. When the defense sought to go into those questions plaintiff’s counsel objected on the ground that they were affirmative defenses which defendants had waived by pleading the general issue. Defendants’ counsel then insisted that he “pleaded that downstairs,” but it appearing that the justice had only returned “defendants pleaded the general issue,” he asked leave to amend, which the court ultimately granted and defendants were permitted to introduce such testimony upon those subjects as they desired. The parties to this litigation were, according to their description of their vocations, in the real estate business as agents or brokers. Their testimony as it reads is more or less disjunctive, in parts somewhat confusing and self-contradictory, indicating a limited command of the English language, which is apparently not their mother tongue. Of their antecedents and attainments Rosenberg testified that he had lived in Detroit 17 years, his business was “real estate,” he could sign his name but could not write English or read handwriting but could read printing, and his partner Karbel did not read English. Karbel was silent as to his attainments, his testimony of five lines consisting of an admission that Exhibit 1 contained his signature, the- property in question was sold to Steinberg prior to August 5th and Exhibit 1 “was signed a couple of weeks later, on August 6th.” Gonte, who called Exhibit 1 a “receipt,” testified that his business, was “notary public and barber,” and at the time of this transaction his “business was real estate,” with his “real estate office in the barber shop.” His version of the transaction on cross-examination is in part as follows: “I was the agent in the deal with Carowski. Carowski was the owner of the property. I was over with Carowski — I talked to him about selling the property. Rosenberg and Karbel were to pay me commission for the sale of this property. They were the agents. They came to me and said: T got a buyer, I should give him a seller.’ And I went over to the seller to make the sale of the property. I did not bring Stein-berg to them — I talked to Carowski. I brought the seller. They were to pay me commission because I gave them the seller. They didn’t notify me when the deal was closed. They got commission, $1,000. I am positive about that. * * * I was in it between Carowski and Steinberg and then after Steinberg made the $500 deposit, he was supposed to back out. And they told me I got to get another customer so that he will close the deal. * * * The first time they came over to me, they told met if I would get them a customer from Steinberg to Carowski, to buy the property, they would pay me a commission if they got a deposit from Steinberg to Carowski. They came over to me and they told me that there would not be a deal until I give them another customer from Stein-berg. Until I give them another customer that shows Steinberg that he could prove he could get what he paid for it. And that is why I would not trust them, I told them I wanted a receipt, otherwise I would not work on it. So, after they give me the receipt, I went to work. * * * I wasn’t there when Mr. Stein- berg gave a deposit on the property. They didn’t tell me anything. I wasn’t present when the receipt was made out.” The task of securing a purchaser from Steinberg upon which plaintiff went to work after defendants signed Exhibit 1, or gave him the “receipt,” as he states it, resulted in his producing a couple of men as prospective purchasers who made some kind of a bargain with Steinberg for purchase of the property, the terms of which are not disclosed but apparently then satisfactory, to him as he accepted a deposit of $300 and testified: “This man brought me customers that I could make a couple of thousand dollars with a small payment down, in order that I should sell it again.” For some undisclosed reason this deal was not carried out, as he says, “I gave back the parties $300. They wanted the money and I gave it to them,” but his deal with Carowski did not fall through. He stated of it: “I had only paid $500 down on the property. I was not going to lose the property. I had money in the bank, why should I lose it? I knew Carowski. He was a brother in my lodge.” Defendants contend that the “deal” mentioned in Exhibit 1 had reference to that between Steinberg and the customers plaintiff produced, which was not “closed,” instead of to the sale from Carowski to Steinberg, and that plaintiff falsely read them Exhibit 1, to the effect that Steinberg would give him a commission, fraudulently persuading them to sign it as witnesses. Rosenberg’s version of their signing Exhibit 1, with introductory assertion and denial, is in part as follows: “I sold the property from Carowski to Steinberg. I am still claiming the commission, and have com menced the suit for one thousand fifty dollars ($1,050). I don’t owe Gonte a cent. Mr. Karbel does not read English. He asked me when I signed, ‘Rosenberg, do you think it is all right?’ And I said, ‘The man read it for me, I cannot see any swindle in it the way that he read it.’ He read for me that if he was to sell this property from Mr. Steinberg to Mr. Gimbel and to Mr. Wolach. Where I didn’t even know the men, Mr. Steinberg has got to give him a commission. I said ‘What have I got to do with it?’ I signed at Steinberg’s house. Nobody else but me, Steinberg, Mrs. Steinberg, Mr. Gonte and Mr. Karbel were there. Steinberg refused to sign the paper. He said, ‘If you will make the deal, you will get the commission.’ And Mr. Karbel says to Mr. Steinberg, ‘you are in the real estate business. You pay me commission.’ ” The trial court, who had the advantage of seeing and hearing all the witnesses, referred to defendants as “two bright men,” and, commenting on the improbability of their being “fooled” into signing Exhibit 1 as witnesses, held their claim of fraud in that particular was not established against plaintiff’s testimony by a preponderance of evidence. The story that these real estate agents were deceived into signing as witnesses a paper showing Steinberg’s obligation to pay a commission, which he had just refused to sign, in itself heavily taxes credulity under the circumstances of this case. We are not disposed to question the court’s findings on that issue. The question of want of consideration goes with defendants’ claim that the agreed commission was not earned because the second deal between Steinberg and Gimbel and Wolach, whom plaintiff produced as purchasers, was not closed. Defendants’ counsel cites unquestioned authorities to the effect that brokers are only liable to other brokers or agents for an agreed commission if the deal is actually closed". Unquestionably the commission is not earned unless the desired result contracted for is accomplished. If service only is contracted for and performed there is a consideration irrespective of results. The merging of dealings or negotiations between parties into a binding contract and the performance of that contract are two different things. Both parties recognize the deal between Carowski and Steinberg was “closed;” and there is considerable testimony-tending to show the deal between Steinberg and the customers plaintiff produced was also closed, although it was apparently abandoned by mutual consent. Steinberg received from them in that transaction a payment of $300, ■ which he says he voluntarily returned because they asked him to, and plaintiff testified without contradiction: “I haven’t the agreement between Steinberg, Gimbel and Wolach. They took the deposit back, and they took the agreement back.” What the agreement was does not appear, but an agreement generally indicates the closing of a bargain. In Mactier v. Frith, 6 Wend. (N. Y.) 103, 115 (21 Am. Dec. 262), the court said: “What I mean by its (the bargain) being closed is, that nothing mutual between the parties remains to be done to give to either a right to have it carried into effect; either can enforce it against the other, or recover damages for the nonfulfillment of it.” But plaintiff’s claim and testimony are that the agreement, of which Exhibit 1 is a memorandum, was from the beginning that defendants would pay him $400 for his services in aiding them to successfully negotiate and close a sale of this property from Carowski to Steinberg, and his efforts at their solicitation to find a customer for Steinberg were to make certain and close the Carowski-Steinberg deal. The testimony of the parties was in direct conflict on material issues as to which it is manifest certain witnesses were intentionally testifying untruthfully. With a class of witnesses testifying in the manner this record discloses, to hear, observe them as they testify and note their manner of testifying gives more than ordinary advantage in passing on their credibility. There is testimony to support the findings of the trial court, and we are not prepared to hold his findings of fact are against the weight of the evidence. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.	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Sharpe, J. Defendant was convicted of the crime of rape upon Elizabeth Nax, the 17-year-old illegitimate daughter of his former wife. The mother was also informed against as an accessory and likewise convicted. Elizabeth was bom in Germany. Her mother left that country when her daughter was five years old, leaving her in the care of friends and relatives. She met and married defendant in Arizona. They were subsequently divorced, but soon thereafter left that State under an arrangement that they should live together as husband and wife but hold themselves' out as brother and sister, she assuming the name of Anna Berger. They came to Femdale in Oakland county in 1920 and purchased a small property, the deed running to him as a single man and to her as a widow. After the war the mother wrote to Elizabeth and a correspondence followed, resulting in the sending of passage money and the daughter’s arrival in Femdale in February, 1921. It is her claim that defendant attempted to ravish her soon after she reached the home and that with the connivance and aid of her mother he did so on the night of February 14, 1921. She made no direct complaint until March 31st following, although she claims to have said to a neighbor woman soon after February 14th that she “wanted to be taken to a Christian home.” Mrs. Beaumon, to whom she sent a note asking that she be “brought away by the police/’ was permitted to testify to the fact that complaint was made to her. While remote, in view of the fact that she was a stranger in a strange land, unable to speak our language, and that her mother, in whom she would naturally have confided, was, as claimed by her, an accomplice in the commission of the crime, we think it was within the discretion of the trial court to admit it. People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854); People v. Duncan, 104 Mich. 460. On April 13th, complainant was examined by Dr. Morris at the request of the prosecuting attorney. He found that her hymen had been ruptured and expressed his opinion that she had “probably, had intercourse,” while admitting that it might have been due to other causes. The defense then sought to show by cross-examination of the complainant, and also by offer of admissions made by her to her mother and defendant, that she had had sexual intercourse with men in Germany. The court, after listening to extended argument, ruled that the cross-examination would be permitted but that he would not permit her answers to be contradicted by such admissions. On this ruling counsel declined to cross-examine. We feel constrained to hold that the court was in error in so ruling. The proof admitted was in corroboration of her testimony. From it the jury might have found that the rupture was caused by an act of sexual intercourse. It was clearly permissible for the defense to meet this by evidence, either direct or in the nature of admissions made by her, that she had theretofore had such intercourse with another man. When the prosecutrix is above the age of consent, the rule is thus stated in 33 Cyc. pp. 1480, 1481: “Specific acts with others than defendant may be shown to rebut corroborating circumstances, as when the woman is pregnant or has miscarried or given birth to a child, or where she was infected with venereal disease, or where a physician has testified that the hymen was ruptured.” See, also, People v. Craig, 116 Mich. 388; State v. Appley, 48 L. R. A. (N. S.) 269 (25 N. D. 298, 141 N. W. 740), and note thereto; Richardson v. State, 100 Miss. 514 (56 South. 454). Counsel for the prosecution urge that we should not reverse the conviction for this error unless it is apparent that the defendant was prejudiced thereby. We cannot on this record say affirmatively that he was not. The only corroborative evidence offered was that of the doctor and the complaint made by the prosecutrix about a month after the date of the alleged offense. On the cross-examination of Elizabeth, she was shown a small book, on one page of which appeared some obscene matter, written in both the French and German languages. She denied that she had written the matter therein. Counsel for the defendant sought to show that she had so admitted to the defendant, but was refused permission to do so. Much latitude is allowed in permitting evidence to be introduced which may affect the credibility of a complainant in this class of cases. The fact that she has made similar charges against others may be shown. People v. Evans, 72 Mich. 367; People v. Wilson, 170 Mich. 669 (41 L. R. A. [N. S.] 216). We are impressed, however, that the language of the writing cannot be said to indicate a mania for accusing men of rape or that it is of a nature to indicate such a morbid condition of mind or body as justified its reception. Mrs. Bees was called as a witness by the prosecution. Her testimony on cross-examination was apparently disappointing. On re-examination counsel asked her: “Don’t you remember of saying to Mrs. Beaumon ‘no wonder the girl wants to get out?’ ” to which she answered, over objection, “I don’t know, I don’t believe so.” The answer, even if inadmissible, was not so prejudicial as to warrant a reversal. Anna Werner, the wife of defendant, called by him as a witness, testified: “I never saw any questionable relations between Frank and the girl while in Ferndale.” On cross-examination, she testified: “Q. Do you remember telling Mrs. Beaumon that Frank was planning on taking the girl and leaving you? “A. No — not that kind of a statement, ! never made that kind of a statement. “Q. And that he was using the girl all of the time? “A. No, sir, no.” In rebuttal, Mrs. Beaumon was called and permitted to testify that Anna had made such statements to her. The court carefully instructed the jury, both at the time it was received and afterwards in the general charge, that this testimony was received solely for the purpose of affecting the credibility of the witness. We find no error in this. When the wife voluntarily became a witness for her husband, her testimony was subject to the same rules of cross-examination and impeachment as applied to all other witnesses. People v. Toner, 217 Mich. 640. The conviction and sentence are set aside and a new trial ordered. The defendant is remanded to the custody of the sheriff of Oakland county to await such trial. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit.	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Clark, J. Defendant McCray Refrigerator Company was installing, as an independent contractor, an ice box in the store of defendants Joseph Jendrek and Anna Jendrek in Hamtramck. Defendant Golinske was a truckman who delivered the sections of the ice box at the store. A foreman of the refrigerator company had charge of the unloading of the sections and directed other of its employees in that regard. Before the ice box could be installed an old ice box had to be taken out. Some of the sections were unloaded from the truck to be left temporarily without the store. The store building proper was 12 or 14 inches from the sidewalk. It was on the south side of the street. -West of it was a vacant lot. Between the show windows of the building and its westerly limit was a cornice about 6 inches in width. One of the sections as crated was 8 feet long, 7 feet wide, about 6 inches thick and weighed about 700 pounds. This section was placed leaning against the cornice. As placed it had a base of 8 feet and altitude of 7 feet. Being inclined only the inner edge of its base rested upon the sidewalk. The extent of the incline is disputed. There was testimony that the inner edge of the base was 28 inches from the store and other testimony from which it might be inferred that it was at or near the inner margin of the sidewalk, or about 12 or 14 inches from the store. The section extended east of the cornice and in front of the store window about 4 feet and west of the cornice and along and in front of the vacant lot about 4 feet. The lower part of the section was heavier than the upper part. The foreman testified that the wind at the time, about 10:30 a. m., was from the south, “it blew hard at times and then it didn’t,” and that he did not think of the wind when he placed the section in the manner indicated. Norman B. Conger, meteorologist in charge of the local office of the U. S. Department of Agriculture, Detroit, and custodian of its records, testified from original records made under his supervision and according to law that the velocities of the wind during the forenoon of that day were as follows: 8 to 9 o’clock southwest 17 miles, 9 to 10 o’clock southwest 20 miles, 10 to 11 o’clock southwest 23 miles, maximum velocity of 29 miles at 10:42, and 11 to 12 o’clock southwest 27, maximum velocity of 31 miles at 11:38. He said such wind is regarded as fresh and that it is frequent. The weather observations were made from the top of the Majestic building in Detroit. Judicial notice was taken of the proximity of Hamtramck. There was a lengthy cross-examination respecting probable interruptions.and deflections of the wind by buildings and their probable effect upon the direction and velocity of wind in adjacent streets and open places. About 10:45 or 11 o’clock two little boys were coming into the store, of which Mrs. Jendrek testified: “They were coming to the store and I said: ‘You will turn back because they are moving the ice-box, and you can not come in’ and the little boys then turned around and went away from the door. I saw the crate falling.' It fell down quickly. It fell, out towards the sidewalk, and the two little boys were just crossing, they were walking on the sidewalk when this crate fell. “Q. Was there any other boy or person near the crate when it started to fall? “A. No. It fell on them. * * * After it fell it wholly covered the width of the sidewalk from the inner edge to the outer edge.” And the foreman testified: “I was guiding the old box that we were taking out. It was on rollers. When we were doing that I heard a noise which attracted my attention. The noise was on the sidewalk. I immediately looked around to see what it was as soon as I heard the noise. * * * I went right out to the door as soon as I heard the fall. There was no one right close to it. We immediately took the section up. The piece was large, enough to completely cover the sidewalk when it fell.. “Q. Just as you turned your head after you heard, the noise, did you see anybody? “A. Yes, sir. “Q. And the people or children that you saw were out in the streets? “A. Yes, sir. “Q. Nowhere near .this crate? I mean by that, I don’t mean a mile away, but they were nowhere near this crate? “A. They were not to my knowledge.” Plaintiff’s intestate was one of the boys mentioned by Mrs. Jendrek. He was a little over 4 years of age. The section fell on him. He was fatally injured. When the section was removed his mother carried him home. There was testimony that he survived about one hour thereafter' and that he suffered pain. The declaration was under the survival act. A verdict was directed in favor of the Jendreks. There was verdict and judgment against the refrigerator company in the sum of $8,000 and it brings error. It is urged: 1. That a verdict should have been directed for appellant, there being no evidence of any negligence on its part. No one was near the section when it started to fall. The little boys were walking on the sidewalk at the time. The only theory of its falling is that advanced by plaintiff, that by defendant’s negligence it was left standing on the public sidewalk so nearly balanced that it could not withstand the wind crossing the vacant lot and striking its exposed surface. There was nothing unusual about the wind. It was of increasing velocity that forenoon. It was at times gusty. It was not such a wind as defendant might not have anticipated. If, as claimed by plaintiff, defendant placed the section upon a public sidewalk in such an insecure manner that it ought to have anticipated that it might be blown down by a wind, not unusual, defendant would be negligent, and that is true although the wind, for which neither party was responsible, contributed to cause the injury. It is said in Detzur v. Stroh Brewing Co., 119 Mich. 282 (44 L. R. A. 500), quoting from syllabus: “An owner’s negligence in maintaining a window •above a public street in such a shattered condition as to render it likely to fall and injure pedestrians is the proximate cause of an accident so occurring, although an ordinary wind may operate as a concurring circumstance to dislodge the glass.” We quote from the syllabus of Holter Hardware Co. v. Mortgage, etc., Title Co., 10 N. C. C. A. 316 (51 Mont. 94, 149 Pac. 489): “Where repairs had been made to a skylight on the roof of defendant’s building, and pieces of iron left thereon were blown by a high wind against a plate glass window in plaintiff’s building, and it was shown that winds of the same power and velocity were not unusual at that season and place, a finding that the wind, though severe, was not such as defendant ought not to have anticipated was justified, and defendant was liable for negligence under the rule that where two causes contribute to an injury, one of which is the negligence of defendant, and the other for which neither party is responsible, defendant is liable if the injury would not have occurred but for his negligence, and such rule is applicable in cases where one of the contributing causes is an act of God.” And from syllabus of Jaworski v. Detroit Edison Co., 210 Mich. 317: “If a person does an act and knows, or by the exercise of reasonable foresight should have known, that in the event of a subsequent occurrence which is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will be deemed to be the proximate cause of the injury.” And from Baldwin on Personal Injuries (2d Ed.), p. 398: “While it is true that the mere fact of an accident does not, standing alone, tend to prove negligence, yet the fact that an accident has occurred may be taken into consideration, with all of the other facts and circumstances of the case, for the purpose of determining whether in fact there was negligence. The circumstances attending an accident, when shown, may of themselves in connection with the accident, afford an inference of negligence. • If reasonable and legitimate inferences of negligence may be drawn from the accident and the attending circumstances, in the light of the testimony in the case, such inferences are then for the jury to decide.” See, also, Jacobs v. Hagenbeck-Wallace Shows, 198 Mich. 73 (L. R. A. 1918A, 504, 16 N. C. C. A. 535); 20 L. R. A. (N. S.) 95; Burghardt v. Railway, 206 Mich. 545 (5 A. L. R. 1333); Gerstler v. Weinberg, 160 Mich. 267; Butler v. Watson, 193 Mich. 322; Morrison v. City of Ironwood, 189 Mich. 117; Wilmarth v. Traction Co., 198 Mich. 428. The evidence adduced by plaintiff in support of his theory and claim of negligence made a case for the jury. 2. That Mr. Conger’s testimony was incompetent. That the observations were made from the top of the Majestic building in Detroit rather than on the spot in adjacent Hamtramck affects the weight to be given the evidence, but does not render it incompetent. 22 C. J. p. 192. The evidence was competent. 3 Comp. Laws 1915, § 12522; DeArmond v. Neasmith, 32 Mich. 231. 3. That the motion for a new trial should have been granted because the verdict is against the great' weight of the evidence and because it is excessive. We fully agree with the trial court that the verdict is not against the great weight of the evidence. The trial court, expressing doubt respecting the testimony of conscious pain and suffering, declined to hold the verdict excessive, but recommended, in case no reversible error be found by this court, that the plaintiff be required to remit down to $5,000 as a condition of affirmance. We have no means of knowing what, if any, portion of the verdict was for pain and suffering. But there was evidence sufficient to sustain a verdict therefor, though the case under the evidence is rather near the border line between the death act and the survival act. In L. R. A. 1916C, 870, will be found a list of verdicts in like cases. A review of such cases as are in point will indicate that the verdict in the case at bar is- above the - average as sustained. For circumstances under which verdicts may be held to be excessive, see Fishleigh v. Railway, 205 Mich. 145; Wilson v. Railway, 208 Mich. 411. Under the rules there laid down we think the amount of the verdict itself, under the proofs, indicates that it is excessive. For a case in point in which this question was considered and in which a verdict of $6,500 was reduced to $5,000, see Swaczyk v. Detroit Edison Co., 207 Mich. 494, and see Love v. Railroad Co., 170 Mich. 1. A great many other assignments are argued by counsel. We have considered them. Taken separately or collectively they do not warrant reversal. If plaintiff concedes by remission a reduction of the verdict to $5,000 the judgment will stand affirmed, with costs to defendant, otherwise the same will be reversed, with costs to defendant, and a new trial granted. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Clark, J. This action is on a $25,000 fire insurance policy issued to Sarah Goffe by defendant. She owned a plant in Ann Arbor in which, under the name of Ann Arbor Stamping & Metal Company, she was principally engaged in the purchase and sale of sheet metal scrap and in the manufacture therefrom and the sale of small stampings, such as automobile license plates, frying pans, shovels, hoes, spades, etc. A fire occurred in the plant between 11 and 12 o’clock in the night of December 31, 1920. She had ordinary fire insurance amounting to $375,000, and use and occupation insurance to the amount of $30,000. The insurance was written by two agents of the different companies, of which Mrs. Goffe said: “No, sir; I build up the business, and when the business is built up, Mr. Brooks and Mr. Butler came up and asked me why I didn’t take insurance. “A. I told Brooks and Butler1 that they should take a look around the shop and see what there is,- and they should give me insurance on it. “Q. When did you tell, them that? “A. When I take insurance, when they come to- the office. “Q. Every time you took a new policy, you told them that? “A. No, I just told them once, and they take care of me.”- There was a fire in the same plant on August 22, 1920, because of which Mrs. Goffe was paid $125,000 by insurance companies. Most of the insurance in question was written after the first fire. This is the first, in point of trial, of, it seems, 58 suits against 46 insurance companies brought to recover the amount of the loss. The plaintiff Ann Arbor Savings Bank, a Michigan corporation, is named in a loss payable clause as payee as its mortgage interest may appear. The policy in the case at bar is dated October 8, 1920. The loss payable clause was attached or indorsed October 27, 1920. On both of these dates the mortgage interest of the bank was $50,150 excluding interest. On December 4, 1920, the bank took another mortgage of $25,000 given by Mrs. Goffe and also signed by her husband, Jacob Goffe. The total mortgage debt at the time of the fire was $75,150 and interest. Mrs. Goffe was also indebted to some 70 creditors whose claims were said to be unsecured, in an aggregate of approximately $265,000, the bank being one of these in the sum of about $91,000. On January 6, 1921, Mrs. Goffe assigned her rights under the insurance policies to William L. Walz as trustee for herself and her creditors and gave the trustee power to collect insurance and to adjust and pay claims. Sworn proofs of loss were rendered to the companies through public adjusters which claimed of the defendant here the sum of $23,531.30 and stated the sound value of the insured property and the loss and damage thereto as follows: Loss or Cask Value Damage Building ................ $200,000.00 $68,211.92 Equipment ............... 164,871.75 98,460.50' Stock ...........'......... 393,082.53 393,082.53 Total ................ $757,954.28 $559,754.95 Prior to the proofs of loss Mrs. Goffe caused to be submitted to the adjusters representing the insurance companies a schedule of sound value and loss and damage. The extent to which such schedule is particularized is indicated by the fact that 17 pages of the record are required to print it. The plaintiffs are the bank and the trustee. The declaration is in usual form, counts on the policy, avers a total loss or damage of “to-wit $350,000” and that there is due the plaintiffs from defendant $25,000 and interest and claims damages in the sum of $25,000. Defendant demanded a bill of particulars. Plaintiffs filed and served a bill setting forth the various aggregates of value and damage and stating: “The details from which the foregoing figures are taken, comprising a great many typewritten sheets, have already been served upon the defendant company before suit was brought.” There was motion for a more specific bill of particulars. The motion was supported by affidavit and likewise opposed. In disposing of the motion the trial court said: “And it having appeared from the records in said cause and the argument of counsel upon the hearing of the motion that the records of the equipment and material were mostly, if not' entirely, destroyed by fire and therefore not available; and it further appearing from argument of counsel for the plaintiffs and the defendant that details upon which the figures submitted in the bill of particulars filed, were furnished to the defendant, and that the same comprise many typewritten sheets and that the same was binding on the plaintiffs as a bill of particulars and that the plaintiffs were willing so to be bound; and it further appearing that every courtesy had been extended to the defendant to pass upon the premises which were destroyed by fire, examine and list the condition of the damage by the destruction, and that a very thorough examination had been made. “The court is, therefore, of the opinion that if the plaintiffs in this cause file, as a part of their bill of particulars, the typewritten sheets présented to the court on the day of the hearing by the respective counsel for the parties, that the same will constitute a complete bill of particulars if the plaintiffs cause to be added to the said typewritten sheets the name or names of the maker or makers of the said equipment, dies, and tools, as is available from memory or otherwise.” The suggestion or order of the court was complied with. The motion for a more specific bill of particulars was renewed. This motion and its supporting affidavit complain of a lack of particulars of raw steel stock. The record shows nearly 8 pages of fine print of such particulars. In deciding this motion the trial court again said: “This court is advised by the admissions of counsel for the defendant in court upon the argument of the motion that the bills of particulars filed were satisfactory. except as to the steel, and this, it is claimed by the defendant, should be more specifically described. It will appear from the statement attached to the supplementary motion that the defendant has a very complete itemized statement of the steel claimed to be destroyed. This statement furnished to the defendant and made a part of the motion is complete in every detail. It gives the defendant complete knowledge of the dimensions of the steel, number of piles of the steel and the volume and kind of material. The parties may differ as to the volume and price per ton, but that is a question which should be determined by the jury at the time of the trial based upon the testimony. The defendant’s counsel did not claim in his argument that the defendant was in any way surprised or that he could not prepare the case for trial, therefore, it is the conclusion of the court, after careful consideration^ of the arguments upon the two motions for more specific bills of particulars, and from an examination of the records and files, and the affidavits attached to the motions, that the decision of this court made on the 7th day of November, 1921, should be affirmed, and this motion should be denied, and the same is hereby denied.” With its plea of the general issue defendant gave notice of the following defenses which it says it urged at the trial, quoting from brief of counsel: _ “The first defense charged the assignor of the plaintiffs, Sarah Goffe, with falsely, fraudulently, and wilfully over-stating the sound value of the property, and the loss and damage thereto, in her sworn proofs of loss, and alleged the over-statement, in dollars and cents, to be several hundred thousand dollars. “The second defense charged that the assignor fraudulently and wilfully included in her proofs of loss, stock and fixtures that were not injured or destroyed by the fire. “The third defense charged the assignor with concealing the fact that stock, dies, materials and fixtures, which she alleged had been destroyed, were saved from destruction, and not injured in the fire. “The eighth defense charged that the company was not liable for a great quantity of machinery, which was described in this defense, for the reason that it was covered by a chattel mortgage, at the time of the fire, without any agreement that the company should be liable for loss on property so incumbered. “The ninth defense, being one of the five defenses relied on, charged that Sarah Goffe, assignor, and her husband, Jacob Goffe, procured the fire to be set, and the property to be damaged and destroyed, for the purpose and with the intent to defraud the defendant.” Jacob Goffe, Jack Sands and Jack Isaacs were arrested and charged with burning the property in an attempt to defraud the insurance companies. An examination was had. They were held to the circuit court for trial. After some delay, on motion of the defense and by consent of the prosecution, an order nolle prosequi was entered as to all defendants. These criminal proceedings in their various incidents were attended by the usual reports in the newspapers of the city in part to the effect that it had been said that the insurance companies were back of the prosecution in an effort to hinder the civil cases, that the companies were hard pressed for evidence, that bribery-had been charged, etc. Defendant moved to change the venue, supporting such motion by copies of the press reports of the criminal proceedings, a list of' stockholders of plaintiff bank, chiefly residents of the city, and affidavits of counsel and others asserting that, a fair trial could not be had in the county. There was, a counter showing by affidavits of residents of the city. The motion was denied. From time to time throughout the trial at the suggestion of counsel on both sides the number of spectators in attendance at the trial was noted in the record. The average daily attendance of the observations made was nine. Mrs. Goffe was illiterate. The bookkeeping was primitive. Her daughter did most of it. Her husband was manager. Fred O’Connor was superintendent. Bartz was an employee. In a few years the business had grown from a, small annual volume to better than half a million in 1920. It is said that the business was profitable, though it is also said that there was in 1920 a decided slump in the value of the steel stock which was the big item in the case. Mrs. Goffe testified of limited knowledge of and participation in the affairs and management of the business. The proofs of loss were prepared by Mr. Campbell,, an adjuster for the insured, aided by O’Connor and Bartz. Mrs. Goffe testified: “I said to Mr. O’Connor: Mr. Campbell called and asked of me: ‘We have got to have proof of loss, what was lost in the fire/ He says: T can do that for you. I will go to the shop and we will figure up what is there and what is gone, and we will take a record of that/ Then the next day he came up and gave me a slip of paper. I don’t know as it was the next day, but he had everything correct on a slip of paper. And I said: ‘Fred, is that the proof of loss ?’ And he said: ‘Yes.’ I handed that slip of paper to Mr. Campbell. I can’t remember how many sheets of paper there were; a handful, I don’t know, probably' 2 or 3, I can’t remember, there may be 4 or 5; I can’t remember. Ask Fred O’Connor, he will tell you. I can’t read so I cannot tell whether this is the paper that was handed to me or not. Mr. O’Connor could tell the figures. I believe that is the paper that Fred O’Connor handed to me. I can’t tell whether all those sheets were there when it was handed to me, or not? It was a handful. I couldn’t remember. He gave me all the loss there was on a slip of paper. * * * “I saw the proofs of claim that were presented to "the insurance company in this matter. I could not go «ver those proofs of loss on the various items — steel, machinery, and dies — because I could not write, but I was there and Mr. Campbell and Mr. O’Connor and Mr. Bartz; O’Connor made a statement and took us over the shop and showed us everything that was destroyed or damaged in the fire, and Mr. Campbell checked it off. Then I took that statement that Mr. O’Connor gave, to Detroit.” Mrs. Goffe denied that she had been guilty of fraud in connection with making proof of loss. Pertinent to defendant’s claim of fraud in the making of proof of loss there are hundreds of pages of testimony relating to the long list of items in the schedules. Space forbids a review of such testimony. An issue of fact upon the matter was made by the conflicting evidence adduced. Mrs. Goffe denied knowledge of the cause of the fire and any wrongdoing in connection therewith, and she denied having given any improper instructions to her employees respecting the making of proof of loss and that there was fraud or wrong in connection therewith. In this she has support in the record, and it appears that in the early stages of this matter she was supported by O’Connor and Bartz. But before the trial and nearly a year after the fire O’Connor and Bartz and one or two others suffered a decided change as to the facts in the case. Defendant seems to contend that these persons turned from aiding and abetting in crime, and in the effort to defraud the insurance companies, into the way of truth. Plaintiffs contend that these persons were corrupted. This difference in contention has produced questions necessitating a further statement of facts. At the trial Bartz testified at length of gross fraud in many particulars in the making of the proof of loss. When confronted with schedules of value, loss and damage written by him, he stated they were false and that he had so prepared them at the request of Mrs. Goffe or her husband. He at first refused to deny having made statements subsequent to such schedules to the effect that the claim for the insurance would not cover the loss, but later he denied making such statements. There was testimony that he had made statements of that import. Bartz also testified that Mrs. Goffe owed him about $2,400 and that she did not pay him, that he knew one Friedman on whom he and O’Connor, who also claimed Mrs. Goffe owed him about $1,700, called about a year after the fire, of which: “Q. You told Dave Friedman that if Sarah Goffe wasn’t going to pay what you claimed, that you were going to get some money from the insurance companies? “A. I didn’t say anything of the kind. “Q. And asked him to have him put you in touch with the insurance people, didn’t you? “A. That is all. “Q. Well, you told him that you had something that you would sell to the insurance company if Dave would put you in touch with the insurance companies? “A. I never said anything of the kind. “Q. In the presence of Dave Friedman and his wife in his home about Christmas time, this past Christmas? “A. I did not say anything about ‘sell.’ “Q. What did you say about wanting to get in touch with the insurance people? “A. I told him I would like to get in touch with them. I didn’t exactly do it myself. O’Connor said it at first. He said, T will get in touch with them.’ Friedman said: ‘How much do you think that ought to be worth?’ I said, ‘We don’t want any money.’ “Q. What did you say that you thought it ought to be worth? “A. I said we didn't want any money. “Q. What did O’Connor say in your presence about the money? “A. Hé did not say a word to him. “Q. What did Friedman say about the insurance money? “A, Friedman said he was going down to see them. “Q. Friedman said he was going down to see them? “A. Yes; he said he was going to get about $28,000 for the case if we would tell what was right. “Q. Friedman promised you and O’Connor $28,000? “A. Yes. “Q. If you would tell them what was right? “A. If we would tell them, and we didn’t do it. “Q. Why didn’t you tell Friedman what was right? “A. No, sir, I did not. “Q. Who have you told what was right? “A. We got in touch with somebody else. “Q. Who was that? “A. That was— “Q. That was a gentleman named Feilschmidt? “A. Yes. “Q. Now, Feilschmidt is an insurance detective, isn't he? “A. No, sir, he is not. “Q. What is he? “A. He is an investigator for the underwriters.” Bartz also testified: “Q. Did you ever make any remark to Mr. Walz, one of the plaintiffs in this case, sitting right here, about what you would do to Sarah and Jacob' Goffe if they did not come through with some money? Did you? “A. I said that I would kick it over. That is all I did tell them. * * * “Q. You also told him that if she did not come through, you would go the limit with her, didn’t you? You used the term, ‘Go the limit.’ “A. Yes.” The witness also said that Mr. Goffe stated in, substance that he had procured Sands and Isaacs to set the fire. O’Connor also testified at length of gross fraud and falsity in the schedules and proofs of loss and that his part in making them had been at the instance of Mr. Goffe. He admitted having called on Friedman with Bartz and having asked to be put in touch with the insurance investigators, but denied Bartz’s statements respecting the $28,000. He met Feilschmidt and one Lehman. They questioned him of the fire but he made to them no such statements as he made at the trial. Nor did he when questioned by the deputy attorney general. He testified: “A. I told them I was going to kick it over. “Q. You told them you were going to kick it over? “A. Yes, sir. “Q. Unless you get some money? “A. Yes, I wanted my money.” He got in touch with Feilschmidt through Lehman. The witness, when interrogated respecting his conduct and statements during a considerable period after the fire and relative to his testimony on the criminal examination, asserted that though his early statements and conduct were in the main false and fraudulent his testimony at the trial was true. Mrs. Seifert, a domestic in the Goffe home, testified that soon after the fire shet overheard a conversation between Mr. and Mrs. Goffe to the effect that they had procured the fire to be set. But this witness made on oath in April, 1921, a purported recital of facts in which there is no such statement, the recital being of contrary tenor. After meeting Feilschmidt she signed another affidavit. She also claimed that a sum of money was due her from Mrs. Goffe. The witness Kuebler, a watchman at the plant, testified of having heard pounding in the plant on the night in question. But on cross-examination he said: “Q. You know Dave Friedman? “A. Yes. “Q. And Dave took you to Chicago, didn’t he? “A. Yes. “Q. Dave paid for your ticket to Chicago? “A. Yes. “Q. And he bought you a nice suit of clothes, didn’t he? “A. Well, my wife buy them. “Q. Well, he gave your wife some money to buy her a dress and you a suit of clothes, didn’t he? “A. Yes. “Q. And after Friedman had given your wife a dress and some money, and you a suit of clothes, he took you to Chicago. Who did you see in Chicago? “A. The insurance fellow from Chicago. “Q. What? “A. The insurance fellow from Chicago. “Q. The insurance expert in Chicago? “A. Yes. “Q. What was the name of this insurance expert in Chicago that you saw? “A. I no know what his name. Mr. Friedman took me over. “Q. It was your old friend Feilschmidt, wasn’t it? “A. Feilschmidt, yes. “Q. So after you told Mr. Cavanaugh you knew nothing about the fire, and told Walz whatever you told him, and after your wife had some money and a dress and you a suit of clothes, and you had gone to Chicago at Friedman’s expense, you met Feilschmidt, didn’t you? “A. Yes, I met Feilschmidt. “Q. And then you began to hear pounding on the pipes? “A. Yes. “Q. You began to hear sledge hammers in the building, didn’t you? “A. Yes. “Q. And you began to see a fire on the floor of the living room, didn’t you? “A. Yes. “Q. As a matter of fact, they put you up in a nice hotel there, didn’t they? “A. Yes.” There seem to be marked differences in the testimony of this witness in the criminal case and in the case at bar. Mrs. Kuebler explained that her husband was paid $20 that he might be better dressed for the trip to Chicago. She denied getting a dress. There was testimony that Feilschmidt was an insurance detective, that he had been seen coming out of the office of the Underwriters’ Adjustment Company, "That is the group of insurance companies defending these law suits,” and that he had talked with other probable witnesses in the case. Defendant’s theory of the fire seems to be that the Goffes procured Sands and Isaacs to set it. In support of this counsel for defendant have fully discussed the evidence and have pointed out significant and suspicious circumstances. There is testimony which if believed might establish an alibi for Sands and Isaacs. And plaintiffs’ counsel have also reviewed such evidence, direct and circumstantial. All of which indicates an issue of fact for the jury. The jury viewed the premises. Plaintiffs had verdict and judgment for $25,001.30. Defendant has 161 assignments of error, which have been grouped under convenient heads. We agree with the trial court, for the reasons stated by him above quoted, in his refusal to require a more particular bill of particulars. See Wright v. Dickinson, 67 Mich. 580 (11 Am. St. Rep. 602); Hamilton v. Ingham Circuit Judge, 84 Mich. 393. And upon this record it cannot be said that there was an abuse of discretion in refusing to change the venue. It is said that there was error in receiving testimony of Feilschmidt’s activities in the case, in permitting him to be characterized in comment and testimony as an insurance detective and in allowing inference and argument that he had acted for the Underwriters’ Adjustment Company, the group of insurance companies defending the cases, of which defendant was one. No one urges that Feilschmidt was engaged in a worthy effort to uncover truth. Defendant disclaims him. Plaintiffs assert that he corrupted and suborned witnesses. He, Lehman and Friedman were not called as witnesses. His activities seem to have related to and to have covered th'e cause of the fire. He was seen coming from the office of said Underwriters’ Adjustment Company. This, with the character, extent and evident purpose of his operations fairly support an inference that he was acting for and in behalf of the defendant and the other insurers. In this regard we find no error., In examining a juror on the voir dire, counsel for plaintiffs asked if he had heard of Feilschmidt, an insurance detective. This was followed by questioning respecting prejudice because of Feilschmidt’s activities, etc. He was characterized as dishonest and an ex-convict. This question was asked and upon objection withdrawn: “You realize in a case of this kind, where some of these companies in which this insurance was placed, where some of these companies desired to evade their loss and to avoid payment of this claim, you realize the fact, do you not, that they may secure men whose word may be tainted by their desire to obtain money?” Defendant sought continuance and discharge of the jurors because of such examination. The court said: “I think the question has been withdrawn, and the jury did not consider it any way. The motion is denied.” The examination as continued shows further questioning respecting1 Feilschmidt. Exceptions were had. We find no proof that he was an ex-convict. Counsel were too eager to parade Feilschmidt and his doings. But in view of the withdrawal of the most offensive question, the statement of court, the evidence adduced above reviewed, the statement of counsel for defendant that “we are satisfied with the jury,” and that it does not appear that peremptory challenges of defendant were exhausted, we decline to hold the matter to be reversible error. Snyder v. Mathison, 196 Mich. 378, at page 386; Roach & Co. v. Blair, 190 Mich. 11; Church v. Stoldt, 215 Mich. 469; Link v. Fahey, 200 Mich. 308; Webster v. Stewart, 210 Mich. 13. It is claimed that there was misconduct of counsel in making improper remarks and comments throughout the trial. While exceptions were noted to several of such remarks and comments and the court in some instances struck out the objectionable matter and said that the jury would not consider it, we find no request that the jury be instructed to disregard such remarks and no request to charge upon the subject. Of a like situation it was said in Kirchner v. Railway, 91 Mich. 400: “There would be great force in this contention had counsel for defendant oh the trial called the attention of the court to the effect which the remarks of plaintiff’s counsel were intended to have upon the jury, and asked that the jury be cautioned against receiving such remarks to influence their verdict, or had counsel for defendant asked an instruction to the jury upon that subject before or at the time of the giving of the charge.” And in 12 Cyc. p. 819: “Improper remarks of counsel must be promptly ob jected and excepted to, and the court requested to instruct the jury to disregard them in order that they may be reviewed on appeal.” And see People v. Maczulski, 194 Mich. 193; Spencer v. Johnson, 185 Mich. 85; People v. Sartori, 168 Mich. 308; Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449. Of course if exceptions were taken to remarks which were of such character that they could not be cured by instruction, the rule would be otherwise. See People v. Osborn, 205 Mich. 531, and cases cited. But we find, as presented here, no remarks or comment of counsel of that character. For cases involving similar conduct of counsel, see Provost v. Brueck, 110 Mich. 136; DeLong v. Booming Co., 88 Mich. 282; Daniels v. Weeks, 90 Mich. 190; O’Dell v. Straith, 208 Mich. 497; Gagush v. Hoeft, 208 Mich. 147. We think defendant was not prejudiced by the remarks. The trial court was of that opinion, and defendant’s counsel in one instance said, “I do not think you are succeeding very much in prejudicing the defendant.” And of the purpose of a remark again said: “The court knows and the jury knows.” And as we have often said jurors must be credited with intelligence. Misconduct of counsel is often more harmful to his client than to the opposite party. And as was said in Daniels v. Weeks, supra, “We are satisfied that the jury would have rendered a verdict for the plaintiff had these remarks hot been made.” Plaintiffs’ counsel said in opening: “* * * then you gentlemen are going to hear some testimony that I judge will disgrace you, disgrace me, and disgrace every one in the court room in which it is produced, because the facts will show that in this case witnesses have been bribed with money and with whisky and with women.” There was testimony to support a charge that a witness had been suborned. And there is precedent for referring to such, misconduct as “bribery.” People v. Salsbury, 134 Mich. 537. Commonly it is so characterized. 9 C. J. p. 406. There being testimony to sustain the gist of the statement, and it not appearing that counsel made the statement from improper motives, that too many instruments were named by which the offense was said to have been committed does hot here constitute reversible error. See Prentis v. Bates, 93 Mich. 234 (17 L. R. A. 494); Porter v. Throop, 47 Mich. 313. Error is assigned upon remarks of the judge made in an effort to expedite the business of the court. The remarks do not constitute reversible error. The verdict is not against the great weight of the evidence. The judge in his charge said: “* * * the burden is upon the defendant to satisfy you by a fair preponderance of the evidence that Sarah Goffe or the Ann Arbor Savings Bank either set fire to this building or caused it to be set on fire.” This reference to the, bank was clearly inadvertent and could not have misled the jury. We find in the charge and in the refusal of requests nothing which warrants reversal. It is urged that the policy in question, Michigan standard form, was voided by the mortgage of December 4th, above stated, that it was given without the consent of the insurer, and that it was a change, in title and interest of the subject of insurance. This is disposed of by Lindemann v. Insurance Co., 217 Mich. 698, and other cases of like holding. We come to the last question to be discussed. All questions not discussed have been considered. The verdict is said to be excessive. We think it is in one particular. The trial court fixed the maximum amount of plaintiffs’ recovery under the evidence at $23,531.30 and interest from February 26, 1921, at 5% per annum. The verdict was rendered June 2, 1922, in the sum of $25,001.30. The interest allowed to plaintiffs was, it seems, $1,470, roughly 5% on the said maximum for the time. It is apparent that the jury computed interest for the time, 1 yr. 3 mo. 6 days, roughly at 5% per annum as the judge several times instructed them to do, although in the introductory part of his charge he stated that plaintiffs had consented that the interest be computed at 6% flat instead of at 5% per annum for the time. The damages were stated in the declaration to be $350,000 or 93 1/3% of the total amount of fire insurance. So as to this defendant the declaration must be held to have stated damages in the sum of 93 1/3% of $25,000 or the sum of $23,333.33; And, although plaintiffs, under the evidence, might have been entitled to a maximum of $23,531.30 and interest, because of the declaration they were limited to $23,333.33 and interest. Nor are plaintiffs aided by the ad damnum clause. See Abernethy v. Township of Van Buren, 52 Mich. 383; 2 Abbott Cyclopedia Michigan Practice (2d Ed.), p. 1394; 13 Cyc. p. 181. No amendment was sought or made. The maximum of verdict including interest under the declaration is the sum of $24,733.24. The judgment will be affirmed in that amount and plaintiffs will remit the excess. See Kenyon v. Woodward, 16 Mich. 325. This discrepancy it seems was not called to the attention of the trial court. And as it does not appear to have been pointed out on the motion for a new trial defendant may not have costs. Plaintiffs will recover costs in this court. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Fellows, C. J. By written proposal and acceptance plaintiffs and defendant entered into a contract whereby plaintiffs agreed to construct a spur track for defendant. The track was installed and has since been used by defendant. No part of the contract price having been paid, plaintiffs brought this suit counting on the contract, a copy of which was attached to the declaration, to which count was added the common counts. Defendant pleaded the general issue alone. Upon the trial plaintiffs relied upon the special count and established the contract, its performance and defendant’s failure to pay. , Defendant then sought to show in his defense that certain of the material and construction, was not in accordance with the contract. The trial judge entertained the view that this defense was the defense of recoupment and that it could not be made under the general issue. Defendant’s counsel did not ask to amend his pleadings but excepted to the ruling and here assails its correctness. The trial judge was quite right. Recoupment is defined as follows: “Recoupment is the act of rebating or recouping a part of a claim upon which one is sued by means of a legal or equitable right resulting from a counterclaim arising out of the same transaction. It is the right of defendant, in, the same action, to claim damages from plaintiff, either because he has not complied with some cross obligation of the contract upon which he sues, or because he has violated some duty which the law imposed upon him in the making or performance of that contract. It is an innovation on the strict rules of common law, and rests upon the principle that it is just and equitable to settle in one action all claims growing out of the same contract or transaction. In its original strict sense it was a mere reduction of the damages claimed by plaintiff, by proof, of mitigating circumstances connected with or growing out of the transaction upon which plaintiff’s claim was based, showing that it would be contrary to equity and good conscience to suffer plaintiff to recover the full amount of his claim, being considered in the nature of a doctrine of mere mitigation of damages, and was of very limited application. But in more recent practice the doctrine has been greatly extended in its application, and is spoken of as a liberal and beneficial improvement upon the old doctrine of failure of consideration, and is now generally regarded as in the nature of a cross action, the right of plaintiff to sue being admitted, but defendant alleging that he has been injured by a breach of another branch of the same contract on which the action is founded and claiming to stop, cut off, or keep back so much of plaintiff’s damages as will satisfy the damages which have been sustained by defendant. In some States recoupment has been made statutory.” 34 Cyc. p. 623. By the opening statement of defendant’s counsel and by the proof offered by him it appeared that defendant sought to show that certain of the material and construction did not comply with the terms of the contract counted on, that there had been breaches of the identical contract in issue. This was clearly a counterclaim for damages arising out of the very contract sued upon. Obviously this defense was recoupment. Sharpless Separator Co. v. Brown, 174 Mich. 16; American Varnish Co. v. Furniture Co., 199 Mich. 316. And notice of it must be given. Circuit Court Rule No. 23, § 5. This court has frequently held both before and since the adoption of the present rules that recoupment may not be relied upon unless notice of it be given; and the notice must point out in what respect the contract sued upon has been broken. Kerr v. Bennett, 109 Mich. 546; Detroit River Transit Co. v. Aldrich, 176 Mich. 357. In the last-cited case it was said: “Recoupment is, in its nature, a cross-action for damages, an affirmative defense in relation to which the defendant is, in effect, plaintiff and may recover a money, verdict in his favor if his claim exceeds plaintiff’s demand. Such claim must be properly pleaded, as in a declaration.” Error is assigned upon the statement of the court in his charge that the spur track had been accepted and used. The record justifies the statement. Plaintiff Gower testified without dispute that “the job was accepted by Mr. Barry and the Detroit Terminal Railroad. Cars were put in operation and put in on the tracks,” and defendant’s counsel in a colloquy with the court admitted that the track was used. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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Sharpe, J. In the fall of 1919, the defendant began proceedings for deepening and widening what is known as “Mud Lake drain,” which traverses a part of Bangor and Hartford townships in Van Burén county. Some of the landowners declined to release a claim for damages and an application for the appointment of commissioners was filed in the probate court pursuant to 1 Comp. Laws 1915, § 4883. In this application the “P. M. R. R. Co.” was named as one of such owners and the parcel of land alleged to be owned by it. specifically described. A citation was issued, addressed to such owners, in which the “P. M. R. R. Co.,” was described as the “Pere Marquette Railroad Company.” The defendant made service— “by giving the same personally to. E. B. Rich, the agent for said company, at Holland, the person named in said citation, by delivering to E. B. Rich aforesaid personally a true copy thereof.” On the day fixed for the hearing, Glenn E. Warner, an attorney residing at Paw Paw in Van Burén county, appeared for the railroad company. An adjournment was had by agreement to a later date. On that day Mr. Warner again appeared and filed objections to the court’s hearing the petition as follows: “1. Because no valid service of citation and process has been made on the said Pere Marquette Railroad Company. “2. Because this court has no jurisdiction to enter an order of any character in any way binding the Pere Marquette Railroad Company.” These objections were signed by the Pere Marquette Railroad Company by Shields, Merrzam & Sleeper, its attorneys, Glenn E. Warner, of counsel. The objections were overruled. A jury, demanded by Mr. Warner, was then impaneled, the premises viewed and proofs taken. The bridge engineer of the company was examined as a witness and gave detailed information as to the expense which the work would entail on the company. He testified that he was employed by the railroad administration, that he was bridge engineer for the Pere Marquette Railway Company before it was taken over and that he continued in that capacity without any change when it was taken over. The estimates made by him were on paper on which was printed “Pere Marquette Railway Company, Detroit, Michigan, J. Tuthill, Engineer.” Mr. Warner was present and took part in all these proceedings. The jury determined that the improvement was necessary and fixed the damages of the “P. M. R. R. Co.” at the sum of $6,500, on which the usual order was entered. Plaintiff herein, the Pere Marquette Railway Company, in its bill of complaint alleges that it owns the land and operates the railroad affected by said order, details the proceedings above set forth, says that defendant thereafter made his final order of determination and filed a certified copy thereof with the county clerk of Van Burén county, and that about a month thereafter— “a ticket agent of your petitioner was served with notice of letting contract, etc., in connection with the said Mud Lake drain, and that up to the time of serving said notice your petitioner was not aware and had not been notified of proceedings to deepen and widen the said drain.” After alleging that “irreparable damage” will result, the bill prays for injunctive relief, restraining the defendant from proceeding with the work in contemplation on the right of way of the plaintiff. After a hearing in which proofs were taken establishing the facts as above stated, and others hereafter referred to, the trial court dismissed the bill of complaint. It appears that the Pere Marquette Railroad Company, for several years in the hands of receivers, ceased doing business in 1917, all its lines of road having been then conveyed to the Pere Marquette Railway Company. At the time these proceedings were taken, the right of way was owned by the Railway Company and was being operated by the director general under the provisions of the Federal control act and the proclamations of the president issued pursuant thereto. It is said that the service on Rich, who was at that time an employee of the director general, “did not constitute legal service of process on the plaintiff.” The proceeding is one in rem. The probate court had jurisdiction of the subject-matter. Without legal service of the citation, the plaintiff as landowner might appear and, if it did so and took part in the subsequent proceedings, it could not afterwards be. heard to say that proper service had not been made on it. Mr. Warner, a reputable attorney, now representing the plaintiff in-this court, appeared in the probate court on the return day of the citation. For whom did he appear? Clearly, not for the Railroad, Company. The similarity of the names of the two companies could but lead to confusion. He frankly admitted that if he knew of the change “he had forgotten it.” Mr. Parker, who had been a member of the legal department of the Railroad Company, both before and during the receivership-, and was at the time of the hearing in the employ of the plaintiff, testified: “The director general, after he took over the railroads of the country, eliminated from the name, for purposes of his own, the word ‘company’ and wherever it was ‘railway’ he changed it to ‘railroad.’ In other words, he assumed, for the purpose of. the transacting of the business, the name United States Railroad Administration, Pere Marquette Railroad.” The record does not disclose from whom Mr. Warner received his instructions to appear. A corporation can only act through its officers, attorneys and agents. He was at that time employed as local attorney by the director general. ■ The objections were not filed on his behalf. We think it over-technical to assert that he did not appear on behalf of the landowner, the Pere Marquette Railway Company. On his first appearance he consented to an adjournment. On his next appearance he filed the objections above set forth. His action in doing so clearly indicated that he then believed the name of the owner to be the “Pere Marquette Railroad Company.” Had a suggestion been made that it was not, the proceedings could have been amended. The objections filed in no way called the attention of the court to the fact that the owner of the right of way was not properly named, nor were they intended to do so. They challenged the sufficiency of the service. No affidavits were filed in support of the objections. The affidavit showed service on an “agent for said company.” The after appearance of Mr. Warner and the part taken by him in the subsequent proceedings waived any defect in the service if there was any such. The plaintiff had its day in court. It called witnesses and was fully heard on the matters submitted to the jury. If dissatisfied with the result reached, it might have secured a review by certiorari in the manner provided by statute. In Dunning v. Drain Commissioner, 44 Mich. 518, it was said: “It appears from the return that plaintiff in ceiv tiorari had actual notice and took part in the proceedings before and at the time when the jury was struck, and there is no reason to suppose he has been taken by surprise in any of the proceedings. We are not inclined to reverse such proceedings except for very substantial faults, and the present case, in our opinion, does not call for our intervention.” On the effect of Mr. Warner’s appearance as affecting the rights of plaintiff, see Lane v. Leech, 44 Mich. 163; Ralston v. Chapin, 49 Mich. 274; Barlage v. Railway Co., 54 Mich. 564; Austin v. Burroughs, 62 Mich. 181; Dailey v. Kennedy, 64 Mich. 208; Stevens v. Harris, 99 Mich. 230; Sherwood v. Ionia Circuit Judge, 107 Mich. 136; Graham v. Cass Circuit Judge, 108 Mich. 425; Dunlap v. Byers, 110 Mich. 109; Gilmore v. Lichtenberg, 129 Mich. 275; Attorney General v. Booth & Co., 143 Mich. 89; Lyon v. Baldwin, 194 Mich. 118. The decree is affirmed, with costs to defendant. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.	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Per Curiam. Defendant appeals by leave granted from his conviction of keeping more than three dogs on his premises without a kennel license in violation of Grandville ordinances, § 21, No 159-A. The defendant owns a parcel of land in the City of Grandville. On August 9, 1979, Officer Milton Zaagman, an animal control officer with the Wyoming Police Department, visited defendant and noticed that six adult dogs were present at his residence. The defendant did not have a kennel license. Section 21 of the above-cited ordinance provides in pertinent part that "[n]o person shall keep or allow more than 3 dogs in any premises without having a kennel license”. Indeed, the defendant could not have obtained a kennel license since he lived in a residential area. Section 23 of the same ordinance forbids kennel licenses to be issued in any area zoned residential. Defendant was convicted by a jury of having more than three dogs on his premises without a kennel license in the Grandville Municipal Court on June 25, 1980. Subsequently, he appealed to the circuit court. The defendant moved to dismiss the prosecution on the ground that the ordinance was beyond the police power of Grandville and was, therefore, unconstitutional. The circuit court denied the motion. A bench trial was held on December 1, 1980, at which the defendant appeared in propria persona. The defendant had two defenses. First, he maintained that he had a valid nonconforming use of the property prior to the enactment of the ordinance. Second, he argued that, properly construed, the term "premises” as used in the ordinance should not include a leased portion of a parcel of land. Apparently, the defendant, who owned 1.74 acres of land, leased 0.11 acre of that parcel to his son. The defendant and his son then each kept three dogs on their respective portions of the property. At the conclusion of the trial, the trial court found the defendant guilty. On January 21, 1981, the court imposed on defendant a $75 fine and $25 court costs in addition to six months probation. I Defendant argues that the trial court improperly rejected his "nonconforming use” defense to the charge against him. This devolves into two subsidiary issues: (1) is a nonconforming use a valid defense to the violation with which defendant was charged; and (2) did defendant establish that he had a nonconforming use when the ordinance was enacted. A Whether the existence of a nonconforming use is a valid defense to a charge of violating an ordinance that affects the use of land was first considered in Casco Twp v Brame Trucking Co, Inc, 34 Mich App 466; 191 NW2d 506 (1971). In Casco, the defendant was engaged in the removal of sand in order to excavate three lakes on property to be developed into a residential area. The township then enacted an ordinance requiring a permit for the removal of soil. The defendant failed to secure such a permit. Notwithstanding the defendant’s use of the property to remove sand prior to the enactment of the ordinance, the trial court concluded that the defendant must obtain a permit because the ordinance was a regulatory and not a zoning ordinance. This Court agreed. The Court first noted that the Legislature has imparted to townships the power to "adopt ordinances regulating the public health, safety and general welfare of persons and property” in the township, MCL 41.181; MSA 5.45(1). The Court then concluded that the soil removal ordinance was regulatory because it "purports to be an ordinance in the nature of protecting the public health”. 34 Mich App 470. The Court went on to consider whether a regulatory ordinance was subject to the rights of nonconforming users. In concluding that it was not, the Court quoted Fredal v Forster, 9 Mich App 215, 229-230; 156 NW2d 606 (1967), which in turn quoted the following language from MCL 125.286; MSA 5.2963(16), since amended, 1978 PA No 637: "The lawful use of dwelling, building or structure and of land or a premise as existing and lawful at the time of enactment of a zoning ordinance * * * may be continued although the use does not conform with the ordinance or amendment.” In its opinion, the Casco Court emphasized the words "zoning ordinance” in the statute, and concluded that only a zoning ordinance is subject to the rights of nonconforming users. The Court’s holding in Casco, that a zoning ordinance but not a regulatory ordinance is subject to nonconforming users has been followed by other cases of this Court involving township ordinances. See Norton Shores v Carr, 81 Mich App 715; 265 NW2d 802 (1978), lv den 403 Mich 812 (1978); Renne v Waterford Twp, 73 Mich App 685; 252 NW2d 842 (1977), lv den 400 Mich 840 (1977). The city argues that the city ordinance involved in the present case is a regulatory ordinance and that, consequently, it is not subject to nonconforming users. Citing Casco, the city maintains that the ordinance is regulatory because it is designed to promote the general welfare. The distinction between zoning and regulatory ordinances enacted by a city cannot be predicated on whether or not the purpose of the ordinance is to promote the general good. A city, like a township, has the power to adopt ordinances for the promotion of the public welfare. MCL 117.3(j); MSA 5.2073(j) requires a city charter to provide for "the public peace and health and for the safety of persons and property”. Also, like a township, a city is authorized by statute to establish zoning districts. MCL 125.581; MSA 5.2931. It is important to note, however, that the statute authorizes a city to establish zoning districts as a means to accomplish enumerated goals, one of which is "to promote public health, safety, and welfare”. Thus, both a zoning ordinance and a regulatory ordinance may have the common purpose of promoting the public good. The distinction, if any, must be drawn along different lines. The distinction, in fact, is not important for the resolution of the issue posed by the present case. Instead, the important inquiry is into the proper scope of the statute on nonconforming use that applies to cities. Unlike the analogous provision applying to townships, that statute does not subject only a "zoning ordinance” to nonconforming users. The statute reads in pertinent part: "The lawful use of land or a structure exactly as the land or structure existed at the time of the enactment of the ordinance affecting that land or structure, may be continued, except as otherwise provided in this act, although that use or structure does not conform with the ordinance.” MCL 125.583a; MSA 5.2933(1). (Emphasis supplied.) The emphasized words must be read in the context of the statute as a whole. Essentially, the statute authorizes a city to establish zoning districts and to regulate the use of land and structures within those districts. Thus, the statute contemplates ordinances pertaining to land use which apply, by their own terms, to only specified zoning districts. By contrast, an ordinance governing land use, but which is blind to zoning differences, is not addressed by the statute. We believe that the Legislature intended only the former sort of city ordinance to be subject to the nonconforming use provision. In the present case, the defendant was charged under the following ordinance: “KENNEL LICENSE: No person shall keep or allow more than 3 dogs on any premises without having a kennel license, except that the owner of a female dog which has given birth to puppies may keep said female dog and said puppies without obtaining a kennel license for a period of not to exceed 3 months from the date of the birth of the litter.” Grandville ordinances, § 21, No 159-A. As the city acknowledges, § 21 must be read together with § 23 of the ordinance. Section 23 provides in pertinent part: “ZONING REQUIREMENTS AND KENNEL INSPECTION CERTIFICATE: The City Treasurer shall not issue a kennel license for a kennel under the provisions of this Ordinance for any kennel located in any area zoned for residential use pursuant to the Zoning Ordinance for the City of Grandville * * *.” Read together, these provisions prohibit a person from obtaining a license to keep more than three dogs on any premises located in an area zoned residential. Since the record reveals that defendant had applied for a license prior to the issuance of the citation in question, which was denied because the property was zoned residential, a prior nonconforming use would be a defense to this prosecution. B The defendant argues that he had established a valid nonconforming use. At the trial in the circuit court, the defendant offered testimony in support of that claim and argued that such use was a defense. The trial court, however, made no finding as to whether defendant had established a nonconforming use. Because such a use is a valid defense to the charge against defendant, we remand to the trial court for the purpose of making findings of fact and conclusions of law as to whether defendant had established a valid nonconforming use. II Defendant next argues that the trial court erred in ruling that the ordinance was a constitutional exercise of the city’s police power. The constitutionality of a township ordinance prohibiting the keeping of three or more dogs in certain residential areas was considered in People v Yeo, 103 Mich App 418; 302 NW2d 883 (1981), lv den 412 Mich 931 (1982). The Court began its analysis with the following discussion of the appropriate constitutional test: "The full and free use and enjoyment of one’s property is a right which may not be restricted by government without due process of law. A property owner’s right to such unrestricted use is, however, subject to reasonable regulation by the state in the legitimate exercise of its police powers. [Citation omitted.] And to determine the validity of a particular government proscription, a test measuring 'the existence of a real and substantial relationship’ between the exercise of the police powers and the public health, safety, morals and general welfare will be applied. Grocers Dairy Co v Dep’t of Agriculture Director, 377 Mich 71; 138 NW2d 767 (1966), quoting Roman Catholic Archbishop of Detroit, supra. See also Florentine Ristorante, Inc v City of Grandville, 88 Mich App 614; 278 NW2d 694 (1979). Finally, we note the oft-applied rule that legislative enactments are cloaked with a presumption of constitutionality absent a contrary showing by competent evidence or facial invalidity.” 103 Mich App 421. After reviewing the case law from other jurisdictions, this Court concluded: "We find the authorities cited above soundly reasoned regarding the validity of these restrictive ordinances. Plaintilf correctly notes the importance of the regulation herein to preserve for area residents the sanitary and peaceful enjoyment of their property, as well as assuring humane treatment for the animals covered. Defendant’s argument that conscientious dog owners would not pose such problems to a residential community does not meet this conclusion. The township’s limited incursion on defendant’s already qualified property right does not appear unreasonable, in light of the potential detriment to” the public health, safety and general welfare resulting from an overabundance of dogs in certain residential areas.” 103 Mich App 423-424. (Footnote omitted.) The only significant difference between the ordinance reviewed in Yeo and the ordinance in the present case is that the former is more restrictive inasmuch as it allows no more than two dogs in a residential area. If that more restrictive ordinance is a valid exercise of the police power, the ordinance herein is a fortiori within Grandville’s police power. Hence, the trial court did not err in so holding. Ill Defendant contends that the ordinance is void for vagueness. He argues that the term "premises” is unconstitutionally vague. On October 25, 1978, the defendant leased 0.11 acres of his property to his son for $1 consideration. Apparently, defendant then placed three dogs in a pen located on the leased land, leaving three dogs on the remaining parcel. Defendant now argues that he could not have reasonably ascertained that the leased and unleased land taken together constituted one "premises” instead of two. For two reasons this issue is not properly before ■ this Court. First, the defendant did not raise this issue below. Constitutional challenges may not be raised for the first time on appeal, Crawford v Consumers Power Co, 108 Mich App 232; 310 NW2d 343 (1981), even if they are meritorious, Penner v Seaway Hospital, 102 Mich App 697; 302 NW2d 285 (1981). Second, the facts do not support the issue. The defendant was convicted of violating the statute on August 9, 1979. On that date', Officer Milton Zaagman of the Wyoming Police Department found six adult dogs in a pen located in an area behind defendant’s residence. Thus, the conviction does not rest on reading "premises” to include the entire parcel. Even if the defendant could not have reasonably ascertained that his and his son’s leased parcel would be considered as one premises, he cannot and does not argue that he could not have reasonably ascertained that his own residence is one premises under the ordinance. For these reasons, this Court declines to review defendant’s vagueness argument. IV Finally, the defendant complains that the trial court convicted him on the basis of potential violations of the ordinance in the future. At one point in its opinion, the trial court said that "if we accept the defendant’s definition of premises, then the defendant could lease even a 10 foot strip of his property on which could be put four, five, or fifty or sixty dogs in the area, if we allowed that type of interpretation.” The trial court’s hypothetical addressed defendant’s construction of the term "premises”, a construction that would have permitted the keeping of three dogs on the leased and unleased portions. The trial court did not find defendant guilty in order to deter the defendant from future abuse. In short, the defendant’s contention is not supported by the record. Remanded. Although defendant must obtain a kennel license under § 21 of the regulatory ordinance, he cannot be denied a license under § 23 of that ordinance because his premises are located in an area zoned residential if he had a valid nonconforming use prior to the adoption of the zoning ordinance. Moreover, if defendant had a valid prior nonconforming use and his otherwise properly submitted application for a kennel license was wrongfully denied because of the residential zoning, he cannot be convicted for failing to obtain a license under § 21 of the regulatory ordinance.	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T. M. Burns, P. J. On March 24, 1982, the trial court entered an order granting respondent’s motion to strike the Attorney General’s petition. On July 16, 1982, the trial court denied the Attorney General’s petition for a constructive trust. Petitioner appeals from both orders as of right. These appeals have been consolidated. Charles Barnhart died on August 25, 1981. Within a few hours after Barnhart died, respondent (Barnhart’s attorney) filed a petition to commence probate proceedings. The will (drafted by respondent about a year earlier) not only listed respondent as executor but also left everything to him. About nine months before he died, Barnhart (with respondent’s help) set up a revocable living trust. The trustee would make payments to Barn-hart as he requested in writing during his life. The corpus was to pass to respondent when Barn-hart died. When the trust was set up, the corpus was $80,983.62. The only other asset involved in this case is a 1980 Buick Sedan which Barnhart bought in November, 1980, for about $10,300. The car was allegedly given to respondent, who later sold it to someone else for $7,500. Eventually, petitioner intervened into the probate proceedings. He claimed that the State of Michigan was interested in Barnhart’s estate because he had died without heirs and challenged the will claiming that Barnhart was incompetent or lacked the capacity to make a will when it was executed. He also alleged that respondent had subjected Barnhart to duress or undue influence. Later, petitioner filed a petition to set aside the trust agreement because of Barnhart’s alleged lack of mental capacity, subjection to duress or undue influence, lack of independent legal advice, and mistake of fact. Petitioner further attempted to void the transfer of the car to respondent. MCL 700.181; MSA 27.5181 states: "(1) When a petition for the appointment of a personal representative of the estate of a deceased person is filed with the court and it appears from the petition that the decedent died intestate without leaving any known heirs, when it appears during the course of administration of an intestate estate that the decedent did not leave any known heirs, or when a petition is filed for the administration of the estate of a testate decedent and from the petition it appears that the devisees of the purported will would not be entitled to share in the estate but for the terms of the will and that the decedent died without leaving any known heirs; the petitioner * * * shall immediately serve notice of hearing * * * upon the attorney general * * *. "(2) In any such case, the attorney general, representing the state, shall have all the rights of any heir, representative or creditor to be heard and to contest the validity of any claim, order, appointment or any instrument purporting to be a contract or will of the decedent, and shall have all the rights granted or accruing to an heir, representative, or creditor by laws relating to the settlement of testate or intestate estates in the probate court or by way of appeal.” No one argues that the Attorney General does not have the power to intervene in the probate proceedings regarding the will itself. In re Estate of Matt Miller, 274 Mich 190; 264 NW 338 (1936). See also In re Karabatian’s Estate, 17 Mich App 541; 170 NW2d 166 (1969). The trial court, however, held that the Attorney General does not have the authority to attempt to set aside the trust itself in the probate proceedings. The trial court interpreted the words in MCL 700.181(2); MSA 27.5181(2), "In any such case” as limiting the Attorney General’s power to sitúa tions enumerated in MCL 700.181(1); MSA 27.5181(1). The court reasoned that, since the right to attack an inter vivos trust is not specifically listed, the Attorney General does not have that power in the probate proceedings. The trial court erred in not allowing the Attorney General to challenge the validity of the trust. The Michigan Code of Escheats, MCL 567.11 et seq.; MSA 26.1053(1) et seq., at § 3, places a duty on the Attorney General to protect the interest of the state in any property which is escheatable: "Whenever the attorney general has knowledge of any property which has escheated, is subject to escheat or escheatable to the state, it shall be his duty to protect the interests of the state therein and he shall immediately cause to be instituted appropriate proceedings in accordance with the general laws of this state and as in this act provided, for the purpose of marshalling, protecting and conserving such property, and he shall represent the state and protect its interests, in and to such property as well as that of the owners and/ or their unknown heirs-at-law.” MCL 567.13; MSA 26.1053(3). This statute is to be construed broadly. MCL 567.74; MSA 26.1053(64). The trial court’s interpretation of MCL 700.181; MSA 27.5181 would severely limit the Attorney General’s statutory duty to institute proceedings to marshal, protect, and conserve escheatable property. Statutes should not be construed to create such conflicts. Paquin v Northern Michigan University, 79 Mich App 605; 262 NW2d 672 (1977). Statutes should also be construed to effectuate their purpose. Zawacki v Detroit Harvester Co, 310 Mich 415; 17 NW2d 234 (1945). MCL 700.181(2); MSA 27.5181(2) specifically gives the Attorney General "all the rights granted or accruing to an heir, representative, or creditor”. Clearly the purpose of this statute is to grant the Attorney General the same rights as an heir, representative or creditor in situations where a decedent dies leaving no known heirs. An heir has standing to bring an action to set aside a trust entered into by a decedent prior to his or her death. See Schroeder v Gerlach, 366 Ill 596; 10 NE2d 332; 112 ALR 1399 (1936). A personal representative can also contest a trust agreement whereby a decedent transferred assets prior to his death and can raise questions as to the validity of the transfer. Chandler v White, 244 Mich 532; 221 NW 618 (1928). A creditor has standing to contest conveyances which had been made by decedent to a trustee which would prevent the collection of his claim. Bogert, Trusts and Trustees (2d ed rev), § 211, p 69. The trial judge’s interpretation would frustrate the purpose of this statute. Zawacki, supra. An heir, representative, or creditor has the right to contest the validity of a trust created by the decedent prior to his death. MCL 700.181; MSA 27.5181 grants this right to the Attorney General when property may be subject to escheat. Consequently, the Attorney General has the right to intervene in this case, and contest the validity of the trust and petition for a constructive trust on the proceeds of the sale of the car. Respondent also argues that petitioner should not be allowed to intervene because a number of others have interests in the property and can adequately protect themselves. However, even if an interest is already adequately represented, the Attorney General may intervene. In re Lewis’ Estate, 287 Mich 179; 283 NW 21 (1938); Van Stock v Bangor Twp, 61 Mich App 289, 299-301; 232 NW2d 387 (1975), lv den 395 Mich 806 (1975). We also note that an instrument drafted by an attorney in his own favor is looked upon with suspicion. Creller v Baer, 354 Mich 408; 93 NW2d 259 (1958). Also, when an attorney creates an account with his client in which he retains the right of survivorship, he has the burden of showing that he did not unduly influence his client. Habersack v Rabaut, 93 Mich App 300; 287 NW2d 213 (1979). It appears that respondent drafted a trust agreement for Barnhart in which the trust corpus was to pass to respondent upon Barnhart’s death. Thus, even though the record may not fully support the Attorney General’s contentions, it does show that respondent has failed to meet his burden. Considering these facts, the parties should be allowed to fully litigate this issue. The trial court erred in striking petitioner’s petitions. Therefore, both orders are reversed. Reversed and remanded. P. J. Marutiak, J., concurred. Actually two different probate court judges issued the different orders. We have referred to both as "the trial court” for convenience. Petitioner alleges that Barnhart was illiterate beyond the ability to sign his own name.	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Per Curiam. Must the Director of the Bureau of Workers’ Disability Compensation file a written order within 15 days of the date the order of the hearing referee approving a redemption agreement is mailed to the parties to exercise his right to review the redemption agreement, pursuant to MCL 418.837(2); MSA 17.237(837)(2)? The Workers’ Compensation Appeal Board held yes, in an order dated September 22, 1981, and reversed the direc tor’s reversal of the hearing referee’s redemption order. We granted the director’s motion for intervention and application for leave to appeal on July 8, 1982. We affirm the order of the board. Plaintiff, Joanne Roberts, allegedly injured her back in the course of her employment as a surgery technician/nurse-aide with defendant Marquette General Hospital. Plaintiff was found totally and permanently disabled by the hearing referee at a hearing April 13, 1981, per plaintiff’s and the hospital’s stipulation. The hospital, its insurance carrier, Employers Insurance of Wausau, and plaintiff entered into a redemption agreement wherein plaintiff agreed to redeem her claim for $25,000. The redemption agreement was approved by the hearing referee after a hearing on May 27, 1981, and was signed that date and personally delivered to both parties. Apparently, the redemption order was not received by the Bureau of Workers’ Disability Compensation until June 8, 1981. The attorneys for plaintiff and the hospital were contacted by telephone on June 9, 1981, concerning the director’s intention to review the redemption. However, written notice of the director’s intention to review the redemption order was not issued until June 18, 1981. A redemption review hearing was held on July 29, 1981, with Special Deputy Director Ervin Vahratian presiding. In an order dated September 22, 1981, Deputy Vahratian reversed the hearing referee’s approval and denied the redemption. Plaintiff and the hospital appealed to the board. The Attorney General filed a brief intervening on behalf of the Second Injury Fund, however, the board held that the Second Injury Fund lacked standing on this particular matter since it was not a party to the redemption. The board issued an opinion and order on May 11, 1982, vacating Deputy Vahratian’s order and reinstating the hearing referee’s redemption order. The board ruled that § 837(2) of the Worker’s Disability Compensation Act requires the director to issue a written order for review within 15 days from the date that the parties were served with copies of the redemption order, and since the deputy director failed timely to issue a written order he was without jurisdiction to review the redemption agreement. On appeal the director argues that plaintiff and the hospital waived any objection to the timeliness of the director’s order of review by not raising the issue at the redemption review hearing before the deputy director. We believe the matter was properly decided by the board since its review is de novo and it is within the board’s discretion to consider issues which were not previously raised. Kushay v Sexton Dairy Co, 394 Mich 69, 77; 228 NW2d 205 (1975), Nelson v General Motors Corp, 122 Mich App 499; 332 NW2d 514 (1983). Further, the issue is not waived since it concerns whether the statutory prerequisites of § 837(2) were complied with so as to give the deputy director authority to review and reverse the hearing referee’s order approving the redemption agreement. Walker v US Equipment Co, 94 Mich App 454; 290 NW2d 36 (1979). MCL 418.837(2); MSA 17.237(837)(2) provides: "The director may, or upon the request of any of the parties to the action shall, review the order of the hearing referee entered under this section. Unless review is ordered or requested within 15 days of the date the order of the hearing referee is mailed to the parties, the order shall be final. In the event of review and in accordance with such rules as the director may prescribe and after hearing, the director shall enter such order as he deems just and proper. Any such order of the director may be appealed to the board within 15 days after the order is mailed to the parties.” Under §837(2) the director has the power to review the hearing referee’s order only if such power is exercised in accordance with the statutory requirements. This section provides two methods for obtaining review. The director must review the order if requested by either party within 15 days, or the director may review the redemption order upon his own initiative by issuing an order within 15 days. If review is not requested by the parties or ordered by the director within the 15-day period, the order of the hearing referee becomes final. We doubt that the Legislature intended as sufficient notice under § 837(2) a telephone call from the director’s staff to the attorneys that the director intended to review the matter. While not defined in the statute, "order”, as commonly used in the legal context, refers to a written directive of the court or judge. See Black’s Law Dictionary (Rev 4th ed), and GCR 1963, 522(1), which requires all judicial orders, except where otherwise specifically provided, to be dated and signed by the judge. "Order” as used elsewhere in the Worker’s Disability Compensation Act, clearly contemplates a written directive. See §§ 255, 851, 858, and 863 of the act. We disagree with intervening defendant’s claim that construing § 837(2) as requiring a written order leads to an absurd result because it requires the director to issue a written order directing himself to schedule a review hearing. The order is not just for the director’s benefit. First, the requirement that the director issue an order insures that the parties will be notified of the director’s exercise of review. It is important to require the director to give written notice of his intention to review before the 15-day period has lapsed to prevent the possibility that, pursuant to the previously entered order, the money will be paid out to the employee, who then proceeds to make plans and financial commitments in reliance on the redemption order only to find that the redemption order is reversed by the director on review. Second, the director is not merely ordering himself to review the matter, but, rather, is essentially ordering the suspension of the finality of the redemption order. If the parties have not requested a hearing or the director has not issued an order for hearing within the statutory period, then the redemption order becomes final. As stated in 3 Honigman & Hawkins, Michigan Court Rules Annotated, p 8, regarding judicial orders, requiring the order to be in writing insures that the order which substantially affects rights of the parties will be recorded in precise and authoritative form. There are so many problems inherent in oral notice that we doubt the Legislature intended that the director notify the parties and suspend the finality of the redemption agreement in the manner employed in this case. There is no reasonable way to determine whether or not oral notice was actually given when the director alleges that the parties were notified, and the parties claim they were not. As the board noted in its decision, oral appeals during the 15-day period are not accepted from parties. Finally, we do not believe the purpose of the act, to protect employees from foregoing periodic payment of benefits, is defeated by requiring the order directing review to be in writing, nor do we believe that written notice places an undue burden on the director. Since a written order directing review of the hearing referee’s redemption order was not issued within the 15-day statutory period, the order of the board vacating the director’s order and reinstating the order of redemption is affirmed. Affirmed. A separate appeal concerning the effect of the determination that plaintiff was totally and permanently disabled as to the Second Injury Fund is on appeal to the WCAB. That appeal is not relevant to the instant matter.	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Per Curiam. Plaintiff filed a complaint for divorce on January 9, 1979, and a judgment of divorce was entered on August 31, 1979. Defendant subsequently sought amendment of the judgment of divorce to require plaintiff to pay support for a child born to her on June 3, 1980. Defendant claimed that the child was conceived before the judgment of divorce was entered and that plaintiff was the father. After a nonjury trial, the circuit court granted defendant the relief she sought, and plaintiff appeals by right. Plaintiff argues that defendant’s claims should have been resolved under the Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., and that he was therefore entitled to a trial by jury, MCL 722.715; MSA 25.495. However, divorce actions are tried under the procedures formerly utilized for suits in courts of equity. MCL 552.12; MSA 25.92. There is no right to a trial by jury in a suit in equity. Detroit Trust Co v Struggles, 283 Mich 471, 477; 278 NW 385 (1938). In a divorce action, the court has the power to determine whether the husband is the father of the wife’s child. MCL 552.16; MSA 25.96; Gallison v Gallison, 5 Mich App 460, 466-468; 146 NW2d 812 (1966); Pruitt v Pruitt, 90 Mich App 230, 233, fn 1; 282 NW2d 785 (1979); Smith v Robbins, 91 Mich App 284, 292; 283 NW2d 725 (1979); Gonzales v Gonzales, 117 Mich App 110, 114; 323 NW2d 614 (1982). After a judgment of divorce is entered, the trial court retains jurisdiction to alter its judgment concerning the care, custody, and maintenance of children as changed circumstances may require. MCL 552.17; MSA 25.97. On the other hand, the Paternity Act applies only to a child born to a woman who was not married from the conception to the date of birth of the child or a child who was born during a marriage but was not the issue of the marriage. MCL 722.711, subds (a), (b); MSA 25.491, subds (a), (b). Here the trial court found that the child was conceived during the marriage and that the child was the issue of the marriage. Plaintiff relies on Havens v Havens-Anthony, 335 Mich 445; 56 NW2d 346 (1953). In that case, the Court held that, while MCL 552.17; MSA 25.97 would allow the judgment of divorce to be amended to make provision for the care, custody, and maintenance of a child of the marriage not mentioned in the divorce decree, the statute did not authorize a reopening of a divorce case for a determination of paternity. 335 Mich 452. However, the Court also pointed out that the question of paternity could not have been placed before the trial court on a motion for a rehearing of the judgment of divorce because such a motion would have been untimely and because, at least with regard to the mother, the existence of a child born before the judgment was entered could not be regarded as newly discovered evidence. 335 Mich 449-450. Here, the evidence before the trial court showed that defendant was unaware of her pregnancy at the time the judgment of divorce was entered. The doctor who cared for defendant during the pregnancy testified that it had been difficult to determine when conception occurred because defendant had irregular menstrual periods but that an ultrasound test performed on November 3, 1979, when the doctor first examined defendant, had suggested that defendant had been pregnant for about 11 weeks. Defendant’s petition to modify the judgment of divorce was filed on June 18, 1980. This time sequence shows that here, in contrast to Havens, defendant’s petition wás filed within the time for obtaining relief from a judgment. See GCR 1963, 528.3. Moreover, here, in contrast to Havens, defendant’s pregnancy and the evidence concerning the date of conception were newly discovered evidence. The time sequence noted above shows that defendant could not have discovered this evidence by due diligence in time to move for a new trial pursuant to GCR 1963, 527.2. Therefore, the trial court could amend the judgment of divorce pursuant to GCR 1963, 528.3 to include a determination of the child’s paternity. While the trial court did not expressly resolve this issue in these terms, we have the power to do so pursuant to GCR 1963, 820.1(7). Affirmed.	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Per Curiam. Defendant was convicted of breaking and entering an occupied dwelling with the intent to commit larceny. MCL 750.110; MSA 28.305. He was placed on probation. After finding that defendant had violated the terms of his probation, the sentencing judge revoked defendant’s probation and sentenced him to a prison term of 7-1/2 to 15 years. Defendant appeals by right. Defendant first claims that his acquittal of criminal charges based on a set of facts precluded the revocation of his probation based on the same set of facts. His argument is based on principles of collateral estoppel to the extent that those principles are embodied in the Double Jeopardy and Due Process Clauses of the state and federal constitutions. Defendant specifically relies on the decision of the Illinois Supreme Court in People v Grayson, 58 Ill 2d 260; 319 NE2d 43 (1974), cert den 421 US 994; 95 S Ct 2001; 44 L Ed 2d 484 (1975). We believe that the position taken by the Illinois court should not be adopted in Michigan. In a majority of jurisdictions, acquittal of criminal charges does not bar revocation of probation based on the same facts. State v Jameson, 112 Ariz 315; 541 P2d 912; 76 ALR3d 556 (1975); In re Coughlin, 16 Cal 3d 52; 545 P2d 249; 127 Cal Rptr 337 (1976); Russ v State, 313 So 2d 758 (Fla, 1975), cert den 423 US 924; 96 S Ct 267; 46 L Ed 2d 250 (1975); Johnson v State, 240 Ga 526; 242 SE2d 53 (1978), cert den 439 US 881; 99 S Ct 221; 58 L Ed 2d 194 (1978); Jackson v State, — Ind App —; 420 NE2d. 1239 (1981); Scott v State, 238 Md 265; 208 A2d 575 (1965); Moore v State, 644 P2d 1079 (Okla Crim App, 1982); State v Fortier, 20 Or App 613; 533 P2d 187 (1975); Commonwealth v Brown, 281 Pa Super 348; 422 A2d 203 (1980); State v Delp, 614 SW2d 395 (Tenn Crim App, 1980); Bradley v State, 608 SW2d 652 (Tex Cr App, 1980); Marshall v Commonwealth, 202 Va 217; 116 SE2d 270 (1960); State v Cyganowski, 21 Wash App 119; 584 P2d 426 (1978). See also the discussion in People v Buckner, 103 Mich App 301; 302 NW2d 848 (1980), and People v Nesbitt, 86 Mich App 128, 136; 272 NW2d 210 (1978). We agree with the courts in the majority of jurisdictions that have considered the question that the major stumbling block to acceptance of defendant’s theory is the higher burden of proof imposed in a criminal trial. Defendant’s second claim on appeal is that the trial judge failed to find a violation of law upon which revocation of his probation could be based. We agree with defendant that the findings of fact made by the trial judge are not very clear, but conclude that a remand for more detailed findings would be useless. The findings must be read in the context of the proofs presented and the theories argued by counsel at the revocation hearing. We believe that the judge expressed in his findings of fact his belief that the proofs showed that defendant was guilty of either larceny or receiving and concealing stolen property in connection with his possession of the victim’s property shortly after the murder. We do not think that defendant’s explanation of the judge’s findings is plausible. The prosecutor concedes that defendant is entitled to be resentenced after the preparation of a new presentence report. The order revoking defendant’s probation is affirmed. Remanded for resentencing.	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WIEST, J. Defendant shot plaintiff in the thigh with a pistol ball, inflicting a flesh wound which laid him in a hospital for 17 days and caused him pain and suffering. This suit was brought to recover damages and plaintiff had verdict for $2,500. The case is here by writ of error. Defendant claims the verdict is excessive; that the court erred in not instructing the jury as requested, in permitting recovery of exemplary damages, and in charging the jury with reference to such damages. Plaintiff was a conductor on an interurban passenger car. Defendant wanted to take the car and when it did not stop he pursued it, aided by an automobile, and upon overtaking and boarding the car was in a frame of mind to find out why the car had not stopped for him. Plaintiff referred defendant to the motorman, to whom he went and got no satisfaction. Plaintiff claims that defendant thereupon became abusive and indulged in obscene and profane language and refused to desist or leave the car and struck plaintiff, and thereupon plaintiff, with the aid of the motorman, ejected him from the car, and while plaintiff was on his way to re-enter the car defendant shot him. Defendant admitted the shooting but denied striking plaintiff and denied using abusive and profane language, and claimed he expressed his willingness to leave the car but was assaulted by plaintiff and the motorman, and the plaintiff seized that part of his person mentioned by Moses in Deut. 25, 11, causing him such anguish as to render him unaccountable for his subsequent actions. The verdict indicates that the jury rejected defendant’s version of the affair. We have examined the requests to charge, and under the charge find but two calling for discussion. Defendant testified that he told plaintiff he was not big enough to throw him off the car, and during the struggle said: “Give me my grip and I will get off.” Defendant requested the following instruction: “I charge you that if you find that defendant was angry and even abusive and profane to plaintiff and the motorman of said car, this would not justify plaintiff and other employees of the railroad company in committing an assault upon defendant in attempting to eject him from the car, if he, defendant, had previously expressed his willingness to leave peaceably; therefore if you find that after defendant _ had expressed his willingness to leave the car, plaintiff and the other employees of the railroad company persisted in using violence to eject him, I charge you that the use of such violence constituted an unlawful assault upon defendant, who was entitled to resist it with such reasonable force as was necessary, in order to protect himself from bodily harm in repelling such assault.” There was no reversible error in not giving the request as we think the point involved was sufficiently covered in the following instruction: “As I said, you are to find, first, Was the plaintiff the aggressor, or was the defendant the aggressor? If plaintiff was the aggressor, — understand when I say ‘aggressor’ it does not mean he was the first one to lay hand on him, that does not make the plaintiff the aggressor — but if he laid hands on him when he was not justified in doing so, as I have indicated, then plaintiff was the aggressor and cannot recover in this case. “Second, if you find that plaintiff used more force than was necessary andi by reason thereof he did put defendant in fear of his life or great bodily harm, and being in that state of mind and without any malice drew the gun merely for the purpose of scaring them off, and if while they were rolling aiid scuffling in that way the gun went off accidentally, as defendant has given some testimony tending to show, then and in that case plaintiff is not entitled to recover.” It is said the request should have been given because plaintiff did not deny defendant’s testimony. It was not necessary for plaintiff to categorically deny defendant’s claim that he offered to leave the car, if his testimony as a whole was to the effect that no such offer was made. The court charged: “If you find for the plaintiff on all the points as alleged in the declaration, you may find: “First, actual damages, loss of wages which has been proven in the case and not disputed. “Second, you may add a reasonable sum, in accordance with your best judgment, for pain and suffering; not so many dollars for so many hours of pain and suffering, but a fair, reasonable compensation, * * * in case you find the plaintiff’s theory is correct. “On this last proposition, if you do find that the defendant deliberately and premeditatedly drew the gun and shot him, you may give, besides actual damages, that is, loss of wages and pain and suffering, what are called added or cumulative damages; that is damages for outraged feelings by reason of the malice that goes with it, if you so find. But you are to give these added damages only in case he shot him deliberately after they separated, you see.” Defendant insists that this instruction gave the jury leave to award punitive damages. It is also claimed that the declaration made no claim of exemplary damages and, therefore, none could be awarded. Probably no more difficult subject confronts the nisi prius judge in this State than giving the jury instruction with reference to exemplary damages. We are not inclined to be overtechnical in considering this instruction. We do not approve of the term “added or cumulative damages,” but feel the jury was left in no doubt as to the meaning when such damages were limited to plaintiff’s sense of outrage by reason of the malicious act of defendant. Exemplary damages are of necessity intangible in nature, and, therefore, cannot well be considered apart from those matters which are capable of exact pecuniary valuation. They may enlarge the compensatory allowance but they are not to be considered as authorizing a separate sum by way of example or punishment. If a cow kicks a man in the face the consequent physical hurt may equal that from a kick in the face with a hob-nailed boot, but the “cussedness” of the cow raises no sense of outrage, while the malicious motive back of the boot kick adds materially to the victim’s sense of outrage. If a man employs spite and venom in administering a physical hurt he must not expect his maliciousness to escape consideration when he is cast to make compensation for his wrong. If the defendant maliciously inflicted the injury then the jury had a right to take into consideration such fact together with all the circumstances disclosed and award such sum by way of compensation as the plaintiff ought to receive, and the defendant ought to be made to pay. The declaration sufficiently averred the nature of the acts on the parti of the defendant authorizing exemplary damages. The accompanying circumstances aggravating the injury by reason of the wanton and malicious conduct of the defendant need not be specially pleaded for they are not substantive elements of damages, but only serve in the capacity of characterizing the acts complained of and as an aid in measuring compensation to be awarded. The rule upon this subject is well stated in Rogers v. Bigelow, 90 Vt. 41 (96 Atl. 417), with citation of many cases. “It is very generally held that in actions for intentional wrongs, such as trespass for assault and battery, damages are recoverable for mental suffering consisting in a sense of insult, indignity, humiliation or injury to the feelings. * * * This rule is well settled where the evidence shows that the plaintiff suffered physical injury as a result of the same wrong. * * * “The test undoubtedly is whether the mental suffering and injury to the feelings are natural and proximate in view of the nature of the act. 1 Sedg. on Dam., § 43j. If so, the damage is general and recoverable without special allegations.” We have read this record and feel we would not be justified in setting the verdict and judgment aside on the ground that excessive damages were awarded. We find no reversible error and the judgment is affirmed, with costs to plaintiff. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Per Curiam. In this case plaintiff asks for a writ of mandamus, directing the secretary of State to submit to the legal voters of the State, at the coming April election, an amendment to article 11 of the Constitution, by adding thereto two new sections to be known as sections 16 and 17, to read as fellows: “Section 16. From and after August 1st, 1924, all children residing in the State of Michigan, between the ages of seven years and sixteen years, shall attend a public school until they have graduated from the eighth grade. “Sec. 17. The legislature shall enact all necessary legislation, to render said section 16 effective.” Plaintiff filed with the secretary of State, on November 27, 1922, a petition asking that such amendment be submitted to the legal voters at the April election, 1923. Section 2, article 17, of the Constitution provides: “Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed, and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which such proposed amendment is to be voted upon. Upon receipt of such petition by the secretary of State he shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected. * * * The total number of votes cast for governor at the regular election last preceding the filing of any petition proposing an amendment to the Constitution, shall be the basis upon which the number of legal voters necessary to sign such a petition shall be computed. * * * The petition shall consist of sheets in such form and having printed or written at the top thereof such heading as shall be designated or prescribed by the- secretary of State. Such, petition shall be signed by qualified voters in person only with the residence address of such persons and the date of signing the same.” * * * The secretary of State rejected the petition and refused to submit the proposed amendment, holding that, because 59,648 of the signatures on the petition were procured previous to July 7, 1922, more than four months prior to the last general State election in November, 1922, such signatures could not be considered, and the signatures thereon, procured since such November election, were insufficient in number, amounting to only 8,519. In support of the position taken by the secretary of State the attorney general contends that signatures to an initiatory petition must be attached within a reasonable period before' its filing and inasmuch as signatures on the petition filed run back as far as 20 months, the petition was not filed within a reasonable time. In the brief the attorney general appears to concede that the constitutional provision sets no time limit and asks us to hold that the provision contemplates action within a reasonable time and to determine such time. Plaintiff insists that the Constitution places no time limit on when the petition shall be signed. We cannot accept either view. The Constitution speaks on the subject, as we shall point out. The constitutional provision contains procedural rules, regulations and limitations; it maps the course and marks the way for the accomplishment of an end; it summons no legislative aid and will brook no elimination or restriction of its requirements; it grants rights on conditions expressed, and if its provisions are complied with and its procedure followed its mandate must be obeyed. Its provisions are prospective in operation and self-executing. The vote for governor every two years fixes the basis for determining the number of legal voters necessary to sign, an initiatory petition and start designated official action. This primary essential to any step at all fixes dis tinct periods within which initiatory action may be instituted. A petition must start out for signatures under a definite basis for determining the necessary number of signatures and succeed or fail within the period such basis governs. The petition in question started out in February, 1921, under the then requirement that to be effective it must have 105,853 signatures. An attempt was made to meet the requirement and failed. This petition lost all legal significance when the vote for governor at the November election in 1922 fixed a new basis and a less number of legal voters necessary to sign. The petition died with the requirement it sought but could not meet and was not raised from the dead by the advent of a new basis designating the number necessary to sign. Suppose a petition is circulated on the basis of the vote for governor and fails to receive the required number of signatures, and it is held over a succeeding biennial election for governor where the vote is less and “the basis upon which the number of legal voters necessary to sign” is smaller, will that make good under the new basis what was wholly ineffective under the old basis? Certainly not. This, if permitted, would take all sense out of the term “to sign,” and would treat the requirement that the date of signing be given as without any purpose. The supposed case is this case. At the biennial election in 1920, the vote for governor was 1,058,539, and this, as the basis, fixed the necessary number of signatures to initiate an amendment to the constitution at 105,853, while at the election in November, 1922, the vote for governor was 583,670, which would constitute 58,367 signatures sufficient. Plaintiff did not have enough signatures to file the petition four months before the November election in 1922, but held the same until a new basis for legal voters, neces sary to sign, was fixed at that election and then filed the petition, with the addition of 8,519 signatures. Plaintiff secured approval of the heading of the petition in February, 1921, and up to July 7, 1922 (that date being four months immediately preceding the November election) had secured but 59,648 of the necessary 105,853 signatures, and between July 7th and November 27, 1922, when the petition was filed secured 8,519 additional signatures. It is clear, from a reading of the constitutional provision, that a petition must be circulated after one election for governor and filed at least four months before another election for governor. Of course, the petition may be filed four months before a general election intervening biennial elections for governor, but it cannot start out under one basis and end up under another. Confessedly the petition never contained sufficient signatures to' meet the basis under which it was circulated. The identity of the petition was inseparably linked with the basis it sought to comply with, and as an initiatory petition it could not and did not survive the passing of such basis and then identify itself with a new basis wholly prospective in operation. It would be anomalous to say that a failure to comply with a former basis may constitute full compliance with a later basis. The Constitution plainly intends an expression of ah existing sense of a designated percentage of the legal voters. Such sense may be expressed after any biennial election for governor, and if in percentage of legal voters signing the petition it meets the basis under which it was circulated, it becomes effective upon filing the same with the secretary of State at least four months before the basis is changed by a subsequent vote for governor. We can add nothing to the constitutional provision and take nothing away from it. We must give effect to its every provision. The provision that “The total number of votes cast for governor at the regular election last preceding the filing of any petition proposing an amendment to the Constitution, shall be the basis upon which the number of legal voters necessary to sign such a petition shall be computed,” is prospective in operation and does not admit of' what plaintiff attempts. If the secretary of State was right in refusing to accept and act on the petition it is immaterial whether he gave a good or a poor reason for such refusal. The Constitution governs and not the opinion of the secretary of State. If the secretary of State gave a poor reason for his refusal, with a good reason right at his hand, it does not operate to the advantage of plaintiff by way of limiting the true issue here. If the secretary gave a wrong reason for a right conclusion he was only wrong in his reason. The question here is whether plaintiff has complied with the constitutional provisions. If he has, the writ asked should be granted;' if he has not, then he is not entitled to the assistance of the command of this court. The secretary of State was right in refusing to submit the proposed amendment, and the writ prayed for is denied. The matter presenting a public question, no costs will be awarded.	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Clark, J. The claim is for various services by Anna C. Brackett, a married woman, to Chauncey Burnham, deceased, covering a period from March, 1906, to November, 1914. The case is here a third time. A judgment for plaintiff in the sum of $1,727.65 was reversed, 199 Mich. 326, because of including im proper matters in her claim as submitted to the jury. A judgment for plaintiff in the sum of $1,302.36 was reversed, 207 Mich. 361 (9 A. L. R. 1299), because there was no evidence to show that the deceased, Chauncey Burnham, knew that Mrs. Brackett had been emancipated or knew of the claimed arrangement between her and her husband, William A. Brackett, who now prosecutes the claim as her executor, that she might have what she earned, or knew that contract relations between himself and Mrs. Brackett existed. To the facts stated in former opinions we may add that on this trial plaintiff had testimony which cured the infirmity which necessitated the second reversal. While a witness who supplied a part of such testimony was on the stand, arid after she had been cross-examined respecting her testimony at a former trial, counsel for plaintiff on re-direct sought to show that she had not been questioned on the particular subject at such former trial. In response to repeated objections of defendant’s counsel that the witness’ memory of the former testimony was not the best evidence the court said: “The only official record that will bind her is a paper she signed. Did she sign any paper? The stenographer’s minutes may be the official record but they are not binding. The court is not even bound by the stenographer’s minutes if he recollects the testimony different.” Plaintiff had verdict and judgment for $1,624.50, including interest. Defendant brings error. Several questions presented are disposed of by the former opinions which are the law of the case. It is urged that the remark of the court above, quoted was prejudicial and hindered defendant’s efforts to impeach an important witness by her former testimony. The witness did not contradict her former testimony. She testified of further statements made by the deceased. Her assertion that she had not been particularly interrogated relative to such statements was not specifically denied. The stenographer was not a witness nor were his notes in evidence. Whether or not the remark was correct in law (see 22 C. J. p. 440; Garaszewski v. Wurm, 204 Mich. 227), we need not determine, being of the opinion that in either event it does not warrant reversal. The charge is criticized, but we think the criticism does not merit discussion. The charge as a whole fully protected the rights of defendant. We have considered the other questions raised. No reversible error is found. Judgment affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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Steere, J. Helena Ballman made claim before the department of labor and industry for an award of compensation based on the death of her husband, Peter Ballman, alleged to have arisen out of and in the course of his employment with the D’Arcy Spring Company which is engaged in the manufacture of cushion springs in the city of Kalamazoo. On October 5, 1921, Ballman was in the company’s employ as a machine operator in its coiling room, department No. 2, where from 10 to 15 men were working under a foreman named Stevens. " He had worked there nearly two years, and was familiar with its rules, his own work, and conditions in and around the factory. The foreman, Stevens, was a spring maker of many years’ experience whose duties were the customary ones of a foreman in his department, exercising general supervision over the men and machinery for successful operation — and also, when anything went wrong with an operator’s machine, to repair, adjust, or fix it. On the day in question something went wrong with Ballman’s machine and when he called Stevens’ attention to it the latter started to remedy the trouble. Stevens had been subject to occasional headaches for several years and when he went to fix this machine he remarked to Ballman that he “would like to have went over and got some bromo-seltzer,” to which Ballman replied, “I will go and get it for you while you fix the machine.” Stevens said, “That will be all right,” giving him some change to pay for it. Ballman then went out of the building, across the street and a short distance down it over a railroad crossing to a drug store near by. On his return he was killed while crossing the railroad track by a passing freight train. When picked up he was found to have with him a bottle of bromo-seltzer and a bar of chocolate. Stevens repaired, or adjusted, the machine in a short time and was working upon another machine near it when he received word that Ballman had been killed. He heard of Ballman’s death immediately after it occurred. When asked how long it was after Ballman left him he said, “I don’t think it was hardly three minutes.” While he was working on the next machine after fixing Ballman’s, the superintendent of the plant came into the room and asked where Ball-man was, and he replied, “He was here just a minute ago — not over five minutes ago any way.” The company had a bulletin-board near the time clock located in department No. 2 where deceased was employed, upon which it posted notices from time to time, including rules of conduct for employees. About a year before Ballman was killed it promulgated and published a “starting and stopping” order which was posted upon the bulletin-board forbidding employees from leaving the plant during working hours without permission of the superintendent or secretary and treasurer. On September 2, 1921, a supplemental order calling attention to the previous one was posted on the bulletin-board and at other points in the plant, concluding as follows: “The quitting bells will ring at three minutes of twelve o’clock and at three minutes to the closing hour, at which time all power will be shut off, and employees will have three minutes in which to prepare themselves previous to leaving the plant. “NO EMPLOYEE SHALL, AT ANY TIME, LEAVE HIS DEPARTMENT PREVIOUS TO THE RINGING OF THE FINAL QUITTING BELL. (This portion of the order was conspicuously printed in capital letters.) “This order is being put into effect, and will cover each and every employee in this plant. Any abuse or deviation from the same will be sufficient reason for the release of said employee or employees.” Up to the time of Ballman’s death no infringement of this order had been brought to the attention of the secretary and active head of the company. ■ Defendant had on its force a physician and surgeon, Dr. Snyder, regularly stationed at its plant, whose •duty among other things was to look after emergency cases and temporarily care for the sick or injured employees at the plant. Stevens had applied to and received medicine from him for his headaches while working in the factory, both before and after this accident, to the extent as Stevens said that “Once in a while I would go in and maybe get a couple of aspirin tablets from him.” The accident occurred late in the forenoon and Dr. Snyder was then away, having gone to the bank after obtaining permission to go from there to his home for dinner before returning to the plant. It is not shown Stevens knew this or that it would have made any difference if he had, as he wanted bromo-seltzer and the headache medicine he once in a while went to the doctor for was aspirin. In reply to plaintiff’s application to the department of labor and industry for compensation, defendant State Accident Fund filed written denial of liability on the ground that the accident did not arise out of or in the course of Ballman’s employment, and that his death resulted from his own intentional and wilful misconduct in violating a positive rule of his employer. The arbitration proceedings were conducted at the city of Kalamazoo by a deputy commissioner of the department of labor, and industry, who made an award in plaintiff’s favor, directing defendants to pay her compensation to the amount of $12 per week for a period of 800 weeks. On appeal from this order to the commission of the department it was affirmed. That the accident on the street at the railway cross* ing resulted in Ballman’s death, the dependency of plaintiff, and amount of compensation as fixed by statute if liability existed, were conceded. Without reviewing the issues raised by defendant’s objections or making any special findings of fact or conclusions of law disclosing its theory, the commission filed only a formal order affirming the award, finding that, — ■ “there was an accident within the meaning of the compensation act arising out of and in the course of the employment of deceased.” Concededly the commission had no authority to award compensation in the absence of evidence that Ballman’s death was caused by an industrial accident arising out of and in the course of his employment. Not only does the act so provide, but this court and other jurisdictions with similar workmen’s compensation laws have so often had occasion to emphasize that axiomatic proposition that citation of authorities is needless. Ballman was employed to operate a machine in the coil room of the D’Arcy Spring Company’s factory. That was the range and scope of his employment. His duties required his presence in that room during working hours. Orders issued by his employer forbid him leaving his work and place of employment during that time. In violation of orders he left the plant, went across and down the street to a railway crossing and assumed a risk in no sense incident to his employment as a machine operator in his employer’s factory. Neither can it be even inferred from the facts shown that his volunteered errand was in his employer’s interest or in any way tended to promote its business of manufacturing springs at its plant where both Stevens and he were employed in the coiling department. The evidence does not sustain plaintiff’s contention that deceased was in the course of his employment while away from the factory because ordered to go by his foreman. It was his proposal. He volunteered to go on an errand for Stevens who simply said it would be all right, but within three minutes forgot it, as he testified when the superintendent of the plant came into the room and asked where Ballman was. No duty in the line of his employment required Ballman to leave the plant. He went during working hours at his own suggestion, in the interest of Stevens or himself or both, away from the plant, to a drug store where he got some bromo-seltzer and a bar of chocolate. In going he violated an order of his employer and was doing nothing to advance its interest. The rule upon that subject is thus stated in 26 Cyc. p. 1224: “Where a servant voluntarily and of his own motion exposes himself to risks outside of the scope of his regular employment, without or against the order of the master or vice-principal, and is injured thereby, the master is not liable.” Plaintiffs counsel seek to bring her claim under the statute on the theory that Ballman acted in an emergency to assist his sick and incapacitated fellow-employee, and incidentally to benefit their employer by helping to keep him in a condition to continue his work. The facts do not sustain that theory. No emergency is shown. Although Stevens testified he was subject to headaches and had a headache that day, the record does not even show that Ballman was so informed by him or knew either fact from any source, unless he inferred it from Stevens’ expressed desire to go for some bromo-seltzer. Stevens did not tell Ball-man he was sick or unable to continue his duties and adjust the machine for him. He “went over there to fix it” at the time he spoke of wanting to get a bromoseltzer. He did fix it in a very short time after he looked at it and was at work on another machine within a space of time which he estimates as “hardly three minutes.” Headaches had not interfered with Stevens’ working since Ballman was employed there two years before. Asked on cross-examination the last time he had to stop work on account of a headache, Stevens replied, “That is something I couldn’t tell you.” Asked further, “But not for the last several years?” he replied, “No, sir.” Had Ballman even waited until Stevens saw what was wrong with his machine he could have resumed his work operating it within from one to three minutes according to Stevens’ estimate, and, presumptively, would have been doing so at the time he met his death from an accident away from the place of his employment, resulting from a risk foreign to it. It may be conceded Ballman’s unfortunate offer and act resulted from a generous impulse to be helpful with no thought that harm to him or delay in his work might result in his leaving the plant; but his employment was a contract and his, or his dependent’s, right to compensation if he suffered an accidental injury in the course of or arising out of his employment was contractual. The nature and sphere of his employment having been determined, it could not be changed against the actual facts by his impulses or what he had in mind. He was employed to do a particular work at a particular place and left it during working hours for a mission which served his employer no useful purpose, and encountered a fatal risk which bore no relation to his employment. In the somewhat analogous case of Clark v. Clark, 189 Mich. 652, where claimant went to the assistance of his brother, for whom he worked and who was assaulted, it was said: “It may have been commendable in him to volunteer to assist his brother against such great odds, but that, does not satisfactorily answer the question what connection his acts had with his employment. * * * Had claimant remained at his work he would not have been injured. His presence at the place of fighting was in pursuance of no demand of his employment. Neither was it in aid of any material interest of his. master.” Vide, also, Bischoff v. Foundry Co., 190 Mich. 229; Carnahan v. Mailometer Co., 201 Mich. 153; Pearce v. Industrial Commission, 299 Ill. 161 (132 N. E. 440, 18 A. L. R. 523). In volunteering this errand for Stevens, Ballman assumed a task unexcused by habit or custom, outside the place and line of his employment, not in pursuance of the interest of his employer; in the absence of any peril requiring him to act in an emergency and involving a risk not belonging to or connected with what he was required to do in fulfilling his contract of service. The errand upon which he went was not negligent or unauthorized conduct within the sphere of his employment, which in itself does not necessarily prevent recovery, but an act involving street and railroad risks entirely outside of and beyond the limits of such sphere. An order from Stevens for plaintiff to leave the plant and place of his employment during working hours in violation of published rules, presumably known to both, would have been beyond his authority as foreman in the coiling room, as was his consent which he so soon forgot when the superintendent inquired for Ballman. In Pearce v. Industrial Commission, supra, claimant was injured by a fall upon the sidewalk in a public highway while going to get supplies for the noonday lunch of himself and fellow employees in a building near by, who had an agreement among themselves to purchase supplies to be prepared and consumed by them in the building where they .were employed in preference to carrying cold lunches. Pearce was general agent of the building and under him the chief engineer was authorized to look' after details. He was authorized to hire and discharge most of the employees, including claimant. On that day the engineer fold him to go for their noonday supplies, in doing which he fell in the street and was injured. Although he was acting under orders of his superior, the court there held claimant’s injuries while absent from his place of employment on such errand did not arise out of his employment within the meaning of the compensation act. A valid award requires correct application of the act to found facts of which there is evidence. This record fails to furnish any evidence of certain essential facts on which to base the formal conclusion of the commission that the accident in question “arose out of and in the course of” Ballman’s employment. Its order of award is therefore reversed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.	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Clark, J. The cause went to hearing upon plaintiffs amended bill for divorce and defendant’s answer and cross-bill. A property settlement was agreed upon in court. Proofs were taken in behalf of plaintiff and the cause adjourned to consummate the property settlement and to settle a decree. Later plaintiff appeared in court with her attorney and stated that she was dissatisfied with the property settlement. Thereupon it was agreed in open court by the parties and counsel that an appraisal of the property be made by experts to be selected by the parties and that such appraisal be reported into court and that the court decree such division of the property as to him seemed just and equitable. The appraisal was made accordingly. From the decree entered plaintiff has appealed. Her complaint is of the award. Defendant contends that the decree was by consent and that therefore there can be no appeal, citing Chapin v. Perrin, 46 Mich. 130; Brick v. Brick, 65 Mich. 230; Owen v. Yale, 75 Mich. 256; Cameron v. Smith, 171 Mich. 333. This case is distinguishable. Plaintiff consented that the appraisal should stand as the evidence of value of the property and that the case should then be treated as submitted. She was not thereby precluded from raising the question she here presents, that the award is inequitable. The appraisal of the real estate which consisted of a home and other property in Grand Rapids and lots in California was the sum of $26,525. The personal property, being household furniture, was of the value of $1,000. The decree awarded to plaintiff the home and other real estate all of the value of $10,750 and the household furniture appraised at $1,000, a total of $11,750, and it required defendant to pay plaintiff $50 per month for a period of six years, and to pay $100 appraisers’ fees and an attorney’s fee of $100. The remaining real estate was awarded to defendant. The real estate was held by the entireties. The court was not required to divide the real estate held by the entireties equally between the parties. He might make such division between them “as he shall deem equitable and just.” 3 Comp. Laws 1915, §§ 11416, 11437, 11438; Allen v. Allen, 196 Mich. 292. Had the court, in granting the divorce, made no division of the property, the parties would have become tenants in common of the real estate. Section 11437, supra,. But the court gave to plaintiff property of the value of $11,750, to defendant property of the value of $15,775, and required defendant to make the monthly payments to plaintiff as stated and to pay certain costs and charges. Whether such provisions are equitable must be determined upon the record. But the only evidence in the case respecting the property is the appraisal. The testimony relates solely to plaintiff’s claimed cause for divorce. It is apparent that counsel at the hearing did not contemplate an appeal, nor the making of a record for appeal. The pleadings seem to indicate that defendant is a physician and that, although plaintiff did usual household duties and collected rents, the property was acquired through defendant’s earnings. There is no proof of his income and the various allegations of it are denied. She is about 50 years of age, he about 64. They were married in 1893 and have no children. Both parties charged extreme and repeated cruelty. The trial judge had the parties before him. Doubtless, too, he had from statements of counsel knowledge of facts not disclosed by this record. . We cannot say, upon the record, that the award is inequitable. The decree is affirmed, without costs. Fellows, C. J., and Wiest, Bird, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.	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Sharpe, J. Plaintiffs presented the following claim against the estate of James Gourlay: “The sum of three thousand, three hundred and thirty-three dollars and thirty-three cents ($3,888.83), being one-third of the amount due upon certain notes executed by Gourlay Brothers and James Gourlay, January 1, 1890, and February 21, 1890, for ten thousand ($10,000.00) dollars, and of which the said Catherine C. Linn and Plelen G. Linn are the owners of a one-third interest by virtue of the provisions of a certain decree entered in the district court of the United States for the eastern district of Michigan, southern division, on the second day of October, 1911, in a certain cause in which Catherine C. Linn and Helen G. Linn appeared as plaintiffs and John Craig, James F. Gourlay and Jean Fair Gourlay appeared as defendants.” It was disallowed by the commissioners on claims. On appeal to the circuit court it was again disallowed by direction of the court because barred by the statute of limitations. The judgment entered is here reviewed by writ of error. The facts tending to support the claim are as follows : Prior to February 21, 1890, George Craig, the grandfather of plaintiffs, had made loans aggregating $10,000 to Gourlay Brothers, a copartnership, of which James Gourlay was a member, and to James Gourlay, individually, and received from them the notes described in the claim presented. He turned these notes over to his son, John Craig. In 1908, plaintiffs brought suit in the Wayne circuit court, in chancery, alleging that these notes were held by John Craig in trust for himself, for Mrs. James Gourlay, daughter of George Craig, and for plaintiffs, children of a deceased daughter; that Gourlay had secured the payment of the notes by transferring certain property to John Craig, and praying that their rights to a one-third interest in the notes be determined, that an accounting with John Craig be had, and that he be ordered to pay them their interest in said notes or be required to dispose of the property turned over to him by Gourlay to secure such payment and apply the proceeds of the sale to such purpose. The cause was transferred to the Federal court for the eastern district of Michigan. A decree was made on October 2, 1911, wherein it was determined that John Craig held the notes in trust for complainants, who “became vested with an undivided one-third interest” therein. The lien of the cestuis que trustent on the property transferred by Gourlay to John Craig was declared, but was made subject to the personal lien of John Craig thereon for certain moneys advanced by him to Gourlay, fixed by the court, at $58,884.74. The decree provided that complainants might have— “at any time the right to apply to this court for an order directing said trustee, John Craig, to sell the property deeded to him by the said defendants Gourlay, for the purpose of paying the said trust notes.” While the record does not show that such an order was afterwards made, it contains an order confirming a sale, from which it appears that “all the property held in trust in this cause by said John Craig” was sold for $50,000, — less than the individual lien of John Craig thereon. To the defense of the- statute of limitations plaintiffs say that their claim under the notes became merged in this decree, that the limitation statute applying to judgments applies thereto and that the claim is not yet barred by that statute. The decree does not fix the amounts due on the several notes, nor does it find James Gourlay liable for the payment thereof nor provide for a personal decree against him for any deficiency arising after such sale. Neither was any such relief prayed for in the bill of complaint. This is doubtless explained by an allegation in the bill, admitted by James Gourlay in his answer: “That in 1898 the said James Gourlay went through bankruptcy.” We do not think any fair construction can be placed upon this decree which will support the claim here presented. The judgment is affirmed, with costs to appellee. Fellows, C. J., and WSlbst, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.	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Wiest, J. In this suit plaintiff seeks a decree direct ing defendant Margaret Dunne to return to him 21 shares of stock in the defendant banks, transferred by him to her September 10, 1920, claiming he was induced to make such transfer by fraud practiced upon him. The banks, named as defendants, have no interest in the suit, being brought in merely to restrain the transfer of the stock pending litigation, and in the course of this opinion we will speak of Margaret Dunne as the defendant. Plaintiff and defendant were married January 17, 1917; he was a widower, aged 56, and she a widow, aged 57. He was a drop-forge manager, earning about $6,000 a year, and she had property. They opened a joint deposit account in a bank, in which he placed some of his earnings and she placed money from her property. In September, 1919, plaintiff bought 20 shares of Hackley National Bank stock at $170.15 per share, and 22 shares of Union National Bank stock at $150 per share, and paid for the same by checks drawn on the joint bank account. Defendant claims the intended purchase of the stock was talked over between them, and it was agreed the investment should be made out of their joint funds on deposit, and the certificates taken in their names, and she supposed this had been done until, on August 10, 1919, she saw in a local newspaper a list of the stockholders in the Union National Bank, and discovered the stock was in the name of plaintiff. Upon making such discovery she claims she called his attention to the agreement under which it was to be purchased, and he transferred to her one-half of the stock. He claims she practiced dissimulation and wiles upon him and wheedled him into giving her the stock, making him believe their marital affairs were running blissfully, while,- in fact, she had made up her mind to leave him, and took this method of getting his property. This she denies, and claims he well understood from what she had said to him, and from her acts, that she intended to leave him, and upon her upbraiding him for taking the stock all in his own name, contrary to their agreement, he suggested the transfer and thereby, although belatedly, performed the agreement. The case presents only issues of fact. If defendant demonstrated affection toward plaintiff, as he claims, while, in fact, she nourished hate in her heart and an intention to leave him, and dissembled her true feelings and assumed a mere sham to induce him to give her the bank stock, then she employed the semblance of an appealing affection as a screen for the accomplishment of a nefarious purpose, and she should be made to disgorge. On the other hand, if he gave her bank stock in pursuance of an agreement, under which it was purchased, then he is without remedy. The circuit judge found for defendant and, upon reading and re-reading this record, we cannot say he was wrong. The testimony of the parties is in sharp conflict upon every phase of the case. He claims she left him at the bank at the time the stock was transferred and did not return home, and eight days later filed a bill for divorce, while she claims that after performing an errand she returned home and remained four days. We are satisfied there was serious trouble between the parties before the stock was transferred, but whether the transfer was made by reason of simulated love on her part, or to fulfill an agreement under which it was purchased, or as a peace offering in the hope of reconciliation, we cannot say. Her testimony is corroborated to some extent by that of Mrs. Lyons who heard plaintiff say he had purchased bank stock for himself and wife. We get no help from the bank deposits. We find no occasion to review the testimony at length in this opinion. The burden rested upon plaintiff to establish the alleged fraud by a preponderance of the evidence. We cannot find that he has met such burden. The decree below is affirmed, with costs to defendant. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Clark, J. Taxpayers of the defendant school district paid under protest school tax to the treasurer of plaintiff township and later commenced suits against the township to recover back the amounts paid. The tax was wholly void, not having been authorized by the voters of the district. The township satisfied the judgments of the taxpayers as to both damages and costs and then brought this suit against the school district. The controversy relates to the amount of costs so paid, $197.18. The declaration has two theories for recovery, first, that the amount was paid by the township for and in behalf of the school district and that the district in good conscience ought to return it, and second, that the township "contested and defended said suits at the request and with full knowledge and consent of said school district No. 3, township of Coe, and its duly constituted school board.” A verdict for defendant was directed and judgment entered. Plaintiff brings error. We think there can be no recovery on the first theory. An attempt was made to shift responsibility for the invalidity of the tax from the school board to the township clerk. The question of such responsibility is unimportant here. In this State the treasurer is not a mere tax collector. We have a township treasury. People v. Bringard, 39 Mich. 22 (33 Am. Rep. 344). The township treasurer after collecting the taxes must keep the funds, except State and county taxes, until lawful orders are presented upon which he may pay them out. Section 5706, 2 Comp. Laws 1915, and section 4498, 1 Comp. Laws 1915. The school taxes and other taxes assessed “become at once a debt to the township.” Section 4496, 1 Comp. Laws 1915. If they are not otherwise collected suit may be brought by the township. Township of Bangor v. Transportation Co., 112 Mich. 601; section 4043, 1 Comp. Laws 1915. One paying taxes under protest may sue the township for the amount paid. Section 4049, 1 Comp. Laws 1915. The township may be put to expense in the collection of taxes. It pays for spreading taxes. It may likewise be held to pay costs in suits to recover them when paid under protest. Daniels v. Township of Watertown, 55 Mich. 376. We know of no rule by which the township may charge against a school district such expenses or costs or any portion thereof. Such burden seems to have been placed upon the townships. In Byles v. Township of Golden, 52 Mich. 612, plaintiff sued the township to recover back the taxes paid. It was held: “It was not claimed in this case that the township was liable for the amount of the State and county taxes received by the treasurer, but it is insisted that for all moneys which were to be retained in the township treasury it was liable. This would include school and highway taxes, which the treasurer pays out on orders from the proper school and highway authorities, and which, it appears in this case, he had paid out before the suit was instituted. There is an apparent hardship in holding the township liable for moneys thus paid over; but on the other hand when the plaintiff traces his moneys to the treasury of the township it would seem plain that a right had accrued in his favor which could not be discharged by subsequent action of the township authorities to which he was in no sense a party. The defendant has received his money and must account to him for it; not to any one else.” And respecting the right to recover taxes of a general levy see Bank of Tustin v. Township of Burdell, 184 Mich. 131. In Mineral School Dist. No. 10 v. Pennington County, 19 S. D. 602 (104 N. W. 270), it was held, quoting from syllabus: “Laws 1897, p. 131, chap. 57, § 1, subd. 5, authorizes school districts to levy taxes and report the amount to the county auditor, who is required to include this tax as a part of the tax to be collected by the county treasurer. Laws 1897, p. 60, chap. 28, § 79, makes the county treasurer the collector of all taxes, and requires him to place them, when collected, to the credit of the proper fund. Section 95 (page 65) provides that the county treasurer shall immediately after each settlement pay over to the treasurer of any municipal corporation or any organized township or any body politic all moneys received by him, arising from taxes levied and collected, belonging to such municipal corporation, etc. A county treasurer, in attempting to collect certain taxes assessed by a school district upon property within its boundaries, was enjoined from so doing by a Federal court, and expended money in defending injunction proceedings. The taxes were afterward collected. Held, that the county had no right to retain a portion of the sum so collected as the school district’s share of defending the injunction suit.” And it was said: “The duty of the county treasurer to pay over the amount collected to the school district being imposed by law, he could not legally retain any portion thereof from such district in the absence of any statutory authority authorizing him so to do.” And see 26 R. C. L. p. 454; Matteson v. Town of Rosendale, 37 Wis. 254; 2 Cooley on Taxation (3d Ed.), p. 1491; 11 L. R. A. (N. S.) 1104; Jones v. Wright, 34 Mich. 371. The rule might be otherwise if the statute provided for making a deduction or apportionment of such costs or expenses. See Town of Spooner v. Washburn County, 124 Wis. 24 (102 N. W. 325). Plaintiff had testimony that, respecting the defending of the suits of the taxpayers to recover back the amounts they paid, a conference of the members of defendant’s school board and of plaintiff’s township board was had at which there was discussion and oral understanding that the township would defend and that: “the school board would stand the expenses,” “the school board agreed to stand the costs.” Plaintiff seeks to hold the defendant district upon this agreement. We pass the question of whether the agreement was made by the district board acting as such. The school district was under no legal obligation to pay such costs as might be taxed against the township in such suits. The statute, as we have seen, placed upon the township the duty of spreading and collecting taxes and it may be sued to recover taxes paid. If the district board might bind the district to pay such costs, it might also employ counsel to defend the suits or to assist the treasurer in collecting the school taxes and it might furnish aid to the supervisor in spreading such taxes. We think the school board without such power. See Jenney v. Township of Mussey, 121 Mich. 229, and cases there cited; 35 Cyc. p. 899; 2 Comp. Laws 1915, chap. 107. It may be that the voters of the district could authorize the employment of counsel and the payment of costs and charges in suits to defend, or to collect its taxes (Jenney v. Township of Mussey, supra; Cooley on Constitutional Limitations [7th Ed.], p. 307), but that question is not before us. The court was right in directing a verdict. Judgment affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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Fellows, C. J. This action is brought to recover money paid on a contract executed by defendants as vendors and plaintiff as vendee for the sale of certain real estate located near Ravenna in Muskegon county, and which contract it is claimed plaintiff rescinded because of fraud in its procurement. While not mentioned in the contract, it seems to be admitted that certain personal property went with the land. Plaintiff was a miner in the Upper Peninsula and elaims to have no knowledge of soils or of farming. His son and son-in-law were at Muskegon and came in contact with defendant Louis Simon. Their testimony tends to show that they saw the farm in the winter time when the snow was on the ground, and that defendant Louis Simon then represented that the farm was worth $9,000, consisted of 110 acres, was good soil, that there were 20 acres of the farm on the other side of a creek called Crockery creek, that a certain power company was going to erect a dam in the creek and that it had agreed to buy 20 acres of the land and pay $8,000 for it, and that there were 30 or 35 acres of wheat growing on the land. The son notified his father who came down to Ravenna, and it is claimed like representations were made to him, and that, relying on such representations, he paid $1,000 down and entered into the contract with defendants to purchase the land at $9,000. It is established beyond dispute that the farm consists of but 80 acres, that there is not 20 acres on the other side of the creek, that the power company had not agreed to buy 20 acres for $3,000. The proof reduces the acreage of wheat considerably, and there is quite convincing testimony that the soil is poor and the farm not worth over $2,000 to $2,500. Defendants deny the representations in toto. Plaintiff moved on the farm in the spring and left it in the summer, when, as his testimony would indicate, the condition of the crops satisfied him he had been defrauded. He claims to have tendered back the contract, to have left the tools on the farm, but admits that some feed which went with the place had been fed to the stock and that some potatoes and apples had been used. He claims to have tendered some chickens back to defendant and upon his refusal to accept them he took them, and cared for them. At the close of plaintiff’s proofs, defendants’ counsel moved to strike out the testimony, dismiss the case and direct a verdict for defendants. These motions present the important questions in the case. The rule is well recognized in this State that one seeking to rescind a contract on the ground of fraud must act promptly upon the discovery of the fraud. But this rule does not require one to act upon hearing neighborhood gossip or before he has had a reasonable opportunity to satisfy himself that, he has been defrauded. In Barron v. Myers, 146 Mich. 510, Mr. Justice Hooker, speaking for the court, said: “The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. If he acts with reasonable promptness thereafter, it is sufficient. The law of laches should be used as a shield and not a sword.” In Gridley v. Tobacco Co., 71 Mich. 528, it was said: “To entitle a party to rescind a contract on the ground of fraud or false representations he must act promptly after he has discovered the fraud or the falsity of the representations. He would, however, be entitled to a reasonable time to investigate and to ascertain whether the representations made were true.” And in Hicks v. Steel, 126 Mich. 408, it was said: “The interview in March indicates that they had a suspicion, if not belief, that the note was not good; but this alone was not enough to require an attempt to rescind.” See, also, Place v. Brown, 37 Mich. 575; Hamilton v. Hulled Bean Co., 143 Mich. 277; Cornell v. Crane, 113 Mich. 460; Simonds v. Cash, 136 Mich. 558; John Schweyer & Co. v. Mellon, 196 Mich. 590. Nor does the defrauded party owe to the one who defrauds bim an obligation to use diligence to discover the fraud. Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); Lewis v. Jacobs, 153 Mich. 664. Plaintiff’s testimony tended to show that not long after he came to the farm he was told by some of his neighbors that he had been beaten in the deal, that he went to defendant Louis Simon and told him what he had heard; that Louis said to him: “John, don’t listen to them--of Yankees, they tell you all kinds of bull.” Louis also said that if he did not “be good with him” and pay the taxes he would throw him off the farm, but if he was good with him he would grant certain extensions. The plaintiff was an ignorant foreigner. After this talk he cultivated the crops and remained on the farm until some time in the summer. The jury might legitimately draw the inference that he remained on the farm until the season had far enough advanced to demonstrate by the condition of the crops that the soil was not productive and that he had been defrauded. He then left the farm, leaving the crops as they were and declined, if one of defendants’ witnesses told the truth, an offer of $400 for the crops. He had put on the farm 100 loads of manure. Defendants were not in any way prejudiced by plaintiff’s occupancy of the farm until midsummer. We think the court correctly held upon the facts in the case that it was for the jury and not for the court to determine whether the plaintiff acted with reasonable promptness after he learned he had been defrauded. The personal property was not mentioned in the contract, but it is undisputed that it was included in the deal. Some feed was used up; some potatoes which were of little value were fed to the hogs; a few apples were also consumed. This rendered it impossible to tender to defendants all that was received by plaintiff. Defendants’ counsel insist that inasmuch as plaintiff could not under these circumstances place defendants in statu quo he can not rescind. The trial judge entertained the view that plaintiff’s inability to' return these small items did not defeat his right to recover and that the jury might deduct the value of the property consumed. This view is in accordance with the holdings of this court. In Wright v. Dickinson, 67 Mich. 580 (11 Am. St. Rep. 602), the action was brought to recover money paid on a void contract. Mr. Justice Champlin, speaking for the court, said: “In either case the purchaser must place the other party in statu quo, so far as is practicable for him to do so; and in either case the equities, so far as can be measured by a pecuniary standard, can all be settled and adjusted in the suit. “In this case there is no occasion to call for the interposition of a court of equity. There are no deeds to be surrendered up and canceled, nothing which is required to be perpetuated by a decree. All there is to be ascertained can be ascertained by a jury; and that is, how much in equity and good conscience ought the defendants to repay of the purchase money they have received. All benefits which the plaintiff has received will have to be deducted, and these can be ascertained and allowed for in a common-law proceeding. The value of the timber cut and removed, and all other benefits which the plaintiff has derived from these contracts, can be adjusted in this action.” In Snyder v. Markham, 172 Mich. 693, the plaintiff had purchased certain “patent rights” and machines covered by the patents. Some of the machines had been sold. Plaintiff sought to rescind the contract for fraud. This court sustained his right so to do, the trial judge having charged the jury that they should deduct the value of the machines sold. In American Trust & Savings Bank v. Moore, 161 Mich. 436 (137 Am. St. Rep. 518), it was said: “We all know that in such a case it is usually the duty of the vendor to tender back the note or. property paid, as a condition to the right to recover his property. Exceptions to this condition are when, as in this case, the paper is worthless in the hands of the vendee, and where the vendor is unable to tender back the paper.” And in Munzer v. Stern, 105 Mich. 523 (29 L. R. A. 859, 55 Am. St. Rep. 468), it was said: “The general rule requiring the surrender, or offer to surrender, what has been received, upon the rescission of a contract voidable for fraud,, is not one of universal application, and has many exceptions. It does not require unreasonable or impossible things to be done.” See, also, Henderson v. McRae, 148 Mich. 324; Weiser v. Welch, 112 Mich. 134; Bechtel v. Barton, 147 Mich. 318. Defendants’ counsel also insist that the case should not have been submitted to the jury as to the defendants other than Louis. They made no representations and it is insisted they are not liable. In the recent case of Moynes v. Applebaum, 218 Mich. 198, we fully reviewed the authorities and held that the principal in a real estate deal was liable for the false representations of his agent. We need not go over the ground again. In the instant case all four defendants joined in the contract rescinded. Jointly they received and now hold $1,000 of plaintiff’s money procured, as the jury found, by fraud. We do not perceive any rule of law which would be violated by requiring them jointly to respond, nor do we perceive that the fact of coverture would permit a married woman to keep money thus fraudulently obtained. We have not taken up' each assignment of error and considered it separately. All have been considered. None of the assignments of error would justify a reversal. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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McDonald, J. This ease is here for review on writ of certiorari to the department of labor and industry. While employed as a skilled sawyer by the Central Paper Company of Nogi, Michigan, on the 10th day of June, 1913, William C. Burley suffered a severe injury to three fingers of his right hand, resulting in the amputation of one-half of the third finger and of the second and fourth fingers at the knuckles. At the time of the accident his weekly wage was $27. On the 10th of July, 1913, by agreement, the plaintiff received $650 compensation at the rate of $10 per week for a period of 65 weeks for the loss of three fingers. Thereafter, on the 22d day of May, 1916, on the theory that he had lost the complete use of his right hand as a result of the injury, a supplemental agreement was entered into wherein it was agreed that plaintiff should be paid $10 a week for 85 weeks, which payment, together with the amount previously paid, was understood to be compensation for loss of the hand under section 10 of the act for a period of 150 weeks at $10 a week. This settlement was approved by the board and payment was made in full in accordance therewith. On the 23d of September, 1921, the plaintiff filed a petition with the board to reopen the case and to be allowed compensation for total disability. A hearing was had before a deputy commissioner, who found that the petitioner was totally disabled and was entitled-to compensation at $10 per week for 400 weeks or $4,000, but that defendants should be credited with the amount previously paid for the loss of the hand, leaving a balance of $2,500 payable to the plaintiff. The defendants appealed to the board where the decision of the commissioner was affirmed. They are now here asking to have the award vacated for the following reasons: ■ First. That the settlement of May 22, 1916, which was filed with the board and approved by it, was conclusive and that the board had. thereafter no juris-' diction to grant a rehearing. Second. That there was no evidence to support the findings, and Third. That, having been paid for the loss of a member, he was not entitled to compensation for total disability. Did the board' have jurisdiction to open the case and grant plaintiff a rehearing? The settlement of May 22, 1916, was for the loss of a hand. It was ap-' proved by the board. Full payment was made thereunder and final settlement receipts were signed and filed. No appeal was taken, but sometime thereafter the plaintiff filed a petition to reopen the case, claiming that he was totally disabled by reason of injuries to his arm and hand, and that he had signed the settlement in ignorance of his rights under the facts and the law, having been induced to do so by misrepresentation of the defendant company. On the hearing no attempt' was made to support the claim that the settlement was induced through fraud or misrepresentation. The board, however, for other reasons, did not regard the settlement as having any binding effect but credited defendants with the amount paid thereunder. Counsel insist that in this the board was in error, that the settlement was conclusive, “the legal equivalent to a final award,” and that the board had no jurisdiction to grant a rehearing. They have cited many cases from this court which they claim support that contention. It is true, this court has held that such an agreement is equivalent to a final award (Estate of Beckwith v. Spooner, 183 Mich. 323 [Ann. Cas. 1916E, 886]); and that the board has no authority to grant a rehearing of matters already decided by it; but it has not held that where the physical condition of the injured employee has changed the board may not on petition reopen the case and grant such increased compensation as the facts and the law warrant. The law authorizes the board to review any weekly payments at the request of the employer, insurance company, or employee. In Estate of Beckwith v. Spooner, supra, this court said: “On the hearing of such petition for review it can be stated as a general rule that the essentials leading up to the- award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry.” If,- however, there has been no change in the physical condition of the injured employee, the board is without authority to grant a rehearing. Pocs v. Buick Motor Co., 207 Mich. 591; Diebel v. Construction Co., 207 Mich. 618; Jones v. Iron Works, 212 Mich. 174. As to whether there has been any change in his physical condition after the settlement, the plaintiff testified on redirect-examination as follows: “Q. Did you have in mind at the time you signed these that you might be able to go back and saw? “A. Yes, I thought I could. “Q. And this amount of money was paid you for the loss of the hand only? “A. The loss of the fingers, yes. “Q. And at the time you had the loss of your hand what was the condition of your right elbow and ' shoulder ? “A. In the same condition then as now. “Q. When you settled the second time was your arm in the same condition then as it is now? “A. I think it was about the same then. “Q. You had at that time a limitation in your elbow like Dr. Scholtes said and as you claim yourself you can’t pull your arm back in the shoulder? “A. Yes, sir. “Q. You understood in May, 1916, you were being paid for the loss of the hand? “A. Yes, sir.” In view of this testimony showing no change in the plaintiff’s physical condition, the board was without authority to reopen the case and grant further compensation. It follows that the award must be vacated. Defendants will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Fellows, C. J. (after stating the facts). Defendant’s counsel discusses the question of whether plaintiffs are bona fide holders of the note and whether the note is a negotiable instrument. We are unable to perceive that this discussion is pertinent to the issue. Obviously the note itself is a negotiable instrument, but plaintiffs make no claim of rights as bona fide purchasers. Mr. Shattuck, who handled the deal for the bank, frankly states that he knew the plan under which the association was financed and the purpose for which the note was given. What plaintiffs do claim is that the defendant gave this note to the association under an agreement known to defendant, plaintiffs and everyone else connected with the transaction, that it was to be used as collateral at plaintiffs’ bank, and that the note was used for the exact purpose defendant knew it was to be used for when he gave it and strictly in accordance with his contract with the association. Defendant’s counsel seeks, to bring this case within Toledo Scale Co. v. Gogo, 186 Mich. 442, and Stevens v. Venema, 202 Mich. 282 (L. R. A. 1918F, 1145). Neither case is applicable. In both cases defendants were induced to sign a contract which, cunningly concealed, contained a promissory note capable of being detached from the balance of the contract. In neither case did the defendant understand he was signing a promissory note. In the instant case defendant signed both a note and a contract with the knowledge so far as this record discloses that he was signing a note and contract, the note to be detached and used as collateral, the contract expressly providing that it should be so used. Whether the contract was detached and given to him when he signed the note or was detached by the association of which he was a member afterwards does not appear and defendant has not seen fit to enlighten us, but the note was used by the association of which he was a member exactly as he deliberately agreed it should be used. The cases cited and the instant one are not comparable. Manifestly the plaintiffs may not recover beyond the amount of their lien. But the amount of their lien was upwards of $10,000, while the judgment was for $104.17. It must be equally manifest that plaintiffs are not precluded from proceeding to collect from defendant the amount of his note because they hold other collateral. If such were the law it is difficult to perceive how they would be able to realize on any of the collateral held by them. Plaintiffs’ action was upon the note, not upon the contract between defendant and the association, and it was proper to count upon the note alone. By a series of innuendos unjustified by the record but running through several pages of the brief, plaintiffs are charged with in some way perpetrating a fraud on defendant. The trial judge did not find any fraud in the case and would not have been justified in finding it. There is not a scintilla of evidence to sustain a claim of fraud. The plain, cold facts of this lawsuit demonstrate that defendant and others entered into an unsuccessful business enterprise and that defendant is now seeking to compel plaintiffs to stand the loss of his ill-starred venture. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.	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Clark, J. On motion the bill to foreclose a mechanic’s lien was dismissed. Plaintiff has appealed. The bill alleges that under a written contract between the parties plaintiff equipped a certain factory building of defendant with a system of automatic fire sprinklers. We quote from the contract: “That the said system is not, and shall not, become a fixture, but shall be, and remain personal property, and the title and right of possession thereto, shall remain in the said Phillips-Michigan Company until fully paid for. Said second party expressly agrees that it acquires no title to such system until it has so paid in full therefor. * * * “All deferred payments hereunder shall become due and payable forthwith in case of any default by second partyBut the said first party, if it so elect, may at any time declare said system to be the property of the said second party and avail itself of any lien or supply law or other remedy.” The bill also alleges that the materials constituting the system so furnished have become a permanent part of the factory building and that they have greatly increased its value. It also alleges that plaintiff, under the paragraph of the contract last above quoted, “did so elect to declare said system to be the property of said defendant, and did avail itself of the right to and did file a statement of lien.” * * * Counsel state the grounds of the motion to dismiss: “* * * ^at inasmuch as the parties had con tracted expressly that the property should be' and remain personal property and not become a fixture, that such property could not form thei basis of a lien for the reason that all of the authorities are agreed that the basis of any lien upon the land is that the property becomes a part of the land, enhancing its value and, as .some of the cases declare, is devoured by the land. This was the basis upon which the circuit judge rendered his decision.” . Counsel cite cases where the right of lien has been denied for materials or articles which were not used in the building and became no part of it. We think these cases not in point. The language of the bill respecting the right of lien is that plaintiff furnished “labor and material in and for altering and improving of said factory building,” etc. This is agreeable to the provision of section 14796, 3 Comp. Laws 1915. The contract purports to reserve title of the materials in the plaintiff. But it provides that promissory notes for the full purchase price shall be given, that upon default the whole amount shall become due, and “That the acceptance of such notes or other notes or bills of exchange or other security for, or the taking of any acknowledgment of the claim, or the giving of time for payment thereof, filing or enforcing any lien, or the taking of any proceedings for recovery or the recovery of a judgment for the claim shall not merge, waive, pay, satisfy, prejudice or destroy the retention of or affect the title of the first party to such system nor any right reserved or applicable.” So the contract purports to reserve title and to give an inconsistent right of action to recover the debt without passing title! The rule in such cases is that the intent of the parties was to make an absolute sale with reservation of a lien by way of security. See Young v. Phillips, 203 Mich. 566; Atkinson v. Japink, 186 Mich. 335. The holding in Warner Elevator Manfg. Co. v. Loan Ass’n, 127 Mich. 328 (89 Am. St. Rep. 473), is decisive of the question presented. Defendant’s contention there, as here, was: “The gist of the defendant’s contention is that a mechanic’s lien can only exist where work or materials have become a part of the realty. It is said that this is not so when the title to personal property is reserved in the vendor; that in such a case the personal property does not, in law, become a part of the realty, although affixed to it.” It was held: “But the authorities forbid the assumption that a reservation of title is inconsistent with the existence of a statutory lien, holding that there may be cumulative remedies, and consequently that absolute inseparability is not a condition to the existence of the statutory lien. Phil. Mech. Liens, § 9, states that the lien is a cumulative remedy provided by statute, and an incidental accompaniment to the contract, which may be pursued in connection with ordinary remedies. Case Manfg. Co. v. Smith, 40 Fed. 340 (5 L. R. A. 231), was a case where one reserving title set up a statutory lien. It was held that the retention of the title was in the nature of a specific lien upon the identical machinery furnished, and not inconsistent with the statutory lien.” And see Perkins v. The Golden Girl, 185 Mich. 200. The order dismissing the bill is set aside, with costs , to appellant. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Steere, J. Defendant, Boske, was convicted in the circuit court of Berrien county under an information charging that he did, on or about January 25, 1922, “wilfully, maliciously and wantonly, and without cause, cut down, destroy and otherwise injure” certain fruit trees growing on a farm owned by one Fred Hauck in the township of Sodus in said county. The case is here for review on exceptions before sentence. Defendant’s assignments are directed to claimed errors in the charge of the court, improper argument by the prosecuting attorney, overruling defendant’s motion for a directed verdict, and refusal to grant a new trial. Boske was a married man 38 years of age who owned and lived upon a 40-acre farm about a half mile south of Sodus village in Sodus township, Berrien county, on the west side of a north and south highway directly opposite a 40-acre farm owned by Hauck, who was a married man 40 years of age living upon a 47-acre farm about a mile distant at the time of events involved here. The two men were of German birth but had lived in Sodus township and known each other for over 20 years. Both testified they never had any trouble and were always friendly, as were their wives, who visited each other in a social way from time to time. In the spring of 1921, Hauck planted a portion of his 40 opposite Boske’s farm to fruit trees-. He set out a peach orchard of 250 trees in the southeasterly portion of the 40 back of the unoccupied house situated upon it and 70 apple trees in a field directly across the road from Boske’s place. He visited these new orchards some time in December, 1921, and did some work around the trees. At that time he noticed nothing wrong with them. He again visited and examined them the following March when he discovered that the great majority of those small trees had been partly cut off an inch or more below the surface of the ground he had hilled up around them, of which he testified the cuts on the apple trees appeared as though made with pruning shears and on the peach trees by a small tree-trimming saw. He reported his discovery to the sheriff who went out to the place with him and investigated the situation. Boske was engaged that day trimming grape vines some distance back of his house. When called to dinner by his wife he saw Hauck, the sheriff and a number of others had gathered in the field opposite his place and went over there to see what was going on, as he stated. While there he asked the sheriff, whom he did not then know, what it was about. The latter gave him an evasive answer to the effect that they were investigating what kind of fertilizer would improve that soil and after some further talk Boske returned to his place. The sheriff soon went over to and catechized him on the subject, and before they separated accused him of the depredation they were investigating, advising him to try and settle the matter up with Hauck. Boske stoutly denied any knowledge that the orchards had been cut or destroyed until the sheriff showed him what had been done, arid stoutly protested his innocence. Before accusing him of the offense the sheriff had discovered a small apple tree near the highway opposite Boske's house which had been injured by the branches of a large maple tree falling on it from the opposite side of the road the fall before. The large maple was 3% feet in diameter and proportionately tall. Boske cut it down for wood with the assistance of two men the preceding November and tried to fall it upon his own land, but it went in the opposite direction across the road and its top reached' to one of the small apple trees near the road, crushing it down. Boske straightened it up and braced it with some sticks tied around with a piece of cloth. When called there the following March the sheriff noticed this and on examination found the tree cut beneath the soil in like manner as the other apple trees. When asked about it Boske related the circumstance of his falling the maple tree on it the fall before arid fixing it up above the ground, but denied all previous knowledge of it or the other fruit trees being cut below the ground as related, and emotionally protested against the imputation that he was the offender. He admitted neglecting to tell Hauck of the mishap, with the explanation that he expected to plant another tree in its place if it did not come out all right in the spring. His arrest and conviction for maliciously cutting and destroying the young orchards followed. The evidence offered by the prosecution was entirely circumstantial. No witness testified to seeing Boske in this orchard beyond the little tree he had ministered to until the day the sheriff was there. The testimony was undisputed that during the many years that he and Hauck had known each other their relations had always been friendly, with never any trouble between them or members of their families. Based upon this condition of the record, defendant’s counsel first strenuously contended that there was no competent evidence to carry the question of malicious, wanton, and wilful destruction by him of Hauck’s orchard to the jury, and their request for a directed verdict or, at least, their motion for a new trial on-the ground that the verdict was against the great weight of evidence, should have been granted. And further urge that prejudicial error entitling defendant to a new trial is shown under various assignments argued in counsel’s brief. We are not prepared to indorse counsel’s contention that a verdict should have been directed because of total absence of testimony to show motive or otherwise tending to support the prosecution’s theory of guilt. There was testimony, denied by defendant, of remarks made by him which, if found true, gave room for an inference of motive within the field of disputed facts as well as other disputed circumstances in the case, upon the import of which, if-found true, reasonable minds might honestly differ. As we are of opinion a new trial should be granted for other reasons, that feature of the case need not be further discussed. In his argument to the jury counsel for the prosecution asserted that Bridgman, the sheriff, “knew that he had the guilty man,” and, in reply to objection by defendant’s counsel, said, “The jury will understand and that is legitimate argument, that that was what George Bridgman knew,” followed by the court’s ruling that “if the jury will understand it in that light, proceed with the argument.” This gave room for the jury to understand they might consider in their deliberations the fact that the sheriff knew he had the guilty man, or at least give consideration to the sheriff’s opinion that he had. It was the duty of the jury to pass upon the facts and decide the question of guilt or innocence uninfluenced by the opinions of others. The import of such argument was an appeal for conviction, on the opinion of the sheriff. Upon the trial no character witnesses were called. In his closing argument to the jury counsel for the prosecution commented on the fact that defendant had lived in Sodus township 20 years and did not call any character witnesses to establish his good reputation. On counsel for defendant objecting and taking exception to the statement, the court said: “Counsel for the people had a right to comment on the failure of defendant to call witnesses to testify to any material matter here in issue. * * * He is commenting on the failure of defendant to call witnesses to establish good reputation, as I understand it.” A controversy then followed in which counsel for the prosecution stated the comments were in reply to argument of defendant’s' counsel referring to his good character. This the latter emphatically challenged to the extent of saying of the statement “that is untrue,” and on counsel for the prosecution’s assertion in reply, “the law is, we have a right to comment on the failure,” defendant’s counsel was asked by the court if he claimed the prosecution “has no right to comment on the failure of the respondent to bring witnesses to show good character?” to which counsel replied, “I certainly do,” and the court said, “Well, I am not sure about that.” After further expression of doubt the court finally sustained the objection, with the statement the jury would be cautioned not to pay any attention to the remarks of the counsel on the subject. In his charge the court left this issue of fact between counsel in the air and did not enlighten the jury upon the law of the subject but, “in view of what arose,” charged them “there is no evidence in this case one way or the other as, to respondent’s character or reputation,” followed by some remarks as to the controversy, concluding: “If any remarks have been made to the jury, or argument, on the question of defendant’s character or reputation, that should be ignored by the jury entirely.” It is a well-settled rule that an accused’s character or reputation cannot be put in issue by the State and an equally well-settled corollary that the prosecutor may not comment on the failure to call witnesses to sustain his character, unless his counsel is so indiscreet as to invite it by making assertions on the subject outside the record. People v. Oblasen, 104 Mich. 579. And where such unprovoked comments are made by the prosecutor it was said in People v. Evans, 72 Mich. 367, 382: “The error was not cured by the court after-wards instructing the jury that they should not consider such argument.” Vide, also, Quinn v. People, 123 Ill. 333 (15 N. E. 46). No inference can arise against an accused that he is guilty of the offense charged because he offers no evidence of his good character. In view of what occurred the jury should at least have been so instructed. The evidence on the part of the prosecution was entirely circumstantial, and all circumstances claimed to support the theory of guilt were urged by the defense as susceptible of an innocent construction. It was purely a case of inference as to the ultimate fact. From the record we are impressed that this feature of the case involved prejudicial error militating against a fair and impartial trial of the accused. Other errors complained of which might call for consideration are not likely to occur on a re-trial and need not be reviewed. The verdict must be set aside and a new trial granted. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.	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McDonald, J. The plaintiff files his bill for the specific performance of an oral agreement which he claims to have made with his wife, Ottilie Weiland, in June, 1912, in which he was to furnish money necessary for repairing and remodeling her house on Russell street, in the city of Detroit. In consideration therefor, she was to put the title in their joint names, creating an estate by the entirety. The plaintiff paid the consideration but the wife refused to make the conveyance. About the 25th of September, 1919, she deeded the property to Antonia Emanuela, in pursuance of a land contract made on the 22d day of September, 1917, the consideration for which was $5,200. The deed was made without the knowledge or consent of the plaintiff. He claims she concealed this transaction from him and to prevent him from getting any part of the proceeds, deposited the money in the Wayne County & Home Savings Bank in the joint names of herself, as Herminie Brecht, and Emilie Bacherl, her sister. Domestic trouble arose between the parties and a divorce case was brought by the plaintiff in the county of Washtenaw. On the hearing the circuit judge filed an opinion in which it is claimed he made a division of their property between them, but, before a decree was signed and entered, Ottilie Weiland died. At the time of her death, on the 2d of February, 1920, there was $3,682.80 remaining on deposit in the bank, in the joint names of Herminie Brecht, who was actually Ottilie Weiland, and her sister defendant, Emilie Bacherl, who claims the fund by right of survivorship. Before Ottilie Weiland died she made a will, and the administrator, defendant Mack B. Stielau, claims this fund as a part of the estate. Fred Wagner, a former husband, is a beneficiary under the will and is here made a party defendant. Before her death she withdrew $500 from the amount on deposit, and paid it to one Michael Wurmlinger, who is also made a party defendant. The plaintiff claims the fund as survivor under the oral agreement of June, 1912. The defendants answering deny that the plaintiff furnished, money for remodeling the house, or that there was any agreement between him and his wife that he should be given any interest in the property. On the hearing the circuit judge found that the oral agreement was made, as claimed by the plaintiff, that there was sufficient part performance to avoid the statute of frauds, that the plaintiff was entitled to specific performance, that the proceeds of the sale of the property belonged to him as survivor, and directed the bank to pay to him the $8,657.80, remaining on deposit. That the $500 paid to defendant Michael Wurmlinger was also a part of the proceeds of the sale, and that the $400 of it should be returned to the plaintiff. We think the evidence supports the finding of the circuit judge that the oral agreement was made as plaintiff claims, and that he paid $1,800 for the repairs and remodeling of the house. The important question involved and relied on by defendants is that if the oral agreement was made by the parties, it was void under the statute of frauds and there was no such part performance as would take it out of the statute. The circuit judge based his conclusions as to part performance on possession, improvements and payment of the consideration. The facts as to possession appear to be that the plaintiff was at first living with Ottilie Wagner on the premises as a boarder; that he married her in April, 1912; that after the marriage they continued to live at the same place until November, 1912, when they rented the property and moved to Ecorse. About two months after the marriage the oral agreement was made. His possession, if it can be said that he had any, did not constitute an act of part performance, because it was not taken under the oral agreement and in reliance on it, but was exclusively referable to the domestic relationship of the parties. First he was a boarder, then the husband of the owner, and this relationship continued until the property was rented and the family moved to Ecorse. The character of the possession did not change after the oral contract wasi made. There is no evidence of any act or statement by the wife showing a recognition, of plaintiff’s interest in the property. On the contrary, she declined to acknowledge his claim and refused to make the conveyance. Possession with his wife of the premises following the oral agreement together with a recognition by her of his joint interest would present a different situation. See Murphy v. Stever, 47 Mich. 522. As to improvements, the plaintiff made none. They were made by the owner and he paid for them. That was his agreement. The bill states it as follows: “That in June, 1912, about two months after the. marriage between your plaintiff and said Odelia Weiland, an agreement was orally entered into by and between your plaintiff and his said wife at that time, to the effect and tenor that if this plaintiff would pay all the necessary bills for rebuilding and repairing said house on said lot, putting in new foundations, changing the same into a two-family flat, putting in modern plumbing, bathroom, gas, and painting the same, that the said Odelia Weiland would change the deed of said premises to an estate in the entirety, in the names of your plaintiff and said Odelia Weiland,” etc. The only witness who testified to a contract and to the improvements supported this allegation in the bill. The only thing that plaintiff did in part performance of the contract was to pay the consideration. For this he could have been compensated in an action for damages. “The mere payment of consideration by the purchaser which is susceptible of being compensated by damages, is not sufficient to take the case out of the statute.” Grindling v. Rehyl, 149 Mich. 641 (15 L. R. A. [N. S.] 466). “It is not payment alone that will take a case out of the statute, but this with possession, and acts done as owner in reliance thereon, that cannot ordinarily be compensated in damages, which entitles a party to an enforcement of a verbal agreement relating to the sale of lands.” Peckham v. Balch, 49 Mich. 179. See, also, Lamb v. Hinman, 46 Mich. 116; Kelsey v. McDonald, 76 Mich. 188. There are other facts and circumstances presented by the record which I think might materially affect plaintiff’s right to relief in equity, but these it is not necessary to discuss. As I view the whole matter, it is simply a case where the plaintiff has paid out money under a void contract. He has not presented a case where specific performance is necessary to do full justice and prevent fraud. “It has never been deemed proper to grant redress on a parol contract for a part performance capable of full pecuniary measurement. Generally there must have been a change of possession of the land in controversy, which is always regarded as involving considerations not easily estimated in damages. There are very few other cases where parties are placed in any such predicament as to require protection to save them from being defrauded. “It is not the policy of courts of equity to enlarge the exceptions to the statute of frauds. Where parties see fit to neglect the means it provides for putting their agreements into a form which will prevent disputes, they must usually be content to trust to each other’s promises, and not ask the courts to relieve them against the consequences of their own carelessness.” Webster v. Gray, 37 Mich. 37. The decree of the circuit court will be reversed. Costs will go to the defendants. A decree will be entered dismissing the plaintiff’s bill. Fellows, C. J., and Wiest/ Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Clark, J. This is an action for damages for assault and battery. Plaintiff was plowing out a ditch along a private right of way between the farm of his mother and the farm of defendant, in which right of way both owners asserted rights and concerning which there had been trouble and litigation between them. Defendant’s wife attempted to stop plaintiff’s plowing upon and across a way of defendant, as she claims, leading from such right of. way to defendant’s premises. Defendant came from his work to the scene of the trouble, claims that plaintiff assaulted his wife, whereupon he struck plaintiff. The defense, in the main, was that he struck in defense of his wife. There was a verdict of no cause of action upon which judgment was entered. Plaintiff brings error and contends: 1. That it was error to receive testimony of the former differences relative to the right of way. The answer to this is that the matter was brought into the case by the opening statement of plaintiff’s counsel and by his examination of witnesses. 2. Defendant was called for cross-examination under the statute and, examined by plaintiff’s counsel, stated that he had been arrested for the assault and battery and that he had- pleaded guilty and paid a fine. As to the incident defendant later testified over objection of counsel for plaintiff: “Q. That is before Judge Monte? “A. Yes. “Q. He said if you admitted it he would give you a small fine? “A. Yes, he said that would be all there would be to it. “Q. Did the judge tell you that he would give you a small fine if you would plead guilty? “A. Yes.” Plaintiff contends that this constitutes reversible error, citing Breitenbach v. Trowbridge, 64 Mich. 393 (8 Am. St. Rep. 829), where, in a civil action for assault and battery, it was said: “The court also erred in permitting testimony to be given in relation to what took place in Justice Miner’s court upon the trial there of a criminal action growing out of the same transaction. It was proper to give all that the defendant said there by the way of admission, but what Justice Miner said to him was incompetent, and had a manifest tendency to prejudice the jury.” We have examined the record in that case. It is not authority for the contention here made. The rule is stated in 5 C. J. p. 685: “Where defendant has pleaded guilty to a criminal charge of the same assault or battery, the record of his conviction on that plea may be introduced as an admission on his part against interest, and is also admissible in rebuttal to contradict defendant; it is not conclusive, however, but is subject to explanation.” It was said in Yeska v. Swendrzynski, 133 Wis. 475 (113 N. W. 959), quoting from syllabus: “In a civil action for assault and battery, where evidence was introduced of a criminal prosecution for the same assault in which defendants had pleaded, guilty, it is not error to allow defendants to give explanation as to their reasons for such plea, consisting in pressure of farm work and expense of repeated journeys to the place of trial.” See, also, Risdon v. Yates, 145 Cal. 210 (78 Pac. 641); Satham v. Muffle, 23 N. D. 63 (135 N. W. 797). The testimony was admissible. No other question merits discussion. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Bird, J. In January, 1920, plaintiff, a farmer boy, 18 years of age, went to Cadillac to work during the cold weather. After doing some work in a factory he hired to the Grand Rapids & Indiana Railway Company to work in and around its round house. His time was largely taken in shoveling cinders. On Sundays he was assigned to work with a steam shovel operated at the end of a boom 80 feet long, which was engaged in transferring coal from coal cars to locomotive tenders. His particular work on the Sunday in question was shoveling coal from the corners of the car so that the steam shovel or dipper could get hold of it. In the latter part of the afternoon he left his work on an errand to the cab of the locomotive, which was being coaled. After a short interval he was ordered back to his work on the car by Louis Manning, who was operating the steam shovel and who was his superior. Plaintiff immediately complied with the order. When he reached the coal car he placed his hands on top of the side of the car, which was about eight feet high, to help himself up, and while in that position the operator swung -the empty shovel back to the car and permitted it to drop on plaintiff’s right hand, thereby crushing the first, second and third fingers. Defendant was charged with negligence in permitting the shovel to drop on to plaintiff’s fingers. The case was submitted to the jury under the Federal act and a verdict returned of $2,500. The principal ground of complaint of the defendant is that the trial court should have directed a verdict in its behalf because there was no testimony which showed that it was negligent in the premises. The grounds of negligence alleged in the declaration are somewhat numerous. Among them are allegations that defendant did not furnish plaintiff with a safe place in which to work. That it did not furnish safe tools with which to work; that the tools were defective. It was also charged that defendant’s servant operating the steam shovel was incompetent and that the steam shovel was operated in a negligent manner. We do not think that any question of safe place was involved. There is some testimony that one of the small wheels upon which the base of the steam shovel revolved was flat and would slide instead of turning. The testimony of several of defendant’s witnesses was to the effect that this would not affect the operation of the steam shovel. If the operation were affected in any way by the defect it does not clearly appear in the testimony. It does appear that the day in question was the second day that Manning had operated the steam shovel, and that he was not well versed in operating it. It was shown that he ordered plaintiff to resume his work in the car. Plaintiff, in compliance therewith, started for the car. The top of the coal car being higher than his head, he reached the top of it with his hands to assist himself in getting into the car. As he did so, Manning lowered the steam shovel or dipper in such a way as to permit it to drop on plaintiff’s hand. Manning was in a position to command a view of the shovel at all times. He could also see plaintiff executing his order, and it was open for the jury to infer that had he been giving attention to his work, or operating the shovel in a proper manner, he could have avoided coming into collision with plaintiff’s hand. Whether the collision was due to Manning’s inattention or to his incompetency is not very important as both phases are covered in the declaration. It is argued at some length that the steam shovel was in plain sight of plaintiff and that he knew from the noise it made that it was being returned to the car and that he. should have observed and avoided it, and that his failure to do so constituted him guilty of contributory negligence which was the proximate cause of the injury, and, therefore, he could not recover. When plaintiff started to get upon the car he could not see the dipper but he quite likely knew that it was being returned to the car because of the noise it made. But this would not advise him that it would be dropped on the side of the car rather than in the car. The dropping of the dipper on the side of the car was an unusual thing and plaintiff had no reason to expect that the dipper would go bumping along on the top of the side of the car before it was lowered into the car.- Had it not done this plaintiff would not have been injured because his head was not above the top of the car. Had the proofs shown that it was customary for the dipper to go bumping along on the top of the sides of the car, and plaintiff knew of it, a different question would have been presented. The mere fact that plaintiff knew there was more or less oscillation óf the dipper when it was being returned to the car did not charge him with notice that it was liable to come in collision with the top of the car. The question of plaintiff’s contributory negligence was one of fact for the jury and we think it was properly submitted to them under the Federal rule. It is argued that the happening was one of the dangers incident to the employment, and, therefore, it was assumed by plaintiff when his employment began. We think it is clear that the dipper was dropped on to plaintiff’s hand either because it was negligently operated or because of the incompetency of the operator, as neither Manning nor plaintiff anticipated it would drop on the side of the car rather than in it. It could hardly be said that this, as a matter of law, was one of the hazards which plaintiff’s contract of employment included. The trial court submitted to the jury the question of assumed risk, saying to them in part that: “I further charge you that if you find that this danger was known to the plaintiff, or that by the exercise of reasonable diligence on his part, he ought to have known the danger at the time he went to work, and at the time he was injured, it will be your duty to find a verdict for the defendant in this case. “The jury is instructed as a matter of law, that a servant when he enters the service of an employer implicitly agrees that he will assume all risks which are obvious and naturally incident to the particular service in which he engages, and if the jury believe from the greater weight of the evidence that the injury to the plaintiff was. only the result of one of the risks ordinarily incident to the work in which plaintiff was engaged and was obvious and not otherwise, then he cannot recover in this case and your verdict should be no cause of action.” This instruction on the question of assumed risk was fully as favorable as defendant was entitled to. The further point is made that the verdict is excessive. The testimony shows that plaintiff has lost the use of three fingers on his right hand. This is important to him as he labors with his hands. The testimony shows that the injury caused him much pain and suffering. The injury is a permanent one and will always be a handicap to him in his work. We are not impressed that the verdict is excessive. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Clark, J. Plaintiff by deed became the owner of 8 lots in Detroit. The deed was subject to “a real estate mortgage in the sum of $200 on each lot or parcel of land aforesaid which the second party hereby assumes and agrees to pay.” The mortgagees were Andrew J. Keary and Ella R. Keary, defendants. The mortgage contained a power of sale. Under the provisions of chapter 249, 3 Comp. Laws 1915, relating to foreclosure of mortgages by advertisement, the premises were sold February 5,1918, to the mortgagees. The sheriff made and executed a deed and delivered it to the register of deeds pursuant to the statute. At the expiration of one year, the period of redemption, the premises not having been redeemed, the register delivered the deed to the purchasers as the law directs. On March 8, 1918, the soldiers’ and sailors’ civil relief act was approved by the president. 40 U. S. Stat. pp. 440-449 (U. S. Comp. Stat. Ann. Supp. 1919, § 307814a et seq.) On September 29, 1918, plaintiff entered the military service of the United States, and on May 14, 1919, he was honorably discharged. He filed a bill to redeem from the foreclosure, having tendered the amount . due. His bill was dismissed. He has appealed. In measuring the period of redemption from foreclosure by advertisement should the period of military service be excluded? We quote three sections of the act: “Section 100. That for the purpose of enabling the United States the more successfully to prosecute and carry on the war in which it is at present engaged, protection is hereby extended to persons in military service of the United States in order to prevent prejudice or injury to their civil rights, during their term of service and to enable them to devote their entire energy to the military needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the continuance of the present war. “Sec. 205. That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have1 accrued prior to or during the period of such service. “Sec. 302. (1) That the provisions of this section shall apply only to obligations originating prior to the date of approval of this act and secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of the military service and still so owned by him. “(2) In any proceeding commenced in any court during the period of military service to enforce such obligation arising out of nonpayment of any sum thereunder due or out of any other breach of the terms thereof occurring prior to or during the period of such service, the court may, after hearing, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of his military service— “ (a.) Stay the proceedings as provided in this act; or “(b) Make such other disposition of the case as may be equitable to conserve the interests of all parties. “3. No sale under a power of sale or under a judgment entered upon warrant of attorney to confess judgment contained in any such obligation shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved by the court.” In dismissing the bill Judge Webster said: “An examination of the soldiers’ and sailors’ civil relief act has satisfied me that (whether designedly or through oversight) it has failed to cover the case of a statutory redemption period which began to run before the passage of the act. This being true, plaintiff’s right to redeem expired February 5, 1919.” * * * His opinion is fully supported by Taylor v. McGregor, State Bank, 144 Minn. 249 (174 N. W. 893), where it was held, quoting from syllabus: “The act * * * has no application to the nonjudicial proceeding for the foreclosure of a real estate mortgage by advertisement, as authorized by our statutes, which was fully completed by a sale of the mortgagedi property prior to the commencement of the military service of soldier affected, though the period of redemption had not then expired.” And citing the above case a majority of the court held in Wood v. Vogel, 204 Ala. 692 (87 South. 174), quoting from syllabus: “The right of redemption given by Code 1907, § 5746 et seq., from judicial and qmsi-judicial sales is a mere personal privilege, and must be exercised within the two years prescribed; hence the soldiers’ and sailors’ relief act (U. S. Comp. Stat. Ann. Supp.' 1919, § 30781/4e), declaring that the period of military service shall not be included in computing any period of limitation, does not apply so as to extend the time within which the right of redemption may be exercised.” The act does not in precise terms refer to a limitation or foreclosure such as this. If the act must be strictly construed the opinion of the trial judge and the cases cited are right. But we think the act should be construed liberally to accomplish the congressional purpose indicated in the section quoted. Of a somewhat similar statute it was said in Stewart v. Kahn, 11 Wall. (U. S.) 493: “A case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning. The intention of the lawmaker constitutes the law. The statute is a remedial one and should be construed liberally to carry out the wise and salutary purposes of its enactment.” We quote from Ozawa v. United States, U. S. Adv. Ops. 1922-23, p. 11, decided November 13, 1922: “It is the duty of this court to give effect to the intent of congress. Primarily this intent is ascertained by giving the words their natural significance; but if this leads to an unreasonable result, plainly at variance with the policy of the legislation as a whole, we must examine the matter further. We may then look to the reason of the enactment, and inquire into its antecedent history, and give it effect in accordance^ with its design and purpose, sacrificing, if necessary,, the literal meaning in order that the purpose may not fail. See Church of the Holy Trinity v. United States, 143 U. S. 457 (12 Sup. Ct. 511); Heydenfeldt v. Mining Co., 93 U. S. 634, 638.” Of the act it was said in Steinfield v. Insurance Co. (N. H.), 112 Atl. 800: “It was not the legislative intent that the remedial purpose of the act should be defeated by a narrow or technical construction of the language used. Halle v. Cavanaugh, 79 N. H. 418 (111 Atl. 76).” And see Clark v. National Bank, 282 Fed. 589. The provision of our statute limiting the right of redemption from this foreclosure of mortgage to one year is not strictly a limitation of action. But relative to like limitations in analogous cases the act has been construed liberally and, we think, rightly. In Kuehn v. Neugebauer (Tex. Civ. App.), 216 S. W. 259, it was said:. “On April 25, 1918, this cause was reversed and was remanded to the district court of Hays county for a new trial. 204 S. W. 369. No motion for rehearing was ever filed. A few days prior to August 30, 1919, the appellee paid the costs of the appeal, and requested the clerk of this court to issue a mandate to the trial court, in. order that he might proceed with the prosecution of the cause, which request was refused by the clerk, upon the ground that the costs had not been paid within one year from the date of the judgment of this court, as required by article 1559, Revised Statutes.” And held, quoting from syllabus: "Soldiers’ and sailors’ civil relief act * * * authorizes the appellate court to grant a motion of an appellee, requesting it to instruct the clerk to issue a mandate, although costs had not been paid within one year from the reversal of a judgment in favor of appellee, it appearing that appellee, entered the military service of the United States, before he became aware of reversal of his judgment, and served overseas .until within three months of filing his motion, notwithstanding Rev. Stat. 1911, art. 1559, which leaves the appellate court without discretion to order the issuance of the mandate when costs are not paid within the year.” And also said: "The writer thinks it is proper to add that he is 'Of the opinion that article 3078%e, relating to limitations of actions, is also applicable to this case, and that the time limited by article 1559 for the payment of costs of an appeal and the taking out of a mandate did not run against appellee during the period of his military service. It is appreciated that this case probably does not fall within the strict letter of the last-named section (205), and that it would be giving it a very liberal construction to hold it applicable here. However, in view of the broad purposes of the act expressed in the first section and the remedial nature of every provision in it, it is believed by the writer that the subject-matter of this motion falls within the spirit of article 3078%e, without further elaboration of the question.” In Halle v. Cavanaugh, supra, there was motion to abate an action. The plaintiff died in the May term. The second term thereafter was the January term. The statute of that State provided that the administrator had two full terms in which' to appear and assume prosecution of the suit. No one appearing, the motion to abate was granted. The plaintiff’s husband was the executor of her will. He had been drafted into the military service of the United States. That fact was relied upon under the act to toll the statute. The court said: “The question here is whether this right to appear and prosecute a pending suit, which would abate but for such appearance, is covered by the Federal statute, which in terms applies to ‘The bringing of any action.’ There is no other provision in the Federal act which would afford any relief to the person so situated. The general purpose of that statute is declared to be to extend protection to persons in the military service to prevent prejudice or injury to their civil rights during their term of service. Id. % 100. In view of this declared object, it is reasonable to conclude that the intent was to include the procedure here involved. It follows that the husband had two full terms of court after the' death of his wife, and exclusive of the time he was in the service in which to appear as an individual and assume the prosecution of this suit.” Also: “The purpose of this act was the protection of persons in the military service of the United States, to prevent prejudice to their civil rights during their term of service by making provision for the temporary suspension of legal proceedings and transactions relating thereto.” (Italics supplied.) In the Steinfield Case the action was assumpsit on a policy of indemnity insurance. The policy provided that suit must be brought within 90 days after payment of loss. The suit was brought about 5 months after such payment but during this period plaintiff was in the military service. The section of the statute relied upon was section 205 above quoted. Defendant contended that the time for bringing suit was limited by the contract and not by “any law” and that therefore the statute did not apply. It was held: “The application of the Federal^ act is not limited to statutory provisions. It applies to all law, and provides, in substance, that notwithstanding the State law limits the action as by contract agreed, that law shall not apply while the plaintiff is in the service.” And for instructive cases relative to the act see Hoffman v. Savings Bank, 231 Mass. 324 (121 N. E. 15); Morse v. Stober, 233 Mass. 223 (123 N. E. 780, 9 A. L. R. 78); John Hancock Mut. Life Ins. Co. v. Lester, 234 Mass. 559 (125 N. E. 594); Olson v. Gowan Lenning Brown Co. (N. D.), 182 N. W. 929; Studt v. Trueblood, 190 Iowa, 1225 (181 N. W. 445); Pierrard v. Hoch, 97 Or. 71 (191 Pac. 328); Great Barrington Sav. Bank v. Brown (Mass.), 132 N. E. 398; Erickson v. Macey, 231 N. Y. 86 (131 N. E. 744, 16 A. L. R. 1322); Hickernell v. Gregory (Tex. Civ. App.), 224 S. W. 691; Austby v. Mortgage Co. (Mont.), 207 Pac. 631; Lewis v. Publishing Co. (Kan.), 208 Pac. 254; Konkel v. State, 168 Wis. 335 (170 N. W. 715); 16 A. L. R. 1327; 9 A. L. R. 1, 78. And the statutes of the State must yield to the act. Konkel v. State, supra. Had the foreclosure been in chancery (3 Comp. Laws 1915, § 12676 et seq.), and had plaintiff’s induction into the service occurred during the period of redemption there limited, the court, as was said in the Kuehn Case, might have and doubtless would have entered an order staying the execution of its decree upon proper application or upon its own motion upon being apprised of requisite facts. No reason appears why the act should be applied to a chancery foreclosure and not to a foreclosure by advertisement. And we think the act should be held to apply to the statutory limitation for redemption in the case at bar. The protection of those in the service by the suspension of legal proceedings and transactions which might prejudice their civil rights was the prime purpose of the act. We give effect here to the congressional intent by answering the above question affirmatively. Defendant Ebert, his counsel says, “does not claim to be a bona fide purchaser for value without notice.” The opinion, of the trial judge correctly disposes of another question raised, which we need not discuss. The decree is reversed. Decree will be entered here permitting redemption upon payment to defendants or to the clerk of this court of the amount of principal due, expenses of the foreclosure and unpaid interest to the date of the tender (the amount we hope will be agreed upon by counsel, or it may be determined upon settlement of the decree), and setting aside the sheriff’s deed and the deed to Ebert, with costs of both courts to plaintiff. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Steere, J. Defendant was separately tried and convicted in the recorder’s court of Detroit under an information charging him and three others named William Sawyer, Dea Jones and Robert Jones with having, on December 23, 1921, committed the crime of robbery on Alexander D. Licitar, manager for the Schulze Baking Company’s store, located at 6052 Fourteenth street, near McGraw. It is undisputed that on the day in question the four men jointly charged rode together in an automobile driven by Robert Jones to near the Schulze Baking Company’s store, where they stopped and waited until Licitar came out of the store carrying a package wrapped in a newspaper, when he was held up and robbed of several hundred dollars by Sawyer and Dea Jones who covered him with loaded revolvers, threatened his life and seized from him the package which contained money he was taking to a bank for deposit. The two robbers then ran to the waiting automobile, jumped in and were rapidly driven away by Robert Jones with whom Rubel had remained while the robbery was committed. In their rapid drive to escape the car skidded into the curb as they were turning a corner and smashed a wheel. Rubel, Sawyer and Dea Jones then jumped out and ran, but were soon captured by an officer to whom they were pointed out by a party who saw them escaping, and the package of money recovered. Rubel’s defense was that he took no part in perpetrating the robbery and did not know the others were out for that purpose. His counsel adhere to that contention and say in their brief: “All the assignments of error can be grouped under the general proposition that the case should not have been submitted to the jury.” There was no claim on the part of the prosecution that Rubel physically participated in fhe direct act of robbery. Conviction was urged on the theory that he entered into a conspiracy with his associates to commit the crime and was present, aiding and abetting under an agreement or concerted plan to that end, while his counsel contend the testimony falls so far short of showing he was in any way a party to an illegal agreement or conspiracy that a verdict should have been directed in his favor. Rubel had formerly worked at the Schulze Baking Company’s store under Licitar, leaving there in October, 1921. Dea Jones, who had pleaded guilty, was called as a witness by the prosecution and related the story of the hold-up somewhat in detail. He testified that Rubel came over with Sawyer to where he lived the morning when plans were perfected for the enterprise. The automobile was furnished by his brother Robert who was a jitney driver and they armed themselves before starting. His talks upon the subject were with Sawyer, who was the leading spirit, but Rubel was present in the room and could have heard what they said. On cross-examination he was asked: “You don’t know whether Rubel heard any part of that conversation or not?” and replied, “I am positive.” After telling of stopping in front of the baking company’s store where they waited for some time, he was asked how he happened to get out of the automobile, and replied, “Well, I was told that this— Rubel just said, There is that guy now, if you want to get him,’ ” and then proceeded to relate how .he and Sawyer did get him. When arrested after fleeing from the scene of the crime in company with the actual hold-up men, who were yet armed and in possession of their booty, Rubel was taken in company with one of the Jones boys before the prosecuting attorney where they were interviewed. After being advised of his rights and informed that anything which he said might be used as evidence against him, Rubel was asked if he wanted to tell what part he took in the hold-up and replied he took no part in it, but said he would give a truthful statement as to his presence in that vicinity. A stenographer in attendance took down in shorthand what was said, and upon the trial was called as a witness. He testified to the correctness of his minutes and was permitted by the court against objection to read the statement. The record shows defendant’s rights were properly safeguarded and we find no error in the admission of the testimony. In the course of his account of how he accompanied his associates that morning with no anticipation of what was in store, he was asked and answered as follows: “Did you have any talk this morning about holding up the cashier of the Schulze Baking Company? “A. No, sir, not until we got over there. “Q. Did you have any talk before about going over there and holding up this cashier? “A. Not with those two fellows. I talked with Sawyer that I needed the money. “Q. Did you suggest this place in particular? “A. He asked me if I knew any place. He suggested a place before and I wouldn’t go and I told him about this place. * * * When we got over there we stopped on Fourteenth and Marquette so we could watch the door of the Schulze Baking Co. We waited about an hour or an hour and a half before any one came out. When the cashier came I didn’t do anything. Sawyer and Dea Jones got out and the other fellow drove round the block on McGraw. The fellows that got out had guns.” Upon his trial defendant did not take the stand as a witness and this testimony stands undisputed. But eliminating the evidence as to his admissions there was abundance in the record both direct and circumstantial to carry the question of his having understandingly co-operated and aided in the perpetration of the robbery to the jury. Upon the requisite proof to show conspiracy it is said in 2 Wharton’s Criminal Evidence (10th Ed.), 1482 et seq.: “The evidence supporting a conspiracy is generally circumstantial; it is not necessary to prove any direct act, or even any meeting of the conspirators, as the fact of conspiracy must be collected from the collateral circumstances of each case. It is for the court to say whether or not such connection has been sufficiently shown, but when that is done the doctrine applies that each party is the agent of all the others, so that an act done by one, in furthering the unlawful design, is the act of all, and a declaration made by one, at the time, is evidence against all.” The trial court in a clear and fair charge carefully went over the various phases of the case and explained to the jury the rules of evidence and presumptions protecting the rights of an accused in criminal trials, and with defendant’s requests before him gave in exact or equivalent language their substance so far as competent. No material error in the rulings or charge of the court being found, the conviction and sentence will stand affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.	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Wiest, J. This is a suit by plaintiffs, who are husband and wife, against their son-in-law and daughter, to set aside a deed to a 40-acre farm in Ottawa county, executed and delivered by plaintiffs to Joe Boster on July 8, 1918. Plaintiffs claim the deed was executed-in pursuance of an agreement under which Joe Boster was to pay them $2,500 in cash; and that upon obtaining the deed Mr. Boster refused to make payment and claimed to own the farm. Defendants claim that the consideration for the deed, including the personal property on the farm, was Mr. Boster’s agreement to assume and pay the debts then owing by plaintiffs and to provide them with a home and support the rest of their lives, and in case they could not get along together, plaintiffs should be paid $2,000 and leave the farm. At the hearing plaintiffs claimed they were to have $2,500 in cash and also their home on the farm and support for life. The learned circuit judge found that the consideration for the deed was the agreement claimed by defendants, decreed that defendants pay plaintiffs $2,000, less a share in the proceeds from the farm during the season of 1921, and made such payment a lien on the farm. Plaintiffs have appealed and insist the deed should be set aside. We have care fully read the record and find ourselves in accord with the conclusion reached by the circuit judge. Plaintiffs claim they paid $1,800 for the farm in 1913, built a barn thereon, repaired the house, removed stumps and by cultivation materially improved the place. The farm was poor soil and yielded less than the bare necessities of life and to exist plaintiffs had to run in debt to a small extent. The place was subject to a mortgage of $400, which Mr. Boster assumed. Mr. Boster and his wife worked some in Chicago and earned money with which to pay plaintiff’s debts, the interest on the mortgage and the cost of improvements upon the buildings. Trouble arose between the parties and defendants, by advice of counsel, left the farm upon the commencement of this suit in May, 1921. Since that time plaintiffs have had the proceeds from the farm. Defendants aver they are willing to pay the $2,000 as they agreed, and claim they have paid the debts of plaintiffs. Considering the character of the soil, condition of the buildings, the quantity of tillable land and the livestock and farm implements at the time the deed was executed, the farm, livestock and implements were worth about $2,500. We are persuaded, as was the circuit judge, that: “It is not reasonable to believe that defendants would agree to pay the full value of the property and then further agree to give plaintiffs a home for life.” We are satisfied the consideration was to provide a home for plaintiffs and support them as long as they lived, to pay their debts, and, if trouble arose, plaintiffs should leave the farm and be paid $2,000. The decree is affirmed, with costs to defendants. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.	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Per Curiam. Defendant appeals by leave granted from the trial court’s order denying defendant’s motion for summary or accelerated judgment. Plaintiff, a locksmith, filed a complaint against defendant, alleging that it committed "simple negligence” and, alternatively, "willful, wanton and gross conduct [sic]” inasmuch as defendant listed plaintiff’s advertisement in the yellow pages of defendant’s telephone directory under "Loans” rather than "Locksmiths”. Defendant moved for summary or accelerated judgment. It asked for accelerated judgment, pursuant to GCR 1963, 116.1(2), on the ground that the Public Service Commission, not the circuit court, has jurisdiction over plaintiff’s claim. It asked for summary judgment, pursuant to GCR 1963, 117.2(1), for the reason that 1979 AC, R 460.1960(3) and General Telephone Company of Michigan Tariff MPSC No. 7 limit defendant’s liability for errors in a directory listing to refund of the charge for the listing and that plaintiff’s charge had been refunded. The trial court denied the motion. This Court granted leave on October 6, 1982. There are two issues on appeal. First: Does the circuit court or the Public Service Commission have jurisdiction over plaintiff’s claim? Second: Assuming arguendo that the circuit court has jurisdiction, is defendant’s liability limited by the applicable code and tariff provisions? I The Supreme Court has discussed in several cases the circuit court’s jurisdiction to adjudicate a plaintiff’s claims against a telephone company. In Harbaugh v Citizens Telephone Co, 190 Mich 421; 157 NW 32 (1916), a declaration for trespass on the case against a telephone company for wrongful refusal to connect plaintiff’s telephone with a city exchange, charging loss of business, was held to state a cause of action for which damages could be recovered. Harbaugh recognized that in some situations a court of general jurisdiction is the proper forum in which to sue a telephone company. In Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich 472; 65 NW2d 748 (1954), the plaintiff sued for damages suffered due to negligence of a telephone company in assigning a number. The Court found that the plaintiff’s action could be adjudicated by the circuit court because the action was one "sounding in tort”. This holding was reaffirmed in Muskegon Agency, Inc v General Telephone Co of Michigan, 350 Mich 41; 85 NW2d 170 (1957). The latest word from the Supreme. Court on this topic is found in Valentine v Michigan Bell Telephone Co, 388 Mich 19; 199 NW2d 182 (1972). The plaintiff brought suit alleging that the telephone company had not provided him with adequate service. The trial court granted defendant’s motion for summary judgment. The Court, on review, discussed the jurisdiction question at some length. The Court described the jurisdiction of the Public Service Commission as follows: "[T]he code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission. Ordinarily, a party aggrieved by the provisions of a tariff or code should seek relief by an attack upon those provisions before the Public Service Commission and from it to the Ingham County Circuit Court.” 388 Mich 26. The jurisdiction of the circuit court is set forth in the following passages: "If a plaintiff’s cause of action is based upon a claim that the utility has violated Public Service Commission promulgated tariffs or codes, or if the claim covers some action by the utility outside of the regulations of the Public Service Commission, a court of general jurisdiction is the proper forum. * * * Harbaugh, supra, and Muskegon Agency cases, supra, have clearly established that the proper forum for a claim sounding in tort is a court of general jurisdiction of this state.” 388 Mich 25-26. "A claim that sets forth facts showing a plaintiff suffered damage as a result of a violation of the tariffs and regulations can be entertained by a court of general jurisdiction, or a claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction.” 388 Mich 30. Thus, under Valentine, if the plaintiffs claim sounds in tort, it is for the court; if it is a claim on a contract, it is for the Public Service Commission. The principles of Valentine must be applied to the instant case. That task is considerably easier in light of this Court’s decision in B & W Rustproofing, Inc v Michigan Bell Telephone Co, 88 Mich App 242; 276 NW2d 572 (1979). The plaintiff alleged in its complaint that the defendant failed to include its new number in the latest telephone directory. This Court concluded: "The complaint sets forth allegations contending that defendant acted in a negligent manner. Since the complaint alleges tortious conduct on the part of defendant it was properly brought in circuit court.” 88 Mich App 245. (Footnote omitted.) This case also involves an allegation that the telephone company acted negligently regarding a listing in a telephone directory. Thus, the action was properly brought in circuit court. II The next issue is whether the defendant’s liability is limited by the applicable code and tariff provisions. 1979 AC, R 460, 1960 (3) provides: "(3) The telephone utility is not liable for errors in or omissions from directories except in cases where a specific charge has been made for a listing; in no event shall the liability for such error of omission be beyond the amount of the specific charge.” General Telephone Company Tariff MPSC No 7, First Revised Sheet 8.1 provides: "For the convenience of the service, a directory for each exchange is published from time to time, but as experience demonstrates that errors and omissions will occur with more or less frequency, the Telephone Company is not liable for errors or ommissions from the directories except in cases where a specific charge has been made for listing; in no event shall the Telephone Company be liable for any such error or omission beyond the amount of such charge.” The defendant argues that, under Valentine, plaintiff’s recovery is limited by these provisions. In a passage quoted above, the Court said that the "code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission.” 388 Mich 26. But, as this language makes clear, these limits apply only to a claim based on the contract between the parties. As a recent case of this Court indicates, recovery is not so limited when the action sounds in tort. In Hunter v General Telephone Co, 121 Mich App 411; 328 NW2d 648 (1982), the plaintiff sued the defendant for the failure of its employees to give out the correct number of his business. The plaintiff sought damages for the alleged negligent, reckless, wilful, wanton, malicious and intentional misconduct of defendant. The defendant argued that its liability was limited by 1954 AC, R 460.1960(10.2) [1979 AC, R 460.1960(2)]. That provi sion limits the telephone utility’s liability for damages arising out of "mistakes, omissions, interruptions, delays, errors, or defects in transmission” to "an amount proportionate to the charge to the customer” for the affected period of service. This Court rejected the defendant’s argument. Valentine, this Court said, "appears to affirm the notion that, once tortious conduct is properly alleged, a plaintiff may proceed in a court of general jurisdiction against a telephone company to recover full tort damages without regard to 1954 AC, R 460.1960(10.2). There is no indication in Valentine that any tort action against a telephone company which is properly brought in a court of general jurisdiction is nonetheless subject to the limitations on liability set forth in the regulation and tariffs.” 121 Mich App 419-420. Although critical of Valentine, the Hunter Court' found itself constrained to follow it. See Hunter, supra, p 421. Hunter correctly construed Valentine. Indeed, Valentine is consistent with earlier case law which establishes that a plaintiff who sues a telephone utility in tort is entitled to full tort recovery. See Harbaugh, supra, p 428; Muskegon Agency, 340 Mich 482. Thus, the plaintiff in the present case is entitled to full tort recovery. The trial court did not err in denying defendant’s motion for summary or accelerated judgment. Affirmed. No costs.	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Cynar, J. The lower court granted a summary judgment pursuant to GCR 1963, 117.2, subds (1) and (3) in favor of defendant Dollie Cole against plaintiff Robert H. Pastor Building and Real Estate Development Company. Summary judgment was granted based upon plaintiffs failure to possess a valid residential builder’s license as provided under the residential builder’s act. MCL 338.1501 et seq.; MSA 18.86(101) et seq. Plaintiff appeals as of right from this judgment. The sole question is whether plaintiff needed to be licensed under the circumstances of this case in order to prosecute this action against defendant. Plaintiff filed a complaint seeking specific performance or, in the alternative, damages for the breach of an oral agreemept entered into with defendant. The complaint alleged that Robert H. Pastor was the sole stockholder and president of plaintiff company. The complaint further alleged that about March, 1978, Pastor and defendant met "to consider and negotiate an agreement for acquisition of a parcel of real estate known to plaintiff, and to agree upon the terms of acquisition and a joint agreement for such acquisition, platting, development, marketing and distribution of anticipated profits”. Paragraph 6 of the complaint asserts: "As a result of said meeting * * * an oral agreement was reached by and between plaintiff and defendant whereby plaintiff would purchase the real estate described in Exhibit A, * * . Plaintiff would utilize its expertise to improve, develop, plat and market the land described in Exhibit A with the exception of one (1) lot containing an existing residential home to be retained by defendant, and the net proceeds of sale would be divided equally between plaintiff and defendant.” Plaintiff alleges that in the initial stages of the development of the subject real estate defendant notified plaintiff of her intention to disregard the oral agreement. Plaintiff alternatively sought specific performance of the agreement or monetary damages in excess of $50,000. Defendant filed a motion for accelerated or summary judgment arguing, in part, that plaintiff lacked the capacity to sue because of its failure to obtain a license as required by the residential builder’s act. This motion was denied. Defendant then raised this issue as an affirmative defense, interposing also the statute of frauds, the rule against perpetuities, estoppel and lack of clean hands, unconscionability, fraud and undue influence. Thereafter, defendant filed a third-party complaint, seeking damages against Robert H. Pastor individually. The third-party complaint alleged a breach of fiduciary relationship, fraud, intentional infliction of emotional distress and invasion of privacy. This case was assigned to a new judge upon the death of the original judge. A jury trial was commenced, and plaintiff presented the testimony of Robert H. Pastor. At the close of the second day of trial, defendant renewed her motion for summary judgment, noting that Pastor had testified that at no time during the transaction in question had plaintiff company ever possessed a builder’s license. The trial judge, believing himself to be bound by the prior judge’s denial of the motion for summary judgment, indicated that the issue would more properly be resolved by a motion for directed verdict at the conclusion of plaintiff’s proofs. At the conclusion of Pastor’s testimony, however, the trial judge granted summary judgment to defendant. The judge held that the statute requiring the licensing of residential builders was applicable and that it precluded plaintiff from maintaining suit against defendant. The trial court issued a written opinion, finding that the plaintiff company was unlicensed and was subdividing land for purposes of future construction of homes for a profit and that, therefore, the alleged oral contract was void and unenforceable. The residential builder’s act, MCL 338.1501 et seq.; MSA 18.86(101) et seq. (subsequently repealed and replaced by MCL 339.2401 et seq.; MSA 18.425[2401] et seq.), provided that a person engaged in business as a residential builder or residential maintenance and alteration contractor or salesman must obtain a license, unless particularly exempted by the act. "No person engaged in the business or acting in the capacity of a residential builder and/or residential maintenance and alteration contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract * MCL 338.1516; MSA 18.86(116). The effect of this provision is to preclude noncomplying contractors from recovering on their residential building or alteration contracts even where the contract has been complied with in all respects, thereby in some instances bestowing a substantial windfall to the party claiming the defense. Bernard F Hoste, Inc v Kortz, 117 Mich App 448, 451; 324 NW2d 46 (1982). The courts of this state have consistently upheld this harsh penalty for noncompliance with the residential builder’s act. See, e.g., Alexander v Neal, 364 Mich 485; 110 NW2d 797 (1961); Green v Ingersoll, 89 Mich App 228; 280 NW2d 496 (1979); King Arthur’s Court v Bedgley, 47 Mich App 222; 209 NW2d 488 (1973). The cases construing the residential builder’s act are difficult to follow. A review of some of those cases will be helpful. "[T]he important criterion for coverage by the statute is not the existence or type of structure, but rather the nature of its occupancy.” Artman v College Heights Mobile Park, Inc, 20 Mich App 193, 199; 173 NW2d 833 (1969). For example, a trailer park is residential property under the residential builder’s act. In Brummel v Whelpley, 46 Mich App 93; 207 NW2d 399 (1973), the plaintiff was a licensed real estate broker who owned an undeveloped lot. He negotiated to sell the lot and to build a home on the lot for the defendants. Although the plaintiff was not a licensed builder, he did hire a licensed builder to construct the house. When the defendants refused to pay the balance owing on the house, the plaintiff sued for specific performance of the contract or, in the alternative, for damages. The defendant moved for a summary judgment, contending that the plaintiff was not a licensed residential builder as required under MCL 338.1501 et seq.; MSA 18.86(101) et seq. In reaching its holding, the Court observed that the plaintiff was the only person to whom the defendants could look for performance. The contract was, therefore, void and unenforceable. Brummel, supra, p 96. In King Arthur’s Court, supra, the plaintiff as the owner, operator and developer of a trailer park entered into an agreement with the defendant for the construction of the trailer park. The plaintiff brought an action to discharge a mechanics’ lien imposed by the defendant. The defendant, an unlicensed residential builder, counterclaimed for amounts claimed under the lien. This Court, following Artman, held the residential builder’s act to be applicable to the construction of trailer parks. The Court reluctantly ruled that the defendant’s failure to comply with the requirements of the act was a valid defense if the contract was made after the effective date of the act. King Arthur’s Court, supra, p 266. In Reynolds v College Park Corp, 63 Mich App 325; 234 NW2d 507 (1975), lv den 395 Mich 823 (1975), the plaintiff and several other individuals entered into a joint venture to develop a mobile home park, which resulted in College Park Corporation. The plaintiff, a stockholder and director of the defendant corporation, disposed of his interest therein and brought suit for compensation from the defendant for his labor and services in the construction and development of the mobile home sites. The plaintiff prevailed although defendant raised the defense that the plaintiff lacked a residential builder’s license. "As the Supreme Court stated in Tracer v Bushre, 381 Mich 282, 290; 160 NW2d 898 (1968): 'The residential builders law is essentially a consumer protection measure.’ ” Reynolds, supra, p 329. In Reynolds, the Court differentiated its decision from Brummel by observing that in Reynolds the person required by the act to be licensed was the defendant and not the plaintiff because the definition of residential builder better fit the defendant developer of the mobile home park than the plaintiff. "Otherwise, defendant would divert the statute’s thrust of consumer protection and use it as a shield against worthy, nonconsumer claims.” Reynolds, supra, p 330. The rule of Reynolds was not modified by Charles Featherly Construction Co v Property Development Group, Inc, 400 Mich 198; 253 NW2d 643 (1977). In Featherly, the plaintiff built condominiums for which full payment was not made. The defendants owned or participated in financing the condominium development. Plaintiff’s principal argument was that the licensing act was designed to protect individual homeowners and not owners of whole developments like the defendants. The circuit court dismissed the plaintiff’s action because the plaintiff had not complied with the residential builder’s licensing act. The Court of Appeals affirmed the circuit court, and the Supreme Court affirmed the Court of Appeals. The Supreme Court distinguished Reynolds on its special facts. In Reynolds, the plaintiff was a former director and shareholder of the defendant, and the defendant was the entity properly required to have a builder’s license. Featherly, supra, pp 206-207. Under the facts in this case, we find Reynolds controlling. Although plaintiff company is engaged in the business of developing the subject land, it allegedly did so pursuant to the joint venture agreement. Assuming, as this Court must for the purpose of the summary judgment motion, that plaintiff’s allegations are true, it was the joint venture which was the actual developer and which should have been licensed. Following the reasoning in Reynolds, if the joint venture had been licensed, plaintiff would have been exempted by the provisions of MCL 338.1503(d); MSA 18.86(103)(d) from compliance with the act. Thus, plaintiff may sue defendant if its suit is characterized as one for compensation based upon its own performance notwithstanding the fact it was not licensed. Reversed and remanded for trial. We do not retain jurisdiction.	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Bronson, P.J. The Police Officers Association of Michigan (POAM) appeals from a decision finding that it acted in bad faith and an order vacating an arbitration award, restoring plaintiff to his previous position and directing the parties to conduct an arbitration hearing in which plaintiff is allowed to participate. On May 5, 1980, the Ecorse Police and Fire Commission promoted plaintiff, then a patrolman, to the rank of detective. On May 7, 1980, Corporal Frank Chirillo sought the assistance of POAM in filing a grievance concerning plaintiff’s promotion. POAM was the exclusive collective-bargaining agent for both plaintiff and Corporal Chirillo. Its collective-bargaining agreement with the city provided the following grievance procedure: "7.1: Whenever a police officer has a complaint or grievance, he shall take it up first with the Union. "Step 1: "7.2: The Union may file the grievance with the Chief of Police to attempt to settle the dispute. The Chief shall answer the grievance within ten (10) days. "Step 2: "7.3: If the answer is unsatisfactory to the Union, the Union may appeal the dispute to the Police and Fire Commission to be heard at the next regular meeting. The Police and Fire Commission shall answer the grievance within thirty-five (35) days from when it is filed. "Step 3: "7.4: In the event the Union is not satisfied with the disposition of the dispute, the Union may file the dispute with the American Arbitration Association or the Michigan Employment Relations Commission (MERC) for final and binding arbitration in accordance with their rules. "7.5: The City and Union shall share the cost of arbitration.” POAM pursued Corporal Chirillo’s grievance to arbitration. It contended that plaintiffs promotion had violated the collective-bargaining agreement due to the city’s failure to post and fill the job opening according to the provisions of the agreement. The city contended that the position filled by plaintiff was not covered by the vacancy or job assignment provisions of the agreement. On February 12, 1981, an arbitration hearing was held. Plaintiff attempted to appear at the hearing with his attorney. POAM’s representative asked that plaintiff be excluded from the heáring unless the city wished to call him as a witness. The arbitrator granted POAM’s request. At the conclusion of the hearing, POAM, the city and the arbitrator agreed that plaintiff should be requested to submit his arguments in writing to the arbitrator. On February 17, 1981, plaintiff’s attorney submitted a letter to the arbitrator. He reiterated plaintiff’s position, stated before the hearing, that the arbitrator was without jurisdiction to make an award directly affecting plaintiff. He argued that, even if the arbitrator had possessed jurisdiction to decide plaintiff’s claim to stay in his job, plaintiff’s right to due process had required his participation in the arbitration hearing. He also argued that a favorable disposition of Corporal Chirillo’s grievance did not require plaintiff’s demotion. On March 13, 1981, the arbitrator ruled in favor of Corporal Chirillo. He specifically noted that POAM had not asked that plaintiff be removed from his position, but only that a detective position be posted and filled according to the terms of the collective-bargaining agreement. The city had contended that the arbitrator was without power to affect plaintiff’s position. He ruled that the city violated the collective-bargaining agreement by promoting plaintiff. His award stated: "3. The Employer shall reconsider the promotion of Officer Demings by offering the Detective position filled by Demings to the most senior qualified member of the bargaining unit, if other than Demings. In so doing the Employer shall first offer the position to the members of the bargaining unit and then fill the position with the most senior qualified employee in the bargaining unit seeking the position.” On June 1, 1981, the city rescinded plaintiff’s promotion and resolved to keep the position to which he had been promoted vacant. On June 26, 1981, plaintiff filed an action in circuit court seeking a preliminary injunction restoring him to his previous position, monetary damages and other relief. Named as defendants were the city, its police and fire commission and POAM. Plaintiff’s claims can be characterized as follows: 1. The city violated the collective-bargaining agreement by demoting him; 2. POAM arbitrarily refused to file a grievance on his behalf concerning the alleged violation; 3. Certain of the allegations made in Corporal Chirillo’s grievance were equally applicable to other promotions, yet no grievances were filed in those cases; 4. His demotion resulted from his wrongful exclusion from the February 12, 1981, arbitration hearing; 5. The city and POAM discriminated against him on the basis of race. Claims 2, 3, and 4 were alleged to be breaches of POAM’s duty of fair representation. At a hearing on plaintiff’s request for a preliminary injunction, plaintiff asked the court to make a preliminary decision based only on the question of the union’s duty of fair representation. The trial court ruled that POAM breached its duty to represent plaintiff fairly by refusing to allow him to participate in the arbitration of Corporal Chirillo’s grievance. The court entered an order setting aside the arbitrator’s award, directing that a new arbitration proceeding be conducted with plaintiff’s participation and restoring plaintiff to the position of detective retroactive to the date of his demotion. Later, the court stayed that part of the order directing that a new arbitration hearing be conducted and entered the provisions of the preliminary injunction as a final order. At that time, it denied defendant POAM’s motions for summary and accelerated judgment. POAM has appealed; the city has not. POAM claims that Michigan should not recognize, as a cause of action, a claim that a public employee union breached its duty of fair representation. Such a cause of action may be asserted in federal and state courts for private sector employees covered by the provisions of the federal Labor Management Relations Act (LMRA) under § 301 of that act, 29 USC 185. Vaca v Sipes, 386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967). Plaintiff, an employee of a political subdivision of a state, is not covered by the federal labor laws. LMRA, § 2(2), 29 USC 152(2). Plaintiff, the city and POAM are subject to Michigan’s analogous public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. POAM argues that the absence, in PERA, of a provision analogous to § 301 of the LMRA indicates that no cause of action for breach of the duty of fair representation exists for the state’s public employees. The inclusion of the jurisdictional grant in § 301 confirmed the congressional intent that other provisions of the LMRA for redressing unfair labor practices did not constitute an exclusive statement of the rights created by that act and did not eliminate or militate against the right to seek relief in federal courts for violations of a collective-bargaining agreement. Wilson & Co v United Packinghouse Workers of America, 83 F Supp 162 (SD NY, 1949). Section 301 was intended to eliminate obstacles to bringing a claim of a breach of a collective-bargaining agreement in federal court, International Longshoremen’s & Warehousemen’s Union v Juneau Spruce Corp, 342 US 237; 72 S Ct 235; 96 L Ed 275 (1952). The jurisdictional grant does not give federal courts any different or additional powers than a state court would have had if the action had been brought there. Mercury Oil Refining Co v Oil Workers International Union, CIO, 187 F2d 980 (CA 10, 1951). The Michigan Supreme Court has recognized that a right of action exists for breach of the duty of fair representation. Lowe v Hotel & Restaurant Employees Union, Local 705, 389 Mich 123, 145; 205 NW2d 167 (1973). Our Supreme Court stated that the duty arose out of the statutory power of exclusive representation granted unions in § 9 of the National Labor Relations Act (NLRA), 29 USC 159. Bebensee v Ross Pierce Electric, Inc, 400 Mich 233, 244; 253 NW2d 633 (1977). The Court held that a union’s power to bargain exclusively for the employees of a bargaining unit, and to make binding agreements governing the individual member’s employment, implicitly imposed on the union the duty of fairly representing all members of the unit. Bebensee, supra, pp 244-245. See also Humphrey v Moore, 375 US 335; 84 S Ct 363; 11 L Ed 2d 370 (1964); Ford Motor Co v Huffman, 345 US 330; 73 S Ct 681; 97 L Ed 1048 (1953). In Michigan, a public employee’s union is granted the same power of exclusive representation by §11 of PERA, MCL 423.211; MSA 17.455(11), as is granted unions in the private sector by § 9 of the NLRA. As in the private sector, the power of exclusive representation implies the duty to represent fairly. See Saginario v Attorney General, 87 NJ 480; 435 A2d 1134 (1981) (Clifford, J., concurring). The statutory grant of the power of exclusive representation might infringe on the due process rights of a member of a bargaining unit absent the implication of a duty to represent fairly. Local Union No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO v National Labor Relations Board, 368 F2d 12 (CA 5, 1966), cert den 389 US 837; 88 S Ct 53; 19 L Ed 2d 99 (1967). We think that, for public employees, the existence of the right to fair representation must be implied from the grant to unions of exclusive bargaining rights. In the present case, the duty to fairly represent its members in the grievance procedure must be implied from the union’s exclusive control over the procedure. Having concluded that the duty of the public employee’s union exists, we have no doubt that a cause of action exists under state law where the duty is breached. Plaintiff is claiming that the city breached its contract with him; his claim of the union’s bad faith precludes the employer from barring his claim by relying on plaintiffs failure to pursue the exclusive grievance procedures provided under the contract. Plaintiff’s cause of action is the same as that of an employee in the private sector. POAM claims that plaintiffs suit was barred by his failure to exhaust administrative remedies, specifically his failure to bring an unfair labor practice charge with the Michigan Employment Relations Commission (MERC). We agree that MERC has jurisdiction over public employees’ fair representation claims. MCL 423.210; MSA 17.455(10) makes it unlawful for a labor organization to restrain or coerce a public employee in the exercise of his right to organize and engage in concerted activity. Under federal law, the breach of a union’s duty of fair representation is an unfair labor practice because it may result in employees’ unwillingness to participate in their union, thus restraining their right to engage in protected concerted activity. Local Union No 12, supra. Montana’s Supreme Court has interpreted provisions in its public employment relations statute, identical to ones appearing in PERA, as conferring jurisdiction over fair representation claims on the body which considers unfair labor practice claims. Teamsters, Local No 45 v State ex rel Board of Personnel Appeals, 635 P2d 1310 (Mont, 1981). The unfair labor practice provisions of both PERA and the Montana statute are patterned closely after those of the NLRA. Interpretations of the NLRA and state labor laws patterned after it are often persuasive in the interpretation of PERA. We hold that MERC has jurisdiction over fair representation claims. POAM claims that plaintiffs failure to file an unfair labor practice charge with MERC was a failure to exhaust administrative remedies barring him from seeking judicial relief. We cannot agree. Our Supreme Court has held that MERC’s jurisdiction and authority to determine unfair labor practices under PERA is exclusive. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 118; 252 NW2d 818 (1977). We cannot decide the exhaustion claim without considering the possibility of exclusive jurisdiction. This Court has decided a public employee’s fair representation suit without considering this question. Martin v Shiawassee County Bd of Comm’rs, 109 Mich App 32; 310 NW2d 896 (1981). Faced with a very similar statute, the Montana Supreme Court decided that its courts had concurrent jurisdiction over fair representation claims. Teamsters, Local No 45, supra. See also Ford v University of Montana, 598 P2d 604 (Mont, 1979). In the private sector, the NLRB does not have exclusive jurisdiction over fair representation claims and the federal and state courts have not required exhaustion of administrative remedies. Thomas v Ford Motor Co, 396 F Supp 52 (ED Mich, 1973), aff'd 516 F2d 902 (CA 6, 1975), cert den 421 US 988; 95 S Ct 1991; 44 L Ed 2d 478 (1975); Crawford v Pittsburgh-Des Moines Steel Co, 386 F Supp 290 (D Wyo, 1974). At least one federal court has held that the NLRB does have exclusive jurisdiction over fair representation claims where the claim against the union is not coupled with a claim that the employer breached the collective-bargaining agreement. Local Union No 12, supra. Despite the broad language of Lamphere, supra, acknowledging MERC’s exclusive jurisdiction over unfair labor practices, we do not believe that MERC’s jurisdiction over fair representation claims is exclusive. The Lamphere Court cited three reasons for its holding that a school district may not sue a teachers’ union for damages caused by a peaceful strike made illegal by PERA. The first was the conviction, upon a review of the language and history of PERA, that PERA was to occupy the public labor relations field completely in dealing with public employees’ peaceful strikes. Second was the absence of any common-law precedent for the cause of action pled by the school district. Third was the public policy against recognizing a new cause of action which might unsettle a precarious balance of power in public sector union-management relations. Lamphere, supra, pp 107-108. These reasons do not militate in favor of holding that MERC has exclusive jurisdiction over fair representation claims where breach of a collective-bargaining agreement is pled against the employer. In Lamphere, the Court examined PERA and found that the careful wording of the act’s exten sive anti-strike provisions indicated a legislative intent to exclude resort to all other remedies to settle disputes arising out of a public employees’ strike. The Legislature did not discuss fair representation claims at all in PERA. Jurisdiction to hear fair representation claims must be implied from the very general provisions of MCL 423.210; MSA 17.455(10). Furthermore, the main provisions of PERA were enacted in 1947, long before fair representation claims were recognized as unfair labor practice claims by the NLRB in Miranda Fuel Co, 140 NLRB 181; 51 LRRM 1584 (1962), enforcement den 326 F2d 172 (CA 2, 1963). Vaca v Sipes, 386 US 171, 177-179; 87 S Ct 903; 17 L Ed 2d 842 (1967). It is unlikely that our Legislature actually contemplated the treatment of a breach of the duty of fair representation as an unfair labor practice. We cannot say that anything in the language or history of PERA suggests an intent to treat fair representation claims like illegal strike claims. In Lamphere, the Supreme Court found no applicable precedent for the cause of action pled by the school district, i.e., for damages to an employer caused by a strike made illegal by PERA. Conceding that the jurisdictional question is not resolved by our conclusion, we find no difference between plaintiffs claimed cause of action and one pled by a private employee. In bringing a fair representation suit, an employee is only marginally interested in enforcing his rights under PERA. He is primarily interested in enforcing his contract rights under the collective-bargaining agreement against the employer and his right to an agent’s good faith dealing against the union. It is the contractual nature of a fair representation cause of action that convinced the United States Su preme Court that neither exclusive NLRB jurisdiction nor the exhaustion doctrine applied to keep such cases out of the courts. Vaca, supra, pp 183-187. The rights enforced by a fair representation suit are not just rights granted by PERA; they are rights arising from the law of contract. While PERA allowed public employers and employees to enter into relationships which gave rise to the right of fair representation, it was the fiduciary or agency relationship and not the statute which gave rise to the duty. Independent of anything in PERA, the right to fair representation exists whenever public employees are represented by an exclusive bargaining agent. We conclude that the rights enforced in a fair representation suit are common-law rights; a statutory remedy for a common-law right is cumulative, not exclusive. Lamphere, supra, p 127. The third factor supporting the finding of exclusive jurisdiction in Lamphere was the Court’s assessment of public policy considerations. An assessment of the same considerations here leads us to conclude that neither exclusive MERC jurisdiction nor the doctrine of exhaustion required dismissal of plaintiffs suit. Our courts commonly hear fair representation suits which arise in the private sector. In such cases, state courts apply the uniform federal common law. In most cases, the same principles will apply to public employees’ fair representation suits. In Lamphere, the provisions of PERA provided a comprehensive framework for the resolution of the dispute between the parties. The procedures of PERA are not designed to resolve fully all fair representation claims. It is clear from Lowe that the union may be held liable in damages for breach of the duty of fair representation, a remedy not available from MERC. In many fair representation cases, an arbitration decision may be involved which gives rise to cross-claims seeking confirmation or vacation of the award. Jurisdiction to decide fully many fair representation disputes may only be found in the circuit courts. Moreover, MERC’s resources may be allocated in such a way that fair representation claims are not accorded the same attention or priority that claims affecting a bargaining unit at large are. Such an allocation would make sense given MERC’s major purposes under PERA. We hold that MERC does not have exclusive jurisdiction over public employees’ fair representation claims. For many of the reasons we have stated in discussing the public policy aspects of exclusive MERC jurisdiction, we conclude that exhaustion of MERC remedies is not required before bringing suit. The fair representation suit involves common-law rights not guaranteed by PERA. These rights are usually enforced by courts, not by administrative agencies. There is no reason to believe that MERC’s expertise in handling fair representation claims exceeds that of the courts. Most importantly, full resolution of fair representation claims may not be available in MERC. We reject POAM’s claim that plaintiff is bound by the arbitrator’s decision requiring his demotion. A plaintiff who proves his union’s bad faith in a grievance-arbitration procedure may avoid the bar imposed by the arbitrator’s decision affecting him. We next turn to POAM’s claim that its motion for summary judgment for failure to state a claim should have been granted. A motion for summary judgment based on GCR 1963, 117.2(1) challenges the legal sufficiency of the plaintiff’s claim and is to be considered by an examination of the pleadings alone. Every well-pleaded allegation must be accepted as true. The test is whether plaintiff’s claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. McMath v Ford Motor Co, 77 Mich App 721; 259 NW2d 140 (1977). It is true that conclusory statements of unfair representation, standing alone, may fail to state a claim upon which relief may be granted. See Carry v Consumers Power Co, 64 Mich App 292, 298; 235 NW2d 765 (1975). However, plaintiff’s allegations herein appear to be as reasonably specific and factual as they can be in the circumstances. Plaintiff alleges, inter alia, that: (1) POAM arbitrarily refused to file a grievance on plaintiff’s behalf; (2) plaintiff’s demotion resulted from POAM’s grievance on behalf of another worker and its manner of pursuing the grievance; (3) plaintiff was excluded from the arbitration hearing at POAM’s request, although he appeared with his attorney; (4) POAM failed to challenge other promotions equally challengeable; and (5) POAM’s acts reflect disparate treatment based in part on his race. We hold the trial court did not abuse its discretion by refusing to grant POAM summary judgment. Taking every well-pled allegation as true, factual development can possibly justify a right to recovery on an unfair representation claim. Affirmed. Costs to appellee.	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Mackenzie, P.J. Defendant City of Wyoming appeals as of right from a judgment rendered in favor of plaintiff after a jury trial held in Kent County Circuit Court. On February 12, 1980, plaintiff injured his shoulder in a sledding accident at Pinery Park, which is owned and operated by defendant. At trial, after the presentation of plaintiffs proofs, defendant moved for summary judgment, relying on the defense of governmental immunity. The trial court denied defendant’s motion. The jury returned a special verdict finding defendant negligent and that defendant’s negligence was a proxi mate cause of plaintiffs injury. The jury set plaintiffs damages at $70,000. However, the jury also found that plaintiff was 85% negligent, and a judgment for $10,500 was entered. On appeal, defendant contends that the trial court erred by denying its motion for summary judgment. We must decide, therefore, whether defendant is entitled to such immunity. MCL 691.1407; MSA 3.996(107) provides in part: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.” The statute quoted above shows that, rather than determine simply whether the activity is a governmental function, we must determine whether the governmental agency in question performed that activity in the exercise or discharge of a governmental function. See Duncan v Detroit, 78 Mich App 632, 634; 261 NW2d 26 (1977); Cronin v Hazel Park, 88 Mich App 488, 491; 276 NW2d 922 (1979); Antkiewicz v Motorists Mutual Ins Co, 91 Mich App 389, 395; 283 NW2d 749 (1979); Weaver v Duff Norton Co, 115 Mich App 286, 292; 320 NW2d 248 (1982). See also Brand v Hartman, 122 Mich App 326; 332 NW2d 479 (1983) (Mackenzie, J., dissenting). For example, operation of a mental hospital is a governmental function but operation of a general hospital is not. Compare Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), with Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). Yet undoubtedly many of the same activities are involved in the operation of both types of hospitals. Driving a car is not inherently a governmental function, but in Trommater v Michigan, 112 Mich App 459; 316 NW2d 459 (1982), the car was being driven in the discharge of the governmental function of implementing the Social Welfare Act, and immunity therefore applied. Conducting a swimming outing is not inherently a governmental function, but in Willis v Nienow, 113 Mich App 30; 317 NW2d 273 (1982), the swimming outing was being conducted in the discharge of the governmental function of providing an effective program of out-of-home care for delinquent or neglected children placed in the custody of the Department of Social Services, and immunity therefore applied. In the present case, defendant was operating a sledding hill as part of a free public park. Unfortunately, the Supreme Court has not yet been able to agree on a single standard for determining when an activity by a government agency is in the exercise or discharge of a governmental function; instead, three theories have emerged which were surveyed by the Supreme Court in Ross v Consumers Power Co, 415 Mich 1; 327 NW2d 293 (1982). Nevertheless, two decisions of this Court involving a similar factual setting provide guidance. In Daugherty v Michigan, 91 Mich App 658; 283 NW2d 825 (1979), and, more recently, in Feliciano v Dep’t of Natural Resources, 97 Mich App 101; 293 NW2d 732 (1980), we found that the state’s operation of a public swimming area was not protected by governmental immunity. We likewise conclude in the present case that defendant’s operation of a free public sledding hill was not an activity entitled to governmental immunity, and therefore the trial court properly denied defendant’s motion for summary judgment. However, we do not rule out the possibility that in another context a governmental agency might be found to be engaged in the exercise or discharge of a gov ernmental function when it operates a sledding hill. Defendant’s remaining contention on appeal is that the jury’s verdict finding defendant 15% negligent was against the great weight of the evidence. Only where a party moves for a new trial before the trial court on the ground that the verdict is against the great weight of the evidence is this issue preserved for appellate review. Armstrong v Woodland Mutual Fire Ins Co, 342 Mich 666, 671-672; 70 NW2d 786 (1955); Murphy v Sobel, 66 Mich App 122, 127; 238 NW2d 547 (1975); Walls v Transamerican Freight Lines, 37 Mich App 307, 309; 194 NW2d 422 (1971). Defendant failed to make such a motion, and consequently we decline to review this claim. Affirmed. Plaintiff may tax costs. C. W. Simon, J., concurred. R. M. Maher, J., concurred in the result only.	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Per Curiam. Plaintiff Charles Beer, City Administrator for the City of Fraser, suspended city police Sergeant Norman Spinelli for 30 days and recommended his permanent suspension to the city’s civil service commission. Sergeant Spinelli appealed the administrator’s suspension to defendant commission, which conducted a hearing. On April 15, 1981, the commission reversed Spinelli’s suspension and ordered that he be reinstated. Charles Beer, as city appointing authority, and the City of Fraser thereafter filed an action for superintending control against the civil service commission, contending that the commission’s ac tion was contrary to law because there was no evidence to support the decision to reinstate Spinelli. Plaintiffs sought an order from the circuit court compelling the commission to suspend and discharge Sergeant Spinelli. Defendant commission filed a motion for summary judgment, contending that under the firemen and policemen’s civil service act, specifically MCL 38.514; MSA 5.3364, only the "person removed” may appeal the commission’s decision and that the city and city manager have no standing to appeal the commission’s decision. The circuit court granted the commission’s motion, relying upon Hendricks v Sterling Heights Police & Fire Dep’t Civil Service Comm, 85 Mich App 646; 272 NW2d 170 (1978), lv den 405 Mich 826 (1979). Plaintiffs appeal as of right. In Hendricks, a suspended Sterling Heights police officer appealed to the Sterling Heights Civil Service Commission and the commission ruled his suspension improper and ordered his reinstatement. The city manager then filed a complaint for superintending control in the circuit court, seeking reversal of the commission’s ruling. The circuit judge reversed, but this Court vacated the decision of the circuit court and reinstated the decision of the civil service commission, holding that the city manager lacked standing to obtain review of the commission’s decision in the circuit court and, therefore, the circuit court’s order on appeal was void. The Court in Hendricks noted that, although the issue was one of first impression in Michigan, the Court was following the majority of other jurisdictions in holding that an administrative officer of a governmental entity (or the governmental entity itself) lacks standing to appeal the decision of a reviewing agency of such governmental entity, except to the extent that legislation gives the officer the right to do so. The Court went on to find that, while the applicable legislation, the firemen and policemen’s civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq., provides for appeal to circuit court by the removed employee, it is silent with respect to any appeal by the city or its administrator. The Court interpreted that silence as indicating that the Legislature considered the decision of a city’s civil service commission as a final decision of the city and thus the city would not appeal its own decision. With the exception that the city, as well as the city appointing authority, has sought to challenge the commission’s decision in the instant case, the facts here are virtually identical to those before the Court in Hendricks. The Court in Hendricks, however, failed to take into account the unique nature of the action brought in circuit court. At issue was not whether the city or city official had authority to appeal to the judiciary the decision of the civil service commission; rather, the issue was whether the city or city official had standing to seek an order for superintending control against the commission where it was alleged that the commission acted unlawfully. These are separate and distinct actions with different parties and different purposes. The process of seeking an order of superintending control is not an appeal. It is an original civil action designed to require the defendant to perform a clear legal duty. People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970); Michigan Ass’n for Retarded Citizens v Wayne County Probate Judge, 79 Mich App 487, 492; 261 NW2d 60 (1977). A superintending control order enforces the superintending control power of a court over lower courts or tribunals. GCR 1963, 711.1. A circuit court has jurisdiction to issue orders of superintending control over administrative tribunals of a judicial or quasi-judicial nature. Lepofsky v City of Lincoln Park, 48 Mich App 347; 210 NW2d 517 (1973). A city civil service commission acts in a quasi-judicial capacity when it renders a decision on an appeal by a removed employee. See In re Fredericks, 285 Mich 262; 280 NW 464 (1938). An order of superintending control is not available to a plaintiff who has another adequate remedy by way of an appeal. GCR 1963, 711.2. The determination, made by the Court in Hendricks, that a plaintiff has no right to appeal is but a necessary first step in the determination of whether a plaintiff can bring an action for superintending control. Admittedly, a party seeking an order for superintending control must still have standing to bring the action. Standing is the legal term to be used to denote the existence. of a party’s interest in the outcome of a litigation; an interest that will assure sincere and vigorous advocacy. Michigan License Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319, 324; 266 NW2d 808 (1978). A party lacks standing to bring a complaint for superintending control where plaintiff has shown no facts whereby it was injured. Genesee Intermediate School Dist v Genesee Circuit Judge, 78 Mich App 8; 259 NW2d 226 (1977); Inglis v Public School Employees Retirement Bd, 374 Mich 10; 131 NW2d 54 (1964). We believe that, where the party challenging the commission’s action is the city itself, a political subdivision rather than an officious public officer, there exists a sufficient interest in the outcome to insure sincere and vigorous advocacy so as to confer standing. Unlike the city, the individual officer may challenge the commission’s decision merely because he is disgruntled at being overruled or seeks some political advantage; he has no direct or legal interest in the outcome. The city, on the other hand, as the political unit employing the police officer, is directly affected by the commission’s decision that the employee may not be dismissed. Thus, to the extent, dicta in Hendricks indicates a city lacks standing to seek an order of superintending control over its civil service commission, we decline to follow that decision. The decision of the circuit court dismissing plaintiffs’ action is reversed and remanded as to the City of Fraser and affirmed as to Charles D. Beer, the city appointing authority.	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Moore, J. Certiorari to the industrial accident board to review its allowance of the plaintiff’s claim as the widow of Alexander Hanna who was in the employ of the Michigan Steel Castings Company, and who was injured September 14, 1917, and who died on September 18th. It was the claim of the widow, and the industrial accident board so found, that the death was the result of the injury. In the brief of counsel for the appellants the discussion is under the following heads: 1. There can be no recovery if Hanna was injured by a board flying from an unknown source. 2. There can be no recovery if Hanna was injured by a board he was attempting to cut on the saw. a. Because as a matter of law the accident did not occur in the course of the employment of Alexander Hanna by the Michigan Steel Castings Company. b. Because as a matter of law the accident did not arise out of the employment of Alexander Hanna by the Michigan Steel Castings Company. c. Because as a matter of law Alexander Hanna was injured by reason of his intentional and wilful misconduct. d. Because the accident was not the proximate cause of the death of Alexander Hanna. Each of these propositions is discussed at' great length by counsel and their conclusion is that this court should reverse the order of the industrial accident board, and hold that the defendants are not liable to plaintiff for the death of Alexander Hanna. 1. As to the first of these propositions there can be no possible doubt that Mr. Hanna was at work for the defendant company in some capacity, the company claims as a cleaner which did not call upon him to use any buzz saw. His widow claims he was at work as a carpenter. It was while he was engaged at work for the company, and because of that employment that he was injured and if as a result of the injury he died, it is difficult to escape the conclusion that liability followed. 2. We shall not attempt to follow the discussion of «ach subdivision under this head but will attempt tosíate the claims of the respective parties, what is shown by the record and our conclusions. Mr. Hanna at the time of the accident had been employed by the defendant six months or more. He was 5S years of age. It is the claim of his widow that his work called upon him to push boards against a circular saw for the purpose of sawing them, and that one of them was thrown against him with great violence, hurting his hand and chest, and that as a result of his injuries his death followed. It is the claim of the defendant that Mr. Hanna was employed as a cleaner and that no part of his duty required him to use the buzz saw, and that if he did so that he was violating a positive order, and that he was guilty of intentional and wilful misconduct. It is the further claim that the only injury Mr. Hanna received was to his hand and that he died of pneumonia, to which the injury he received did not at all contribute, and that the court should say as a matter of law that the injury was not the proximate cause of his death. The claim that Mr. Hanna was guilty of intentional and wilful misconduct is based upon the testimony of the foreman; we quote some of it: “Q. State whether or not you had ever said anything to Mr. Hanna about operating or not operating any of the saws in your department. “Mr. Crowley: I object to that testimony. “Mr. Zierleyn: I think it is very proper, Mr. Crowley. “Mr. Crowley: I desire that my objections stand as a matter of record. “Mr. Zierleyn: Answer the question. “A. I took him off the carpenter work because I did not think his eyesight was good enough for it, he had. to put glasses on for it, and I told him if he would not keep off the saw I would have to fire him, and not only told him that but I told his son, too.” Mr. Hanna knew what conversation he had with the foreman upon that subject. He is not here to give his version. Such a contingency has been guarded against in section 12553, 3 Comp. Laws 1915. The language of the statute is not ambiguous as a reference to it will show. It has often been construed by this court as is shown by the many cases cited in the notes to section 12553. See, also, the case of Horn v. Arnett, 91 N. J. Law, 110 (102 Atl. 366). The testimony of the foreman should not have been received. With it eliminated there is nothing to indicate that Mr. Hanna was warned not to use the saw. It is said that the case presented by the plaintiff when the improper evidence is eliminated, must be determined as a question of law in favor of the de fendant. This makes it necessary to give a résumé of the testimony most favorable to the plaintiff. After the accident the company made a first report to the accident board in which it was said: “Occupation of employee carpenter.” “Date of accident September 14, 1917.” “Nature and cause of injury bruised left hand.” A second report was made September 19, in which the following appears: “Place of accident in detail, Carpenter shop. Cause and manner of accident, Was cutting wood for wedges. In taking pieces from the saw one piece caught and struck him on the joint of the first finger of left hand. This finger was off at joint. It jammed stump of finger and bruised it.” Against the objection of defendant Mr. Hanna’s doctor was allowed to testify: “Why he said that he had received it at a machine sawing wood. A piece of wood flew from the machine and struck him across the chest.” In his testimony appears the following: “Q. Do you at this time lay any stress upon the injury to the hand, or the injury to the chest or both? “A. Yes I do on the injury to the chest. The hand was simply an abrasion of the hand that was ceptic, but I do not believe it had — did not have any factor towards causing his death. “Q. It was the alleged injury to the chest which was the factor that finally resulted in his death in your opinion? “A. Resulted in pneumonia, yes. “Q. In other words the injury to the chest was the thing that caused the pneumonia in your opinion? “A. Yes. * * * “Q. The question is this, perhaps it would be more simple to say it in this way: In your opinion the cause of pneumonia was the blow on the chest? ‘‘A. Yes, sir. * * * “Q. And the pneumonia caused the death? “A. Yes, sir. * * * The man was at that time delirious and he was carrying a tremendously high temperature and rapid pulse and I thought there was a septic condition going on at that time. The man at the first time I seen him, I would not have taken anything he said to me anyway, because he was not in his right mind, he was delirious. So the next time I seen him I went into the matter closer and I found the hand was not the entire cause of the pneumonia but the chest had been injured. “Q. Would the infection in any way superinduce the pneumonia? “A. I do not think in this case. “Q. Could it contribute to the cause of death? “A. Yes, perhaps by having an embolus leave the wound in the hand and cause an infarction in the hand, that would probably cause pneumonia but the post mortem showed that the pneumonia was of too large an area for embolic pneumonia. “Mr. Crowley: So that in your judgment, doctor, I understand you now that the blow on the chest caused this traumatic condition. “A. Yes, I made the diagnosis of traumatic pneumonia caused by the concussion of the board striking the chest.” A witness who was at work about 50 feet away from Mr. Hanna testified the latter was cutting a piece of wood on the saw. “Q. What kind of a piece of wood did he have at the saw? “A. It was a piece of pine about 18 inches long. “Q. How wide or how thick was it? “A. Well, when I seen it it was in two pieces, I only seen one piece of it and it was about five inches wide. “Q. About five inches wide. You don’t know what he was going to saw that for do you? “A. No. “Q. What was the first notice — what was the first you noticed with respect to this accident? “A. I looked up and I seen him holding his han<3 to his side. “Q. Was he holding his hand to his right side? “A. Yes. * * * “Q. Now, did you see this piece' of wood that he was . working with after that? / “A. Yes, sir. “Q. Did you noti.ce anything peculiar about the wood ? “A. It was broken that is all. “Q. Did you notice any links of a chain in the wood? “A. Yes. “Q. What kind of chain was that? “A. I think it was a kind of four-cornered piece. “Q. What kind of chain was it, a watch chain? “A., A watch chain, yes. * * * “Q. Where was the rest of the chain? “A. In his pocket. “Q. Which pocket? “A. Why, I think it was the vest pocket. “Q. Vest? “A. The vest pocket. * * * “Q. What caused you to look up and notice what was happening at that saw? “A. When I heard that piece fly over the saw. “Q. When you heard the piece of wood fly over the saw? “A. Yes. “Q. Did it strike the saw? “A. Yes, it struck the saw. “Q. How do you know it struck the saw? “A. Why, it would not have went back otherwise. “Q. I assume then that it made a noise? “A. Yes. “Q. And you heard that and glanced up ? “A. Yes. “Q. When you first glanced up what was Mr. Hanna doing? “A. He was holding his two hands on his left side. “Q. On his left side? “A. Yes.” The piece of wood after it struck Mr. Hanna flew 10 or 12 feet down an open stairway and hit Mr. Thomas who was coming up the stairs, knocking him down. The record shows that part of the duties of a carpenter are to make molding flasks and in doing so that the carpenter would use a circular saw in preparing some of the pieces. Mrs. Hanna testified as to what happened on the evening of the accident, in part as follows: “A. Well, the usual time he got home about a quarter to six to the best of my knowledge, “Q. What condition was he in whirs he arrived home? \ “A. Well, his hand was terribly swollen and very much inflamed and he said he was very weary and complained terribly of his breast. “Q. Did you examine his hand? “A. Yes, sir, I was ordered by first aid to bathe it in hot water. I told him my best judgment called for cold water, but he said no, he was told at the hospital, hot water. “Q. Did you make an examination of his breast? “A. Yes, sir, I did. “Q. What did you notice particularly about his chest? “A. There was a very, red place on his chest. “Q. Where was that? “A. On his chest, as near as I can tell you, over his lungs.” It is urged that what Mr. Hanna told the doctor about how he was hurt was improperly admitted. We think this was so under the case of Ginsberg v. Burroughs Adding Machine Co., ante, 130. But with this testimony omitted we think it cannot be said there was no testimony upon which to base-the award of the industrial accident board .and their finding that the injuries to Mr. Hanna were the proximate cause of his death. Under such circumstances this court will not interfere. See Reck v. Whittlesberger, 181 Mich. 463; Papinaw v. Railway Co., 189 Mich. 441; Vogeley v. Detroit Lumber Co., 196 Mich. 516. The award is affirmed, with costs to the plaintiff. Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.	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Per Curiam. This is an application for mandamus to compel the secretary of State to submit a proposed constitutional amendment to the people at the next general election. The petition filed with the secretary of State was signed by 47,652 persons claiming to be legal voters. It is conceded that but 43,469 legal signatures were necessary in order to secure the submission of the proposed constitutional amendment to the people. The secretary of State refused to submit the proposed amendment to the people upon the ground that only 38,631 .of the signatures are legal; the balance of said signatures being those of women who signed between November 10th and December 5, 1918. On November 5, 1918, a constitutional amendment was adopted by the people of the State conferring the franchise upon women. If that amendment took effect on the date of election, November 5th, the signatures of the women signers were legal, should have been counted by the secretary of State, and the mandamus should issue. If, however, as held by the secretary of State, under The advice of the attorney general, said amendment conferring the franchise upon women did not become effective until 30 days after the election on November 5th, that is, not until December 5, 1918, the signatures of the women upon said petition should not be counted and the secretary of State should be held properly to have refused to submit the proposed amendment to the people. It is the contention of relator that the amendment became effective on the date of election, to wit, November 5, 1918, under section 1 of article 17 of the Constitutionwhich follows: “Any amendment or amendments to this Constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by two-thirds of the members elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas and nays- taken thereon; and the same shall be submitted to the electors at the next spring or .autumn election thereafter, as the legislature shall direct; and, if a majority of electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments, the same shall become part of the Constitution.” That section appears to be exactly the same as section 1 of article 20 of the Constitution of 1850, which was construed by this court in the case of The Seneca Mining Co. v. Secretary of State, 82 Mich. 573 (9 L. R. A. 770). We there held that such amendments took effect from the time of their ratification by the popular vote. The difficulty with relator’s position arises out of the fact that in 1913 by concurrent resolution an amendment to the Constitution was effected, section 2 of article 17, which is in part as follows: “Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which such proposed amendment is to be voted upon. Upon receipt of such petition by the secretary of State, he shall canvass the same to ascertain if such petition has. been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected. Any constitutional amendment initiated by the people as herein provided, shall take effect and become a part of the Constitution if the same shall be approved by a majority of the electors voting thereon and not otherwise. Every amendment shall take effect thirty days after the election at which it is approved.” * * * It is the contention of relator that the sentence, “Every amendment shall take effect thirty days after the election at which it is approved,” refers only to amendments proposed by the initiative and not to amendments proposed by the legislature. We are unable to agree with this contention. This language is plain and unambiguous. Considering both provisions, we are of opinion that the latter, last adopted, is controlling and applies to all amendments. The mandamus is denied.	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Steere, J. On January 19, 1916, plaintiff’s traveling salesman solicited a “Christmas goods” order from defendants for their next ensuing Christmas trade. After examination of his samples an order was given for 1,000 “frame purses,” style 3551, amounting to $130. A form of order furnished by plaintiff’s salesman was then filled out by him and signed “O. Deitz & Son,” by defendant Oswald Deitz, who was given a copy. This order was also apparently signed by plaintiff, through P. O. Camburn, “Salesman No. 102” and read in part as follows: “How to ship: Freight (on or about) Dec. 1st, * * * F. O. B. cars our factory, * * * We will ship goods as close to dates desired as possible, but we cannot bind ourselves to exact dates, except when specially ordered.” Plaintiff did not ship the goods within the time specified. On December 18, 1916, it wrote in reply to a letter from defendant as follows: “Cincinnati, Ohio, Dec. 18, 1916. “Mr. Oswald Deitz, “Ann Arbor, Mich. “Dear Sir: We are in receipt of your letter of the 16th relative to your order for purses. “In reply beg to advise that these purses are being finished up today and will go forward to you immediately.” Defendants’ letter of the 16th was not produced by plaintiff, but its counsel testified that Oswald Deitz told him he wrote plaintiff about that time, stating he bought the purses for his Christmas trade, and “if they had not sent the goods by freight so that he would be sure to get them at Christmas, he wanted them to send them by express.” Defendant admitted writing such a letter. In his cross-examination he was asked about this letter and answered as follows: “If they had not sent them by freight, they were to send them by express so that you could get them before Christmas. “A. Yes, to hurry them up.” On December 19, 1916, plaintiff delivered the goods to the express company at Cincinnati, Ohio, carriage prepaid, directed to defendants at Ann Arbor, Mich., where they did not arrive until December 29. Defendants refused to receive or accept them because too late for their Christmas trade and so advised plaintiff. Correspondence followed between the parties, in concluding which plaintiff wrote defendants on January 5, 1917: “The chances are had we made a freight shipment, you would not have received them yet. “We insist upon our pay as per contract.” The claim was then put in the hands of counsel and, payment being refused, this action followed. Plaintiff’s declaration is as follows: “The plaintiff says: “1. That it is a corporation organized and existing under the laws of the state of Ohio. “2. That the defendants are copartners engaged in business in Ann Arbor, Michigan. “3. That the defendants are indebted to the plaintiff in the sum of $130.41 for goods sold and delivered by the plaintiff to the defendants at their request, as follows: “1000 frame purses, style 3551, ordered in writing on January 19, 1916, and delivered on December 18, 1916 ..........................(.................$130.00 Freight on same................................41 Total .................................. $130.41 “4. Whereas the plaintiff claims a judgment for the sum of $200.” Defendants pleaded the general issue and gave notice that the goods were ordered for their .Christmas trade of 1916; that plaintiff neglected and failed to ship and deliver the purses ordered in accordance with the terms of its contract, but delayed delivery until after Christmas when the goods were of no value to defendants who then and for that reason would not accept and “never have received the said goods.” Upon the trial objection was made by defendants’ counsel to any testimony under plaintiff’s declaration as to a subsequent modification of the contract declared upon, in relation to which no waiver of any of its terms is pleaded. Opportunity was given to amend the declaration, which plaintiff’s counsel did not desire to do, and in reply to the court relative to plaintiff’s claim under its declaration said, “We rest on the declaration we have.” On conclusion of the testimony each of the parties requested a directed verdict, and after argument the court directed a verdict for defendants. The assigned errors of the court complained of are formulated in the brief of plaintiff’s counsel as follows: # “1. It held that there was no waiver of the original time of delivery by reason of defendants’ subsequent request for shipment. “2. It held that the delay caused by the carrier was chargeable to the plaintiff, notwithstanding that it had made full and complete delivery to the defendants when it delivered to the carrier.” Defendants contend that all plaintiff’s evidence as to subsequent waiver of its admitted breach of the contract was inadmissible under the declaration; that even under the evidence erroneously admitted there was no waiver and defendants’ letter of December 16th, written after breach of the contract “to hurry them up,” was at most but a waiver conditioned upon the goods being received by them before Christmas. The written order introduced in evidence by plaintiff at the trial showed these goods were to be shipped on or about December 1st. The testimony showed they were shipped by express, prepaid, on December 19th, and plaintiff introduced evidence against objection showing they were so shipped pursuant to defendants’ letter of December 16th. Defendants contend this evidence was. not admissible because waiver or modification of a contract declared upon cannot be shown unless pleaded. Conceding this general rule as applied to a special count on a particular contract, plaintiff contends it was not required to and did not declare specially on any alleged contract; but declared generally and set up a cause of action under a common indebitatus count in assumpsit for goods sold and delivered, thus leaving the whole transaction open to proof. Plaintiff’s, claimed cause of action is a money demand for the price of goods sold and delivered, necessarily involving a contract of sale as originally made or modified, but which can be recovered under the common counts in assumpsit without specially pleading the contract. So pleaded, the whole transaction is open to any proof showing a right to recover money actually due as alleged, whether under a contract of sale as originally made, as modified, waived in any particular or beneficially performed in part. Allen v. McKibbin, 5 Mich. 449; Begole v. McKenzie, 26 Mich. 470; McGraw v. Sturgeon, 29 Mich. 426; Ladue v. Seymour, 24 Wend. (N. Y.) 59; Kerstetter v. Raymond, 10 Ind. 199. In 2 Smith’s Leading Cases, 34, it is said: “If there has been a special contract which has been altered or deviated from in particulars, by common consent, general assumpsit will lie.” Clearly the gist of plaintiff’s short count is indebitatus assumpsit “for goods sold and delivered by plaintiff to defendants at their request” (purely a common count), followed by what might be regarded as a brief bill of particulars, evidently intended to give in outline such information regarding the transaction as would reasonably inform defendants of the nature of the case they were called to defend, to meet the suggestions upon that subject found in section 2, chap. 14 of the judicature act (3 Comp. Laws 1915, § 12454) and Circuit Court Rule No. 22. This added information does not transform plaintiff’s general indebitatus count into a special count on a particular contract. It states what goods were sold and delivered to defendants at their request, when and how ordered, when delivered, and the amount claimed due. No special contract under which the goods were ordered is set out. It was incumbent upon plaintiff to prove the facts stated, as it would have been any further facts in a bill of particulars had defendants seen fit to demand one, but the count as a pleading would remain the same, permitting other or further proofs which tended to establish an indebitatus liability under the common counts. There was no error in admitting the testimony objected to. It is undisputed that defendants wrote plaintiff on December 16th to ship the goods by express if they had not been sent by freight, “to hurry them up;” that plaintiff on receipt of the letter promptly replied with assurances, and delivered the goods to the carrier designated the next day with transportation prepaid. The original order was for the goods F. O. B. plaintiff’s factory in Cincinnati and no change was made in that particular. Nothing thereafter remained to be done by the vendor. By the usual time required for express shipment between Cincinnati and Ann Arbor the goods should have arrived at their destination within from 12 to 24 hours. The fault for delay in transporting to point of delivery was with the express company designated by defendants to receive the goods for them at Cincinnati. “In general a delivery of goods to a common carrier, and a fortiori to one specially designated by the buyer, is a delivery to the buyer. * * * A common carrier is agent of the buyer for receiving the goods.” * * * Hobart v. Littlefield, 13 R. I. 341. The general rule is stated as follows in Templeton v. Equitable Manfg. Co., 79 Ark. 456 (96 S. W. 188): “If the goods are to be delivered to a carrier specially designated by the vendee, the carrier becomes the agent of the vendee, and delivery to it is delivery to the vendee; if the contract is silent as to the mode of delivery, then a delivery by the vendor to a common carrier in the usual and ordinary course of business constitutes delivery to the vendee; where no carrier is specified, and a choice is open to the shipper, the selection of any one in good faith in the due course of business is sufficient. The effect of the delivery in proper manner to the carrier is to transfer the title and to fix the time and place when the title passes. Mechem on Sales, §§ 736, 739.” “Where goods are delivered by the vendor, in pursuance of an order, to a common carrier for delivery to the buyer,' the delivery to the carrier passes the property, he being the agent of the vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee.” Benjamin on Sales (7th Am. Ed.), § 399. The proofs contain nothing indicating an agreement that plaintiff should transport the goods to Ann Arbor, retaining title and control until it had delivered them direct to defendants there. It contracted to deliver F. O. B. cars at its factory in Cincinnati, only changed by defendants’ letter directing that they be sent by express, “to hurry them up.” On receipt of this instruction plaintiff delivered the goods at its factory point to the carrier defendants designated, with transportation prepaid to destination, in abundant time to reach Ann Arbor .several days before Christmas according to the usual time of carriage by express between those points. Nothing in' the original order or defendants’ subsequent direction to ship by express indicates that delivery to the carrier was not a delivery to the purchaser. That delivery to the carrier is delivery to the purchaser of merchandise in the absence of an agreement to the contrary is the recognized rule in this State. Althouse v. McMillan, 132 Mich. 145; Kuppenheimer v. Wertheimer, 107 Mich. 77. In the latter case it is held that even the stipulated right of the purchaser to inspect the goods sent him by a common carrier before paying for them, does not change the rule. Vide, also, Mee v. McNider, 39 Hun (N. Y.), 345, 109 N. Y. 500. Upon this record a verdict should have been directed for plaintiff. The judgment is therefore reversed, with costs, and a new trial granted. Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.	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Steere, J. This action was brought against de fendant as initial carrier to recover damages sustained by plaintiffs on a carload of potatoes shipped from Bailey, Mich., on November 3, 1917, over defendant’s line and connecting carriers, to Louisville, Ky. The potatoes were intended for ultimate delivery at Camp Zachary Taylor, located near Louisville on the Southern railroad. After this camp was established the Southern road opened a station at that point, called Dumesnil, to handle the freight business which the camp demanded and developed. A firm named Marshall & Kelsey, of Indianapolis, Ind., had secured from the quartermaster of the camp a contract to supply it with a quantity of potatoes, and sublet a contract to a produce broker of Grand Rapids named Mosely to supply 40 carloads, of which plaintiffs, who were produce dealers and handled potatoes, furnished a part, the ear in question being one of several which they shipped in that connection. The price of the potatoes to plaintiffs was $2.63 per hundredweight, less freight rate from Bailey to Indianapolis. The bill of lading, issued by defendant, shows it was N. Y. C. Car No. 151,473, containing 300 sacks of potatoes weighing 45,000 pounds, billed from Bailey, Mich. — destination Louisville, Ky., consigned to the order of J. F. French & Co. — route C. C. C. & St. L., often called the “Big Four.” Upon the bill is the direction, “Notify Marshall & Kelsey, c/o Captain Bernard, Commissary at Camp Zachary Taylor,” and “Allow inspection.” The car was moved under a standard uniform bill of lading, and a billing of like import accompanied the car showing routing, destination, consignee, etc. Defendant was the initial carrier and the Big Four railroad was both the connecting and terminal carrier. No claim of negligence is made as to time or manner of transporting the car over its route from point of shipment to Louisville, its destination and contracted point of delivery. Plaintiffs’ grievance, and claimed ground of negligence which resulted in the damages sought- to be recovered, is a reconsignment of the car by the terminal carrier at Louisville for further movement over another line, without authority of the assignee at the destination point or requiring surrender of the original bill of lading for cancellation. The trial court held that, as a matter of law, under the undisputed evidence, the terminal carrier was guilty of negligence in that particular and defendant liable for resulting damages, if any; and submitted to the jury the question of damages with proper instructions upon that issue, as to burden of proof, measure of damages if any were shown, etc. Plaintiffs recovered verdict with judgment thereon for $689.20. Defendant’s counsel properly saved adverse rulings desired reviewed by seasonable objections, motions, request for directed verdict, etc., and concisely point out in their brief that they center to a “narrow and Well-defined” issue, saying: “There is involved simply a construction of the Federal uniform bills of lading act passed in 1916 (39 U. S. Stat at Large, p. 538-542) in connection with the so-called Carmack amendment.” When the car was loaded and started from Bailey, its point of shipment, plaintiffs received from defendant, its initial carrier, the original order bill of lading covering this car, of the standard form approved by the interstate commerce commission, to which they attached a draft for the selling price drawn on Marshall & Kelsey of Indianapolis and turned it over to their local bank at Grand Rapids, receiving credit therefor on their commercial account and the bank forwarded the bill of lading with draft attached to •the Commercial National Bank of Indianapolis for collection. As it turned out, the Indianapolis bank, in careless disregard of its duty as a collecting agent, handled the shipping bill in a way which made possi ble the complications which followed. Instead of requiring payment of the draft before surrendering the shipping bill to the payor, it detached the bill from the draft and intrusted it to Kelsey, who took it with other bills to Dumesnil, and, on about November 14th or 15th, left it at the Southern railroad station with one of its employees named Bindner who worked in the station as cashier. The agent of the Southern road at Dumesnil, named Baker, testified that he never had the bill of lading for that car and could not say that it was in the office, but the cashier had the same authority as he to deliver shipments. Bindner testified that he was not holding those bills for the Southern railroad company, but they were given to him by Kelsey, who had a whole lot of stuff in his pocket, to keep for him, and he (Bindner) “chucked them in a drawer” and was holding them for Kelsey. The car arrived at Louisville on November 9th and remained at the Big Four station until November 16th, when Bindner called up by ’phone the trackage clerk of the Big Four at Louisville, námed Smith, told him he had the bill of lading and to let the car go out to the camp. Bindner testified that he did not do this under Kelsey’s. directions or as agent for the Southern railway but on his own hook because the car was Overdue; he had looked at the routing which was over the Big Four and he knew the government needed potatoes. Smith testified that on receiving this word from Bindner he told him if the Southern railway would guarantee him “our car service” and he had the bill of lading, he would send it out and, although he knew that under the rules of the Big Four he should not let the ca^r go without surrender of the bill of lading he “took the chance” and reconsigned the car by changing the destination in the way bill with charges to follow and sent it forward over the Southern railway line, which received and moved it under the altered way bill marked “Dumesnil, Kentucky So. R. R.,” delivering it at its destination on November 18th, charging a six cent local rate for the haul from Louisville to Dumesnil. This car arrived at Louisville over the Big Four line on the evening of November 9, 1917. Kelsey had told Smith that he was stopping in that city at the Watterson hotel and asked to be notified by ’phone when cars, which he expected, arrived for his firm, and Smith on the next day (November 10th) first attempted to get him by ’phone, but being unsuccessful sent a regular form postal card notice by mail, addressed to the firm, care of the Watterson hotel, with a 5-day return mark on it, containing full information relative to the car and stamped across its face in large letters “Present Bill of Lading.” Smith testified it was the rule of the company that a car billed as this one was should not be delivered without surrender of the bill of lading. When the car arrived at Dumesnil it was placed on the side tracks near the commissary buildings and, as was shown against plaintiffs’ objection, was subsequently rejected with numerous other cars on inspection by quartermaster officers, on what date does not appear, on the ground that the potatoes were suffering from “field frost,” as diagnosed by Captain Hanson, while Col. Pearson stated that when his attention was called to them they were badly frost-bitten and rotten, and he directed Hanson to reject the cars from which they were taken; that as he recollected it the weather was extremely cold at that time and he could not tell whether they were frosted en route or in the field. Bindner gave the original bill of lading back to Kelsey who returned it to the Indianapolis bank which reattached the draft to it, and returned it to plaintiffs’ attorney who delivered it to them on December 7th. Plaintiffs’ first notification of rejection of the car was by a telegram Bindner sent to Mosely at Grand Rapids, Mich., on December 4th, telling him the , car in question and certain others had been rejected, and Mosely informed plaintiffs of it on December 5th. The original bill of lading was then in possession of the Indianapolis bank with the draft. After the original order and draft were returned to plaintiffs they gave the Grand Rapids bank a check for the amount of the draft and surrendered the original order to defendant’s division freight agent in exchange for a bill of lading reconsigning the car to plaintiffs at Memphis, Tenn., where the goods could be and were dispqsed of, to the best advantage, as is claimed, but at a loss, for recovery of which this action was brought. Plaintiffs’ contract was with Marshall & Kelsey, of Indianapolis, to whom they „old this carload of potatoes to be delivered at Louisville, Ky., with right of inspection at point of delivery. The right of the purchaser to examine the goods while in the hands of the carrier before accepting them was at the point of delivery only. There is nothing in the acts relied upon which restricts or affects the right of any of the parties connected with the transaction as the law upon that subject previously stood. The law relative to the effect of a “notify” clause in the bill of lading as heretofore settled in this jurisdiction and many others is well digested with numerous citations, as follows, in 10 C. J. p. 259: “Where a bill of lading or a shipping receipt contains a clause providing that a third person shall be notified of the arrival of the goods, or where it contains this clause and an additional clause reciting that the goods are shipped to the consignor’s order, the carrier is not authorized to treat the person to be notified as á consignee, and if it delivers the goods to him without production and surrender of the receipt- or the bill of lading, it will be liable to the true owner of the goods for any loss resulting from such delivery.”- This court has spoken definitely to that effect and emphasized the significance of a provision in the order bill of lading that its surrender properly indorsed shall be required before delivery of the consignment. Perkett v. Railroad Co., 175 Mich. 253; Turnbull v. Railroad Co., 183 Mich. 213; Thomas v. Blair, 185 Mich. 422; Churchill v. Railway Co., 188 Mich. 376. It is defendant’s contention that these decisions are largely emasculated in their general import and become wholly inapplicable here by reason of the negotiable characteristics given a bill of lading by the act of congress passed August 29, 1916, to take effect January 1, 1917, entitled “An act relating to bills of lading in interstate and foreign commerce” (39 U. S. Stat. at Large, p. 538), construed in connection with the Carmack amendment of the interstate commerce act under which this action was brought. Counsel’s position is pointedly stated in part as follows: “The rules of ordinary contract law have absolutely nothing to do with this case because this case involves a negotiable instrument and not a contract of the common law. * * * Mr. Bindner, while he had possession of the bill of lading, exercised the authority which its mere possession conferred and obtained the car from the Big Four. Bindner by virtue of his possession (not ownership) of the bill of lading, was a person to whom the Big Four, the delivering and terminal carrierwas justified in making delivery of this car. The Big Four did make delivery of the car to Bindner while he was in possession of the bill of lading, and thereby did what it was authorized to do by section 9 of the bills of lading act.” That act, containing 45 sections, is in its nature related to and supplemental of the interstate commerce law, which, as enacted in 1887, underwent various amendments by the act of June 29, 1906 (34 U. S. Stat. at Large, p. 584, chap. 3591), especially as to section 20 relative to carrier’s liability, commonly called the Car- mack amendment, which made the initial carrier in interstate transportation liable for through carriage to point of destination under the bills of lading required to be issued therefor. The material concluding portion of that lengthy amendment of section 20 (of the 1887 act — section 7 of the 1906 act) is as follows: _ “That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company, to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” Section 9 of the act of 1916 relating to bills of lading, upon subdivision (c) of which defendant relies, is as follows: “Sec. 9. That a carrier is justified, subject to the provisions of the three following sections, in delivering goods to one who is— “ (a) A person lawfully entitled to the possession of the goods, or “(b) The consignee named in a straight bill for the goods, or “(c) A person in possession of an order bill for the goods, by the terms of which the goods are deliverable to his order; or which has been indorsed to him, or in blank by the consignee, or by the mediate or immediate indorsee of the consignee.” The section immediately preceding (8) and three sections following (10, 11, 12) also relate to delivery, and so far as material are as follows: “Sec. 8. * * * a carrier, in the absence of some lawful excuse, is bound to deliver goods upon a demand made either by the consignee named in the bill for the goods, or, if the bill is an order bill, by the holder thereof, if such a demand is accompanied by— “(a) An offer in good faith to satisfy the carrier’s lawful lien upon the goods; “(b) Possession of the bill of lading and an offer in good faith to surrender, properly indorsed, the bill which was issued for the goods, if the bill is an order bill; and “(c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the carrier. “In case the carrier refuses or fails to deliver the goods, in compliance with a demand by the consignee or holder so accompanied, the burden shall be upon the carrier to establish the existence of a lawful excuse for such refusal or failure. “Sec. 10. * * * where a carrier delivers goods to one who is not lawfully entitled to the possession of them, the carrier shall be liable to any one having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section; and, though he delivered the goods as authorized by either of said subdivisions, he shall be so liable if prior to such delivery he— “(a) Had been requested, by or on behalf of a person having a right of property or possession in the goods, not to make such delivery, or “(b) Had information at the time of the delivery that it was to a person not lawfully entitled to the possession of the goods. * * * “Sec. 11. * * * if a carrier delivers goods for which an order bill had been issued, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the bill, such carrier shall be liable for failure to deliver the goods to any one who for value and in good faith purchases such bill, whether such purchaser acquired title to the bill before or after the delivery of the goods by the carrier and notwithstanding delivery was made to the person entitled thereto. * * * “Sec. 12. * * * if a carrier delivers part of the goods for which an order bill had been issued and fails either— “(a) To take up and cancel the bill, or “(5) To place plainly upon it a_ statement that a portion of the goods has. been delivered with a description, * * * he shall be liable for failure to deliver all the goods specified in the bill to any one who for value and in good faith purchases it, whether such purchaser acquired title before or after the delivery of any portion of the goods by the carrier, and notwithstanding such delivery was made to the person entitled thereto.” These are Federal laws, for controlling interpretation by the Federal courts in their final analysis, and the State courts when called upon to deal with them are governed by the construction declared in decisions of those courts, where they have spoken. Counsel do not cite and we have not found any adjudication directly construing the provisions of the statute upon which defendant relies. The scope and purpose of the Carmack amendment, of which the iater act is but supplemental, has frequently been before the United States Supreme Court for consideration of its various provisions. Its manifest purpose is, as interpreted by that court, to create in the initial carrier unity of responsibility for transportation to destination and bring contracts for. interstate shipments under one uniform law, to which end a proper receipt, or bill of lading, must issue therefor. “The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment so far as is valid under the act.” Kansas City Southern R. Co. v. Carl, 227 U. S. 639 (33 Sup. Ct. 391). In Adams Express Co. v. Croninger, 226 U. S. 491 (44 L. R. A. [N. S.] 257, 33 Sup. Ct. 148), holding that a contract in a bill of lading relative to rates was not in violation of the act, the court said: “The statutory liability, aside from responsibility for the default of the connecting carrier in the route, is not beyond the liability imposed by the common law as that body of law applicable to carriers has been interpreted by this court as well as many courts of the States.” In view of the history of the interstate commerce law, its administration and the many decisions of both Federal and State courts recognizing certain of its features as but declaratory of common-law principles, it is wide of the mark to assume that because enacted into statute the rules of the common law have nothing to do with this inquiry. This order bill of lading under which the shipment was made, while now negotiable under the act of 1916, possessed those attributes in like degree and had often been recognized as such by the courts years before the act was passed. That act, which counsel in their briefs designate the “Uniform bills of lading act,” nowhere in express language, either in its title or body, prescribes a form for or even mentions a uniform bill of lading. As “An act relating to bills of lading in interstate and foreign commerce,” its subject-matter is suggestive of the name and instructive of its purpose in the particular that many of its provisions and requirements harmonize with and follow in general plan the standard uniform bills of lading which the interstate commerce commission had approved as such and which, by years of use, had become familiar to commerce. Those forms, after careful consideration in the light of experience, had been approved by the commission and adopted by shippers and carriers, without direct legislation therefor, to meet the general requirements of. the Carmack amendment. In practical application, as' the law was administered by the commission and inter preted by the courts, they had through years of trial and test apparently proved satisfactory and efficient for conduct of the gigantic and complicated business of interstate and foreign transportation. It is fairly inferable that the intent of this act was to strengthen by legislative indorsement that which had for efficient administration of the interstate commerce law been worked out, adopted, and approved by the combined efforts of shippers, carriers, and the interstate commerce commission. If it was the purpose of the act to impose limitations on these long used and often construed bills of lading to an extent which changed the settled law in the important particular claimed, it would seem that, in the absence of a prescribed form and in view of the context, a clearer declaration than that relied on would be found somewhere in the act. The form of order bill of lading used by defendant in this case and delivered to plaintiffs, stating in bold type on its face that its surrender properly indorsed “shall be required before the delivery of the property,” is the prescribed form set out at length in connection with the opinion and order of approval thereof filed by the interstate commerce commission after full hearing, on June 27, 1908 (14 Interstate Commerce Commission Rep. 346). Two forms are there recognized, as also in this act. An order bill of lading though negotiable represents property, not money, and the certainty of its surrender before delivery of the property it describes is a matter of serious significance in financing consignments for transportation, as pointed out .by Judge Knapp, chairman of the commission, in the portion of the opinion discussing the two approved forms of bills of lading, as follows: “The main point in this connection is that the ‘order’ bill will possess a certain degree of negotiability, while the ‘straight’ bill will be nonnegotiable and is to be so stamped upon its face. Moreover, and this is a matter of consequence, the order bill of lading will be required to be surrendered upon or before the delivery of the property to the consignee. It is believed that this plan will in large part meet the requirements of the banking concerns of the country which advance vast sums of money upon bills of lading and are entitled to a reasonable measure of protection.” Section 8 of the act under consideration affords the carrier full protection by refusing delivery of the property when demanded by the consignee or holder of an order bill of lading, unless possession of the same properly indorsed thereon is surrendered. Section 42 of the act specifies that “unless the context of the subject-matter otherwise requires, * * * 'holder’ of a bill means a person who has both actual possession of such bill and a right of property therein.” That definition clearly did not fit Bindner who had no right of property nor interest in the bill, nor control of it or right of possession beyond its safe keeping, for Kelsey, which accommodation trust he executed by “chucking” it with other papers into a drawer and handing it back when called for, in the meantime, however, on his “own. hook” without instructions from any one telling Smith, who neither saw nor asked for the order, that he had it, with the results before detailed. But, eliminating him as a.“holder” under the strict statutory definition, it may be conceded that nev-‘ ertheless, under subdivision (c) of section 9 he was entitled to delivery of the shipment as a person in possession of the order bill indorsed in blank "by the consignee. Defendant in fact did not deliver the goods direct to him but turned them over by an irregular reconsignment to another carrier on the strength of his statement that he had the bill, without asking for it or even seeing it, in admitted violation of its own rules and of the distinct provision on the face of the order bill under which it had received the consign ment, that its surrender should be required before delivery. By statute the carrier is made liable for the acts of its agents. The act nowhere prescribes the form of shipping bill which should be used nor in express language forbids that used here, and generally. Resorting to context to determine the intent of subdivision (c) of section 9 in the connection used, especial importance is given to surrender of the order for cancellation on delivery, for protection of the carrier, both in preceding and following provisions, read in connection with which it may be fairly inferred, taking all the related provisions together, that when a person in bare possession of the bill, not shown or known to have any actual interest or right of property therein, demands delivery of the goods, the carrier is only justified in complying on surrender of the bill to it; or, at least, as tinctured by the context and in view of the general purpose of the act, the provision relied on is not to be construed as prohibitive of a contract requirement in the order bill of lading issued by the carrier to that effect. Other points raised and discussed have not been overlooked, but regarding the controlling question, as stated by defendant’s counsel, to be the construction of the act of 1916 in connection with the Carmack amendment, and agreeing with the construction, as applied to the facts in this case, by the trial court, we find no occasion to disturb the judgment, which is therefore affirmed. Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.	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Moore, J. The bill of complaint in this case was filed to quiet title to lots 1 and 2 in Fulton’s addition to the village of Buchanan. The plat of said addition was executed on November 10, 1866, and covers lots numbered from 1 to 58 inclusive. It was properly recorded. The record title to lots 1 and 2 is in the plaintiff. The defendant, Michael O’Brien, answered fully the averments of the bill of complaint, and asserted title in defendant by adverse possession. The answer ends as follows: “Answering the 13th and 14th paragraphs of the plaintiff’s bill of complaint, defendant says that he has a good valid and legal claim and that he is entitled to said premises free and clear from any claims or pretended claims of the plaintiff and therefore the defendant asks the benefit of a cross-bill and prays that the plaintiff’s bill of complaint be dismissed and that an order and decree be entered in this cause confirming the said defendant’s title to lots 1 and 2 and decreeing that the said plaintiff has no right, title or interest therein.” The case was tried upon its merits in open court. From a decree in favor of the plaintiff the case is brought here by appeal. Counsel contend that under the facts “disclosed by the record a bill to quiet title cannot be maintained and that an action of ejectment is the only remedy. Counsel for the appellee says this contention was not mentioned before the trial court.’ An examination of the record does not show it was, indeed the prayer of the defendant’s answer asking for affirmative relief is inconsistent with the claim. The only remaining question requiring consideration is, Did defendant show title by adverse possession? The doctrine of title by adverse possession has been before this court many times. Some of the cases are Yelverton v. Steele, 40 Mich. 541; Paldi v. Paldi, 95 Mich. 410, and Simons v. McCormick, 202 Mich. 485. The testimony offered in behalf of the defendant, especially that of his tenant, did not show such actual hostile and continued possession as is required to establish title by adverse possession. The decree of the lower court is affirmed, with costs in favor of the plaintiff. Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.	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Stone, J. This is an action on the case for damages for false imprisonment of plaintiff against the defendant Berry, sheriff of Kent county, defendant Griswold, deputy sheriff, and defendant Hyde, probation officer of said county. The following are some of the salient features of the case: The wife of the plaintiff had filed a bill against him for divorce in the circuit court for the county of Kent, in chancery, on June 17, 1914. On July 1, 1914, upon the petition of the wife, the court upon due hearing ordered the defendant therein (plaintiff here) to pay to the register of the court the sum of $15 per week in advance, the first payment to date from June 29, 1914, and a like sum of $15 on Monday of each week thereafter for her support, and the- support of the minor children of said parties, during the pendency of the suit. Also that said Richard E. Oxford pay to the register of the court the further sum of $50 for complainant therein for the purpose of supplying her said children with necessary clothing and immediate supplies. Also that he pay to the register within 30 days from the date thereof, the further sum of $25 for solicitor’s fees. On September 9, 1915, upon the sworn petition of the complainant therein, alleging that said Richard E. Oxford was in arrears on said order, in the sum of $256.50, and had violated said order, and had failed and neglected to pay said amount for such purposes, it was ordered by the court that a precept of attachment issue out of and under the seal of the court, directed to the sheriff of said county, commanding him forthwith to take the body of said Richard E. Oxford, and keep him in actual custody, and bring him forthwith before the court, and keep and detain him until it should make some further order in the premises, or until the defendant therein should be discharged according to law. Under date of September 11, 1915, appears the following order duly entitled in said cause, as. a court order, and signed by Willis B. Perkins, the circuit judge: “In this cause a writ of attachment having been heretofore issued out of and under the seal of this court against the defendant, Richard E. Oxford, for his misconduct and contempt in violation of the order for payment of alimony, heretofore issued in this cause, which writ of attachment was directed to the sheriff of the county and was returnable forthwith, and the sheriff having returned that he had attached the said Richard E. Oxford and taken his body, and had him in custody before the court, on the said 11th day of September, A. D,. 1915, and the said Richard E. Oxford having been personally before the court by virtue of said attachment on the said 11th day of Sep tember, A. D. 1915, and it appearing to the court, after having heard the answer of the said defendant, Richard E. Oxford, that the said Richard E. Oxford is guilty of, and has committed the misconduct and contempt charged: It is ordered and adjudged that the said Richard E. Oxford is guilty of the said misconduct and contempt alleged, and that the said misconduct and contempt was calculated to, and did, injure and impair and prejudice the rights and equities of the complainant in this cause, and it is therefore ordered that the said Richard E. Oxford be, and he hereby is, ordered to stand committed to the charge and custody of Joseph E. Hyde, probation officer of this court, and to remain charged with such contempt until all sums of money due and unpaid on the order for alimony, heretofore referred to, be fully paid and satisfied, or until the further order of this court.” After this order of September 11, 1915, no further order of the court appears to have been made in said cause, and the plaintiff herein was treated as on probation, under the charge and supervision of defendant Hyde, as probation officer. Said probation officer permitted this plaintiff to return to his home in Big Rapids, and he was visited there by the said probation officer. Act No. 239, Pub. Acts 1913 (3 Comp. Laws 1915, § 11449), being entitled— “An act to authorize courts of record to place parties found guilty of contempt of court for failure to pay alimony, temporary or permanent, on probation in divorce and separate maintenance cases,” —is discussed by counsel. It may be said in passing that there is no claim that plaintiff was ever sentenced for contempt of court, or that any commitment for contempt has ever been issued against him. Later, and on the 22d of November, 1915 (the plaintiff herein being still in arrears in the payment of alimony), upon the verbal request and report of the defendant Hyde, Judge Perkins signed and deliv ered to said defendant a paper called in this record a “bench warrant” in the words and figures following: "Greeting. “To the Sheriff of said County: “In the name of the people of the State of Michigan: You are hereby commanded to arrest the body of Richard E. Oxford, and bring him forthwith before the circuit court for the county of Kent, to answer unto an information filed against him in behalf of said people by the prosecuting attorney of the county of Kent, aforesaid, for the crime of contempt of court, failure to pay alimony. “Given under my hand and the seal of said court, at the city of Grand Rapids, this 22d day of November, A. D. 1915. “Willis B. Perkins, “Circuit. Judge. “Prosecuting Attorney.” Concerning this bench warrant defendant Hyde testified, on cross-examination, as follows: “I caused the bench warrant (defendant’s exhibit 10) of November 22d to be issued. I did not file any affidavit with Judge Perkins before it was issued, and did not after either of these bench warrants. After the clerk made it out, I took it up to Judge Perkins and asked him to sign it, and he did. I read it when it was made out in the clerk’s office. I read what was there. Don’t know whether Judge Perkins read it before he signed it or not. He looked at it; he didn’t read it aloud. * * * “Q. Well, you know what an information is, speaking of the criminal law, do you not? “A. Yes, sir. “Q. Yes. And you know what a crime is, speaking of criminal law, do you not? “A. Yes, sir. “Q. You knew who the prosecuting attorney was at that time, did you not? “A. Yes, sir. “Q. Did you ever present this document to the prosecuting attorney of Kent county? “A. No, sir. “Q. The prosecuting attorney had not filed' any information against Mr. Oxford, had he? “A. No, sir. “Q. You knew that at the time you presented this to Judge Perkins, did you not? “A. Sure. “Q. Yes, and you knew that Mr. Oxford had not committed any crime, didn’t you? “A. No, he had not committed any crime. * * * I knew that no affidavit had been filed with Judge Perkins as the basis for the issuance of that bench warrant. When I saw Mr. Oxford in jail in November, 1915, he was in the big cage upstairs. They keep persons convicted of and charged with felonies and misdemeanors in that cage. I couldn’t tell you how many were there at the time I saw him. ' “Q. Well, would you say there was one, or twenty? “A. Well, I would say there was one, but I would not say there were twenty. “Q. You would say there were more than one, and less than twenty, would you? “A. Yes, sir; easy. I talked with him there just a few minutes at that time. After Judge Perkins signed it, I took the bench warrant of November 22d to the sheriff’s office and presented it to Mr. Gibbs, the chief deputy, and asked him to see that it was served. I didn’t tell the clerk, that I remember of, what to put in the bench warrant when he made it out. He wanted to know what it was and I told him it was a bench warrant for Richard E. Oxford, contempt of court, failure to pay alimony, and he made that part out in accordance with my instructions. The written part was dictated by me.” The plaintiff herein was arrested in Big Rapids on November 22, 1915, on the said bench warrant by the defendant Griswold, and brought to Grand Rapids. Referring to the bench warrant of November 22d, defendant Griswold, on cross-examination, testified: “This is the only document I had in my possession when I -went to Big Rapids at that time and took Mr. Oxford into custody. I had no written commitment. I first brought him to the sheriff’s office. Don’t remember whether we had any conversation going from the train. I would not say whether or not he requested a hearing before the judge. If he says he did, I wouldn’t deny it. After bringing him to the sheriff’s office, I went to see if the judge was there. Mr. Oxford was not there. He was in the sheriff’s office, and did not hear what took place between me and the judge. After I came out from the judge’s office, I took him over to the jail and did not bring him before the judge that night. Exhibit 10 is the only document I had in my possession at that time with reference to Mr. Oxford. From November 22d to November 29th, I did not bring Mr. Oxford before the judge. Don’t recollect having any talk with Mr. Oxford at the jail. I didn’t know, at that time, in what part of the jail he was confined. I learned later. I knew that the reason for his arrest was that it was claimed he was not paying alimony.” It appears to be undisputed that the plaintiff was placed in that part of the jail reserved for the detention of persons charged with and convicted of crime, and was kept there until November 29, 1915, when he was released, but not as the result of any hearing in court. Again, and on December 27, 1915, another bench warrant was issued for the arrest of the plaintiff, signed, and in the exact form, except as to date, as was the writ of November 22, 1915, and issued under similar circumstances. Referring to this last warrant, defendant Hyde testified: “I had a second bench warrant issued on December 27th for the same purpose — to get Mr. Oxford to pay alimony; that was the sole purpose.” Referring to this second arrest, the defendant Gris-wold testified: “I next saw him the morning of the 4th of January. I arrested him that morning. Exhibit D-12 is the only document I had in my possession then. On this occasion, I also first took him to the sheriff’s office, in the court house. It was in the morning. I think I took him into Judge Perkins’ office. I won’t say for sure. I am pretty positive I took Mr. Oxford into the judge’s office with me on that occasion, but I might be mistaken about that. I left him in the office in charge of Mr. Gilman when I went to dinner, and he took him to jail at my request and told him that the court ordered him over. I did not bring him to court at any time, from January 4th to February 10th for a hearing. The only written authority I had was exhibit 12.” The plaintiff testified that from the time he was arrested on November 22d, until his release on November 29th, he was not brought before any court or magistrate and given a hearing. Referring to the last arrest he testified: “On the 4th of January, 1916, I was again arrested at my office in Big Rapids by Mr. Griswold. He took me to Grand Rapids. * * * He took me to the sheriff’s office, in the court house. We stayed there a little while and he went out. I told him I wanted to see the judge, and he came back and told me the judge was not ready for me, that we would have to go down to the jail. “Q. Did you tell him what you wanted to see the judge for? “A. Yes; I wanted a hearing. * * * “Q. Did he tell you when the judge would be ready for you? “A. No, sir. Then he took me down to the jail, and put me in the same place as before, in the same part of the jail. * * * On this occasion I was there from January 4th to February 10th, 87 days, during which time I was not out of the cage at all.” Judge Perkins was called and sworn as a witness for the defendants. Relative to the bench warrants, and to the action taken thereunder, on direct examination, he testified as follows: "I remember issuing the bench warrants of November 22d and December 27, 1915. My recollection is that Mr. Oxford appeared before me with the probation officer shortly after the bench warrants were issued. “Q. Do you recall what disposal was made of the matter on the two occasions that Mr. Oxford was brought before you on those two bench warrants? “A. Yes. On one or two occasions. I directed the officer to take him to jail to await further action of the court. * * * I think those were the occasions when Mr. Oxford was brought before me on those bench warrants with the probation officer. Of course, I have had a great many similar cases since that time, and my recollection is rather indistinct, but that was the usual custom and that is my recollection as I have it now in reference to this.” On cross-examination he testified: “Q. Now, I think you said you didn’t know whether Mr. Oxford was actually brought before you on that bench warrant, or not? “A. I can’t tell whether it was this one or some other bench warrant. I know he was brought before me on the so-called attachment of September 10th or 11th. He was brought before me on one or more of those bench warrants subsequent to the order placing him on probation. I wouldn’t fix the date at all. If he was brought before me on either of the bench warrants, he did not have any hearing at that time. No witness sworn or testimony taken at all. * * * He had no hearing before me between January 4, 1916, and February 10, 1916, and he had no hearing before me between November 22,, 1915, and November 29, 1915, that I recall, and during those periods, I issued no sentence or commitment confining him to the county jail.” Section 4 of Act No. 105 of the Public Acts of 1913 (1 Comp. Laws 1915, § 2032) is referred to by defendants as authorizing the issuance of the bench warrants. On February 10, 1916, upon the petition of the plaintiff, a writ of habeas corpus was issued out of the circuit court for the county of Kent, by Judge Mc Donald, directed to the defendant Berry, for the purpose of inquiring into the cause of plaintiff’s imprisonment. The return of said defendant stated among other things as follows: “That said Richard E. Oxford was in his custody by virtue of an order of the circuit court for the county of Kent, in chancery, bearing date September 11, 1915, in the case of Nellie M. Oxford, complainant, v. Richard. E. Oxford, defendant, whereby the said Richard E. Oxford was adjudged guilty of contempt of court, and the said Richard E. Oxford was ordered to stand committed to the custody of Joseph E. Hyde, probation officer of Kent county, and the said Richard was taken into custody and placed in said county jail, by the authority and direction of the said Joseph E. Hyde, as probation officer, and under and by virtue of the authority of a bench warrant, issued December 27, 1915, by the Honorable Willis B. Perkins, circuit judge, under the seal of said court,” copies of which were attached. The hearing was adjourned to, and took place February 19, 1916, at which time Judge McDonald determined and made an order as follows: “That the order of this court, bearing date September 11, 1915, in the case of Nellie M. Oxford, complainant, v. Richard E. Oxford, defendant, whereby the said defendant was ordered to stand committed to the charge and custody of Joseph E. Hyde, probation officer of said county of Kent, did not authorize the commitment of said Richard E. Oxford to the county jail of said county, without the further order of the court, and it appearing that no further order was made therein; and it further appearing that the sheriff and deputy sheriff had no right to detain the petitioner in the Kent county jail, and especially in that part of the jail reserved for the detention of criminals; it is therefore .ordered that the said'petition be, and the same is hereby granted, and the said Richard E. Oxford be, and he hereby is discharged from the custody of the said Charles Berry, sheriff of Kent county.” The plaintiff was thereupon discharged from custody, and on August 26, 1916, he began this suit. The declaration counts upon the said arrests of November 22, 1915, and January 4, 1916, alleging that plaintiff was arrested— “without any process, and without any lawful process fair on its face, and without any sworn evidence being first filed with a magistrate immediately prior thereto, charging this plaintiff with the violation of some law for which lawful process could issue [defendants did] unlawfully cause the arrest of plaintiff, and did then and there unlawfully take him to the county jail of Kent county aforesaid, and did then and there, from November 22d to November 27, 1915, without any hearing, and against his will, unlawfully detain him in a cell, in that part of said jail reserved for, and where persons held for, and convicted of high crimes and misdemeanors were incarcerated, which part of the jail was infested with rats, and cockroaches, and did then and there unlawfully open, inspect and read plaintiff’s outgoing mail, and did then and there greatly injure him, in his good name,” etc., —in violation of his constitutional rights, naming them, and contrary to section 10534 of the Compiled Laws of 1897 (3 Comp. Laws 1915, § 14762). A similar charge is made with reference to the arrest of January 4, 1916. Under the plea of the general issue the defendants gave a lengthy notice that they would justify their action under the said order of September 11, 1915, and said bench warrants and the statutes applicable to such proceedings. At the close of all the testimony, and upon the motion of the defendants, the trial court directed a verdict and judgment for the defendants to be entered, and the plaintiff has brought the case here on writ of error. There is a large number of assignments of error. Instead of treating them separately, we will consider the points argued by appellant in his brief, all of which a,re covered by the assignments of error. It is first claimed by appellant that the order made by Judge McDonald in the habeas corpus proceeding was a final order, and that the matters passed upon and determined by him are res adjudicaba, not only as to defendant Berry, but as to defendants Hyde and Griswold, they having made affidavits in support of the return of the sheriff to said writ, as to matters not within his personal knowledge. Appellant refers to the case of Castor v. Bates, 127 Mich. 285 (89 Am. St. Rep. 471), as supporting this contention. We do not think that case a parallel one. In that case the plaintiff, having been arrested on a ca. sa. at the instance of the defendant, sued out a writ of habeas corpus, and, on the hearing, after notice to defendant under 3 Comp. Laws 1897, § 9885, was discharged on the ground that the judgment upon which the execution was issued was void, it was held that such adjudication was conclusive in a subsequent action against defendant for false imprisonment. An examination of that case will show that defendant appeared as a party, and was heard in the case. In the instant case neither Griswold nor Hyde appeared or took any part in the proceeding, so as to be in any sense a party thereto. Neither of them had any control over the proceeding. We do not think they are bound by the judgment or order. Fowler v. Blount, 191 Mich. 575. There is respectable authority which holds that an order or judgment in a habeas corpus suit is res adjudicaba as to the person charged with unlawfully restraining another of his liberty, until reversed in some proper proceeding. State, ex rel. Durner, v. Huegin, 110 Wis. 189 (85 N. W. 1046, 62 L. R. A. 700); 21 Cyc. p. 349. It is the next claim of appellant that the order of September 11, 1915, was void, and no justification. We do not agree with this contention. In our opinion the court had jurisdiction to make the order of September 11, 1915. The plaintiff had. been arrested upon an attachment issued in pursuance of Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443), entitled: “An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for divorce.” He had been brought before the court and had had a hearing. It will be noted that the declaration does not count upon his arrest upon the attachment which brought him into court on that occasion. We passed upon this statute in Whitman v. Branstrom, 202 Mich. 457, and said: “The statute contemplates that the party is not yet in contempt, and could not be, under our statutes and decisions until he had had a hearing in court.” That hearing seems to have been had on September 11, 1915. We agree with counsel for appellant that the order made on that date indicates that the court had in mind the statute relative to contempt, to enforce civil remedies as amended by Act No. 230, Pub. Acts 1899, as the order set forth that the misconduct was calculated to, and did injure and impair the rights and equities of the complainant. It will be observed that no judgment was pronounced upon the plaintiff for the contempt of court, of which he was found guilty. Counsel next discuss the probation law, and claim that the provisions of the uniform probation law (Act No. 105, Pub. Acts 1913) are not applicable to husbands found guilty of contempt of court for nonpayment of alimony; and that Act No. 239, Pub. Acts 1913, seeking to enlarge the scope of the uniform probation law, is unconstitutional. We do not find it nec essary to pass upon this question, for we are of the opinion that the defendant therein (plaintiff here) being at large, and having been found guilty of contempt, it was competent for the court to issue a bench warrant for his arrest. A bench warrant is defined as a process issued by the court itself, or “from the bench,” for the attachment or arrest of a person; either in case of contempt, or where an indictment has been found against him. Black’s Law Dictionary. It will be observed that this bench warrant was issued by the court, directed to the sheriff of the county, commanding him in the name of the people of the State of Michigan to arrest the body of Richard E. Oxford and bring him forthwith before the circuit court for the county of Kent; and it was under the seal of the court, thus distinguishing it from the writ passed upon by us in Whitman v. Branstrom, supra. The next question discussed is whether the bench warrants were processes fair upon their face, and a protection to the persons acting under them in arresting the plaintiff. Applying the definition of process that may be said to be fair upon its face, we refer to the definition in Cooley on Torts (2d Ed.), at p. 538. This language has been referred to recently in Brown v. Hadwin, 182 Mich. 491 (L. R. A. 1915B, 505), and in Whitman v. Branstrom, supra. It appears from this record that these bench warrants were filled out by defendant Hyde. He testified that they were printed blanks, and that he inserted the written matter, which consisted of the words “contempt of court — failure to pay alimony.” It, was a fact, appearing from this record, that the plaintiff was then prima facie guilty of contempt of court— failure to pay alimony, and that defendant Hyde stated the facts in that regard. The printed form contained certain redundant matter, because no information had been filed in behalf of said people by the prosecuting attorney of Kent county. Those words, we think, were mere surplusage in the printed form, and the gist of the charge was “contempt of court — failure to pay alimony.” After a somewhat lengthy examination of this subject, we are of the opinion that the warrants for the arrest of the plaintiff were fair upon their face, and a protection to the officers making the arrests. The writs issued from a court or body having authority by law to issue processes of that nature, and there was nothing upon the face of the papers to apprise that officer that they were issued without authority; nor does it appear that they were issued without authority. It follows, we think, from what we have said, that all of the defendants were protected in making the arrests of the plaintiff on the occasions complained of in the declaration. * Whether the conduct of the defendant Berry was justified in detaining the plaintiff for the length of time he was incarcerated in the county jail under the circumstances appearing here, presents another question. From this record it is a disputed question and may be said to be doubtful, whether the plaintiff was ever brought before the court in pursuance of the command of the writ. At all events, even if the officer was directed by the circuit judge who issued the writ, to take him to jail until such time as he could hear him, this did not justify the sheriff in holding him an unreasonable length of time. The writ did not command the sheriff to take the plaintiff before the circuit judge who signed the writ, but “before the circuit court for the county of Kent.” We will take notice that there was more than one judge of that court, and there is no claim that the circuit court was not in session during the period of imprisonment. It is elementary that, even in criminal cases, when the officer has made the arrest it is his duty, as soon as possible, to bring the party before the court according to the import of the warrant; and if the officer be guilty of unnecessary delay in so doing, it is a breach of his duty; and his duty is the same whether the arrest was made with, or without process. He must take him before the court as soon as he reasonably can. If the time when the arrest is made be unseasonable, as in or near the night, whereby the officer cannot attend the court, or if the party be sick or the like, the officer may secure the prisoner in a house or other place until the next day, or until such time as it may be reasonable to bring him into court. See English cases cited in Tiffany’s Crim. Law (Howell’s 4th Ed.), p. 103. This rule is applicable in cases of civil contempt, as well as in criminal contempt of court. It is the duty of the officer who makes the arrest under warrant to exercise reasonable diligence in presenting the person arrested before the court; and it has been held repeatedly that where the officer unreasonably delays in making the arraignment, the delay amounts to false imprisoment. In Anderson v. Beck, 64 Miss. 113 (8 South. 167), it was held that the unexplained detention of the prisoner arrested on warrant, for more than 30 days without bringing him up for examination or trial amounted to false imprisonment. What amounts to reasonable diligence in presenting a prisoner before the court depends upon the peculiar facts in each case. And whether a prisoner was detained for an unreasonable length of time before being presented for examination or trial is usually a question of fact to be determined upon the circumstances attending the particular arrest and detention. The facts are here in dispute, and therefore they became questions of fact for the jury. It follows that where all the facts are conceded, or clearly established, the question whether said detention was unreasonable is one of law for the court. See the very fully extended note to the case of Atchison, etc., R. Co. v. Hinsdell (76 Kan. 74, 90 Pac. 800, 12 L. R. A. [N. S.] 94), 13 Ann. Cas. p. 984 et seq. Recent cases sustain the well-established rule that, as a prisoner is entitled to a hearing within reasonable time after his arrest, delay for an unreasonable length of time in bringing him before the court constitutes false imprisonment. Gomez v. Scanlan, 155 Cal. 528 (102 Pac. 12); Clark v. Tilton, 74 N. H. 330 (68 Atl. 335); and see numerous other cases cited in Keefe v. Hart, 213 Mass. 476 (100 N. E. 558), as reported in Ann. Cas. 1914A, at p. 716, and note on p. 717. This right may be waived by the prisoner. In the instant case it is not claimed that the plaintiff ever assented to any delay. While he claims that he was constantly asking for a hearing, the most that is claimed on behalf of the defendants upon that subject is that he made no request in the matter. In Linnen v. Banfield, 114 Mich. 98, which was an action for false imprisonment against Banfield, a police officer, and others, and after approving the directed verdict as to the other defendants, this court, speaking through Justice Montgomery, said: “As to defendant Banfield the case is different. We think there was a case made for the jury on both counts. Assuming that the arrest without warrant was justified, it was the duty of arresting officers to take accused before a magistrate at as early a date as was practicable. This arrest was made on the evening of the 31st [December] and the plaintiff was detained without bail until the evening of the 2d of January. The information upon which the warrant was sworn out was all this time in the possession of the officers. We think it should not be held as a matter of law that this delay was reasonable. Malcolmson v. Scott, 56 Mich. 465. * * * “The officers were authorized to detain the plaintiff on the charge of felony without a warrant for a rea sonable time only. 1 Am. & Eng. Enc. Law, p. 732; Rohan v. Sawin, 5 Cush. (Mass.) 281. Time is presumed to be of some importance to one incarcerated without process, and promptness is required when the information, upon which proceedings are to be based is at hand, in order that the accused may not be deprived of the right to give bail. We do not overlook the claim that the officer was acting under the instructions of the prosecuting attorney, but we know of no rule which authorizes a prosecuting attorney to enlarge the authority of the arresting officer. While such instructions may bear on the good faith of the officer’s acts and thus affect the question of damages, it must be borne in mind that good- faith does not excuse an unauthorized arrest.” Neither does it justify an unreasonable detention and deprivation of one’s liberty. There is, in other jurisdictions, an abundance of authority to the effect that an unlawful detention following a lawful arrest by a sheriff makes him a trespasser ab initio. But this court held in Friesenhan v. Maines, 137 Mich. 10, that an unlawful detention following a lawful arrest by a sheriff does not make him a trespasser ab initio, unless the original arrest was made with the .intent of being used for a subsequent wrong. We think that this rule is applicable to the instant case, as we find no evidence of such intent. Much stress is laid by appellant upon the point that the plaintiff was “incarcerated among felons,” in violation of the statute already referred to. It should be borne in mind that the plaintiff never had been sentenced, and that no commitment had been issued for his detention. "He was simply charged with contempt of court; and, in our opinion, not with criminal contempt. It is true that the border line between what may be termed “civil,” and what “criminal,” contempt is exceedingly indistinct and narrow, leaving it often a question of extreme refinement as to whether the act was. one or the other. Of course, all judgments for contempt are, in a sense, punitive, since the sentence may be fine and imprisonment in both. But here there had been no judgment pronounced. In our opinion the statute relied upon by the appellant is applicable here, and the manner in which the plaintiff was treated by the defendant Berry while in custody and where he was detained, are matters, that were pertinent in the case. There were certain cards introduced in evidence, known as the “yellow” card and the “white” card, which appeared to be instructions of the circuit judge relating to the question of probation. We think their introduction was not warranted under the notice in the pleadings, but we do not deem the question an important one. The defendants in their evidence went far afield upon the question of the merits of the divorce suit. Save as a matter of cross-examination, as affecting the credibility of the plaintiff, we do not think that was an open question upon the trial. In our opinion the court erred in directing a verdict in favor of all of the defendants; and the question whether the defendant Berry was guilty of an unreasonable detention in jail of the plaintiff should have b,een submitted to the jury under proper instructions ; and the case should go back for a new trial as to the defendant Berry, for the reasons herein stated. Judgment as to the defendants Griswold and Hyde is affirmed, with costs; and as to defendant Berry is reversed with costs, and a new trial ordered. Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit.	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Per Curiam. The Attorney General appeals as of right from the order of the Ingham Circuit Court affirming orders of the Michigan Public Service Commission in Case Nos. U-7511 and XJ-7512, establishing power supply cost recovery clauses in Consumers Power Company’s rate schedules. The Attorney General has raised essentially the identical issues in a number of separate appeals from orders of the commission. We have consistently found these appeals to be without merit. In Attorney General v Public Service Comm, 161 Mich App 506; 411 NW2d 469 (1987), we were faced with three issues analytically identical to the first three issues raised by the Attorney General in this appeal. No new argument has been raised and we are unpersuaded of any reason to change our prior decision. Accordingly, we address the Attorney General’s first three issues summarily: (1) MCL 460.6j(2); MSA 22.13(6j)(2) is constitutional since it provides sufficiently precise standards to guide the Public Service Commission; (2) Proposal h did not implicitly repeal MCL 460.6j(9); MSA 22.13(6j)(9), since they are not incompatible; and (3) the commission did not exceed its authority when it ruled that some customer classes could be exempted from paying a power supply cost recovery factor (pscr). We also note that there is presently no real dispute since no customer class has been exempted. With regard to the second and third issues raised above, we also rejected them in Attorney General v Public Service Comm, 158 Mich App 670; 405 NW2d 386 (1986). The Attorney General’s remaining issue is also without merit and will be addressed briefly. The Attorney General argues that the commission acted unlawfully by approving a levelized (averaged) pscr factor for the entire year instead of adopting a monthly recovery factor. This claim is frivolous. We agree with the circuit court that levelized factors are not unlawful under MCL 460.6j; MSA 22.13(6j), particularly considering that the factors are variable up to the limits set on the pscr factor. We agree with the commission that no advantage would be served by engaging in the more difficult task of computing monthly factors, especially given the annual reconciliation process. The commission properly acted within its discretion in approving an annual pscr factor. Affirmed.	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Per Curiam. Defendant appeals as of right from an order of the circuit court granting summary disposition to plaintiff and vacating an arbitration award. The arbitration award sustained defendant’s grievance that plaintiff had violated a collective bargaining agreement by contracting out normal bargaining unit work. The circuit court vacated the award on the basis that the dispute was not arbitrable and that the arbitrator had exceeded the scope of his authority. We affirm the order of the circuit court on the basis that the arbitrator exceeded the scope of his authority. Plaintiff (the school district) and defendant (the union) entered into collective bargaining agreements covering the periods July 1, 1982, to June 30, 1984, and July 1, 1984, to June 30, 1987. The agreements contained grievance procedures and provided for binding arbitration. The provisions in both contracts that are at issue in the present case are identical. The agreements will be referred to collectively as the collective bargaining agreement. The school district and the union also entered into a letter of agreement that was designated Appendix g and was attached to the collective bargaining agreement. Appendix g set forth the circumstances under which the school district could contract out normal bargaining unit work. In 1984 and 1985, the school district employed ten persons who were classified as roofers. The job description of roofers was not contained in the collective bargaining agreement. However, the school district’s job description of roofers included the repair of various types of roofs as one of their duties. The school district determined that many of its buildings needed to have their existing roofs removed and replaced with new roofs. In June and July, 1984, the school district awarded contracts to private roofing contractors to remove and replace the roofs on nine of its school buildings. The union filed a grievance alleging that the school district had violated the collective bargaining agreement by contracting out normal bargaining unit work. The relief sought by the union was payment of overtime that the bargaining unit employees would have received had the work not been contracted out. The school district asserted that the work was not normal bargaining unit work and that, even if it was, it fell under several of the circumstances in which normal bargaining unit work could be contracted out in accordance with Appendix G of the collective bargaining agreement. The union narrowed its objection to the contracting out of the roofing work on three of the nine school buildings. The union conceded that the bargaining unit employees could not have completed all three jobs within the time requirements. However, the union contended that bargaining unit employees could have done either the largest project or the two smaller projects. The grievance proceeded to arbitration. The school district voluntarily participated in arbitration and maintained its position that the work was not normal bargaining unit work and, even if it was, the circumstances in Appendix g applied. The arbitrator found that the work was normal bar gaining unit work. The arbitrator reasoned that, although the roofers’ job description included the repair of roofs, replacement of a roof was only a matter of degree. In addition, the arbitrator considered whether any of the circumstances in Appendix g applied and determined that they did not. The arbitrator awarded the union damages by using a formula that was based on the difference between the number of hours worked by the outside contractors and the number of hours worked by the bargaining unit employees during the same period. The school district filed suit in circuit court to vacate the arbitration award. The school district argued that the grievance was not arbitrable and that the arbitrator had exceeded the scope of his authority by deciding matters not subject to arbitration. The union filed a counterclaim seeking enforcement of the arbitration award. Both sides filed motions for summary disposition. The circuit court granted the school district’s motion for summary disposition on the grounds that the grievance was not arbitrable and the arbitrator had exceeded the scope of his authority. The circuit court ruled that it was beyond the arbitrator’s authority to decide that this was normal bargaining unit work and that the arbitrator added to the job description of the employees. In addition, the circuit court ruled that the arbitrator was without authority to decide that the work was a reasonable opportunity for overtime for the employees. On appeal, the union argues that the trial court erroneously ruled that the dispute was not arbitrable because the school district waived the issue of arbitrability and that the circuit court erroneously ruled that the arbitrator exceeded the scope of his authority. First, the union argues that the circuit court erred in ruling that the parties’ dispute was not arbitrable because the school district waived that issue. We agree that, by voluntarily participating in arbitration, the school district waived the issue of the arbitrability of the claim. In American Motorists Ins Co v Llanes, 396 Mich 113; 240 NW2d 203 (1976), the plaintiff voluntarily participated in arbitration without raising the issue of whether the claim was arbitrable. Our Supreme Court held that plaintiff could not challenge the unfavorable award in court by complaining for the first time that the issue was excluded from arbitration. In Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95; 323 NW2d 1 (1982), defendant did not participate in the arbitration proceedings. Plaintiff filed a circuit court action to confirm the award and defendant argued that there was no valid agreement to arbitrate because the agreement to arbitrate was signed by an employee without authorization. Our Supreme Court held that defendant had not waived the issue of the arbitrability of the claim. The Court distinguished Llanes on the basis that "Llanes stands for the proposition that a party may not participate in an arbitration and adopt a 'wait and see’ posture, complaining for the first time only if the ruling on the issue submitted is unfavorable.” Arrow Overall Supply Co, supra, pp 99-100. In the present case, the school district voluntarily participated in the arbitration proceedings without raising the issue of whether this grievance was, on its face, intended by the parties to be submitted to arbitration. Therefore, the circuit court should not have considered the issue of whether this was a grievance that was arbitrable. Even though the school district waived the issue of arbitrability, it did not waive the issue of whether the arbitrator exceeded the scope of his authority. In Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143; 393 NW2d 811 (1986), our Supreme Court explained that the issue of arbitrability involves looking at a claim on its face to determine whether the parties agreed to submit this type of claim to arbitration. However, even if a claim is arbitrable on its face, the arbitrator may exceed the scope of his authority if the "arbitral award reaches beyond the boundaries of the 'submission.’ ” Port Huron Area School Dist, supra, pp 161-162. Therefore, even though the school district waived the issue of arbitrability, the circuit court properly considered the issue of whether the arbitrator exceeded the scope of his authority. In Port Huron Area School Dist, the Court determined that the award was unenforceable because the arbitrator had exceeded his jurisdiction and authority under the collective bargaining agreement. The arbitrator found that a section of the agreement’s preamble had been violated. However, the Court noted that the agreement expressly provided that grievances concerning the preamble were not subject to arbitration. The arbitrator also found that a management policy decision was not reasonable or necessary. However, the agreement specifically provided that the arbitrator had no power to substitute his judgment for that of the school district as to the reasonableness of any practice, policy, rule or any action taken by the school district. The Court noted that ordinarily an arbitrator may consider the interpretation of contractual provisions, the intent expressed in a preamble and even the reasonableness of policy decisions reserved to the employer. However, those matters were outside the jurisdiction and authority of the arbitrator in Port Huron Area School Dist because the agreement expressly and specifically provided that those matters were not subject to arbitration. In the present case, the arbitrator found that (1) the roofing project was normal bargaining unit work within the meaning of Appendix g of the collective bargaining agreement and (2) the roofing project fell within none of the categories listed in Appendix g that would allow the work to be contracted out. The circuit court held that the arbitrator exceeded the scope of his authority under the contract in the following ways: 1. The arbitrator made a determination that the work contracted by the plaintiff as not being normal bargaining unit work, was normal bargaining unit work. 2. The arbitrator added to the job description of the employees. 3. The arbitrator decided that the contracted work was a reasonable opportunity for overtime for the employees. We will not review whether this was in fact normal bargaining unit work within the roofers’ job description for which overtime could be paid. Rather, our review is limited to whether the arbitrator had the authority to decide those issues in the manner that he did. In accordance with Port Huron Area School Dist, we will examine the terms of the contract to determine whether the arbitrator extended his authority "beyond the boundaries of the submission.” The scope of the arbitrator’s authority is expressly provided for in ¶ (8k) of the collective bargaining agreement. Paragraph (8k) provides in part as follows: The jurisdiction of the arbitrator shall be lim ited to grievance arising out of the interpretation or application of this Agreement or any written amendments hereof or supplements hereto. The arbitrator shall have no power to alter, add to, subtract from or modify any of the terms of this Agreement or any written amendments hereof or supplements hereto or to specify the terms of a new agreement or to substitute his discretion for that of the parties hereto or to assume any of their functions or responsibilities. Appendix g of the collective bargaining agreement provides: [It] is hereby agreed that the new contracting of normal bargaining unit work [sh]all be permitted when any one of the following circumstances exists: a) Emergencies; b) When necessary equipment is not in the possession of the Board and not reasonably obtainable; c) Projects beyond the ability of the bargaining unit, such determination to be made in the reasonable discretion of the Board; d) New construction; e) Unavailability of qualified and certified employees as determined by the present contract classifications; f) Inability to meet Board-determined timelines and quality specifications, said specifications and timelines to be the same as for contractors; g) Projects of limited duration which require a number of additional employees; and h) Other considerations involving extenuating circumstances. It is agreed that the Employer shall continue to determine when there are reasonable opportunities for overtime work and such overtime work opportunities shall be provided to bargaining unit employees. It is further agreed that this Appendix is not intended to permit the subcontracting of work, the result of which would have a direct effect on employees through the layoff of then existing bargaining unit members at the time of such subcontracting. It is further agreed that the language of this Appendix is subject to review through the language of Paragraph (8). This Appendix is not controlling for subcontracting begun prior to September 1, 1976 and constitutes the entire understanding of the parties in regard to the matter of subcontracting and is not to be regarded as impairing the right of the Board to subcontract, except to the extent otherwise stipulated in this Appendix. The collective bargaining agreement does not define "normal bargaining unit work” and it does not contain a job description of roofers. However, Appendix g provides that its language is subject to review through the language in article 8. The applicable section of article 8, ¶ (8k), provides that the arbitrator has jurisdiction over grievances arising out of the interpretation or application of the agreement. On its face, the meaning of "normal bargaining unit work” appears to be an issue that the parties agreed to submit to arbitration because it requires interpretation or application of the agreement. However, this is clearly a case where the arbitration award "reaches beyond the boundaries of the submission.” Paragraph (8k) expressly provides that the arbitrator has no power to alter, add to, subtract from or modify any of the terms of the agreement. Even if it is assumed that the roofers’ job description was subject to interpretation, the arbitrator had no authority to add to the description by determining that replacement of roofs was included in the roofers’ job description. Therefore, the circuit court was correct in ruling that the arbitrator exceeded the scope of his authority in the present case by deciding that roof replacement was normal bargaining unit work. In addition, subsection (c) of Appendix g provides that even normal bargaining unit work may be contracted out if, in the discretion of the school board, the work is beyond the ability of the bargaining unit. The arbitrator found that the work was not beyond the ability of the bargaining unit because the bargaining unit was supervised by a graduate civil engineer and the roof manufacturer could keep a representative on the job site. We think that this determination was also beyond the scope of the arbitrator’s authority. The parties contracted in subsection (c) of Appendix G that the school board would have discretion to determine what was beyond the ability of the bargaining unit. The parties also agreed in ¶ (8k) that matters left to either party’s discretion were not arbitrable. The school district has contended since the beginning of this dispute that the work was beyond the ability of the bargaining unit. We cannot ignore the express language of the collective bargaining agreement that leaves this determination to the discretion of the school board and beyond the reach of arbitration. Although the circuit court was correct in ruling that the arbitration award must be vacated, we do not agree with its third finding of error. The circuit court ruled that the arbitrator exceeded the scope of his authority by deciding that the contracted work was a reasonable opportunity for overtime for the union employees. Appendix G expressly provides that the school district shall continue to determine when there are reasonable opportunities for overtime work. In the present case, the school district had already determined that there was a reasonable opportunity for overtime work. Having determined that overtime work was necessary and having contracted that overtime work out to private roofing companies, the school district arguably violated the provision that overtime work shall be provided to bargaining unit employees. Thus, had the arbitrator stayed within the limits of his authority in determining that this was normal bargaining unit work and that none of the circumstances in Appendix g applied, then it would have been within the arbitrator’s authority to use the amount of overtime work that was already performed as a measure of damages. The school district had already exercised its discretion in determining that overtime work was available and the arbitrator was merely enforcing the provision that the work should have been given to bargaining unit employees. Therefore, we believe that the circuit court erred on the issue of overtime work, but correctly concluded that the arbitrator had exceeded the scope of his authority on other grounds. The order of the circuit court vacating the,arbitration award is affirmed. No costs, neither party having prevailed in full._' We also note that the arbitrator awarded damages based on the overtime work performed for all three projects. However, the union conceded that the bargaining unit employees could not have completed all three jobs within the time requirements. The union asserted that the employees could have completed either the largest project or the two smaller projects. The circuit court did not address this issue. However, when the arbitrator dictates a remedy which is beyond that which both parties agree is reasonable and proper, the arbitrator has exceeded his authority. Northern Michigan Ed Ass’n v Cheboygan Bd of Ed, 126 Mich App 781, 787-788; 337 NW2d 923 (1983). Therefore, the arbitrator exceeded his authority in awarding damages beyond what the union had agreed was reasonable.	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M. Warshawsky, J. Plaintiff appeals as of right from an order of summary disposition on plaintiff’s complaint seeking plaintiff’s treatment records from defendant pursuant to the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. We affirm. This appeal involves the refusal of the Center for Forensic Psychiatry (cfp) to provide plaintiff with free copies of his treatment records, compiled between November, 1972, and July, 1975. Plaintiff, an inmate at the Kinross Correctional Facility, was committed to the cfp until he was found competent to stand trial. Plaintiff’s initial letter to the cfp noted his indigence and requested copies of his treatment records pursuant to the foia. In a response letter, the cfp advised plaintiff that, pursuant to the Michigan Mental Health Code, plaintiff was entitled to a copy of his records upon prepayment of $80, which represented a charge of ten cents per page for the 800-page file. In a subsequent correspondence, plaintiff repeated his request for free copies, and the cfp again refused. Plaintiff brought an action under the foia in the Washtenaw Circuit Court following the cfp’s decision. Defendant moved for summary disposition, alleging a failure to state a claim upon which relief could be granted under MCR 2.116(C)(8). On November 25, 1985, the circuit court granted defendant’s motion. On January 24, 1986, the court denied plaintiff’s motion to set aside the opinion and order. Plaintiff argues that the trial court erred in summarily dismissing his complaint. A motion for summary disposition based on failure to state a claim tests the legal sufficiency of the complaint. The reviewing court must rely on the pleadings alone and assume that the factual allegations in the complaint are true along with any inferences which may be drawn from those facts. The motion should be granted only when the claim is so unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Bradford v Michigan, 153 Mich App 756, 761;396 NW2d 522 (1986). The foia exempts from disclosure any records or information exempted from disclosure by other statutory authority. MCL 15.243(l)(d); MSA 4.1801(13)(l)(d). The treatment records sought by plaintiff in the instant case are deemed confidential and exempt from disclosure under the Mental Health Code, MCL 330.1748; MSA 14.800(748). However, treatment records of mental health patients may be disclosed where the holder of the record and the recipient of treatment consent. MCL 330.1748(5); MSA 14.800(748X5). With regard to the manner of disclosure, the foia provides that the holder may charge a fee for providing copies of public records limited to actual mailing, duplication, search and other actual costs. Records may be furnished without charge only if the public body determines that it is in the public interest. For an indigent, a copy of a public record is to be furnished without charge for the first $20 of the fee for each request upon receipt of an affidavit showing inability to pay because of indigence. MCL 15.234(1); MSA 4.1801(4)(1). In the instant case, defendant consented to provide plaintiff a copy of his treatment records upon payment of an $80 copying fee, which did not cover the cost of searching, reviewing and mailing the record. Such disclosure was not a matter of public interest. Because plaintiff failed to attach an affidavit of indigence to his request, the $80 copying fee was not improper under the foia. At best, plaintiff may request the $20 waiver, leaving a $60 charge. Under the circumstances, however, no factual development could have established a right for plaintiff, although indigent, to receive copies of his 800-page treatment record without charge. Therefore, the circuit court properly dismissed plaintiff’s complaint for failure to state a claim upon which relief could be granted. Bradford, supra. We find plaintiff’s remaining issues to be without merit. Affirmed.	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Wahls, J. These consolidated cases require us to determine the constitutionality of statutory amendments to the Workers’ Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237 (101) et seq. Those amendments, set forth in 1987 PA 28, MCL 418.354(17)-(20); MSA 17.237 (354X17X20), provide, in part, that workers’ compensation payments resulting from liability pursuant to §§ 351, 361 or 835 of the act for personal injuries occurring before March 31, 1982, should not be coordinated with other employer-financed benefits specified in § 354, and that, if an employee’s benefits were so coordinated previously, reimbursement with interest of the amounts withheld should be made. The employers in the present cases argue that the amendments, which are applicable retroactively to cases involving injuries which occurred before March 31, 1982, first, "violate the due process and contract clauses of the federal and state constitutions by retroactively imposing additional liability upon employers for past compensable periods,” and, second, "violate the separation of powers and the one court of justice clauses of the Michigan constitution of 1963.” We disagree and conclude that neither of these constitutional challenges possesses merit. BACKGROUND In order to place in context the issues presented in this case, it is necessary to review briefly the legislative history of the challenged statute. In 1980 and 1981, the Legislature enacted several amendments to the Workers’ Disability Compensation Act. As part of those amendments, the benefit rate structure was changed, providing for an increase in weekly compensation from two-thirds of an employee’s average weekly wages to eighty percent of an employee’s after-tax average weekly wages. 1980 PA 357; MCL 418.351; MSA 17.237(351). Another portion of the workers’ compensation reforms, 1981 PA 203, which became effective on March 31, 1982, reduced an employer’s liability for workers’ compensation benefits by the amount of certain other employer-financed benefits (e.g, social security old-age insurance, pension, retirement, wage continuation, self-insurance, disability insurance) received by the employee. MCL 418.354; MSA 17.237(354). This setoff or "coordination” of benefits was intended to eliminate the duplication of benefits for injured workers and thus avoid creating a disincentive to work. After § 354 became effective on March 31, 1982, some employers began to coordinate the workers’ compensation benefits of many of their retired or disabled employees, including some employees who had been injured prior to March 31, 1982. As a result, employees injured before that date were being subjected to a reduction of benefits through coordination, even though they did not receive the increased maximum benefit rates pursuant to the statutory amendment. In Chambers v General Motors Corp, 1982 WCABO 132, the Workers’ Compensation Appeal Board held that the § 354 coordination-of-benefits provision could not be applied to claimants injured before March 31, 1982. Similarly, this Court, in Franks v White Pine Copper Division, Copper Range Co, 122 Mich App 177, 184-185; 332 NW2d 447 (1982), observed that the Legislature did not intend for employees injured before March 31, 1982, to have their workers’ compensation benefits coordinated, citing Senate Concurrent Resolution No. 575, which stated that the coordination legislation in § 354 "was hot designed to disrupt benefits which were already being received by an employee prior to the effective date of this act or benefits resulting from injuries incurred prior to the act’s effective date,” and that the coordination of benefits provided for in § 354 was "not to be applied retroactively to those receiving worker’s disability compensation payments or those injured prior to the effective date of this act.” Nevertheless, the Supreme Court, in reviewing Chambers, Franks, and a third consolidated case, held that the Legislature in fact intended that the benefits of all disabled employees be coordinated after March 31, 1982, even if some of those employees were injured before that date. Franks v White Pine Copper Div, 422 Mich 636, 664; 375 NW2d 715 (1985). Based on the Supreme Court’s decision in Franks, employers who had been coordinating the workers’ compensation benefits of employees injured before March 31, 1982, could continue to coordinate those benefits, and some employers who had not been coordinating the benefits of their disabled employees who were injured before March 31, 1982, required those employees to pay back the money that had been "overpaid” to them since that date. On December 30, 1985, the Supreme Court denied a motion to rehear the consolidated cases. However, the author of the Franks decision, Justice Patricia J. Boyle, dissented, voting to grant the motion for rehearing. Justice Boyle opined that reconsideration led her to believe — contrary to her earlier expressed view that the plain meaning of § 354 required the coordination of benefits for all disabled employees after March 31, 1982— that the language of § 354 "is ambiguous and requires construction,” and that "[t]he incorrect methodology of our opinion leaves serious questions regarding the original decision in these cases.” 424 Mich 1203. Moreover, Chief Justice Williams and Justice Cavanagh, while concurring in the denial of the motion for rehearing, wrote separately to clarify that their denial intimated no opinion regarding employers’ attempts to recoup overpayments. There was significant public reaction criticizing the Supreme Court’s decision in Franks. Critics included members of the Legislature that had passed § 354; James M. Brakora, Director of the Bureau of Workers’ Disability Compensation; and former Governor William G. Milliken. In a letter dated October 25, 1985, Governor Milliken stated that the Supreme Court had misconstrued the intent of his administration and the Legislature because "[i]t was not our intent that the coordination apply in any way to persons who had suffered their injuries prior to the effective date of the amendments.” In response to the Franks opinion, the Legislature adopted 1987 PA 28, which became effective on May 14, 1987, the relevant portions of which provide: (17) The decision of the Michigan Supreme Court in Franks v White Pine Copper Division, 422 Mich 636 (1985) is declared to have been erroneously rendered insofar as it interprets this section, it having been and being the legislative intention not to coordinate payments under this section resulting from liability pursuant to section 351, 361, or 835 for personal injuries occurring before March 31, 1982. It is the purpose of this amendatory act to so affirm. This remedial and curative amendment shall be liberally construed to effectuate this purpose. (18) This section applies to payments resulting from liability pursuant to section 351, 361 or 835 for personal injuries occurring on or after March 31, 1982. Any payments made to an employee resulting from liability pursuant to section 351, 361, or 835 for a personal injury occurring before March 31, 1982 that have not been coordinated under this section as of the effective date of this subsection shall not be coordinated, shall not be considered to have created an overpayment of compensation benefits, and shall not be subject to reimbursement to the employer or carrier. (19) Notwithstanding any other section of this act, any payments made to an employee resulting from liability pursuant to section 351, 361, or 835 for a personal injury occurring before March 31, 1982 that have been coordinated before the effective date of this subsection shall be considered to be an underpayment of compensation benefits, and the amounts withheld pursuant to coordination shall be reimbursed with interest, within 60 days of the effective date of this subsection, to the employee by the employer or carrier. (20) Notwithstanding any other section of this act, any employee who has paid an employer or carrier money alleged by the employer or carrier to be owed the employer or carrier because that employee’s benefits had not been coordinated under this section and whose date of personal injury was before March 31, 1982 shall be reimbursed with interest, within 60 days of the effective date of this subsection, that money by the employer or carrier. [MCL 418.354 (17)-(20); MSA 17.237(354) (17)-(20).] FACTS AND PROCEDURAL HISTORY In Docket No. 101298, plaintiff, Evert Romein, was receiving workers’ compensation benefits of $99 per week due to injuries he sustained on December 5, 1977, while working for defendant, General Motors Corporation. In September, 1983, gmc began coordinating Romein’s workers’ compensation benefits based upon his receipt of pension and social security old-age benefits. As a result of this coordination, his benefits were reduced to zero dollars. In June, 1984, a hearing referee in the Bureau of Workers’ Disability Compensation ordered that Romein’s workers’ compensation benefits be paid without coordination and that gmc pay a $1,500 penalty. On May 20, 1987, the wcab, citing the Supreme Court’s decision in Franks, reversed the referee’s determination, prompting Romein to apply for leave to appeal in this Court. In Docket No. 101510, plaintiff, Arturo Gonzalez, was receiving workers’ compensation benefits of $176 per week pursuant to a voluntary agreement of the parties due to a disabling lung condition Gonzalez allegedly had developed as a consequence of his exposure to certain materials while working for defendant, Ford Motor Company. In August, 1982, Ford began to coordinate Gonzalez’s benefits with other benefits he received, thus reducing his weekly workers’ compensation payment to zero dollars. In September, 1984, a hearing referee in the Bureau of Workers’ Disability Compensation found that Ford had improperly coordinated and reduced Gonzalez’s benefits, and ordered Ford to pay a $1,500 penalty. On May 27, 1987, the wcab, citing 1987 PA 28, found that Ford could not coordinate Gonzalez’s benefits, prompting Ford to apply for leave to appeal in this Court. In September, 1987, this Court granted leave to appeal in both cases, consolidating them for accelerated consideration. ISSUES First, gmc and Ford argue that subsections 17 through 20 of § 354 violate the due process, US Const, Am XIV; Const 1963, art 1, § 17, and impairment of contract, US Const, art I, § 10; Const 1963, art 1, § 10, clauses of the United States and Michigan Constitutions by retroactively imposing an additional obligation upon employers, i.e., "by retroactively imposing additional liability upon employers for past compensation periods.” We disagree with this argument because the challenged retroactive legislation is justified by a rational legislative purpose, Usery v Turner Elkhorn Mining Co, 428 US 1, 15; 96 S Ct 2882; 49 L Ed 2d 752 (1976); Pension Benefit Guaranty Corp v R A Gray & Co, 476 US 717, 730; 104 S Ct 2709; 81 L Ed 2d 601 (1984). Most important to our conclusion is that the retroactivity of the legislation does not abrogate a vested or contractual right of the employers in the consolidated cases before us. Indeed, we find that the employers enjoy no extrastatutory, vested or contractual right in these cases which could prohibit the Legislature from making a retroactively applicable change, at any time, in the remedies afforded employees under the statutory provision now at issue. The Workers’ Disability Compensation Act is remedial in nature and was enacted primarily to benefit the employees, not the employers, subject to its provisions. Norwin v Ford Motor Co, 132 Mich App 790, 795; 348 NW2d 703 (1984), lv den 424 Mich 871 (1986); Lahti v Fosterling, 357 Mich 578, 589; 99 NW2d 490 (1959). Moreover, the social and legal context in which subsections 17 through 20 of § 354 were enacted makes it clear to us that the Legislature was prompted to act by the desire to remedy a situation in which certain employees were receiving coordinated workers’ compensation benefits pursuant to § 354 but with the disadvantage of also receiving pre-1980 rates. Indeed, subsection 17 itself describes the amendatory subprovisions as "remedial and curative.” We cannot quarrel with this description. Moreover, in the Franks opinion itself, the Supreme Court stated that "[wjorkers’ compensation benefits are social-welfare income-maintenance benefits” and declared, citing Lahti, supra, pp 591-592, and Shavers v Attorney General, 402 Mich 554, 620; 267 NW2d 72 (1978), that "[ijncomemaintenance benefits payable under a legislatively mandated social welfare program are not property protected by the Due Process Clause, the Contract Clause, or the Takings Clause from substantive change by subsequent legislation. . . .” 422 Mich 654. See also Rookledge v Garwood, 340 Mich 444, 452-457; 65 NW2d 785 (1954); Crilly v Ballou, 353 Mich 303, 307-308; 91 NW2d 493 (1958); Lahti, supra; McAvoy v H B Sherman Co, 401 Mich 419, 456-460; 258 NW2d 414 (1977); Karl v Bryant Air Conditioning Co, 416 Mich 558, 575; 331 NW2d 456 (1982); Selk v Detroit Plastic Products, 419 Mich 1, 12-15; 345 NW2d 184 (1984); Freij v St Peters Evangelical Lutheran Church, 72 Mich App 456; 250 NW2d 78 (1976), lv den 399 Mich 862 (1977); Hochman, The supreme court and the constitutionality of retroactive legislation, 73 Harv L R 692, 704-706 (1960); Note, Rediscovering the contract clause, 97 Harv L R 1414, 1427 (1984). The right of the employers in these consolidated cases to coordinate the workers’ compensation benefits of employees whose benefits were paid as a result of their employers’ liability for personal injuries sustained prior to March 31, 1982, is derived from § 354, and thus is a statutory right. The Supreme Court has clarified that "a statutory right, though a valuable right, is not a vested right, and the holder thereof may be deprived of it.” Lahti, supra, p 589. Since the legislation challenged by the employers in the instant cases is remedial in nature, and since the employers’ right to coordinate the workers’ compensation benefits of the employees at bar is not a vested right, it follows with syllogistic certainty that § 354(17)-(20) may operate retrospectively: "A remedial or procedural statute may operate retrospectively if it does not 'take away vested rights.’ ” Karl, supra, p 575. See DeMars, Retrospectivity and retroactivity of civil legislation reconsidered, 10 Ohio North L R 253, 261-264 (1983). The right to coordinate workers’ compensation benefits relied upon by gmc and Ford was conferred by the Legislature and was revoked by the Legislature. What the Legislature gave, it could take away. Rookledge, supra, p 457; Lahti, supra, pp 588-589; Franks, supra, p 654. Second, gmc and Ford argue that subsections 17 through 20 of § 354 violate the separation of powers, Const 1963, art 3, § 2, and the one court of justice, Const 1963, art 6, § 1, clauses of the Michigan Constitution. The employers reason that, after the Supreme Court, in Franks, supra, declared what the law is under § 354 regarding an employer’s ability to coordinate the workers’ compensation benefits of employees such as those in the present cases, the Legislature, by passing subsec tions 17 through 20 of § 354, in an attempt to change retroactively what the Court had declared, usurped a judicial function. In their brief on appeal, the employers in these cases place great emphasis on the assertion that it is "unprecedented in the law” for a Legislature to reverse and overrule a court decision by passing a statute with retroactive applicability. We find the employers’ suggestion regarding the unprecedented nature of the challenged legislation to represent an indulgence in hyperbole. Such legislation may be included in that type of statutory enactment denominated as "curative.” Curative legislation has been defined as legislation enacted to cure defects in prior law. 2 Sands, Sutherland Statutory Construction (4th ed), § 41.11, p 410. See Note, Congressional reversal of supreme court decisions: 1945-1957, 71 Harv L R 1324 (1958); Hochman, The supreme court and the constitutionality of retroactive legislation, 73 Harv L R 692 (1960). As an example, we will cite a recent occurrence of such legislation in the federal forum. In 1981, the United States Supreme Court held that the term "wages” must be interpreted consistently for purposes of both income-tax withholding and the Federal Insurance Contributions Act (fica). Rowan Companies, Inc v United States, 452 US 247; 101 S Ct 2288; 68 L Ed 2d 814 (1981). In 1983, Congress partially codified and partially overruled the Supreme Court’s holding in Rowan by amending the Social Security Act to, among other things, permit the Treasury Department to interpret the term "wages” differently for income-tax withholding and fica purposes. Social Security Amendments of 1983, Pub L No 98-21, 97 Stat 65, codified at 26 USC 3121(a). In 1984, Congress passed a provision making the 1983 change retroactively applicable to instances predating the 1983 amendment. Deficit Reduction Act of 1984, Pub L No 98-369, 98 Stat 494, 1160. In the wake of the statutory amendments, courts have recognized that Congress acted in reaction to the Supreme Court’s decision in Rowan, and in fact intended to overturn the underlying premise in that decision that the term "wages” must be interpreted consistently for purposes of both income-tax withholding and the fica. See Temple University v United States, 769 F2d 126 (CA 3, 1985), cert den — US —; 106 S Ct 2914; 91 L Ed 2d 544 (1986); Canisius College v United States, 799 F2d 18 (CA 2, 1986), cert den — US —; 107 S Ct 1887; 95 L Ed 2d 495 (1987); McCoy v Comm’r of Internal Revenue, 809 F2d 333 (CA 6, 1987), app pending; John Carroll University v United States, 643 F Supp 675 (ND Ohio, 1986). We find the employers’ argument on this issue to be meritless. The Legislature, in passing subsections 17 through 20 of § 354, did not attempt to direct the courts in the exercise of judicial power or to infringe on that power in any way; rather, it merely sought to cure a defect in a prior law erroneously interpreted by the Supreme Court. As noted in plaintiffs’ briefs on appeal, the Legislature’s amendatory language simply makes "explicit [the] . . . retrospective legislative purpose which the Supreme Court found in [Franks] to be wanting in the 1981 version of Section 354.” Under such a circumstance, we detect no violation of the separation of powers or the one court of justice clause of the Michigan Constitution._ Since we uphold the validity of § 354(17)-(20) despite the constitutional challenges raised by the employers in these consolidated cases, we affirm the wcab’s decision in the appeal of Arturo Gonzalez and reverse the decision in the appeal of Evert Romein. However, in light of the confusion in the law regarding the issues presented in these cases, and the fact that a substantial question of statutory consruction was involved, we find that penalty benefits should not be assessed against the employers. MCL 418.801(2); MSA 17.237(801X2). The decision in Romein is reversed and the decision in Gonzalez is affirmed as modified. Subsequent to the date these consolidated cases were submitted to this Court for decision and oral argument was conducted, counsel for the parties unilaterally filed supplemental briefs, including a letter and exhibit by counsel for defendants, a reply by counsel for plaintiffs, and a response to plaintiffs’ reply by counsel for defendants. These documents were improperly filed, MCR 7.212(F), and shall not be considered by this Court in rendering its decision, MCR 7.212(H). For other cases in which courts have recognized a Legislature’s right to cure retroactively a court’s erroneous interpretation of a statute, see, e.g., Battaglia v General Motors Corp, 169 F2d 254 (CA 2, 1948), cert den 335 US 887; 69 S a 236; 93 L Ed 425 (1948); Fisch v General Motors Corp, 169 F2d 267 (CA 6, 1948), cert den 335 US 902; 69 S Ct 405; 93 L Ed 436 (1949); Long v United States Internal Revenue Service, 742 F2d 1173 (CA 9, 1984); Bd of Ed of East Windsor Regional School Dist v Diamond, 808 F2d 987 (CA 3, 1986).	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Per Curiam. Following a jury trial, defendant was convicted of five counts of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2X1), and one count of breaking and entering with the intent to commit a felony, MCL 750.110; MSA 28.305. On May 21, 1986, defendant was sentenced to two terms of 50 to 100 years imprisonment, two terms of 60 to 120 years imprisonment and one term of life imprisonment for the criminal sexual conduct convictions and a term of 10 to 15 years imprisonment for the breaking and entering conviction. Defendant appeals as of right. Defendant’s convictions arose out of the sexual assaults on two women, Lula and Gabrielle, on October 6, 1985, at Lula’s home in Detroit. In the early morning hours of October 6, 1985, Lula awoke to the sound of breaking glass. She sat up and saw a tall, dark man standing at the foot of her bed. The man held nunchaku (karate sticks) in his hand. The man directed the women to perform sexual acts upon each other. In addition, defendant had oral and genital sex with both women. Defendant was convicted of three counts of first-degree criminal sexual conduct based on the sexual penetration of Lula under circumstances involving the commission of any other felony, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). The court instructed the jury that the "other felony” could be either the breaking and entering with intent to commit criminal sexual conduct or the criminal sexual conduct committed upon Gabrielle. The convictions of two counts of criminal sexual conduct involving Gabrielle were obtained under MCL 750.520b(l)(e); MSA 28.788(2)(l)(e), which proscribes penetration while the actor is armed with a weapon or an article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon. Defendant raises six issues on appeal. We will discuss them in the order in which defendant presents them. i A DID DEFENDANT’S CONVICTION OF THE COMPOUND CRIME OF FIRST-DEGREE CRIMINAL SEXUAL CONDUCT, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), AND THE PREDICATE CRIME OF BREAKING AND ENTERING, MCL 750.110; MSA 28.305, VIOLATE THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY? MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) states: A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: (c) Sexual penetration occurs under circumstances involving the commission of any other felony. Defendant claims that the protection against double jeopardy under the United States and Michigan Constitutions was violated when he was convicted of both the compound crime of first-degree criminal sexual conduct and the predicate crime of breaking and entering with intent to commit criminal sexual conduct. We disagree. This issue was addressed in People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). In Robideau, the Court analyzed whether the prohibition against double jeopardy was violated where the defendants were convicted of both first-degree criminal sexual conduct, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), and the. predicate crimes of armed robbery and kidnapping. The Court rejected the Blockburger test of double jeopardy and held that the determination whether the defendants could be convicted of both the compound and predicate crimes depends on whether the Legislature intended multiple punishments. Robideau, supra, p 486. In determining legislative intent, the Court specified two factors. The first factor is whether the two statutes prohibit conduct which is violative of distinct social norms. If so, the statutes can generally be viewed as separate and amenable to permitting multiple punishments. Id., p 487. Regarding this factor in the instant case, we feel that the statutes pertaining to criminal sexual conduct and breaking and entering with intent to commit a felony prohibit conduct that is violative of distinct social norms. The focus of first-degree criminal sexual conduct is on penetration. Id., p 488. The focus of breaking and entering is clearly on forced entry into a dwelling or building. The second factor the Bobideau Court used in determining legislative intent was the amount of punishment expressly authorized by the Legislature. Regarding this factor, the Court stated: Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual 'convictions. [.Robideau, supra, pp 487-488.] Such is not the case with breaking and entering and criminal sexual conduct. The first-degree criminal sexual conduct statute is not a statute which incorporates most of the elements of the breaking and entering statute and increases the penalty as compared to the breaking and entering statute. While this aspect of the double jeopardy clause is violated by prosecutions for both larceny over $100 and larceny in a building, for example, we do not believe it applies to the two crimes in the instant case. After determining the Legislature’s intent through the use of the two factors, the Robideau Court determined that the double jeopardy clause did not prohibit convictions for both first-degree criminal sexual conduct and armed robbery or kidnapping. Robideau, supra, p 490. Defendant claims that the analysis of Robideau calls for a different result when the predicate crime is not a coequal felony, i.e., a felony with the same punishment. Defendant points to the language in footnote 8 of the Robideau opinion, which states: This analysis is consistent with the result reached in People v Wilder [411 Mich 328; 308 NW2d 112 (1981)] prohibiting dual convictions of first-degree felony murder and the predicate felony. Since, felony murder is punishable by a mandatory life sentence, while the predicate felonies are punishable by no more than a term of years up to life, it may be inferred that the Legislature intended to punish a defendant only once for committing both crimes. While someone in the process of committing a predicate felony has a real disincentive to commit murder (mandatory life) even absent the threat of dual convictions, the same person, assuming the predicate felony carries an up-to-life maximum penalty, would have no such disincentive to commit criminal sexual conduct unless dual convictions are imposed. [Robideau, supra, p 489, n 8. Emphasis in original.] We note that such language is dicta. We do not feel that the length of imprisonment is determinative and we do not read this language as holding that, whenever a predicate crime has punishment less than the compound crime, the defendant may not be convicted of both the predicate and compound crimes. Rather, according to Robideau, all factors must be considered in determining legislative intent. Thus, we conclude that the prohibition against double jeopardy is not violated by convictions of both first-degree criminal sexual conduct under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) and the predicate crime of breaking and entering with intent to commit criminal sexual conduct. B CAN THE "OTHER FELONY” BE THE CRIMINAL SEXUAL CONDUCT UPON GABRIELLE? In this subissue, defendant claims that the "other felony” used to support a conviction for criminal sexual conduct upon Lula under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) cannot be the criminal sexual conduct upon Gabrielle. Defendant points to the language of People v Pettway, 94 Mich App 812, 817; 290 NW2d 77 (1980), lv den 411 Mich 1083 (1981), in which this Court stated: As the prosecution correctly argues, felony, as construed in the phrase "any other felony,” refers to any felony other than criminal sexual conduct. [Emphasis in original.] In Pettway, this Court held that breaking and entering with intent to commit criminal sexual conduct falls within the "any other felony” portion of the statute. Pettway, supra, p 818. Whether criminal sexual conduct upon a second person can be the "other felony” supporting first-degree criminal sexual conduct under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) was not at issue in Pettway. There is nothing in the statute which precludes the use of evidence of criminal sexual conduct upon another person for such purpose. We read "any other felony” as meaning a felony other than the one committed. Thus, the prohibition against double jeopardy does not bar the use of evidence of criminal sexual conduct upon another victim as the "other felony” which elevates the criminal sexual conduct committed upon the first person to first degree. ii DID THE TRIAL JUDGE’S VOIR DIRE OF THE PROSPECTIVE JURORS DEPRIVE DEFENDANT OF A FAIR TRIAL? Defendant claims the voir dire of the prospective jurors by the court deprived defendant of a fair trial. However, we find that defendant has waived this issue by failing to object to the court’s voir dire and in expressing his satisfaction with the jury. People v Duerson, 35 Mich App 223, 225; 192 NW2d 309 (1971). hi DID THE TRIAL JUDGE ERR IN HIS INSTRUCTIONS REGARDING THE REQUISITE ELEMENTS NEEDED TO BE PROVED IN ORDER FOR THE JURY TO FIND THAT DEFENDANT WAS ARMED WITH A WEAPON FOR THE PURPOSE OF MCL 750.520b(l)(e); MSA 28.788(2)(1)(e)? Defendant takes issue with the following remark made by the court to the jury: With reference to [Gabrielle], it is claimed that the same statute pertains, only the section that applies to her is the actor, meaning the Defendant or the person who is the wrongdoer, is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it —reasonably believe it to be a weapon. And it is alleged that the instances occurred with reference to [Gabrielle] under those circumstances, that she believed that the Defendant was armed with a weapon or an article used or fashioned in a manner to reasonably make her believe it was a weapon. [Emphasis added.] Defendant did not object. Later, the court instructed the jury as follows: With reference to [Gabrielle], the second element that the People must prove, is that at the time, the Defendant was armed with a weapon or an article used or fashioned in a manner to lead the victim, the victim being [Gabrielle], reasonably to believe it to be a weapon. A weapon is anything which the person assaulted reasonably believes could cause physical injury or death in the manner in which it is used. As I said to you, really, the reading of them, in many respects, sounds the same as first degree. But remember, there is a distinctive difference and the difference is indeed that the matter of whether a weapon was used or the Defendant — or the victim thought a weapon — that the Defendant was armed with a weapon or whether or not either, with reference to [Lula], whether or not a felony was carried on at the same time. It is for you to determine from all of the facts and circumstances disclosed by the evidence whether there was a dangerous weapon in question here or whatever was used, the Nunchuck sticks [sic], if you believe there were such things, were, indeed, were a dangerous weapon. I will tell you that a gun or a firearm is, by definition, and statute, a dangerous weapon, ladies and gentlemen. [Emphasis added.] Unless an objection is made to an alleged error in the instructions, a verdict will not be set aside on the basis of such error unless it has resulted in a miscarriage of justice. People v Federico, 146 Mich App 776, 784-785; 381 NW2d 819 (1985), lv den 425 Mich 867 (1986). A miscarriage of justice occurs when an erroneous instruction pertains to a basic and controlling issue in the case. Id., p 785. Even if jury instructions are somewhat imperfect, there is no error if they fairly presented to the jury the issues to be tried and sufficiently protected the rights of the defendant. Id. Challenged jury instructions must be reviewed in their entirety. Id.; People v Ritsema, 105 Mich App 602, 609; 307 NW2d 380 (1981), lv den 413 Mich 934 (1982). Defendant claims the first set of instructions could have caused the jury to think that Gabrielle need only have believed defendant to have had a weapon, rather than that defendant actually had a weapon. Although the court’s first remark was slightly confusing, we do not find it error requiring reversal in light of defendant’s failure to object and in light of the rule that jury instructions must be viewed in their entirety. Viewed in their entirety, the instructions correctly informed the jury that they could find defendant guilty only if he actually was armed with a weapon or an article used or fashioned in a manner to lead Gabrielle reasonably to believe it to be a weapon. Reversal is not required. IV IS DEFENDANT ENTITLED TO A NEW TRIAL WHERE SOME OF THE JURORS PRESUMABLY BELIEVED THAT THE TRIAL JUDGE SLEPT DURING THE PROCEEDINGS? After the jury rendered its verdict, the trial judge included the following in his final comments to the jury: I want to assure all of you in case — I understand some of you had some concerns. I never fell asleep. I never go to sleep. So, I mean, when my job was over with the voir dire, I did lean back and do try [sic] to stay in low profile. I try to stay out of the case and let the attorneys do their job. If any of you were concerned that I was asleep, the answer is, no, I wasn’t sleep and I heard everything that is to be heard. While I do lean back, I am not so different than other judges. Judges have been wont to fall asleep. That is not my concern. I didn’t. Defendant argues on appeal that the jurors’ perception that the judge slept during the proceedings might have affected the "quality of justice” and, thus, he is entitled to a new trial. We disagree. Defendant analogizes the situation to one in which the trial judge was absent from the courtroom during the proceeding. In People v Morehouse, 328 Mich 689, 692; 44 NW2d 830 (1950), cert den 341 US 922; 71 S Ct 739; 95 L Ed 1355 (1951), the Court held that a trial judge’s absence from the courtroom at any stage of the proceeding is not error requiring reversal unless it is shown to have prejudiced the defendant. In the present case, the judge properly responded to the parties’ objections and issues raised during trial. Defendant never objected to the judge’s demeanor. Moreover, other than the judge’s comment that he understood that, in essence, some of the jurors thought that he was asleep, there is no indication that the jurors thought that the judge was asleep. More important, the judge was not asleep. Defendant has not shown prejudice sufficient to entitle him to a new trial. v DID THE TRIAL JUDGE ERR BY FAILING TO GIVE THE JURY A DEADLOCKED JURY INSTRUCTION? In People v Holmes, 132 Mich App 730, 747; 349 NW2d 230 (1984), this Court stated that "when a jury becomes deadlocked” ABA Standard Jury Instruction 5.4 is the proper instruction. (Emphasis added.) In the instant case, the jury was deadlocked when it sent the court a note stating it was deadlocked. The court thereupon stated it would give the deadlocked jury instruction. However, after waiting for defense counsel to appear, the jury indicated it had made some progress and the court stated it was unnecessary to give the deadlocked jury instruction. We find no error, as the jury was no longer deadlocked at that point. VI DID THE TRIAL JUDGE ERR BY INSTRUCTING THE JURORS, DURING PRELIMINARY INSTRUCTIONS, THAT THEY WOULD NOT BE ALLOWED TO TAKE NOTES? We find no error in the court’s preliminary instruction to the jury that they could not take notes. Defendant did not object and on appeal does not show how this prejudiced him. It is within the trial court’s discretion to decide whether jurors may take notes and use them in their deliberations. People v Young, 146 Mich App 337, 340; 379 NW2d 491 (1985). Affirmed. US Const, Am V; Const 1963, art 1, § 15. Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). This Court was not faced with a double jeopardy issue in Pettway. This Court only had to decide whether breaking and entering with intent to commit criminal sexual conduct could be the predicate crime for first-degree criminal sexual conduct under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). Thus, the case is not helpful to the resolution of issue i(a), supra.	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H. Hood, J. Following a jury trial, defendant was convicted of larceny over $100, MCL 750.356; MSA 28.588. Defendant subsequently pled guilty to being a third-felony habitual offender, MCL 769.11; MSA 28.1083, and was sentenced to from six years and eight months to ten years’ imprisonment. Defendant appeals as of right. We affirm. The charge arose out of an incident which occurred at the Foodland store in Adrian on November 20, 1986. On that date, a store employee, Rudolfo Lizcano, Jr., was working in the back room and saw defendant walk into the back room and pick up three egg boxes, which were large in size and made of cardboard. Defendant then walked out of the back room and into the front part of the store. Four other employees, manager Kirk Gilbert, Charles McGraw, Joy Gilbert, and Edna Agge, saw defendant put the egg boxes in a cart and wheel the cart over to a cigarette rack which stood at the end of one aisle. The cigarette rack was a tall, metal, three-sided rack on wheels. It was filled with cartons of cigarettes valued at between $9.29 and $9.59 each. Defendant pushed the rack out and went behind it and began removing cartons of cigarettes and putting them into the egg boxes. At this point, McGraw called the police. Officers Jerry D. Redlin, Gerald E. Brock, and Stanley J. Easier arrived. Officer Redlin went to the upstairs office and watched defendant from above. Officer Redlin "had previous knowledge of this type of situation where a suspect had ran [sic],” so he "made the decision to effect an arrest to . . . prevent an escape.” While Officer Brock went to the main door to block it, Officers Redlin and Easier arrested defendant. At the time of his arrest, defendant was walking down an aisle with a package of rolls in his hand. Officer Brock counted eighty-five cigarette cartons in the egg boxes. Defendant told Officer Easier his name was Ronald Mark Owens but, after giving the police his social security number, police discovered he was actually Karl Leon Frey. An inspection of defendant’s car which was parked outside revealed that the license plate was held up with a pencil so that persons behind the car could not read the number. There were no credit cards, checks, or other forms of identification in the car. When defendant was booked at the jail by Officer Patricia J. Lennard, he had no identification, wallet, credit cards, or checks on him. Defendant did not testify and presented no witnesses on his behalf. The court instructed the jury on the crimes of larceny over $100, larceny in a building, attempted larceny over $100, and attempted larceny in a building. The jury found defendant guilty of larceny over $100. On appeal, defendant’s only issue is his claim that the trial court erred in denying his motion in limine brought before trial to suppress use of evidence of his 1986 conviction for attempted larceny in a building, for impeachment. Defendant claims that, because of the court’s ruling, he chose not to testify and thus could not present a defense. The court denied the motion after finding that the conviction was less than ten years old, was for a felony, and that the probative value on the issue of credibility outweighed its prejudicial effect. The decision to allow impeachment by evidence of prior convictions is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. People v Wilson, 107 Mich App 470, 475; 309 NW2d 584 (1981). On appeal, the people claim that the issue has been waived because defendant did not testify at trial. The people cite Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984). In Luce, the defendant was charged with conspiracy and posses sion of cocaine with intent to distribute. The district court denied the defendant’s motion in limine to suppress evidence of a prior conviction. The United States Court of Appeals for the Sixth Circuit affirmed, holding that, when the defendant does not testify, the court would not review the district court’s in limine ruling. Luce, 469 US 39-40. The Supreme Court affirmed, holding that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. The Court reasoned: A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify. Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction. When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction. Because an accused’s decision whether to testify "seldom turns on the resolution of one factor,” New Jersey v Portash, 440 US 450, 467 [99 S Ct 1292, 1301; 59 L Ed 2d 501] (1979) (Blackmun, J„ dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it. Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally United States v Hasting, 461 US 499 [103 S Ct 1974; 76 L Ed 2d 96] (1983). Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term "harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant” reversible error in the event of conviction. [Luce, supra, 469 US 41-42.] Before Luce was decided, this Court on occasion reviewed cases wherein the defendants did not testify at trial, yet claimed the trial court erred in ruling that they could be impeached with a prior conviction. See People v Jones, 98 Mich App 421, 427-435; 296 NW2d 268 (1980); People v Casey, 120 Mich App 690, 693-697; 327 NW2d 337 (1982); People v Pedrin, 130 Mich App 86; 343 NW2d 243, aff'd 429 Mich 558 (1988); People v Johnson, 133 Mich App 150, 155-156; 348 NW2d 716 (1984). But see People v Ferrari, 131 Mich App 621; 345 NW2d 645 (1983), lv den 421 Mich 852 (1985). This Court did not hold in any of these cases that defendant had waived the issue of improper impeachment by his failure to testify; however, this Court did note the defendants’ failure to testify and considered this to be a strong factor in favor of a holding that the trial court did not abuse its discretion in ruling that the defendants could be impeached with the prior convictions. In Pedrin, supra, the Michigan Supreme Court granted leave and instructed the parties to brief, as one of the issues, whether the Court should adopt the Luce rule in Michigan, 422 Mich 972 (1985), Pedrin was consolidated with People v Allen, People v Brooks, People v Gray, and People v Smith, and the Supreme Court rendered its decision on January 19, 1988. People v Allen, 429 Mich 558; 420 NW2d 499 (1988). However, the Court did not reach the waiver issue, stating that the Court was unable to achieve a majority position, on the issue, and chose to reserve the question for another day. Allen, supra, p 613. Justices Boyle and Riley, dissenting, would have addressed the issue and would have adopted Luce. Id. (Boyle, J., dissenting, p 703; Riley, C.J., dissenting, pp 632-638). Justice Riley indicated she would apply the Luce rule only prospectively, however, because the defendants had done everything necessary to preserve the issue under the old rule and because adoption of the Luce rule was not foreseeable at the time of their trials. Id., (Riley, C.J., dissenting, p 638.)_ In People v Finley, 161 Mich App 1; 410 NW2d 282 (1987), this Court held that the Luce rule applied and that the defendant’s claim of improper impeachment by a prior conviction was waived by his failure to testify. Finley, supra, pp 7-8. The Michigan Supreme Court has granted leave in Finley to once again decide this issue. 429 Mich 894 (1988). Although Luce contains valid points, we decline to apply it to defendant in the instant case, as the Michigan Supreme Court has not yet held that the Luce rule applies in Michigan. Luce was decided under FRE 609(a) which is similar, although not identical, to MRE 609(a). It is well-established that a state may afford a defendant greater rights and protections under its own constitution than the United States Supreme Court has bestowed under the federal constitution. People v Sundling, 153 Mich App 277-290; 395 NW2d 308 (1986), lv den 428 Mich 887 (1987). While the Luce rule lends itself to summary resolution of such matters, we feel it is too rigid in its application, especially where a defendant does not testify because of the denial of the motion. Thus, we hold that defendant has not waived the issue by his failure to testify, and we will address the merits. MRE 609(a) states: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if (1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and (2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination. In Allen, supra, the Court amended MRE 609(a). The amended version of MRE 609(a) provides that all crimes containing an element of dishonesty or false statement are admissible to impeach the credibility of a witness. If the crime contains an element of theft, it is admissible only if the crime is punishable by imprisonment in excess of one year and the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court determines that the probative value on the issue of credibility outweighs its prejudicial effect. Id., pp 605, 614. All other crimes are inadmissible for impeachment. Id., p 605. The Court then set forth the proper factors to be considered by trial courts when balancing the probativeness of prior felony theft convictions against the prejudice. Id., pp 605-606, 614. Although the Court stated that the amendment would become effective March 1, 1988, the Court held that the clarified balancing test of probativeness against prejudice is to apply to cases pending on appeal in which the issue of impeachment by evidence of prior convictions under MRE 609(a) has been raised and preserved. Id., p 609. Since this is such a case, the clarified balancing test applies to the instant case. The clarified balancing test provides that, for purposes of the probativeness side of the equation, only an objective analysis of the degree to which the crime is indicative of veracity and the age of the conviction be considered. For purposes of the prejudice factor, only the similarity of the charged offense and the importance of the defendant’s testimony to the decisional process are to be considered. Id., p 606. In the instant case, the conviction for attempted larceny in a building is a theft offense. Theft offenses are only moderately probative of veracity. Allen, supra, p 611. The conviction was less than one year old at the time of defendant’s trial, thus adding to the probativeness. On the prejudice side, we note that the conviction was for a crime very similar to the one for which defendant was on trial. Defendant’s testimony was very important to his defense, as, without defendant’s testimony, the jury heard only the people’s version. On balance, we feel that the prejudicial effect of impeachment by the prior conviction outweighed the probativeness. Thus, we find that the court abused its discretion in allowing defendant to be impeached by the prior conviction. However, this error need not require reversal, as it may be harmless error. Allen, supra, p 612. The error may be harmless even where defendant did not testify. People v Kramer, 108 Mich App 240, 246; 310 NW2d 347 (1981). Because of the overwhelming evidence against defendant in the instant case, we find the error to have been harmless. Kramer, supra, p 246; People v Moseley, 94 Mich App 461, 465; 290 NW2d 39 (1979). Although we realize that, because defendant did not leave the store with the cigarettes, defendant’s intent to steal was proved only by the circumstanial evidence of giving the police a false name, having no identification, credit cards, or checks, and concealing his licence plate, we feel that this circumstantial evidence was overwhelming. In sum, we find that the defendant did not waive the issue of improper impeachment by his failure to testify. We find that the trial court did abuse its discretion in allowing defendant to be impeached by his prior conviction but that the error was harmless in light of all the evidence against defendant. Affirmed. M. J. Kelly, P.J., concurred in result only. The Ferrari Court held that the issue of improper impeachment by a prior conviction was waived because of defendant’s failure to testify. The Ferrari Court seems to have erroneously believed that Casey so held. Ferrari, supra, p 625. However, a close reading reveals that the quotation regarding waiver attributed by Ferrari to Casey was not the rule of law propounded in Casey, but, rather, was the Casey Court citing United States v Cook, 608 F2d 1175 (CA 9, 1979). Ferrari is an exception. See n 1.	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PER CURIAM. Plaintiff appeals as of right an order dismissing her complaint against defendant in this no-fault insurance action. We affirm. The plaintiff was injured in a car accident while driving a rental vehicle. She did not have her own automobile insurance policy at the time, but her husband, with whom she resided, had a no-fault policy with defendant at the time. The policy listed plaintiff as a driver, and it covered four vehicles; the rental vehicle was temporarily substituting for one of those vehicles because that vehicle “was in the shop.” Defendant paid personal protection insurance (PIP) benefits for a time, but terminated those benefits and contends that the rental car was not actually covered under the policy. Plaintiff commenced this action, asserting that defendant may not terminate those benefits. The trial court concluded that the insurance policy had been a business policy and that plaintiff was not in one of the business’s vehicles; therefore, plaintiff was not entitled to benefits, and the benefits already paid were a “windfall.” A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Although defendant brought its motion for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), the trial court examined evidence outside the pleadings, so we treat the grant of summary disposition as having been pursuant only to MCR 2.116(C)(10). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all the evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Maiden, supra at 120. We agree with the trial court’s determination that the policy at issue here was a business policy. The policy explicitly states that the policy type is “business auto,” and it is replete with further supporting indicators that it was issued to a business. The schedule of coverages refers to “business auto coverages” only. The schedule of covered vehicles lists four vehicles, two of which are described as being for “commercial” use and two of which are described as being for “service” use. Under the schedule for non-ownership liability, the premium is calculated on the basis of the “insured’s business” being “other than a social serv. agcy,” and the number of employees being between zero and 25. The policy identifies the “form of business” as being “individual,” and lists the “named insured and mailing address” as plaintiffs husband at his personal residence. However, a business can consist of a single self-employed individual or sole proprietor. The trial court correctly concluded that the policy had been issued to a business. We also agree with the trial court’s determination that plaintiff is not covered for PIP benefits under the policy unless in one of the business’s vehicles, which she was not. The policy contains a schedule of covered benefits and covered vehicles. PIP is limited to the enumerated vehicles, and only liability coverage extends to any other vehicles. PIP and liability coverages are distinct. Husted v Auto-Owners Ins Co, 459 Mich 500, 513; 591 NW2d 642 (1999). The policy provides that only liability coverage is extended to an automobile being used “as a temporary substitute for a covered ‘auto’ that you own that is out of service.” In contrast, although PIP coverage apparently could be purchased for vehicles not specifically listed, such coverage was not purchased in this policy. The trial court correctly concluded the policy does not provide PIP coverage for a vehicle not listed as owned by the business. Although plaintiff is named as a designated driver in the policy, this does not make her a named insured. Harwood v Auto-Owners Ins Co, 211 Mich App 249, 253; 535 NW2d 207 (1995). The only named insured on the policy is plaintiffs husband, and because the policy is unambiguously a business policy issued to an individual business, plaintiffs husband is an employee under MCL 500.3114(3). Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996). Plaintiff would therefore be entitled to whatever PIP benefits her husband would be entitled to under the policy. As discussed, the trial court correctly found that defendant owed no PIP benefits because the policy does not provide PIP coverage for the rental vehicle. Plaintiff also argues that defendant is required to continue making PIP benefit payments pursuant to the doctrine of equitable estoppel. “The principle of estoppel is an equitable defense that prevents one party to a contract from enforcing a specific provision contained in the contract.” Morales v Auto-Owners Ins Co, 458 Mich 288, 295; 582 NW2d 776 (1998). “Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts.” Casey v Auto-Owners Ins Co, 273 Mich App 388, 399; 729 NW2d 277 (2006) (internal quotation and citation omitted). Plaintiff contends that she refrained from filing a claim with another insurance provider because of her reliance on defendant’s PIP benefit payments, and the “one-year-back” rule, MCL 500.3145(2), now precludes her from doing so. We disagree. At oral argument, counsel for defendant conceded that defendant terminated payments for a few specific services less than a year after the accident because defendant did not believe those services were necessary, but defendant did not terminate PIP benefit coverage altogether for contractual reasons until more than a year after the accident. However, a party who is actually “cognizant of all the material facts can claim nothing by estoppel,” even if that cognizance is by virtue of an agent. Cudahy Bros Co v West Michigan Dock & Market Corp, 285 Mich 18, 26-27; 280 NW 93 (1938). Critically here, the prejudiced party had the same access to the true facts as the party to be estopped; in other words, where plaintiff had a feasible means to discover the truth, she cannot contend that she was influenced by the defendant. Sheffield Car Co v Constantine Hydraulic Co, 171 Mich 423, 450-451; 137 NW 305 (1912). Here, plaintiff was aware of the insurance contract, which expressly limited PIP benefits to enumerated vehicles and extended only liability coverage for temporarily substitute vehicles; moreover, she retained counsel only a few months after the accident. Thus, she had equal access to the pertinent information and the means to independently assess defendant’s actions. Therefore, the doctrine of equitable estoppel does not apply here. Plaintiff finally contends that she is entitled to continue receiving PIP benefits as an innocent third party to the transaction between her husband and defendant where her husband procured the no-fault policy as the named insured. We disagree. The “innocent third party” rule prohibits an insurer from rescinding an insurance policy because of a material misrepresentation made in an application for no-fault insurance where there is a claim involving an innocent third party. Katinsky v Auto Club Ins Ass’n, 201 Mich App 167, 170; 505 NW2d 895 (1993). Defendant has not rescinded the insurance policy in this case. Rather, defendant stopped paying plaintiff benefits because the policy did not cover her claim. Thus, the “innocent third party” rule is inapplicable. Furthermore, a third-party beneficiary may only enforce rights actually found in the contract. Rudolph Steiner School of Ann Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 738; 605 NW2d 18 (1999). The contract here does not provide for PIP coverage for vehicles other than those enumerated, so plaintiff could not require PIP benefit payments under the contract even if she were an innocent third party. Affirmed. 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WHITBECK, C.J. In this medical malpractice action, defendants Dr. Reuvan Bar-Levav & Associates, the estate of Dr. Reuvan Bar-Levav (Dr. Bar-Levav), and Dr. Leora Bar-Levav appeal as of right the jury verdict in favor of Elizabeth Dawe on various grounds. On cross-appeal, Dawe appeals the trial court’s calculation of prejudgment interest on the jury’s award. We reverse, vacate the judgment, and remand. I. BASIC FACTS This medical malpractice action arises out of a shooting incident at defendants’ psychiatric office where Dawe received treatment. On June 11, 1999, Joseph Brooks, who was a former patient of Dr. Bar-Levav, came to the office, drew a handgun, and shot and killed Dr. BarLevav. Brooks then proceeded to the back of the office and fired into Dawe’s group therapy room. Brooks killed one patient and wounded others, including Dawe. After firing dozens of rounds into the room, Brooks committed suicide. Dawe sued defendants, alleging that Brooks made threatening statements to defendants in which he indicated that he “fantasized about murdering” and that he demonstrated his ability to carry out threats by coming to defendants’ office with a handgun. Dawe further alleged that a “manuscript” that Brooks delivered to defendants in June 1999 “could be reasonably construed as a threat of violence against other members who participated in his group therapy sessions, including [Dawe].” Accordingly, Dawe alleged that defendants were liable under two theories: statutory liability for failure to warn under MCL 330.1946, and common-law medical malpractice. With respect to her common-law medical malpractice claim, Dawe alleged that defendants breached their applicable standard of care, which included “informing the police, warning patients or others, and taking reasonable precautions for the protection of patients when a doctor or health care provider has information which could reasonably be construed as a threat of violence against a patient or others,” when defendants failed to warn Dawe and the police of Brooks’s “threats” or take reasonable steps to protect Dawe. Dawe also filed an affidavit of Meritorious Claim in support of her complaint. Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that there was no evidence that Brooks expressed a threat to defendants about Dawe specifically and, therefore, defendants owed no duty to warn or protect Dawe under MCL 330.1946. Defendants also noted that Dawe was not alleging malpractice with regard to her individual care; rather, her only allegation was a failure to fulfill the duty to warn, which was derived solely from the statute. In response, Dawe argued that it was significant that she was defendants’ patient rather than merely a “third person” to whom the statute applied. Dawe argued that her special physician-patient relationship with defendants also required them to treat her within the applicable standard of care stated in her complaint. In other words, Dawe argued that defendants owed both statutory and common-law duties. Dawe further argued that she had presented a genuine issue of material fact that defendants violated that standard of care. In support of her motion, Dawe submitted the affidavit of Dr. Mark Fettman, Dawe’s psychiatric expert, who attested that a psychiatrist has a duty to take reasonable precautions for the protection of patients. According to Dr. Fettman, included within this duty is the requirement that the psychiatrist assess a patient to determine if the patient is a suitable candidate for group therapy before placing the patient in a group. Dr. Fettman averred that once a patient has been placed in group therapy, the psychiatrist has a further duty to continually assess the patient to ensure that the patient remains suitable for group therapy. Dr. Fettman attested that defendants violated the applicable standard of care by placing Brooks in a group session with Dawe and other patients. The trial court ruled that summary disposition was not appropriate because Dawe had stated a prima facie case and there were genuine issues of material fact regarding whether defendants violated MCL 330.1946 or the applicable standard of care. Accordingly, the trial court denied defendants’ motion. At trial, Dawe argued that defendants breached their duty to warn and that defendants breached their duty to provide Dawe with a safe clinical environment for her treatment. Specifically, Dawe contended that defendants breached the standard of care by placing Brooks in Dawe’s group therapy sessions when they knew or should have known that Brooks was a danger to the other group members. After the close of Dawe’s proofs, defendants moved for a partial directed verdict on Dawe’s claim of failure to warn under MCL 330.1946, arguing that Dawe failed to establish that Brooks communicated to defendants a threat of violence specifically against Dawe. Defendants also argued that Dawe failed to present expert testimony concerning the standard of care applicable under the statute; that is, defendants noted that Dr. Fettman’s testimony applied solely to defendants’ alleged duties when placing Dawe in group therapy, not to defendants’ duty to warn. In response, Dawe again argued that it was significant that she was defendants’ patient, apparently on the basis that MCL 330.1946 did not even apply in cases where the victim was a patient. Nevertheless, the trial court denied the motion on the ground that Dawe had stated a prima facie case sufficient to survive a directed verdict. After the six-day trial in September 2005, the jury returned a verdict in favor of Dawe. Defendants moved for a judgment notwithstanding the verdict (JNOV) and for a new trial, raising several of the same issues now raised on appeal; however, the trial court denied the motions. Defendants now appeal. II. PREEMPTION OF A PSYCHIATRIST’S COMMON-LAW DUTY TO PROTECT Defendants argue that the only duty that a psychiatrist has to protect others from a patient is the duty imposed by MCL 330.1946, and that the Legislature abrogated all other common-law duties to protect third persons when it enacted MCL 330.1946. We agree. A. THE STATUTE MCL 330.1946(1) provides: If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient[ ] has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in [MCL 330.1946(2)]. Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person. MCL 330.1946(2) provides: A mental health professional has discharged the duty created under subsection (1) if the mental health professional, subsequent to the threat, does 1 or more of the following in a timely manner: (a) Hospitalizes the patient or initiates proceedings to hospitalize the patient under [MCL 330.1400 et seq.] or [MCL 330.1498a et seq.]. (b) Makes a reasonable attempt to communicate the threat to the third person and communicates the threat to the local police department or county sheriff for the area where the third person resides or for the area where the patient resides, or to the state police. (c) If the mental health professional has reason to believe that the third person who is threatened is a minor or is incompetent by other than age, takes the steps set forth in subdivision (b) and communicates the threat to the department of social services in the county where the minor resides and to the third person’s custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in the best interests of the third person. In other words, a mental-health professional does not have a duty to take the actions described under MCL 330.1946(2) unless four criteria are met: (1) a mental-health professional is presently treating a patient, (2) that patient communicates a threat of physical violence to the mental-health professional, (3) that threat of physical violence is directed against a readily identifiable third person, and (4) the patient has the apparent intent and ability to carry out the threat in the foreseeable future. B. PRINCIPLES OF COMMON-LAW PREEMPTION “The common law, which has been adopted as part of our jurisprudence, remains in force until amended or repealed.” “Whether a statutory scheme preempts, changes, or amends the common law is a question of legislative intent.” But “legislative amendment of the common law is not lightly presumed.” When the Legislature exercises its authority to modify the common law, “it should speak in no uncertain terms.” C. PRINCIPLES OF STATUTORY INTERPRETATION Wfiien interpreting a statute, [t]his Court’s primary task ... is to discern and give effect to the intent of the Legislature. “The words of a statute provide ‘the most reliable evidence of [the Legislature’s] intent....’” In discerning legislative intent, a court must “give effect to every word, phrase, and clause in a statute .... The Court must consider “both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” “The statutory lan guage must be read and understood in its grammatical context, unless it is clear that something different was intended.” “If the language of a statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. ”[ ] The Legislature is presumed to have intended the meaning it plainly expressed. D. RELEVANT CASELAW INTERPRETING MCL 330.1946 To establish a prima facie case of negligence, the plaintiff must prove as a matter of law that the defendant owed a duty to the plaintiff to avoid negligent conduct. Generally, under the common law, “there is no duty that obligates one person to aid or protect another.” However, under the common law, “[w]here there is a duty to protect an individual from a harm by a third person, that duty to exercise reasonable care arises from a ‘special relationship’ either between the defendant and the victim, or the defendant and the third party who caused the injury.” In Davis v Lhim, the Court adopted the reasoning of Tarasoffv Regents of Univ of California and held that the special relationship between a psychiatrist and his or her patient gives rise to “a duty of reasonable care to a person who is foreseeably endangered by [the psychiatrist’s] patient.” The Michigan Supreme Court later reversed Lhim on the ground that the psychiatrist in Lhim was protected by governmental immunity, and, in light of that holding, the Court found it unnecessary to address “whether a duty to warn should be imposed upon mental-health professionals to protect third persons from dangers posed by patients.” Shortly thereafter, the Michigan Legislature enacted MCL 330.1946, thereby codifying the duty of mental-health professionals to warn third parties of danger from their patients. As recognized by this Court, the legislative history of the statute indicates that the Legislature enacted the statute to “limit the liability of mental health practitioners.” Since its enactment, only two published cases have interpreted the statute. However, the issue now before this Court — whether a common-law duty to warn or protect has survived the statute’s limitation on a psychiatrist’s liability to protect others — has not been resolved. In 1996, this Court released its first opinion addressing the statute. In Jenks v Brown, the plaintiffs ex-wife told her psychiatrist that she intended to kidnap her, and the plaintiffs, son. The plaintiff then sued the psychiatrist, alleging that he breached MCL 330.1946 by failing to warn the plaintiff of his ex-wife’s threat. This Court affirmed the trial court’s grant of summary disposition in the psychiatrist’s favor, holding that the psychiatrist had no duty to the plaintiff because the threat was directed at the child, not the plaintiff. This Court explained: In prior years, the common-law duty to warn had been extended in some cases to unnamed third parties and even to property. In response to these developments, the duty to warn statute limited a mental health practitioner’s duty to that as provided in the statute. Furthermore, in order for any duty to arise, a patient must communicate “a threat of physical violence against a reasonably identifiable third person.” It is apparent from the language of the statute and its legislative history that it is intended to protect only those readily identifiable individuals against whom a threat of physical violence is made[ ] The plaintiff also sought to amend his complaint to add a common-law theory of negligence. This Court ruled any such amendment futile on the ground that there was no special relationship between the plaintiff and the psychiatrist that would give rise to a duly to protect the plaintiff. In so ruling, this Court acknowledged but declined to address the issue “whether a claim brought against a mental-health practitioner under a common-law theory of failure to warn is superseded by MCL 330.1946[.]” Two years later, this Court again published an opinion interpreting the statute. In Swan v Wedgwood Christian Youth and Family Services, Inc, a teenage boy (LaPalm) killed his mother’s boyfriend after being released from the defendant’s residential facility where LaPalm had received psychiatric treatment. The plaintiff, as personal representative of the decedent’s estate, sued the defendant, alleging that it negligently treated LaPalm, thereby proximately causing the decedent’s death. Relying on Jenks, this Court affirmed the trial court’s grant of summary disposition in the defendant’s favor on the ground that MCL 330.1946 served “as a bar to the plaintiffs suit because, pursuant to the statute, it owed no duty to the decedent.” More specifically, this Court explained that the defendant owed no duty to warn or protect the decedent under the terms of the statute because LaPalm never communicated a threat against the decedent. This Court stated, “Under the statute, the only duty owed is a duty to warn in those situations where a patient communicates a threat and the object of the threat is reasonably identifiable.” The Swan Court also rejected the plaintiffs argument that the statute did not apply because his claim against the defendant alleged negligence rather than a failure to warn. This Court explained: Plaintiff notes correctly that the type of claims it asserts are often brought together with a failure to warn claim, but they are separate questions. However, plaintiffs argument fails because to the extent that he alleges a breach of duties on the part of defendant, those duties were owed to LaPalm and not to the decedent, as the circuit court correctly noted. Moreover, plaintiffs argument ignores the last sentence of MCL 330.1946(1)..., which provides, “Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.” (Emphasis added.) We believe that this language is unam biguous and clearly limits the duty a mental health professional owes to third persons to the duty to warn identifiable third persons “as provided in this section...Plaintiff cannot claim the benefit of any alleged breach of duty to LaPalm, and the statute plainly provides that defendant did not owe a duty to the decedent.[ ] This Court also acknowledged but rejected the plaintiffs position to the extent that it could be interpreted as arguing that defendant owed a common-law, rather than a statutory, duty to the decedent. More specifically, this Court concluded that even under the common law the defendant had no duty to warn or protect the decedent because no foreseeable danger to decedent, or any other third person, was made known during LaPalm’s treatment. In so ruling, this Court again declined to “decide whether a common-law duty survived the enactment of the statute[.]” Thus, this case presents this Court with an opportunity to resolve a recurring issue of contention regarding a plaintiffs ability to sue a psychiatrist (or other mental-health professional) outside the limitation imposed by the statute. E. THE PSYCHIATRIST’S COMMON-LAW DUTY TO PROTECT “THIRD PERSONS” FROM PATIENTS We conclude that a plain reading of MCL 330.1946 indicates that the statute was intended to modify the common-law duty to warn or protect third persons from a patient that arises out of the special relationship between a psychiatrist and that patient. The second sentence of subsection 1 clearly states that a mental- health professional has no duty to “warn” or “protect” a “third person,” except as provided under MCL 330.1946. Thus, the Legislature has clearly stated its intent to preempt a mental-health professional’s common-law duty to warn or protect third persons. Indeed, Dawe concedes this interpretation. However, because Dawe alleges ambiguity in the phrase “third person,” this conclusion does not end our inquiry. F. THE PSYCHIATRIST’S COMMON-LAW DUTY TO PROTECT PATIENTS FROM OTHER PATIENTS Dawe argues that MCL 330.1946 addresses only the duty that arises from the relationship between a psychiatrist and a dangerous patient while specifically preserving other duties and, therefore, does not abrogate or modify the common-law duty to treat other patients within the applicable professional standard of care, which includes a duty to provide a safe clinical environment for patients. We disagree. As mentioned, Dawe concedes that “MCL 330.1946 explicitly governs the issue of” a mental-health professional’s duty when a patient communicates a threat of violence against a reasonably identifiable third person, and therefore concedes that it is clear that the Legislature intended to modify a mental-health professional’s common-law duty to warn or protect those third persons. But she contends that it is not at all clear that the Legislature intended to modify or abrogate every common-law duty that a mental-health professional may have to protect the mental-health professional’s other patients. In support of her position, Dawe finds it significant that under subsection 5, the Legislature expressly stated, “This section [MCL 330.1946] does not affect a duty a mental health professional may have under any other section of law.” Dawe interprets this to mean that the Legislature clearly contemplated that some duties would remain despite the language of MCL 330.1946(1), which purports to eliminate all duties to “warn” or “protect” “third persons.” In other words, Dawe would have us conclude that MCL 330.1946(1) only addresses a mental-health professional’s duty to warn or protect third persons from a patient arising from the mental-health professional’s relationship with that patient who may pose a danger to the third person, but that the statute does not modify any common-law duties that the mental-health professional may have to protect another patient based on the mental-health professional’s relationship with that patient (e.g., a psychiatrist’s duty to render professional care). Thus, the issue essentially boils down to whether the term “third person” in MCL 330.1946(1) includes the psychiatrist’s other patients. The second sentence of MCL 330.1946(1) expressly states: “Except as provided in this section, a mental-health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.” (Emphasis added.) The phrase “third person” is defined as “the grammatical person used in an utterance in referring to anyone or anything other than the speaker or the one or ones being addressed.” Reading the phrase in context and employing a common usage of the phrase “third persons” lead to the inevitable conclusion that the phrase encompasses all other persons who are neither the dangerous patient nor the mental-health professional. Accordingly we can only conclude that the Legislature intended the term “third persons” to include those third persons who might also happen to be the psychiatrist’s patient. Therefore, we conclude that the statute applies both to “third persons” who are members of the public at large and to “third persons” who are also the psychiatrist’s patients. To read “third persons” as not including other patients employs a strained reading of the language and contravenes the dictate that we may not speculate regarding the intent of the Legislature beyond the language expressed in the statute. Thus, we believe that the statute was specifically intended to expressly limit a mental-health practitioner’s duty to that “as provided in this section,” thereby limiting a mental-health practitioner’s only duty to protect to only those readily identifiable persons against whom a threat of physical violence is made. In other words, we believe that it is clear that the Legislature intended to modify or abrogate any other conceivable duty that a mental-health professional may have to protect others, which would include a duty to take reasonable steps to ensure that the patient is treated in a safe clinical environment. The duty a mental-health professional owes to protect third persons does not vary depending on the cause of action, nor on the identity or category of the “third person.” Further, we disagree that subsection 5 of the statute, in which the Legislature stated, “This section does not affect a duty a mental health professional may have under any other section of law,” supports a conclusion that the Legislature contemplated that some common- law duties would remain despite the language of MCL 330.1946(1). To the contrary, reading the plain language of the statute indicates that the Legislature merely contemplated that a psychiatrist’s other statutory duties remain viable — for example, the duty to report suspected abuse under the Child Protection Law. More specifically, subsection 5 begins with the words “[t]his section,” clearly referring to the statute, MCL 330.1946, as “[t]his section.” Subsection 5 then concludes with the words “under any other section of law[.]” The Legislature’s decision to use the word “section” again here clearly indicates that it was again referring to statutory law, rather than common law. G. CONCLUSION In sum, we conclude that no common-law duty to protect survived the Legislature’s enactment of MCL 330.1946. We conclude that MCL 330.1946 preempts the field on the issue of a mental-health professional’s duty to warn or protect others, including the psychiatrist’s other patients. We therefore conclude that Dawe’s claim that defendants breached their duty to provide Dawe with a safe clinical environment for her treatment is without merit. Consequently, we conclude that the trial court erred when it refused to grant defendants’ requests for relief premised on the theory that they had no common-law duty to protect Dawe beyond that imposed by MCL 330.1946. H. UNFAIR RESULT We acknowledge that the evidence presented at trial was compelling proof that defendants knew or should have known that Brooks posed a danger to the other patients in his therapy group and, therefore, should not have been placed in group therapy. Therefore, it is an unfair result to shield defendants from liability in this case. Common sense and the general tenets of the common-law duty to protect arising out a special relationship would seem to justify holding defendants accountable here. However, we are bound to interpret plain statutory language as written. The plain language of the statute dictates the result we reach today, and any arguments that the statute is unwise or results in bad policy must be addressed to the Legislature. III. STATUTORY DUTY TO WARN OR PROTECT UNDER MCL 330.1946 Applying the language of the statute, defendants argue that Dawe failed to present evidence that Brooks communicated to defendants a threat of physical violence against Dawe. Therefore, defendants argue that the trial court erred when it declined to grant defendants’ motions for summary disposition, directed verdict, and JNOV on Dawe’s claim under MCL 330.1946. In interpreting MCL 330.1946, this Court has clarified that “[i]t is apparent from the language of the statute and its legislative history that it is intended to protect only those readily identifiable individuals against whom a threat of physical violence is made.” Accordingly, communication of a threat of physical violence directed against the victim is essential to liability under the statute. Applying the statutory criteria to this case, we conclude that Dawe failed to present evidence from which a reasonable jury could conclude that Brooks communicated a threat of physical violence against Dawe to defendants. The only relevant testimony was that of James Stanislaw, a certified social worker employed by defendants, who served as the therapist for the group that included Brooks and Dawe. And although Stanislaw’s testimony, even taken in the light most favorable to Dawe, established that Brooks probably indicated that he wanted to hurt someone at the practice, his testimony did not establish that Brooks made a threat of physical violence against Dawe, either individually or as a member of the therapy group. Therefore, we conclude that Dawe failed to present evidence from which a reasonable jury could conclude that Brooks communicated to defendants a threat of physical violence against Dawe, as a readily identifiable third person. Thus, Dawe failed to establish a claim as a matter of law under MCL 330.1946. Consequently, the trial court should have granted defendants’ motion for directed verdict on this claim. Given the resolution of this issue, we decline to address defendants’ argument that the statutory claim should have been dismissed because Dawe failed to present expert testimony concerning the standard of care applicable under MCL 330.1946. Further, we find it unnecessary to address whether the trial court erred in failing to grant defendants’ motion for JNOV IV CONCLUSION The trial court erred by failing to grant defendants a directed verdict. Therefore, we vacate the lower court judgment against defendants, reverse the trial court’s denial of defendants’ motion for a directed verdict, and remand for entry of an order dismissing Dawe’s claims against defendants. Given our disposition, we decline to address the parties’ remaining arguments regarding errors related to the trial and judgment. Reversed, judgment vacated, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Kelly, J., concurred. Defendants discharged Brooks from their care on March 19, 1999. See MCL 600.2912d. Dawe’s counsel specifically stated: “[T]his statute that [defendants are] referring to is talking — it’s in establishing a duty by someone that isn’t normally a patient. That doesn’t exist here because Elizabeth Dawe was [a patient],... This other statute is talking about if Elizabeth Dawe wasn’t a patient[.]” 1995 PA 290 amended MCL 330.1946 to change the third use of the word “patient” in subsection 1 to “recipient.” All other references to “patient” in the statute were left unaltered. The term “recipient” is defined to mean “an individual who receives mental health services from the department, a community mental health services program, or a facility or from a provider that is under contract with the department or a community mental health services program.” MCL 330.1100c(12). Although not all patients of mental-health professionals will qualify as recipients, see Saur v Probes, 190 Mich App 636, 641; 476 NW2d 496 (1991) (construing former MCL 330.1700, which defined “recipient” in a substantially similar way to present MCL 330.1100c[12]), for this issue, it is not necessary to examine how the use of the term “recipient” might affect the duty imposed by this statute. Wold Architects & Engineers v Strat, 474 Mich 223, 233; 713 NW2d 750 (2006), citing Const 1963, art 3, § 7. Id. Id. Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006). Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004) (internal citations omitted). Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007). Swan v Wedgwood Christian Youth & Family Services, Inc, 230 Mich App 190, 195; 583 NW2d 719 (1998). Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 498-499; 418 NW2d 381 (1988). Murdock v Higgins, 454 Mich 46, 54; 559 NW2d 639 (1997). Davis v Lhim, 124 Mich App 291, 301; 335 NW2d 481 (1983), rev’d on other grounds sub nom Canon v Thumudo, 430 Mich 326 (1988). Tarasoff v Regents of Univ of California, 17 Cal 3d 425; 131 Cal Rptr 14; 551 P2d 334 (1976). Canon, supra at 355. See 1989 PA 123. Jenks v Brown, 219 Mich App 415, 418; 557 NW2d 114 (1996), citing House Legislative Analysis, HB 4237, July 11, 1989. Id. at 417. Id. at 418-419 (citations omitted). Id. at 420. Id. at 421. Id. at 421 n 1. Swan, supra at 191-193. Id. at 193-194. Id. at 197-199. Id. at 198-199. Id. at 198 (emphasis added). Id. at 199 (citations omitted). Id. at 199-200. Id. at 200-201. Id. at 200. Random House Webster’s College Dictionary (2000) (emphasis added). Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 (2007). See Swan, supra at 198 (“Under the statute, the only duty owed is a duty to warn in those situations where a patient communicates a threat and the object of the threat is reasonably identifiable.”); Jenks, supra at 419 (“It is apparent from the language of the statute and its legislative history that it is intended to protect only those readily identifiable individuals against whom a threat of physical violence is made.”). MCL 722.623. See Oakland Co Bd of Rd Comm’rs v Michigan Prop & Cas Guaranty Ass’n, 456 Mich 590, 613; 575 NW2d 751 (1998); Richter v Turlow, unpublished opinion per curiam of the Court of Appeals, issued October 1, 1999 (Docket No. 210922), p 2. Because defendants do not substantively address their motion for summary disposition, we limit our analysis to whether the trial court should have granted defendants’ motion for a directed verdict. Swan, supra at 198, citing Jenks, supra at 419. See Lagow ex rel Welch v Segue, Inc, unpublished opinion per curiam of the Court of Appeals, issued August 17, 2001 (Docket No. 219624). See Reed v Yackell, 473 Mich 520, 528; 703 NW2d 1 (2005).	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TALBOT, J. Defendant, city of Detroit, appeals as of right the order granting plaintiffs’, city of Huntington Woods, Bonnie Sheehy Nielsen, Kellie Treppa, and John Steinberg, motion for summary disposition and request for a declaratory judgment pertaining to the sale of the Rackham Golf Course. Flaintiffs cross-appeal certain parts of the trial court’s order. We affirm in part, reverse in part, and remand for further proceedings. I. FACTUAL HISTORY AND BACKGROUND This lawsuit involves a dispute concerning the authority of defendant to sell or convey its interest in the Rackham Golf Course, which comprises approximately 121 acres and is situated in plaintiff city of Huntington Woods. Originally, this parcel was part of a recorded plat identified as the “Bronx Subdivision.” In 1922, on petition by the Baker Land Company, a portion of the land platted within the Bronx Subdivision property, which now comprises the Rackham Golf Course, was removed from the plat by vacation of that part of the plat by order of the Oakland Circuit Court. Approximately six months after entry of the order removing this portion of the property from the subdivision plat, the owner, the Baker Land Company, deeded the property to Horace Rackham and his wife, Mary Rackham (hereinafter referred to as the Baker deed). The remaining portion of the Bronx Subdivision was developed as residential property. At the time of this conveyance, it appears there were no particular improvements or development with regard to the property. There is no dispute that this conveyance was in fee simple and contained the following relevant provision: “It is part of the consideration hereof that the land transferred by this deed shall be used only as a public park or golf course or for other similar purpose.” The Rackhams constructed an 18-hole golf course, with a clubhouse, on the property. In 1924, the Rackhams deeded the improved property, containing the golf course and the clubhouse, to defendant (hereinafter referred to as the Rackham deed). The Rackham deed included several conditions, along with a reversionary clause. Specifically, the Rack-ham deed provided, in relevant part: Provided always, however, that these presents are upon the several express conditions and limitations following, to-wit: FIRST: That the said premises shall be perpetually maintained by the said party of the second part exclusively as a public golf course for the use of the public under reasonable rules, regulations and charges to be established by second party. SECOND: That the course and the turf thereon shall be maintained at a standard condition at least equal to its condition at the time of the acceptance of this grant. THIRD: That beverages containing any alcoholic content whatever shall not he brought upon, kept, used or sold on said premises by any party hereto or by any person or persons, firm or corporation. FOURTH: First parties hereby reserve the right to restrict or limit the use of the premises hereby conveyed in such manner as to them shall seem proper in order to carry out and fulfill the purpose for which said course was built and improvements made. FIFTH: That if any of the foregoing conditions shall be broken then the estate hereby granted shall be forfeited and the said premises shall revert to the parties of the first part and their heirs and assigns who shall thereupon have the right to re-enter and re-possess the same. The parties acknowledge that since this conveyance, in 1924, defendant has continuously operated and maintained the property as a public golf course. II. PROPERTY BIDS In 2006, the Detroit Planning and Development Department received an unsolicited inquiry from Premium Golf, LLC, seeking to acquire defendant’s interest in the Rackham Golf Course. Defendant communicated this offer to the Detroit City Council, indicating: We are in receipt of a request from Premium Golf LLC, a Michigan Limited Liability Company, to purchase the ... property for the amount of $5,000,000. Premium Golf LLC has offered to purchase the property and continue to use it as a golf course. Given the City’s financial condition and in an effort to meet our land sales projections we are recommending this sale. Concerned that maximum value be obtained by defendant for the property, an additional term of the proposed agreement indicated that defendant would receive substantial remuneration beyond the referenced sale price if Premium Golf, LLC, were successful in removing the use conditions and was able to develop the property for residential construction. In response to questions raised by the city council, defendant’s planning and development department indicated: The City received an unsolicited offer from Premium Golf, LLC to purchase Rackham Golf Course with the deed restriction in tact [sic] with the immediate plan to continue to operate it as a golf course. Premium Golf is in negotiations with the Rackham heirs to buy out the deed restriction. While the offer from Premium Golf, LLC, was under consideration, plaintiff city of Huntington Woods also submitted an unsolicited bid to purchase the property from defendant for the sum of $5,500,000 contingent on the approval of a bond issue by voters. After this lawsuit was initiated, defendant’s planning and development department authorized the issuance of a request for proposals (hereinafter referred to as the RFP), which basically sought bids for the acquisition of the golf-course property. The RFP provided, in pertinent part: The intent of this Request for Proposal is to retain an experienced and qualified Developer who has the potential and financial capacity to purchase the Rackham Golf Course for the existing use or demonstrate the ability to obtain re-zoning for other uses.... The City of Detroit has established a minimum bid price of $6,250,000 for sale of the Rackham Golf Course .... In the event that the respondent is able to remove the deed restriction, the City of Detroit will require a minimum of $5,000,000 in additional compensation. There is an existing deed restriction that the property be maintained as a public golf course. Shortly thereafter, plaintiff city of Huntington Woods, responding to defendant’s RFR authorized the submission of an offer to purchase the property, with appurtenances, for $6.25 million. III. LOWER-COURT PROCEEDINGS Plaintiffs filed their initial complaint on June 20, 2006, seeking a declaratory judgment. Shortly thereafter, plaintiffs filed an amended complaint for a declaratory judgment and an injunction. Plaintiffs alleged that defendant held the golf course in public trust subject to restrictions regarding its use. Plaintiffs argued that defendant’s attempt to sell the property to a private entity was contrary to the deed restrictions and, therefore, precluded. Plaintiffs city of Huntington Woods, Nielsen, and Treppa further argued that as subsequent owners of property in the Bronx Subdivision, they have contractual rights “which initially accrued to the Baker Land Company to enforce the restrictions in the [Baker] deed to the Rackhams.” Plaintiff Treppa contended that as an owner of property abutting the golf course, she enjoyed “special rights in the maintenance of the Rackham Golf Course and the status quo may not be changed without their concurrence.” Plaintiffs further alleged a right to enforce the Baker deed and Rackham deed restrictions as third-party beneficiaries. Plaintiffs sought a determination from the trial court that: (A) restrictions on use of the property contained in the Baker and Rackham deeds “remain valid and enforceable and preclude the sale and/or development... of that property for residential housing”; (B) a determination that defendant cannot sell the property to a private entity because it is a “public golf course”; (C) the property at issue cannot be sold or developed for any purpose other than that specified in the Rackham deed “without the concurrence of property owners abutting and having an unobstructed view thereof” and the property owners of the Bronx subdivision; and (D) the court enjoin the sale of the property. Defendant filed an answer and asserted as relevant affirmatives defenses: 1. Plaintiff [sic] has failed to state a claim upon which relief can be granted. 2. There is no justiciable case or controversy before the Court. 3. Plaintiffs lack standing to sue. 4. Plaintiffs have failed to join indispensable parties [the Rackham heirs]. Plaintiffs filed a motion for summary disposition, pursuant to MCR 2.116(C)(9) and (10), asserting that defendant had no interest it could sell in the golf course because it served only as a trustee that maintains the property in trust for use only by the public as a public golf course. Plaintiffs asserted that the language of the Rackham deed was restrictive, because it required defendant to maintain the property “ ‘as a public golf course for the use of the public.’ ” Consequently, plaintiffs asserted that defendant has only an easement interest and not title to the property and that any attempt to sell it to a private entity would be a breach of the Rackham deed restrictions. Plaintiffs also asserted that they were proper parties to bring the action because their properties abutted the golf course and had unobstructed views or they could demonstrate their reliance on maintenance of the property as a golf course in purchasing or improving their residences. Plaintiffs contended that the language of the Baker deed comprised a restriction on the use of the land. Because plaintiffs are property owners in the chain of title from the original grantor of the Baker deed, they asserted that they are entitled to enforce those restrictions. Defendant responded, asserting the lack of a justiciable controversy. Defendant observed that the city council had rejected a resolution approving the purchase of the golf course by Premium Golf, LLC. Acknowledging that other offers or bids were pending and being reviewed by the city council, defendant asserted that plaintiffs’ claims for declaratory relief were merely hypothetical and that no appreciable harm could be demonstrated to have resulted from defendant’s contemplation of offers to purchase the property. Defendant argued that it had operated and maintained the property for 80 years as a golf course and that there has been no breach of duty or provision pertaining to the conveyance as delineated in the Rackham deed. As a result, defendant sought the grant of summary disposition in its favor, pursuant to MCR 2.116(1)(2), asserting that the claims of plaintiffs presented no issue “ripe for judicial review” and, therefore, dismissal was required for lack of jurisdiction. In addition, defendant argued that there was no prohibition against conveying the property subject to the conditions delineated in the Rackham deed. While defendant asserted that the Rackham heirs could release their reversionary rights, defendant additionally contended that such an event was merely hypothetical and, therefore, review by the trial court was precluded. Defendant argued that the provisions in the Baker deed did not comprise a restrictive covenant, which runs with the land, but were merely a statement of purpose that is not enforceable by the grantor. Following a hearing, the trial court granted plaintiffs’ motion for summary disposition, pursuant to MCR 2.116(C)(10), ruling, in relevant part: The deed from the Rackhams to the city of Detroit contains a clear and undeniable restriction that the property is to be used as a public golf course, or the property may revert to the Rackham heirs. This does not, however, prohibit the city of Detroit from ever selling the property. ... Insofar as Defendant indicates it may transfer the property subject to the deed restrictions, it is partially correct. Defendant may transfer its interest in the property once.it has acquired all the necessary waivers so as to eliminate any possibility of reverter.... As to Plaintiffs [sic] contention that the deed from the Baker Land Company to the Rackhams prohibits the use of the property for any purpose other than those specifically set forth therein, this is also granted.... It cannot be ignored that the property was originally platted for development and prior to the transfer to the Rackhams the plat was vacated by an action in this Court. The facts and record indicate the intention of Baker Land Company was that the property be used only as a public park or golf course. The absence of a reverter clause does not change the very clear intention as set forth in the deed. The trial court denied plaintiffs’ request for summary disposition pursuant to MCR 2.116(C)(9), indicating the “fail[ure] to address in the supporting brief how the pleadings are defective or insufficient....” On the basis of its determination of the propriety of summary disposition in favor of plaintiffs pursuant to MCR 2.116(C)(10), the trial court denied defendant’s request for summary disposition pursuant to MCR 2.116(I)(2). An order memorializing the trial court’s ruling was entered on October 25, 2006. IV ISSUES On appeal, defendant challenges the trial court’s ruling, asserting that plaintiffs’ claim is not justiciable because a sale of the property is not imminent. Defendant further contends that plaintiffs lack standing because they have failed to demonstrate any individualized or particularized harm different from that of the general public. Defendant contends that the trial court erred in its determination that defendant cannot convey the property, even subject to the deed restrictions, without first obtaining waivers from the Rackham heirs of their reversionary interest. Finally, defendant argues that the trial court’s ruling that the Baker deed contained a restrictive covenant running with the land and enforceable by the grantor was erroneous. Instead, defendant asserts that the Baker deed merely includes a statement of purpose because the deed lacks a reverter clause and was between private parties and, thus, cannot be construed as a dedication to public use. On cross-appeal, plaintiffs argue that the trial court’s ruling, while favorable, did not go far enough. Plaintiffs contend that the trial court erred in its determination that defendant had a right to convey the property because defendant is merely a trustee with an easement interest. In addition, plaintiffs argue that defendant must obtain not only the approval of the Rackham heirs but also the consent of the abutting property owners in order to convey the property and that such a conveyance can only be to another public entity so as not to violate the Rackham deed restrictions. V STANDARD OF REVIEW This Court reviews de novo a trial court’s grant or denial of a motion for summary disposition pursuant to MCR 2.116(C)(10). Bragan v Symanzik, 263 Mich App 324, 327-328; 687 NW2d 881 (2004). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiffs claim. “In reviewing a motion for summary disposition brought under MCR 2.116 (C)(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists.” Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001). Summary disposition is appropriate only if there are no genuine issues of material fact and “the moving party is entitled to judgment as a matter of law.” MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). In addition, whether a party has standing is a question of law, which we review de novo. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004). Questions pertaining to justiciability and ripeness comprise constitutional issues, which are also reviewed de novo. Michigan Chiropractic Council v Comm’r of the Office of Financial & Ins Services, 475 Mich 363, 369; 716 NW2d 561 (2006). VI. CONSTITUTIONAL ISSUES “In seeking to make certain that the judiciary does not usurp the power of coordinate branches of government, and exercises only ‘judicial power,’ both this Court and the federal courts have developed justiciability doctrines to ensure that cases before the courts are appropriate for judicial action.” Id. at 370. Although the term “judicial power” is not defined in our constitution, “ ‘judicial power’ has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making.” [Michigan Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich 280, 293; 737 NW2d 447 (2007), quoting Nat’l Wildlife, supra at 614-615.] Our Supreme Court has further “distill[ed] this litany of considerations arising from the proper exercise of the ‘judicial power,’ and... determined that ‘the most critical element’ is ‘its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute.’ ” Michigan Citizens for Water Conservation, supra at 293, quoting Nat’l Wildlife, supra at 615. The doctrine of ripeness is designed to prevent “the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon ‘ “contingent future events that may not occur as anticipated, or indeed may not occur at all.” ’ ” Michigan Chiropractic Council, supra at 371 n 14 (citations omitted). Hence, when considering the issue of ripeness, the timing of the action is the primary focus of concern. Defendant contends that plaintiffs’ complaint was not ripe for consideration by the trial court because defendant had neither sold its interest in the golf course nor violated any restrictions contained in the Rackham deed regarding use of the property as a public golf course. “The existence of an actual controversy is a condition precedent to invocation of declaratory relief and this requirement prevents a court from deciding hypothetical issues.” Detroit v Michigan, 262 Mich App 542, 550; 686 NW2d 514 (2004) (internal quotation marks and citation omitted). However, it is the purpose and intent behind the grant of declaratory relief to provide litigants with court access in order to “preliminarily determine their rights.” Id. at 551; MCR 2.605(A)(1). An actual controversy is deemed to exist in circumstances where declaratory relief is necessary in order to guide or direct future conduct. In such situations, courts are “ ‘not precluded from reaching issues before actual injuries or losses have occurred.’ ” Detroit, supra at 551 (citation omitted). Defendant is correct in its assertion that, when this litigation was initiated, there had been no violation of the restrictive covenants contained in the Rackham deed and the property had not been sold. However, even though a sale had not been effectuated, it was obvious that defendant was not only seriously considering sale of the property but had begun, through the issuance of a formal RFl^ to solicit bids. Hence, the primary issue asserted by plaintiffs regarding the right or authority of defendant to sell the property, and pursuant to what terms, comprised an issue that was not hypothetical. “[Declaratory relief is designed to resolve questions like the one at issue before the parties change their positions or expend money futilely.” Id. at 551. As a result, plaintiffs’ request for declaratory relief properly seeks a determination regarding defendant’s authority to sell the property. The trial court was not precluded from ruling whether the sale was authorized and under what conditions merely because a sale had not yet been effectuated. Defendant further asserts that plaintiffs lacked standing to pursue this matter because they could not demonstrate a sufficient injury, separate and distinct from that of the general public. Standing ensures that a genuine case or controversy is before the court. It requires a demonstration that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large. To successfully allege standing, a plaintiff must prove three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly... traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. [Michigan Citizens for Water Conservation, supra at 294-295, quoting Nat’l Wildlife, supra at 628-629 (additional citations and internal quotation marks omitted).] Contrary to defendant’s assertion, the aforementioned plaintiffs have demonstrated a “concrete and particularized” harm that was “imminent.” As we have noted, defendant was actively pursuing a sale of the golf course. Plaintiffs, as owners of property abutting the golf course or having an unobstructed view of the golf course, could assert an injury different from that of the general public, which was merely concerned with access to the property. Instead, plaintiffs’ interests extended to the enjoyment and beneficial use of their own property, which is distinct from the potential for harm to the general public. As our Supreme Court recognized in Baldwin Manor, Inc v Birmingham, 341 Mich 423, 435; 67 NW2d 812 (1954): “ ‘If the facts warranted the conclusion . . . that the gift. . . has been subverted to a use foreign to that of a public park, there is no doubt that complainant as an abutting property owner might seek the aid of a court of equity.’ ” (Citation omitted.) In addition, the Court quoted with approval 64 CJS, Municipal Corporations, § 1823, pp 310-311, regarding the rights of property owners in such situations: “[S]uch right of action where he does sustain a special injury; and ordinarily the owners of property abutting on a park or square have such a special right to insist that it shall not be appropriated to other uses. “The owner of a lot in the immediate vicinity of a park, although not abutting thereon, but who is an adjacent proprietor in that he has an unobstructed view from his property, may sustain such an injury by reason of its diversion to other uses as to give him a right of action to enjoin the diversion and abandonment by the city of the grounds as a public park.” [Baldwin Manor, supra at 436.] Defendant contends that Baldwin is inapplicable and factually distinguishable because there has been no diversion of use of the property as a golf course. However, we note that in the RFP soliciting bids, defendant has clearly indicated that “[t]he intent of this Request for Proposal is to retain an experienced and qualified Developer who has the potential and financial capacity to purchase the Rackham Golf Course for the existing use or demonstrate the ability to obtain rezoning for other uses.” (Emphasis added.) Consequently, defendant’s own solicitation of bids under these conditions precludes its assertion that the alleged harm is based solely on conjecture or is hypothetical in nature. In addition, the harm is “clearly traceable” to defendant’s proposed action to sell the property and encourage its alternative development for residential purposes in order to secure additional remuneration. Finally, a decision favorable to plaintiffs would clearly redress the injury, thereby satisfying the technical requirements for establishing standing for these parties. VII. FEE SIMPLE vs. EASEMENT Defendant asserts that the trial court erred in determining that defendant was precluded from transferring its interest in the Rackham Golf Course without first obtaining waivers from individuals with reversionary interests. Defendant contends that as long as it conveys the property subject to the deed restrictions there is no breach or abandonment sufficient to give rise to the reverter clause. In response and on cross-appeal, plaintiffs assert that defendant’s interest in the property is merely an easement, which cannot be conveyed to a private entity such as Premium Golf, LLC. Rather, plaintiffs contend that the language of the deed requires the golf course be maintained by a public entity and that the trial court did not go far enough and should have required defendant to obtain the waivers or permission of abutting land owners for any conveyance. Initially, we must determine and define the precise nature of the property interest conveyed to defendant by the Rackham deed. An inquiry into the scope of the interest conferred by a deed such as that at issue here necessarily focuses on the deed’s plain language, and is guided by the following principles: (1) In construing a deed of conveyance[,] the first and fundamental inquiry must be the intent of the parties as expressed in the language thereof; (2) in arriving at the intent of parties as expressed in the instrument, consideration must be given to the whole [of the deed] and to each and every part of it; (3) no language in the instrument may be needlessly rejected as meaningless, but, if possible, all the language of a deed must be harmonized and construed so as to make all of it meaningful; (4) the only purpose of rules of construction of conveyances is to enable the court to reach the probable intent of the parties when it is not otherwise ascertainable. These four principles stand for a relatively simple proposition: our objective in interpreting a deed is to give effect to the parties’ intent as manifested in the language of the instrument. [Dep’t of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 370; 699 NW2d 272 (2005) (citations and internal quotation marks omitted).] Our starting point in this analysis is the language of the Rackham deed, which provides that it does “grant, bargain, sell, remise, release, alien and confirm” to defendant “[Qorever, [a]ll that certain piece or parcel of land situate and being in the Township of Royal Oak, County of Oakland” as described by metes and bounds. The deed provides for specific “express conditions and limitations” regarding use of the property by defendant with rights of reversion “if any of the foregoing conditions shall be broken then the estate hereby granted shall be forfeited and the said premises shall revert to the parties of the first part and their heirs and assigns who shall thereupon have the right to re-enter and re-possess the same.” As with any instrument, a deed must be read as a whole in order to ascertain the grantor’s intent. Carmody-Lahti, supra at 370. “[A] deed granting a right-of-way typically conveys an easement, whereas a deed granting land itself is more appropriately characterized as conveying a fee or some other estate[.]” Id. at 371 (emphasis in original). Notably the terms “easement” and “right-of-way” are not contained in the Rackham deed. Rather, the deed indicated that the conveyance was for a “certain piece or parcel of land... .” Therefore, on the basis of the plain and unambiguous language of the Rackham deed, we reject plaintiffs’ assertion and find that a fee simple in the land was conveyed to defendant, rather than an easement. However, our inquiry does not stop with this determination and we must now ascertain what type of fee was conveyed. The Rackham deed clearly and unambiguously delineates “express conditions and limitations” pertaining to use of the land conveyed to defendant. In addition, following a listing of those conditions, the deed affirmatively provides that the property “shall revert” upon the breach of “any of the foregoing conditions ... .” A distinction exists between a fee subject to a condition subsequent and a fee simple determinable. Specifically, [a] “fee simple determinable” is a limited grant, while a “fee simple subject to a condition subsequent” is an absolute grant to which a condition is appended. A “fee simple determinable” is a fee subject to special limitation. It expires automatically on the happening or nonhappening of a specified event, while a fee simple subject to a condition subsequent is subject to a power in the grantor to terminate the estate on the happening of a specified event, such as a breach of a condition. [28 Am Jur 2d, Estates, § 164, p 191.] The intent of the Rackhams to create a condition subsequent is clearly and definitively demonstrated by the language contained in the deed. Clark v Grand Rapids, 334 Mich 646, 655; 55 NW2d 137 (1952). Although “conditions subsequent are not favored in law,” in this instance the presence of a reverter clause specifically requiring forfeiture upon breach of any of the delineated conditions requires us to find that the interest conveyed by the Rackham deed is a fee simple subject to a condition subsequent. Id. at 654; Quinn v Pere Marquette R Co, 256 Mich 143, 152; 239 NW 376 (1931). Guided by our determination regarding the interest conveyed by the Rackham deed, we are then able to address defendant’s assertion that the trial court erred in requiring it to obtain waivers from those individuals retaining reversionary rights in the property before any conveyance. Defendant contends that it may convey the property to any entity as long as the restrictive conditions pertaining to maintenance of the property as a public golf course are preserved. Although recognizing that an abutting property owner “who proves special injury caused by an actual diversion of the use may obtain an injunction against the diversion or misuse,” defendant asserts that abutting property owners cannot force or require that it “obtain a relinquishment of the use restriction ... in order to sell [the] land.” Defendant is partially correct in its assertion. The trial court’s imposition of a requirement that defendant first obtain waivers from those with reversionary interests is not based on the inherent rights of abutting property owners. Rather, the trial court’s requirement that defendant can sell its interest in the golf course “only after the surrender or conveyance of the rights and interest by appropriate waivers, releases, deeds or condemnation proceedings of those having possible rights as reversioners” is based on basic principles regarding estates in real property and caselaw. Specifically, our Supreme Court has repeatedly determined that “[i]f the estate was a fee upon condition subsequent, plaintiff could not enforce the reverter, because the possibility of reverter cannot be assigned before breach of condition.” Quinn, supra at 152, citing Halpin v Rural Agricultural School Dist, 224 Mich 308, 313; 194 NW 1005 (1923). As a result, and in accordance with the trial court’s determination, defendant is precluded from conveying the subject property while the reversionary rights of the Rackham heirs remain intact. This restriction on a conveyance raises an issue regarding prohibitions against restraints on alienation of property. We determine that this is not a viable issue in this case because MCL 554.381 provides, “No statutory or common law rule of this state against perpetuities or restraint of alienation shall hereafter invalidate any gift, grant, devise or bequest, in trust or otherwise, for public welfare purposes.” See also MCL 123.871. Because the agreement delineated in the Rackham deed requiring maintenance of the property as a public golf course for use by the public clearly qualifies as one invoking a public-welfare purpose, it is statutorily exempt as an unlawful restraint on alienation. Although the trial court ruled that defendant had a right to sell the property, subject to removal of the reversioners’ rights, it did not further limit defendant’s right to convey the property on the basis of the status of the purchaser as either a public or a private entity. Defendant contends that its selection of a purchaser is not restricted to only another public entity, while plaintiffs assert the language of the deed does limit the nature of the entity qualified to serve as a potential buyer. The Michigan Constitution provides: “Any city or village may acquire, own, establish and maintain, within or without its corporate limits, parks, boulevards, cemeteries, hospitals and all works that involve the public health or safety.” Const 1963, art 7, § 23. MCL 117.4e(3) allows municipalities to provide in their charters “[f]or the maintenance, development, operation, of its property and upon the discontinuance thereof to lease, sell or dispose of the same subject to any restrictions placed thereupon by law[.]” Similarly, defendant’s City Code contains provisions delineating the authority and procedure for the sale of “surplus real property and property used for public purposes.” Detroit City Code, Article VIII, § 14-8-1 through § 14-8-11. This right to sell is consistent with our determination that a fee interest was conveyed to defendant; however, we must reconcile defendant’s statutory right to sell property with any restrictions of conveyance contained in the Rackham deed. Plaintiffs contend the language of the Rackham deed precludes the conveyance of this property to a private entity. Specifically, plaintiffs argue that the wording unequivocally requires “[t]hat the said premises shall be perpetually maintained by the said party of the second part exclusively as a public golf course for the use of the public . .. .” (Emphasis added.) Plaintiffs assert that the use of the term “public” twice within this sentence or provision is indicative of the grantor’s intent that the property must remain publicly owned, thereby precluding any conveyance to a private entity. This reading of the deed language is consistent with the principle that “ ‘all the language of a deed must be harmonized and construed so as to make all of it meaningful....’” Carmody-Lahti, supra at 372 (citation omitted). Use of the term “public” before golf course indicates nonprivate ownership, with the further limitation that the property also is designated specifically “for the use of the public ... The language of the deed clearly evokes the intent of the Rackhams, as grantors, to restrict the use of the subject property. Specifically, the deed provides, in relevant part: [S]aid premises shall be perpetually maintained by said party of the second part exclusively as a public golf course for the use of the public under reasonable rules, regulations and charges to be established by second party.... First parties hereby reserve the right to restrict or limit the use of the premises hereby conveyed in such manner as to them shall seem proper in order to carry out and fulfill the purpose for which said course was built and improvements made. [Emphasis added.] This is further shown by the retention of a right of reverter and is consistent with our Supreme Court’s recognition that the Rackham “ ‘golf course was opened for the use of the public in August, 1924, being dedicated to the general public by the city of Detroit and operated as a governmental function supported by tax funds appropriated therefor and same has been used continuously since August, 1924, for public purposes.’ ” Detroit v Oakland Co, 353 Mich 609, 616; 92 NW2d 47 (1958), quoting a stipulation by the parties. As acknowledged by the Baldwin Court, “[t]he right of a municipality to alter the status and use of property conveyed to and accepted by it for a specific purpose” has frequently been the subject of dispute. Baldwin Manor, supra at 429. As noted by the Court: A distinction is to be made between cases where a public square is dedicated without restriction and cases where the dedication is restricted to a particular purpose. In the former case, any reasonable public use may be made of the square, but in the latter, it must be devoted to the particular purpose indicated by the dedicator. [Id. at 430.] In addition, “dedications made by individuals . . . are construed strictly according to the terms of the grant....” Id. Quoting with approval 26 CJS, Dedication, § 65, pp 154-155, the Baldwin Court noted: “[I]f a dedication is made for a specific or defined purpose, neither the legislature, a municipality or its successor, nor the general public has any power to use the property for any other purpose than the one designated, whether such use be public or private, and whether the dedication is a common-law or a statutory dedication; and this rule is not affected by the fact that the changed use may be advantageous to the public.” [Baldwin, supra at 430-431.] The only recognized exception to this rule is “ ‘under the right of eminent domain.’ ” Id. at 431. Given the unambiguous language used and the clearly stated intent of the grantors, we conclude that the Rackham deed contains an express covenant precluding the use of the subject property for any purpose other than a public golf course. Consequently, although defendant may sell the property, the trial court correctly indicated that it must first secure waivers from those retaining reversionary rights to the property. However, the trial court failed to recognize that additional restrictions requiring the golf course to remain public necessitated a further limitation on the type of entities to which defendant might convey the property. As a result, we determine that defendant may only sell the subject property to another public entity and not to a private entity, despite the retention of any conditions or assurances that the property would remain a golf course open to the public. Finally, defendant and plaintiffs dispute both the meaning and effect of the language in the Baker deed regarding use of the land. Specifically, plaintiffs contend the wording, “It is part of the consideration hereof that the land transferred by this deed shall be used only as a public park or golf course or for other similar purpose,” comprises a restrictive covenant intended to ran with the land. In contrast, defendant asserts that the language is merely a statement of purpose. Our focus is on “the intent of the parties as manifested in the plain language of the deed at issue ....” Carmody-Lahti, supra at 375. The Baker deed specifically indicates that it is a conveyance of land “in Fee Simple.” However, the instrument lacks a reverter clause or any words indicating the referenced provision pertaining to use of the property, which identifies it as a “condition.” “The absence of a reverter clause is ordinarily controlling against construction of a provision as a condition.” Clark, supra at 653. Typically, “where there is no reverter clause [in a deed], a statement of use is merely a declaration of the purpose of conveyance, without effect to limit the grant.” Quinn, supra at 151. Defendant contends that successors in interest are not bound by the statement of intent, citing Briggs v Grand Rapids, 261 Mich 11, 14; 245 NW 555 (1932), which held that “[t]here was no obligation on the part of the city to maintain the park in perpetuity.... [W]here there is no reverter clause, a statement of use is merely a declaration of the purpose of conveyance, without effect to limit the grant.’ ” (Citation omitted.) However, we note that Briggs is factually distinguishable because the property at issue was purchased for valuable consideration by the city and is not “a case where property was donated or dedicated for park purposes ....” Id. When ruling on the effect of the Baker deed, the trial court stated, in relevant part: [T]he facts in the case at bar indicate the language was intended to serve as a restriction and not merely, quote, “a declaration of the purpose of conveyance,” unquote, as in the Briggs case. It cannot be ignored that the property was originally platted for development and prior to the transfer to the Rackhams the plat was vacated by an action in this Court. The facts and records indicate the intention of Baker Land Company was that the property be used only as a public park or golf course. The absence of a reverter clause does not change the very clear intention as set forth in the deed. Defendant contends that the trial court erred by determining that the restriction in the Baker deed to the Rackhams constituted a restrictive covenant that ran with the land rather than merely a statement of purpose. “A covenant is a contract created with the intention of enhancing the value of property and is a valuable property right.” Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 491; 686 NW2d 770 (2004). Because such covenants are based in contract, the intent of the drafter is deemed controlling. Stuart v Chawney, 454 Mich 200, 210; 560 NW2d 336 (1997). We note as a recognized principle of construction regarding restrictive covenants that they are to be strictly construed against the party seeking their enforcement and that any doubts pertaining to their interpretation are to be resolved in favor of the free use of the property. O’Connor v Resort Custom Builders, Inc, 459 Mich 335, 341-342; 591 NW2d 216 (1999). Importantly, “when the intent of the parties is clearly ascertainable, courts must give effect to the instrument as a whole.” Village of Hickory Pointe Homeowners Ass’n v Smyk, 262 Mich App 512, 515-516; 686 NW2d 506 (2004). Relying on prior rulings of our Supreme Court, this Court has previously determined that restrictive covenants are to be construed in connection with the surrounding circumstances, which the parties are supposed to have had in mind at the time they made it, the location and character of the entire tract of land, the purpose of the restriction, whether it was for the sole benefit of the grantor or for the benefit of the grantee and subsequent purchasers, and whether it was in pursuance of a general building plan for the development and improvement of the property. [Webb v Smith (After Remand), 204 Mich App 564, 570; 516 NW2d 124 (1994), quoting Brown v Hojnacki, 270 Mich 557, 560-561; 259 NW 152 (1935) (additional citations and internal quotation marks omitted).] In ascertaining whether restrictive covenants run with the land, our Supreme Court has indicated: The test as to whether a covenant runs with the land or is merely personal, is whether the covenant concerns the thing granted and the occupation or enjoyment of it, or is a collateral and personal covenant not immediately concerning the thing granted. If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing granted or demised and the act to be done or permitted must concern the land or the estate conveyed. In order that a covenant may run with the land its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment. [Greenspan v Rehberg, 56 Mich App 310, 321; 224 NW2d 67 (1974) (citations and internal quotation marks omitted).] Applying the above definitions to the factual circumstances of this case, we concur with the trial court’s determination that the language of the Baker deed, restricting use of the property to a “public park or golf course or for other similar purpose,” despite the absence of a reversionary clause or other conditional language, comprises a restrictive covenant that runs with the land. As pointed out by the trial court, the property conveyed by the Baker deed; which ultimately became the Rackham Golf Course, was originally platted as part of a residential development. The Baker Land Company specifically instituted legal proceedings to vacate that portion of the plat in order to develop the land as a public park or golf course. The language of the deed, coupled with the actions taken to distinguish this plat, expressly indicates the Baker Land Company’s intention that the property not be developed for residential use, which would enhance the value of the surrounding area. Specifically, the restriction on use denoted in the Baker deed reflects the “pursuit] of a general building plan for the development and improvement of the property.” Webb, supra at 570 (citations and internal quotation marks omitted). Because we determine that the restriction concerns both the land conveyed and its future use, it comprises a covenant that runs with the land. As a result, the obligation to maintain the restricted use of the property passes to subsequent owners, Greenspan, supra at 321, and, thus, precludes the Rackhams, defendant, and future owners' from using the land for any purpose other than as a public golf course. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. In addition, the trial court denied the motion of Premium Golf, LLC, which is not a party to this appeal, to intervene in the action. Defendant was to receive $10,000 for each single-family detached lot; $8,000 for each cluster-style home; and $5,000 for each multiple-family dwelling unit, defined as including eight or more units in each building. Plaintiff Steinberg owns a home in the Huntington Woods subdivision that does not abut the golf course. We note that the cited provision is now contained in 64 CJS, Municipal Corporations, § 1561, p 719.	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PER CURIAM. In this wrongful-death medical-malpractice action, plaintiff appeals as of right a jury verdict and court judgment of no cause of action. We affirm. I Plaintiffs decedent sought treatment from defendant Fenton Medical Center on July 24, 2001. He had symptoms of pain in the left side of his chest, left arm, and neck. Defendant Deborah Wilson, a licensed physician’s assistant supervised by defendant Deborah Duncan, M.D., a family-practice physician, examined him. She found that his pulse and blood pressure were normal, and he was not short of breath, but he had sounds (i.e., “rales”) in his lungs. He also had tender ness in his chest wall, and his chest pain did not increase with exertion. She ordered a chest x-ray and electrocardiogram (EKG). The EKG was normal, but the chest x-ray showed that some air sacs in his lungs had collapsed. Wilson diagnosed the decedent as having pneumonia and prescribed an antibiotic. Two days later, the decedent complained of a severe headache, which made him feel like his head was bursting. An ambulance was called, but the decedent died before he arrived at the hospital. No autopsy was performed before the decedent’s interment. His remains were exhumed a year later for a partial autopsy of his lungs and heart. The pathologist found blood clots in the decedent’s lungs, but the parties’ experts disputed whether these clots formed before or after his death. Plaintiff brought this action alleging that the decedent’s recent history of deep vein thrombosis should have alerted defendants to the possibility of a pulmonary embolism (blood clot or clots blocking the flow of blood to the lungs) or a cardiac problem requiring urgent care. Plaintiff alleged that a physician’s assistant and a family-practice physician following the appropriate standard of care would have immediately hospitalized the decedent for treatment with blood-thinner medication and additional tests to confirm or rule out an acute pulmonary or cardiac condition. Defendants maintained that the decedent did not show any indications of a life-threatening condition when Wilson examined him, and they disputed plaintiffs claim that the decedent died from a pulmonary or cardiac condition caused by blood clots. II Plaintiff first argues that the trial court erred by denying her motion to strike Ronald Nelson as defen dants’ expert witness regarding the appropriate standard of care for a physician’s assistant. Plaintiff argues that Nelson was not qualified as an expert under MCL 600.2169(1) because his supervising physician specialized in internal medicine and Wilson’s supervising physician, Dr. Duncan, specialized in family practice. This issue presents a question of statutory interpretation, which we review de novo. Tomecek v Bavas, 276 Mich App 252, 260; 740 NW2d 323 (2007). MCL 600.2169(1) provides: In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose hehalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. (ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty. (c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or hoth of the following: (i) Active clinical practice as a general practitioner. (ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed. Defendants contend that the terms “specialist” and “general practitioner” refer only to physicians and that the criteria set forth in § 2169(l)(a) and (c) therefore apply only to physicians, not physician’s assistants or other nonphysician health professionals. The statute does not define the terms “specialist” or “specialty.” In Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006), our Supreme Court construed the term “specialty” to mean “a particular branch of medicine or surgery in which one can potentially become board certified.” In Cox v Flint Bd of Hosp Managers, 467 Mich 1; 651 NW2d 356 (2002), our Supreme Court held that MCL 600.2912a, which sets forth the applicable standards of care for general practitioners and specialists in medical-malpractice actions, does not establish a statutory standard of care for nurses. The Court held that the terms “general practitioner” and “specialist” apply only to physicians; therefore, nurses are subject to the common-law standard of care. Id. at 18-20. In Brown v Hayes, 270 Mich App 491, 499-500; 716 NW2d 13 (2006), rev’d in part on other grounds 477 Mich 966 (2006), this Court held that under Cox, the terms “specialist” and “general practitioner” apply only to physicians, and therefore § 2961(l)(a) and (c) are not applicable in determining the qualifications necessary to testify regarding the appropriate standard of care for an occupational therapist. Id. at 499-500. The trial court’s denial of plaintiffs motion to exclude Nelson’s testimony is consistent with this Court’s decision in Brown, and with the Supreme Court’s construction of “specialty” as “a particular branch of medicine or surgery in which one can potentially become board certified” in Woodard, supra at 561. Section 2961(1)(a) and (c) apply, respectively, to specialists and general practitioners, but these terms refer only to physicians, not other health professionals. A physician’s assistant is not a physician; therefore, the criteria set forth in § 2961(1)(a) and (c) do not apply. Brown, supra. Further, the statutes pertaining to licensing for physician’s assistants do not recognize board certification in any specialty. See MCL 333.17060 through 333.17082. A physician’s assistant cannot be a specialist in accordance with the Supreme Court’s construction of that term in Woodard, supra. It is significant that a physician’s assistant need have no special certification to work under a physician who is a specialist. Both Wilson and Nelson were eligible to work under either a family-practice physician or an internal-medicine physician. Plaintiff argues that notwithstanding the foregoing, a different result must obtain in the instant case because MCL 333.17078(2), a statute pertaining to physician’s assistants, states that a physician’s assistant “shall conform to minimal standards of acceptable and prevailing practice for the supervising physician.” We disagree. While this provision states the standard of care applicable to a physician’s assistant, and an expert witness must demonstrate familiarity with that stan dard to be qualified to offer expert testimony, it does not follow that physician’s assistants are specialists under § 2961(1)(a). Thus, neither § 2169(1)(a) nor § 2169(1)(c) apply to defendant’s choice of an expert witness regarding the appropriate standard of care for Wilson; rather, the expert’s qualifications are governed by § 2169(1)(b), which applies to both physicians (specialists and general practitioners) and other health professionals. Brown, supra at 500. During the year preceding the decedent’s death, Nelson devoted a majority of his professional time to active clinical practice as a physician’s assistant, the same health profession to which Wilson belongs. Accordingly, he was qualified as an expert witness pursuant to § 2169(1)(b)(i). hi Plaintiff next argues that the trial court erred by denying her motion to strike Dr. James Setchfield’s testimony opining that the decedent probably died from an “intracranial process.” Plaintiff argues that this testimony was improper because it was speculative and lacked foundation, contrary to MRE 702. She also complains that defendants failed to disclose Dr. Setchfield as an expert witness on the issue of causation and that he was not qualified to offer this opinion. We review preserved evidentiary issues for an abuse of discretion, Woodard, supra at 557, and unpreserved issues for plain error affecting plaintiffs substantial rights, Hilgendorf v St John Hosp & Med Ctr Corp, 245 Mich App 670, 700; 630 NW2d 356 (2001); MRE 103(a)(1). At trial, plaintiff cross-examined Dr. Setchfield on these issues and did not challenge his testimony until he was excused from the stand. At that point, plaintiff objected to the testimony on the ground that it was speculative, but did not object on the other grounds asserted on appeal. The trial court ruled: It can’t be proved or it can’t be disproved is the way he put it. He did have a medical basis at least in his mind for stating that opinion. I actually think it was improper, but I think as well that it is a theory that he supported with the record and I think [plaintiffs counsel] cross-examined him on the issue, and I am not going to strike it from the jury’s consideration. I don’t think it’s worth much, but I am not going to tell them that. Plaintiff never objected on the basis that defendant failed to alert plaintiff that Dr. Setchfield would offer causation testimony. Rather, plaintiff cross-examined Dr. Setchfield on his deposition testimony that he had no opinions on causation. Having opted not to seek the trial court’s intervention on this basis, but rather to present it to the jury as an issue of credibility, plaintiff cannot now claim that the trial court erred by not striking the testimony on that basis. We find no plain error affecting plaintiff s substantial rights. Hilgendorf, supra at 700. Similarly, we review the court’s decision to let the testimony stand in the context that plaintiff failed to object when the testimony was offered and chose instead to cross-examine on the issue, only to later move to strike the testimony on the basis that it was too speculative. The trial court did not abuse its discretion by ruling that at that point, in light of the fact that the witness offered a medical basis for his opinion, relating it to the decedent’s symptoms, and also clearly acknowledged that it could not be proved or disproved, the court would leave it to the jury to decide what weight to give to the testimony. Woodard, supra at 557. IV Plaintiff also argues that the trial court erroneously permitted Dr. James Martin to testify regarding the decedent’s cause of death. We reject this claim for similar reasons. Defense counsel questioned Dr. Martin regarding the care given the decedent on July 24, 2001. Dr. Martin testified that he found nothing inappropriate in the treatment. Defense counsel continued: Q. Can you see anything on the 24th that was going to be a predictor of Mr. Wolford’s death some three days later? A. Nothing there. No. Nothing. Q. And today is there any way to predict what caused his death? A. Autopsy. Q. Okay. A. Complete autopsy. Q. And we only have an autopsy of the lungs and the heart. A. That’s what I understand. Q. Do those autopsy findings predict his death or tell us why he died? A. No. Plaintiffs counsel then objected: “Objection. Foundation. He’s not a pathologist. He has not established that within a year — in 2001 or a year prior that he was doing coronary work.” The court overruled the objection. Defense counsel continued and told the witness that counsel was asking him to answer in his capacity as a family practitioner. Counsel then inquired whether Dr. Martin reviewed autopsy results in his practice and asked a series of questions regarding whether patients who die from heart attacks and pulmonary embolisms have severe headaches immediately before death. Defense counsel then asked Dr. Martin whether, from a clinical standpoint, the fact that the decedent had a severe headache immediately before dying was significant. Dr. Martin answered that the decedent’s massive headache caused him to “wonder if there isn’t something cerebral going on, in his brain.” Defense counsel continued: Q. How can something in your brain kill you? A. You can have several things. You can have a regular artery rupture and bleed or you can have an aneurysm. At the base of [sic] brain there is a little circle of vessels. Eemember, if you’re old enough to remember the old tires that would get a balloon on the side, well, that’s sort of what an aneurysm is. It’s a bulging out in a weak spot and when that ruptures that is like turning a fire hose loose in your living room and squirting your TV and your electrical and sound equipment, it goes out. That’s what happened to Mr. Wolford. It sounds like he had that. Q. Is there any — what else can cause sudden death? A. Sudden death? Q. Sudden death. A. Something cerebrally in the brain, a heart attack, you could have an arrhythmia, and a big pulmonary embolus. Those cause sudden death. Q. Anything other than a brain issue that you can think of that would cause sudden death in Mr. Wolford from your review? A, You have to restate it. I couldn’t hear you. Q. Is there anything that you’ve seen about this case that points to the heart having caused the sudden death? A. No. Q. How about a [pulmonary embolism]? A. No. Plaintiffs counsel made no objection to the foregoing testimony, except the initial objection set forth above regarding the doctor’s response to the autopsy question. We conclude that plaintiff failed to preserve the challenges raised on appeal. Our review is thus for plain error affecting plaintiff s substantial rights. Hilgendorf, supra at 700; MRE 103(a)(1). We reject plaintiffs argument that the trial court’s ruling on the initial objection “permitted Dr. Martin to ramble on for three pages as to the possible causes of Mr. Wolford’s death.” Nothing precluded plaintiff from objecting on the basis that Dr. Martin was not identified as a causation witness or that his testimony was speculative. Further, the court’s initial ruling on the objection to the question whether the autopsy predicted the decedent’s death or told why he died did not foreclose objection to the testimony plaintiff now challenges on appeal. We find no plain error affecting plaintiffs substantial rights. Hilgendorf, supra at 700. Affirmed. Of course, Nelson’s testimony was also subject to MRE 702. However, plaintiff does not challenge his testimony on this basis.	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PER CURIAM. Defendant, the Bureau of Construction Codes and Fire Safety (the Bureau), appeals by leave granted from the trial court’s final order granting declaratory and injunctive relief to plaintiff Guardian Environmental Services, Inc. We affirm. This declaratory judgment action arose from a dispute between plaintiff, a licensed mechanical contractor, and the Bureau, which was charged with the enforcement of the Electrical Administrative Act (EAA), MCL 338.881 et seq. In August 2004, plaintiff contracted with the Allen Park School District to perform renovation work in five of the district’s school buildings. Specifically, plaintiff was hired to replace existing pneumatic energy management systems with direct digital control energy management systems in four of the school buildings and to replace a hybrid energy management system with a direct digital control energy management system in the fifth school building. Replacement of the existing energy management systems required plaintiff to install low-voltage wiring and communications network cabling. Plaintiff intended to perform this work itself instead of subcontracting the work to a licensed electrical contractor. Plaintiff maintained that because it was a licensed mechanical contractor and because the work involved the “replacement” and “upgrading” of energy management systems that control existing mechanical systems, MCL 338.887(3)(i) permitted it to perform this work without an electrical contractor’s license. On March 17, 2005, William Fox, a state inspector for Wayne County, ordered plaintiff to cease installing low-voltage wiring at the Allen Park project. Concerned that Fox’s action would affect its other projects, including work that it was performing for the Warren Consolidated School District, plaintiff contacted Virgil Monroe, chief of the Bureau’s electrical division. Monroe determined that MCL 338.887(3)(i) did not allow plaintiff to install low-voltage wiring and forwarded to Chuck Goerlitz, plaintiffs manager, a May 1998 bulletin authored by Tom Kriegish, the former chief of the electrical division, which set forth the Bureau’s position regarding what work was permissible without an electrical contractor’s license pursuant to MCL 338.887(3)(i). Goerlitz requested an appeal of Monroe’s decision that plaintiff was not allowed to install the low-voltage electrical wiring. He also noted that the term “existing mechanical systems” required clarification and requested a statement of the Bureau’s position on the meaning of the phrase. In response to Goerlitz’s communications, Monroe confirmed that the May 1998 article set forth the Bureau’s “complete and final position” on work that may be performed without an electrical contractor’s license pursuant to MCL 338.887(3)(i). With respect to the meaning of the phrase “existing mechanical systems,” Monroe explained: Existing mechanical systems are not defined in the Act. According to Webster’s New World Dictionary, Third College Edition, “Existent” is defined as 1 — having existence or being; existing, 2 — existing now; present; immediate. Using this definition, the term “existing mechanical systems” would be systems existing at the time of service, repair, replacement, etc. 7 (3) (i) would cover these installations. It would not include systems removed then changed to a different type of system, such as, the replacement of an existing pneumatic controlled system with a new electrical controlled system. In this instance a licensed electrical contractor would be required. This is the final position of the Electrical Division. Plaintiff requested that the Electrical Administrative Board overrule Monroe’s decision. However, at its October 7, 2005, meeting, the Electrical Administrative Board unanimously upheld Monroe’s interpretation of MCL 338.887(3)(i). Plaintiff then petitioned the Michigan Department of Labor and Economic Growth for declaratory relief, which the department denied. On February 27, 2006, plaintiff filed an action seeking a declaration from the trial court that an exception to the requirement that all electrical wiring be performed by an entity holding an electrical contractor’s license set forth under MCL 338.887(3)(i) applied to the work plaintiff sought to perform, namely, the replacement of an existing pneumatic energy management system with a direct digital control energy management system. The trial court granted plaintiff’s request for declaratory and injunctive relief on August 7, 2006. On appeal, the Bureau argues that the trial court’s interpretation of MCL 338.887(3)(i) was contrary to the plain language of the statute. We disagree. We review de novo both questions of law arising from a declaratory judgment action and questions of statutory interpreta tion. Green Oak Twp v Munzel, 255 Mich App 235, 238; 661 NW2d 243 (2003); Dessart v Burak, 252 Mich App 490, 494; 652 NW2d 669 (2002), aff'd 470 Mich 37 (2004). We review the trial court’s decision to grant or deny declaratory relief for an abuse of discretion. Gauthier v Alpena Co Prosecutor, 267 Mich App 167, 170; 703 NW2d 818 (2005). In the absence of fraud, findings of fact made or adopted by an administrative agency are conclusive on appeal if they are supported by competent evidence on the record; however, the decision of an administrative agency may be reversed if the agency’s decision was based on erroneous legal reasoning or if the agency operated within the wrong legal framework. Schmaltz v Troy Metal Concepts, Inc, 469 Mich 467, 471; 673 NW2d 95 (2003). In interpreting a statute, the fundamental task of a court is to “discern and give effect to the Legislature’s intent as expressed in the words of the statute.” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). Where the plain and ordinary meaning of the statutory language is clear, further judicial construction is unwarranted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). See also DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). Judicial construction of a statute is proper only where reasonable minds could differ about the meaning of the statute. Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998). We accord to every word or phrase of a statute its plain and ordinary meaning, unless a term has a special, technical meaning or is defined in the statute. Casco Twp v Secretary of State, 472 Mich 566, 593 n 44; 701 NW2d 102 (2005); MCL 8.3a. In ascertaining the plain and ordinary meaning of undefined statutory terms, we may rely on dictionary definitions. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). MCL 338.887 provides, in pertinent part: (1) Except as otherwise provided in this act or in subsection (3), a person, firm, or corporation shall not engage in the business of electrical contracting unless the person, firm, or corporation has received from the board or from the appropriate municipality an electrical contractor’s license. (2) Except as otherwise provided in this act or in subsection (3), a person, other than a person licensed under this act and employed by and working under the direction of a holder of an electrical contractor’s license, shall not in any manner undertake to execute any electrical wiring. (3) A license under this act is not required in the execution of the following classes of work: (i) Work performed by mechanical contractors licensed in classifications listed in section 6(3)(a), (b), (d), (e), and (f) of the Forbes mechanical contractors act, 1984 PA 192, MCL 338.976, plumbing contractors licensed under 1929 PA 266, MCL 338.901 to 338.917, and employees of persons licensed under those acts while performing maintenance, service, repair, replacement, alteration, modification, reconstruction, or upgrading of control wiring circuits and electrical component parts within existing mechanical systems defined in the mechanical and plumbing codes provided for in the Stille-DeRossett-Hale single state construction code act, 1972 PA 230, MCL 125.1501 to 125.1531, including, but not limited to, energy management systems, relays and controls on boilers, water heaters, furnaces, air conditioning compressors and condensers, fan controls, thermostats and sensors, and all interconnecting wiring associated with the mechanical systems in buildings which are on the load side of the unit disconnect, which is located on or immediately adjacent to the equipment, except for life safety systems wiring. Here, each party argues that the plain language of the statute supports its interpretation of MCL 338.887(3)(i). Plaintiff contends that under the plain meaning of MCL 338.887(3)(i), a mechanical contractor may replace an energy management system within an existing mechanical system. The Bureau, however, asserts that the statutory exception set forth under MCL 338.887(3) (i) unambiguously allows mechanical contractors only to replace wiring and other electrical components within existing energy management systems. In making this argument, the Bureau contends that the statute would allow a mechanical contractor to replace a pneumatic energy management system with another pneumatic energy management system. The Bureau also contends that the statutory exception provided under MCL 338.887(3)(i) allows plaintiff to remove a direct digital control energy management system, but it does not permit plaintiff to replace an existing pneumatic energy management system with a direct digital control energy management system. However, the Bureau’s proposed interpretation of the term “replacement” imposes the additional, extra-statutory requirement that the substituted system must be of like kind. Instead, we conclude that the Legislature intended to allow plaintiff to replace an existing pneumatic or hybrid energy management system with a direct digital control energy management system within an existing mechanical system. Random House Webster’s College Dictionary (1997) defines “replacement” as “the act of replacing” and as “a person or thing that replaces another,” and defines “replace” as “to assume the function of; substitute for: to replace gas lights with electric lights.” Especially in light of the example of “replace” included in this definition, we conclude that the proper interpretation of “replacement” as used in MCL 338.887(3)(i) includes the abandonment or removal of a pre-existing defective or obsolete pneumatic energy management system and the installation of a new direct digital control system for an existing mechanical system. The statutory exception included in MCL 338.887(3)(i) provides that a mechanical contractor may “performG maintenance, service, repair, replacement, alteration, modification, reconstruction, or upgrading of control wiring circuits and electrical component parts within existing mechanical systems ....” According to the statute, an example of the “electrical component parts” or “control wiring circuits” “include[es], but [is] not limited to, energy management systems ....” MCL 338.887(3)(i). Thus, an energy management system is one example of an electrical component part of a pre-existing mechanical system that a licensed mechanical contractor is permitted to replace. The Legislature’s choice of the term “replacement” reflects its intent that an electrical contractor’s license is not required for the removal of a pneumatic energy management system and the installation of a direct digital control energy management system in a pre-existing mechanical system. We conclude that the trial court’s decision that the exception set forth under MCL 338.887(3)(i) allowed plaintiff to perform the disputed work was based on a correct, plain-language interpretation of the statute. Next, the Bureau argues that the trial court exceeded its authority when it improperly declined to defer to the Bureau’s interpretation of the statute. We disagree. An administrative agency’s interpretation of a statute it is charged with enforcing is entitled to great weight and we will overrule the interpretation only if it is clearly erroneous. Schmaltz, supra at 471. However, if an administrative agency’s interpretation of a statute is contrary to the statute’s plain meaning, the intent of the Legislature as expressed in the statutory language must prevail. By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 49-50; 703 NW2d 822 (2005). The Bureau asserts that the interpretation of a statute by an agency charged with enforcing the statute should not be overruled in the absence of “cogent reasons.” See Oakland Schools Bd of Ed v Superintendent of Pub Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977), quoting United States v Moore, 95 US 760, 763; 24 L Ed 588 (1877). However, an agency’s interpretation of a statute contrary to the plain language of the statute constitutes a compelling, “cogent” reason for overruling the agency’s clearly erroneous interpretation. See Consumers Power Co v Pub Service Comm, 460 Mich 148, 157 n 8; 596 NW2d 126 (1999) (“An agency interpretation cannot overcome the plain meaning of a statute.”). Mindful that one branch of government may not exercise powers conferred to other branches of government, Const 1963, art 3, § 2, the Bureau’s contention that the trial court’s failure to defer to its construction of MCL 338.887(3)(i) violated the “separation of powers” doctrine ignores the significant concepts of checks and balances and judicial review. The judiciary alone is the final authority on questions of statutory interpretation and must overrule administrative interpretations that are contrary to clear legislative intent. Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich 479, 491 n 23; 697 NW2d 871 (2005). See also Chevron USA Inc v NRDC, Inc, 467 US 837, 843 n 9; 104 S Ct 2778; 81 L Ed 2d 694 (1984). Because the Bureau’s construction of MCL 338.887(3)(i) was contrary to the intent of the Legislature, as expressed in the unambiguous language of the statute itself, a cogent reason existed for the trial court not to defer to the Bureau’s erroneous interpretation. Accordingly, the trial court neither violated the “separation of powers” doctrine nor exceeded its authority in rejecting the Bureau’s invitation to defer to its construction of MCL 338.887(3)(i). Affirmed. The Bureau of Construction Codes and Fire Safety is part of the Michigan Department of Labor and Economic Growth. The question presented by the parties on appeal is one of statutory construction, the parties did not present extensive evidence regarding the nature, purpose, and makeup of the energy management systems that plaintiff planned to install, and the trial court did not engage in significant fact-finding. Therefore, we accept the allegations in the complaint as true for purposes of presenting pertinent background facts in this opinion. Plaintiff subcontracted the high-voltage wiring associated with the project to a licensed electrical contractor. The May 1998 article provides in relevant part: Recently, several individuals have asked bureau staff whether a mechanical contractor or authorized master plumber may perform work relating to electrical installations, without an electrical license. Existing pneumatic control systems may be modified, upgraded, or replaced by a mechanical contractor. However, when an existing pneumatic system is abandoned, and replaced with a new electrical control system, it must be installed by a licensed electrical contractor. The trial court’s order stated, in pertinent part: [P]ursuant to the exemption provided in MCL 338.887(3)(i), [plaintiff], a licensed mechanical contractor, may install low voltage electrical wiring when replacing, modifying or upgrading energy management systems within existing mechanical systems, including, but not limited to, the replacement of a pneumatic control energy management system with a direct digital control energy management system. Our Supreme Court has granted leave to appeal in another case involving the issues of: “(1) what legal framework appellate courts should apply to determine the degree of deference due an administrative agency in its interpretation if a statute within its purview; [and] (2) whether the Court of Appeals erred in deferring to the Michigan Public Service Commission’s interpretation of MCL 484.2502(1) (a)... .” SBC Michigan v Pub Service Comm., 480 Mich 977 (2007). See also In re Complaint of Rovas Against Ameritech Michigan, 276 Mich App 55; 740 NW2d 523 (2007). Our Supreme Court’s decision in SBC Michigan could alter the common law regarding the deference that must be given to agency interpretations. However, under existing law, deference to an administrative agency’s interpretation of a statute is proper only where reasonable minds could differ regarding the meaning of the statute, i.e., the statutory language is ambiguous. By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 49-50; 703 NW2d 822 (2005). Further, pursuant to the language of this Court in By Lo Oil Co, if an administrative agency’s interpretation of a statute is contrary to the plain meaning of the statute, the agency’s interpretation is clearly erroneous. Id. at 49-50. Where, as here, the statutory language is unambiguous, the statute must be applied as written. Pohutski, supra at 683.	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O’CONNELL, J. In this no-fault case involving repayment for services rendered, plaintiff appeals by leave granted a circuit court order that reversed a district court order denying defendant’s motion for partial summary disposition. We reverse the circuit court order, reinstate the district court order, and remand to the district court for further proceedings. We address plaintiffs jurisdictional question first. Plaintiff argues that whether plaintiffs facility and staff members are properly licensed to provide the services rendered is a regulatory matter that should be considered first by the Board of Psychology, because it has specialized knowledge and, therefore, is better suited to decide whether the services fall within the practice of psychology and whether plaintiff falls within an exception to the licensing requirement. We disagree. We review de novo the applicability of the primary-jurisdiction doctrine because it is a question of law. SPECT Imaging, Inc v Allstate Ins Co, 246 Mich App 568, 580; 633 NW2d 461 (2001). Primary jurisdiction is applicable “when a claim may be cognizable in a court but initial resolution of issues within the special competence of an administrative agency is required.” Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 197; 631 NW2d 733 (2001) (citation omitted). Although the doctrine’s applicability is determined by “its own facts” on a case-by-case basis, we utilize the following three-pronged test: First, a court should consider to what extent the agency’s specialized expertise makes it a preferable forum for resolving the issue. Second, the court should consider the need for uniformity and consistency in resolution of the issue. Third, it should consider whether judicial resolution of the issue will have an adverse effect on the agency’s performance of its regulatory responsibilities. [SPECT, supra at 580 (quotation marks and citation omitted.] In the present case, we find that the district court was not required to defer to the board. The district court, not the board, has original subject-matter jurisdiction over a claim for no-fault benefits. Id. Defendant was not seeking to have plaintiff and its staff members’ licenses revoked, an issue squarely within a regulatory agency’s sole discretion, see Attorney General v Diamond Mortgage Co, 414 Mich 603, 610-611; 327 NW2d 805 (1982), but rather sought the interpretation and application of a statute regarding no-fault benefits. The board does not have specialized knowledge that would make it the preferable forum. The Legislature defined the scope of psychology and the scope of the other fields in which plaintiffs staff members are licensed to practice. The courts are just as capable of interpreting those statutes as the board. Additionally, “requiring the lower court to decide whether these individuals violated the Public Health Code to the extent that plaintiff is unable to recover expenses under the no-fault act would not result in a ‘pervasive regulatory scheme’ being ‘thrown out of balance.’ ” SPECT, supra at 581. Because we find that the district court properly exercised jurisdiction, we move on to plaintiffs claim that the circuit court improperly reversed the district court’s order and granted partial summary disposition to defendant to the extent any service fell with the definition of “biofeedback techniques.” We agree. We review de novo a trial court’s grant of summary disposition. Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 725; 613 NW2d 378 (2000). A motion under MCR 2.116(0(10) tests the factual support of a plaintiffs claim. Id. at 725-726. Summary disposition is only appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 726. “In reviewing the trial court’s decision, we must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, and, giving the benefit of the doubt to the nonmoving party, we must determine whether a genuine issue of material fact exists to warrant a trial.” Id. Issues of statutory construction are also reviewed de novo. Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 396; 605 NW2d 685 (1999). Under the no-fault act, an injured insured is entitled to the payment of personal protection insurance (PIP) benefits for “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a). However, PIP benefit payments are limited under MCL 500.3157: “A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance... may charge a reasonable amount for the products, services and accommodations rendered.” (Emphasis added.) The issue is whether the services provided by plaintiff were “lawfully rendered” given plaintiffs alleged violations of the Public Health Code (PHC), MCL 333.1101 et seq., and the Professional Service Corporation Act (PSCA), MCL 450.211 et seq. “[Ojnly treatment lawfully rendered, including being in compliance with licensing requirements, is subject to payment as a no-fault benefit.” Cherry v State Farm Mut Automobile Ins Co, 195 Mich App 316, 320; 489 NW2d 788 (1992). However, services might be lawfully rendered even if a particular service is “excluded” from the scope of the provider’s licensed field: “ ‘The purpose of the licensing statute is not to prohibit the doing of those acts that are excluded from the definition of [the field of practice], but to make it unlawful to do without a license those things that are within the definition.’ ” Hoffman v Auto Club Ins Ass’n, 211 Mich App 55, 65; 535 NW2d 529 (1995), quoting Attorney General v Beno, 422 Mich 293, 303; 373 NW2d 544 (1985). An excluded activity would be considered unlawful if it constituted the practice of another field without a license. Hoffman, supra at 65. However, “merely because [certain] activities may constitute the practice of [one specialized field, or even several], . . . does not thereby inevitably mean that they are not within the scope of [another].” Beno, supra at 332. Indeed, the PHC provides that its provisions “shall be liberally construed for the protection of the health, safety, and welfare of the people of this state.” MCL 333.1111(2). To determine if the circuit court properly determined that neurobiofeedback (NBF) falls exclusively within the scope of psychology, we must examine the various statutes under which plaintiff and its staff are licensed and compare them with other provisions of the PHC. Under the PHC, those licensed to practice medicine have the broadest grant of authority and provide services related to a patient’s physical or mental health. MCL 333.17001(d). The following parameters are provided with respect to the practice of psychology: (a) “Psychologist” means an individual licensed under this article to engage in the practice of psychology. (b) “Practice of psychology” means the rendering to individuals, groups, organizations, or the public of services involving the application of principles, methods, and procedures of understanding, predicting, and influencing behavior for the purposes of the diagnosis, assessment related to diagnosis, prevention, amelioration, or treatment of mental or emotional disorders, disabilities or behavioral adjustment problems by means of psychotherapy, counseling, behavior modification, hypnosis, biofeedback techniques, psychological tests, or other verbal or behavioral means. The practice of psychology shall not include the practice of medicine such as prescribing drugs, performing surgery, or administering electro-convulsive therapy. [MCL 333.18201(1) (emphasis added).] Although several of the staff members at plaintiffs clinic have master’s degrees in psychology and limited licenses, the statute specifically provides for two limitations placed on such a license, one of which is “supervision by a psychologist who has a license other than a limited license.” MCL 333.18223(2). As there are no fully licensed psychologists at plaintiffs clinic to supervise the staff members, no staff member, even those with a master’s degree in psychology and a limited license, may practice psychology. Therefore, NBF can only be “lawfully rendered” if it falls within the scope of the other licenses of plaintiffs staff and is not exclusively within the scope of psychology. None of the “means” enumerated in MCL 333.18201(b) is defined in the statutes or administrative rules, so we may consult dictionary definitions of those terms. Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006). “ ‘[Technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.’ ” Id., quoting MCL 8.3a. Because the terms involve the provision of health care and the terms may have acquired a “peculiar and appropriate meaning” in fields involving health care, it is appropriate to look to medical dictionaries. Woodard, supra at 561. “Psychotherapy” is defined in The American Heritage Medical Dictionary (2007) as “the treatment of mental and emotional disorders through the use of psychological techniques designed to encourage communication of conflicts and insight into problems, with the goal being personality growth and behavior modification.” “Behavior modification” is defined as “the use of basic learning techniques, such as conditioning biofeedback, reinforcement, or aversion therapy, to teach simple skills or alter undesirable behavior.” Id. “Biofeedback,” to which NBF is related, given its name, is defined as follows: The process of making involuntary and unconscious hodily functions (as the heartbeat) perceptible to the senses (of vision and hearing) in order to control them by conscious mental effect. [Bender, Attorneys’ Dictionary of Medicine (2000).] [A] method of learning to modify a particular hody function, as temperature, by monitoring it with the aid of an electronic device. [Random House Webster’s College Dictionary (1997).] There are also specific definitions for NBF, also known as neurotherapy and EEG biofeedback: Neurofeedback ... , also called neurotherapy, neurobiofeedback or EEG biofeedback (EEGBF) is a therapy technique that presents the user with realtime feedback on brainwave activity, as measured by electrodes on the scalp, typically in the form of a video display, sound or vibration. The aim is to enable conscious control of brainwave activity. If brain activity changes in the direction desired by the therapist, a positive “reward” feedback is given to the individual, and if it regresses, either a negative feedback or no feedback is given (depending on the protocol). Rewards can be as simple as a change in the pitch of a tone or as complex as a certain type of movement of a character in a video game. This experience could be called operant conditioning for internal states. [The Free Encyclopedia <http:// encyclopedia.thefreedictionary.com/Neurofeedback> (accessed May 23, 2008).] Under this definition, it may be that the NBF procedure utilized by plaintiff is a “biofeedback technique.” But, under the various additional definitions, it is also clear that “biofeedback” is a subset of “behavior modi fication,” which in turn is a subset of “psychotherapy.” We find that NBF clearly falls within the practice of psychology because it falls within the definitions of several different “means” in MCL 333.18201(b). However, this does not answer the question whether NBF is exclusively within the scope of the practice of psychology. Indeed, we find nothing in the statutory language that specifically restricts NBF to the practice of psychology. “A court must not judicially legislate by adding into a statute provisions that the Legislature did not include.” In re Wayne Co Prosecutor, 232 Mich App 482, 486; 591 NW2d 359 (1998). Initially, we note that MCL 333.18214 provides several exemptions from the licensing requirement to practice psychology: (4) This part does not prohibit a certified, licensed, registered, or otherwise statutorily recognized member of any profession including a lawyer, social worker, school counselor or marriage counselor from practicing his or her profession as authorized by law. (5) This part does not prohibit a clergyman, professional educator, or professional counselor, including an alcoholism or drug abuse counselor, whose practice may include preventative techniques, counseling techniques, or behavior modification techniques from practicing his or her profession consistent with his or her training and with a code of ethics for that respective profession. [Emphasis added.] Both Steven White and James White are licensed registered nurses, and James White is also a licensed nurse practitioner. The practice of nursing is defined as the systematic application of substantial and specialized knowledge and skill, derived from the biological, physical and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability. [MCL 333.17201(1)(a) (emphasis added).] James White is also a licensed social worker, and Donald Deering is a licensed social service technician. MCL 333.18501(1) defines the practice of social work: (g) “Practice of social work at the master’s level” means, subject to subsection (5), all of the following applied within the scope of social work values, ethics, principles, and advanced skills: (i) The advanced application of the knowledge of human development and behavior and social, economic, and cultural institutions. (ii) The advanced application of macro social work processes and systems to improve the social or health services of communities, groups, or organizations through planned interventions. (Hi) The application of specialized clinical knowledge and advanced clinical skills in the areas of assessment, diagnosis, and treatment of mental, emotional, and behavioral disorders, conditions, and addictions. Treatment methods include the provision of advanced social work case management and casework and individual, couple, family, or group counseling and psychotherapy whether in private practice or other settings. (h) “Social service technician” means an individual registered under this article who is specially trained to practice only under the supervision of a licensed master’s social worker or a licensed bachelor’s social worker. [Emphasis added.] MCL 333.18501(5) provides: The practice of social work at the master’s level does not include the practice of medicine or the practice of osteo pathic medicine and surgery, including, but not limited to, the prescribing of drugs or administration of electroconvulsive therapy. Additionally, both nurses and social workers are required to take continuing education courses in pain and pain-symptom management, which may include courses regarding “behavior modification” or “behavior management.” See Mich Admin Code, R 338.2908m(1) and 338.10601(2)(a). Deering is also a licensed counselor who, pursuant to MCL 333.18101(b), is authorized “to engage in the practice of counseling.” The practice of counseling is defined, in relevant part, as the application of clinical counseling principles, methods, or procedures .... The practice of counseling does not include the practice of psychology except for those preventative techniques, counseling techniques, or behavior modification techniques for which the licensed counselor or limited license counselor has been specifically trained. [MCL 333.18101(d) (emphasis added).] “Counseling principles, methods, or procedures” include the application of behavioral modification techniques. MCL 333.18101(a)(ix). As the definitions and statutory provisions above provide, the NBF procedure utilized by plaintiff can be characterized as “psychotherapy,” which is within the scope of social work, or “behavior modification,” which is within the scope of counseling. Because James White is certified by the Biofeedback Certification Institute of America for EEG biofeedback, he arguably meets the requirements under MCL 333.18101(d) of being specifically trained in what is potentially a “behavior modification technique.” Accordingly, we conclude that there remains a question for the district court regarding how NBF should be characterized. Depending on how NBF is characterized, the services provided by plaintiff and its staff may indeed have been “lawfully rendered.” Therefore, the district court properly denied defendant’s motion for partial summary disposition, and the circuit court improperly reversed that decision. Because we determine that there is a genuine issue for the district court regarding whether the NBF procedure utilized was solely a biofeedback technique falling exclusively within the scope of psychology, there also remains an issue of fact regarding whether plaintiffs sole shareholder was required to be a licensed psychologist before it can be determined if there was a violation of the PSCA. Accordingly, defendant was not entitled to summary disposition on this issue, regardless of the outcome of the pending appeal before our Supreme Court in Miller v Allstate Ins Co (On Remand), 275 Mich App 649; 739 NW2d 675 (2007), lv gtd 480 Mich 938 (2007). We reverse the circuit court order granting defendant’s motion for partial summary disposition, reinstate the district court’s dismissal of defendant’s motion for partial summary disposition, and remand to the district court for further proceedings consistent with this opinion. We do not retain jurisdiction. We note that the district court intended to take “some evidence from people to educate [it].” We agree that “an evidentiary hearing at which experts from the licensing board or other qualified individuals could render their decision” would be appropriate in this situation and is consistent with the trial court’s gatekeeping function under MRE 702. See Chapin v A & L Parts, Inc, 274 Mich App 122, 126; 732 NW2d 578 (2007).	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Long, J. This case comes into this court by writ of certiorari to review the action of the circuit court for Wayne county in denying the petition for a writ of mandamus. It appears that Morley Bros., doing business at Saginaw, obtained a. judgment in the Saginaw circuit court against Fred E. Talmadge, who resides at Saginaw. The judgment not being paid, an execution was issued to the sheriff of Wayne county, and levied upon 20 shares of stock of' the respondent company, a corporation organized under Act No. 50, Pub. Acts 1887 (3 How. Stat. § 3981a et seq.). The stock was sold upon the execution, and bid in by the petitioner, and a demand made upon the respondent company for a transfer of the stock to it. This was refused on the ground that the stock was exempt from levy and sale on execution. Section 16 of the act under which the respondent corporation was organized provides: “The shares held by any member, being a householder, of any association incorporated under the provisions of this act, shall be exempted from levy and sale on execution or attachment to the amount of one thousand dollars in such shares at the par value thereof: Provided, that such exemption shall not apply to any person who shall have a homestead exempted under the general laws of this State.” 3 How. Stat. § 3981 p. It was shown that Talmadge, with his wife and children, has lived for the past seven years at No. 520 Hayden street; that the property belongs and has belonged to the wife since 1891, and is of the value of about $2,500, but covered by a mortgage of $2,382; and that Talmadge owns no real estate. The claim of the petitioner is that the homestead exemption provided for by section 7721, 2 How. Stat., is intended for the family, and is exempt in the interest of all the members of the family, equally when the title to the property is in the husband or in the wife, and that, therefore, Mr. Talmadge, the holder of this stock, has a homestead, within the meaning of section 16 of the act. The land in question belongs to the wife, but is the family homestead. As said by this court in Rowe v. Kellogg, 54 Mich. 206: “There can be no question but that the husband has a valuable and important interest, which the courts will protect. As head of the family, he has possession jointly with his wife, and has, therefore, a right to complain of any unlawful interference. * * * The land is in his tenancy, while the family occupy it, as distinctly as if leased to him.” The tenancy here is not, however, sought to be disturbed. The only question is, Has Mr. Talmadge a homestead, within the meaning of this act? Does the fact that he occupies a dwelling house owned by his wife prevent him from claiming the benefit of section 16 ? He has a beneficial interest in the homestead owned by the wife, so long as she occupies it, but it is an interest which inures to him only as an incident to his being the head of the family. The wife may sell the property without the consent of the husband, and thus defeat his homestead interest and that of the family, or she may abandon her husband and family, and oust them from possession of the property which-has been occupied as a home. The nature of and limitations on the husband’s interest in the wife’s homestead are fully discussed in Buckingham v. Buckingham, 81 Mich. 89. It was said: “As against creditors of the wife, he is entitled to be protected in his possession and occupancy of the home-stead. The Constitution and laws, however, confer upon married women such absolute right to the disposition of their own separate property that she may convey the homestead by deed without the husband’s joining in the instrument. If she may do this voluntarily, and without his consent, there would seem to be no legal principle which would prevent her from voluntarily deserting her husband and abandoning her homestead.” It can hardly be said that such a homestead as here described is the homestead which the legislature intended, by the act, should deprive the owner of stock of the right to the exemption up to $1,000 from levy and sale on execution. The purpose of the act was to enable persons of small means to acquire a homestead, and we think it cannot be said that the homestead intended by the act which would defeat the exemption was one resting in the unstable holding which the husband might have in property owned by the wife. The court below very properly denied the writ of mandamus. The order will be affirmed. The other Justices concurred.	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Hooker, J. In June, 1898, the common council of the city of Grand Haven passed' a resolution to transfer from the contingent fund of said city in the hands of its treasurer, and to divide between and add to several other city funds, the sum of $7,000. The mayor, Baar, attempted to veto the resolution, but the clerk, Kirby, refused to file it, and the mayor employed Smedley to institute mandamus proceedings to compel it. This was done, and they were successful. The case reached this court, and will be found reported in Baar v. Kirby, 118 Mich. 392. A similar proceeding was commenced against the council, but it was not brought to this court. The employment of Smedley by the mayor was not authorized by the council, but it is claimed that the mayor had authority to employ counsel, inasmuch as the city attorney was in sympathy with the resolution vetoed, and took the side of the council and clerk in the matter. In November, 1898, Smedley presented a bill against the city for $349.50 for his services in the two cases mentioned, and another bill against the clerk for $37.80, the costs of this court taxed in the case of Baar v. Kirby. These claims are said not to have been'verified as required by section 20, chap. 8, Act No. 215, Pub. Acts 1895, but the record indicates that they were. They were referred to the finance committee of the council, with the city attorney added, for examination and report. This committee reported at a subsequent meeting, in substance, that: 1. The city had not employed Smedley, and was under no obligation to pay his bill. 2. A reasonable sum should be allowed the mayor to pay his (the mayor’s) attorney fees. 3. They recommended that the mayor be allowed $37.80' to pay the bill of costs against the clerk, and $50 for all other legal expenses in his mandamus suits. 4. Nothing should be allowed to Smedley on his bills. Alderman Yos moved to amend this by a resolution allowing $349.50 to the mayor, with which to pay his attorney fees in the case against Kirby. This motion was voted upon by the aldermen, and resulted in a tie. The mayor voted for it, and declared the motion carried. The same course was taken on the motion as amended. Subsequently four members of the council commenced mandamus proceedings against the mayor to compel him to rescind his action in declaring the motions carried, and a few days later this application was filed by Smedley to compel the clerk to draw the warrant for $349.50. In the former, issues were framed and evidence was taken, while the latter was heard upon petition and answer. They were heard together, and the circuit judge makes return of the proceedings and final order in each. The return states as a reason for denying the writ in this case that the two cases were heard together, and the facts brought out in the Bishop Case were considered in disposing of this. In short, they seem to have been treated as one case, and, while the Bishop Case was not brought here by a separate writ, the matter is all before us." It is manifest that the meritorious question is the'same in both, viz., whether the mayor had a lawful right to decide the tie by his own vote. The circuit court found that he had a personal interest in the matter, and, if this is to be treated as a matter of fact, we cannot review it, any more than we could the finding of a jury. But the evidence is all returned, and it is proper for us to examine it, to ascertain whether it furnishes any opportunity for dispute upon the question, — dn other words, whether the judge has correctly applied the law to undisputed facts. Counsel for the relator urge that the council was attempting an unlawful thing; that they intended to divert the public funds from proper uses, under resolutions which had passed the council, but had been vetoed; that the city-clerk and attorney were aiding the council, and that it was within the proper sphere of the mayor to prevent it; and, therefore, that he had authority to employ counsel to aid him in necessary litigation on behalf of the city. This is substantially the broad proposition that, when a mayor thinks the council is taking illegal action, he has authority to bind the city for expenses and costs of necessary proceedings to try the question, or, at least, that he may institute proceedings, and that the test of his authority is the result. We need not discuss this question, as the case can be disposed of upon another ground. As said in the case of Barnert v. Mayor, etc., of Paterson, 48 N. J. Law, 395: “If this ground of recovery be regarded as untenable or doubtful, I think the action of the city authorities has been such as to raise this into an express promise to pay that the right of a corporation to indemnify an officer for losses and expenses incurred in the discharge of an official duty in a matter in which the corporation is interested is undoubted, and this power has generally been found sufficient to afford protection against flagrantly illegal action. One-half of the aldermen were in favor of granting it in this case, and, if the mayor was entitled to vote upon the question, the city is already bound to render compensation. This must depend upon the nature of the mayor’s relation to the matter. It is apparent that the employment of relator was on behalf of the city. The mayor expressly avoided a personal liability. This he had a right to do, and, while he could not pledge the credit of the city, it was competent for him to make an arrangement whereby the relator assumed the risk of losing his services if the authorities should not assume the burden at some subsequent time. The charter provides (chapter 8, §5) that “no alderman shall vote upon any question in which he shall have a direct personal interest.” Another provision (chapter 8, § 16) is, “No member of the council * * * shall be interested, directly or indirectly, in the profits of any contract * * * to be performed for the corporation.” This indicates that a pecuniary interest was intended. Anderson defines “interest” as “such relation to the matter in issue as creates a liability to pecuniary gain or loss from the event of the suit.” See, also, 11 Am. & Eng. Enc. Law, 422; Taylor v. Commissioners of Highways, 88 Ill. 526. We are of the opinion that the vote was authorized by the charter, under the admitted facts. It is urged that the circuit court has determined otherwise upon the question of fact; but we gather from the order and the return that the matter turned upon the legal question, and that it was not found that the mayor had incurred a pecuniary obligation, but that possibly relator might claim so, and that a legal controversy might arise, which the mayor would be brought to the expense of defending to escape pecuniary loss. But there is nothing to show a «probability of this. On the contrary, relator does not claim it. Counsel urge further that the respondent should not be required to issue the warrant, for the further reason that there is no resolution authorizing it. This is upon the theory that the order of the court in Bishop against Baar, holding the mayor’s vote illegal, has not been appealed from, and therefore nullifies the resolution adopted, and, further, that this application was for an order to compel the issue of a warrant payable to the relator, while no claim has been allowed in his favor, but only in favor of Baar, the mayor. These are technical. As we have said, the cases were heard together, and, for practical purposes, merged, at the circuit. The mei’its of both are here, and counsel for both parties have referred to the proceedings in the Bishop Case. The appeal has brought up the merits of the whole controversy. The respondent does not appear to have refused to issue a warrant to the relator on the ground that the mayor was entitled to it, .or to have offered to issue one payable to the mayor. The relator has signified a willingness to accept such a one. Counsel for the respondent, in their brief, treat the interest of the mayor in the claim as the main question, as it is. Again, it is said there is nothing in the petition to show that there is money in the fund to pay the order. Of this it is sufficient to say that, if the act forbids the drawing of a warrant in the absence of funds, nothing indicates a refusal upon such ground, and we are not advised that such fund is wanting. We are satisfied that the relator was entitled to have a warrant for the amount claimed, payable to himself or the mayor; and an order will be entered reversing the order of the circuit court, and directing the writ to issue accordingly, with costs of both courts. The other Justices concurred.	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Long, J. The relator commenced suit in the Wayne circuit court against the Evening News Association on September 27, 1890, for libel. Defendant demurred, setting up several causes of demurrer. In March, 1891, the demurrer was argued, and on February 10, 1892, the court sustained the demurrer, with costs, giving the plaintiff 20 days within which to amend. The cause was removed to this Court, and reversed as to costs, with leave to the plaintiff to amend without costs. The original declaration counted upon a great many libelous articles, all of which were set out in one count. On September 19, 1892, plaintiff filed an amended declaration,. selecting 20 of the articles included in the original declaration, and setting forth each one in a separate count. December 13, following, defendant moved the court below for an order striking from the amended declaration each of the counts therein which were based upon articles alleged to have been published more than two years before the amended declaration was filed, for the reason that under the original declaration, which contained but one count, the plaintiff could rely tipon but one cause of action, and that it was not competent to bring in by amendment, as independent causes of action, such articles as, at the time of the amendment, were barred by the statute of limitations. On February 20, 1893, an order was made, directing that plaintiff, within 20 days, elect upon which of the counts of the amended declaration, based upon a single libelous article set forth in the original declaration, he would proceed, in lieu of the count in the original declaration, and that when such election should be made all of the counts of the amended declaration, based upon articles which, at the time of the allowance of the right to amend the original declaration, had been published more than two years prior to the granting of such right to amend the original declaration, be stricken from the amended declaration, and that the defendant have 20 days thereafter to plead. This proceeding is for mandamus to compel the court belpw to vacate the above order. The court below was in error in holding that any of the published articles embodied in the original declaration were barred by the statute. These articles were declared upon in the original declaration, but we held that they were not well pleaded, by reason of their being set out in one count. They were not barred by the statute at the time the original declaration was filed, and the filing of the amended declaration was not the commencement of a new suit, but the continuation of the suit originally commenced, and did not introduce a new cause of action. The court was also in error in requiring the plaintiff to elect upon which count he would proceed to trial, and to strike out the other counts. He had a right to proceed upon all the counts. These articles were published upon different days, and may each constitute a cause of action. There is no reason, however, for saying that he may not join the several causes of action, and have them all tried in one suit. It is' settled that a plaintiff may join all his causes of action in one declaration, if, in separate suits, he could recover on each in the same form of action. Tregent v. Maybee, 54 Mich. 226. See, also, 1 Chitty, Pl. 199; 1 Tidd. Pr. 11, 12; Coryton v. Lithebye, 2 Saund. 117a-117d; Craft v. Boite, 1 Id. 246a; Savile v. Jardine, 2 H. Bl. 532. The writ must issue, as prayed. The other Justices concurred. See Randall v. Evening News Association, 92 Mich. 467.	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Hooker, 0. J. The defendant was convicted of assault, with intent to commit the crime of rape upon a girl of less than 14 years of age. The proof consisted of testimony from the girl, who unequivocally testified to the completed act of sexual intercourse,,' testimony from a physician, showing an examination and rupture of the membrane, testimony of one or two witnesses to admissions on the part of defendant to the effect, that he had intercourse with the girl on the occasion charged, and testimony that she was at the time below the age of 14 years, and that she had been subject to menstrual periods for a year. The defendant was sworn, and denied seeing the girl upon the occasion charged. The errors relied on are as follows: 1. That the court charged the jury that the defendant might be convicted of rape, of assault with intent to commit rape, or of simple assault. 2. That, defendant having denied the transaction, the jury should have been charged that there must be some testimony corroborating that of the girl, or the verdict must be not guilty. 3. That the jury should have been charged that if the girl had reached the age of puberty, although under 14 years of age, she was no longer a “child,” within the ¿leaning of the statute. 4. That the jury should have been directed to return a verdict for the defendant because the girl had reached the age of puberty. It is true that upon this record the proof upon one side shows the completed act of sexual intercourse with a girl under the age of 14 years, while upon the other a denial of any offense is made. Under such proof it cannot be denied that a verdict of assault with intent to rape is illogical. But an assault with intent to commit rape is necessarily included in every rape. The defendant’s counsel are alleging, not an injurious error, but one which, if it could be called an error, has resulted to defendant’s advantage. In the case of Hall v. People, 47 Mich. 636, this question was passed upon, and the omission to charge the jury that the defendant might be found guilty of the lesser offense was held to be error, in just such a case as this. See, also, State v. Shepard, 7 Conn. 56; Com. v. Cooper, 15 Mass. 187. The case of People v. Partridge, 86 Mich. 243, cited by counsel, differs from this case in this: That the offense of assault “without intending to commit the crime of rape ” could not be said to be 'included in the offense of rape, but, on the contrary, was •at variance with such offense. The charge of the court is not given, and we have no means of determining what, if anything, was said to the .jury upon the subject of corroboration, and, while the request of defendant’s counsel was refused, we cannot assume that the subject was not properly treated in the •charge. We do not intend to imply that the court should have given the request in substance, for we are not prepared to say that conviction in rape cases cannot be based upon the uncorroborated testimony of the woman assaulted. We see no reason for holding that the rule of the common law is changed by permitting the defendant to testify, .and believe that the question of credibility can be safely left to the jury. As'a matter of fact there were corroborating circumstances in the case. The remaining question is without merit. The statute (3 How. Stat. § 9094} provides that,— “If any person shall * * *- unlawfully and carnally know and abuse any female child under the age of fourteen years, he shall be punished,” etc. It is contended that the victim must not only be under the age of 14 years, but must be a child, i. e. must not have reached the age of puberty. We cannot assent to such a doctrine. The legislators who voted for this law must have known that puberty in females is common before the age of 14. There is nothing to indicate that the age of puberty was intended to have any bearing upon the subject. We find no error in the record, and the judgment will be affirmed. The other Justices concurred.	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Hooker, C. J. The respondent appeals from a conviction of manslaughter. One McCoy was attacked by a man named Cousins, in a saloon, for wearing some kind of a political badge, obnoxious to Cousins. Blows followed words, Cousins being knocked down once or twice by McCoy, who acted upon the defensive. ' During the melee, Carter, the respondent, ran up and struck McCoy, knocking him down. According to one or more witnesses, Carter struck McCoy twice. There was conflicting evidence as to McCoy’s being kicked by Cousins after he was down. At all events, the blow from Carter, or a kick immediately after by Cousins, dislocated the vertebrae of bis neck, and killed him. There was no testimony showing preconcert of action upon the part of Cousins and Carter. In his charge, the trial judge instructed the jury as follows: “If this claim be true, the respondent cannot be convicted unless the blow given by him was the direct cause of McCoy’s death, and such blow was not inflicted under the belief that it was reasonably necessary to protect himself from bodily harm; but, gentlemen, if Cousins and McCoy were having an altercation, and Carter, while Cousins •and McCoy were scuffling with each other, and knowing that the scuffle between the two had not ended, approached McCoy, and struck him without provocation, and so struck him for the purpose of assisting Cousins to whip McCoy, •and if such blow knocked McCoy to the floor, and put McCoy’s body in such a position that he was helpless to protect himself from Cousins, and if, while McCoy was in •such helpless position, Cousins immediately kicked him, then, gentlemen, such act upon the respondent’s part was unlawful, and in sucb. case he is guilty of manslaughter, if the direct cause of McCoy’s death was either the blow given by the respondent, or the kick 'given by Cousins while McCoy was upon the floor, or both combined.” Error is assigned upon this instruction. We think the court committed no error in this. Had Cousins and Carter joined in any preconcerted effort to whip McCoy, each would have been accountable for the other’s acts. If the circumstances show that, during the fight, Carter espoused Cousins’ cause, and entered the light to help him whip McCoy, he became responsible for what followed. It is not necessary that'this intention should be shown by Carter’s statements, but it may be inferred from his conduct. The question was one for the jury, and was fairly left to them. Error is assigned upon the refusal to give several requests to charge. All were based upon the proposition that, if death resulted from Cousins’ kick, instead of Carter’s blow, the respondent should be acquitted, and, as already intimated, the court properly refused them. In a supplemental brief, presented at the hearing, some questions are raised which have no assignments of error-to support them. They are based upon an alleged failure of the trial judge to give instructions to which counsel for the respondent now conceive him to have been -entitled, upon the subjects of self-defense and reasonable doubt. It is urged that a verdict should not be allowed to stand if the record shows that the judge did not fully explain to the jury the quéstions necessary to an understanding of the case. Counsel who tried this case did not deem it necessary to call the court’s attention to these matters by requests to charge, nor did he assign error upon them. Both were alluded to in -the charge, and the distractions were correct as far as they went. We think, however, that these questions are not entitled to consideration, because not raised by the record. We find no error in the proceedings, and the same will be affirmed. The other Justices concurred.	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Long, J. This case was in this Court at the April term, 1892, and is reported in 92 Mich. 17. Respondent had been convicted of murder in the second degree, and the case was reversed, and sent down for another trial. The second trial has been had, resulting in a conviction of manslaughter. The case comes up again upon a writ of error, aided by an ancillary writ of certiorari, which brings up the proceedings on the argument of the case before the jury and the rulings of the court thereon, which were not included in the bill of exceptions, but to which the court below now makes return. ■ It appears from the affidavit for the writ of certiorari' and the return thereto that an agreement was made between! the prosecuting attorney and counsel for respondent that the case should be submitted to the jury without argument. Counsel claims a violation of this agreement by the prosecuting attorney, to the prejudice of the respondent. After the testimony had closed, the prosecuting attorney voluntarily suggested to counsel for respondent that the case be submitted to the jury under the charge of the court, without argument. Counsel agreed to this, and the case was adjourned until the next day, when respondent's counsel presented certain requests for the court to charge, and read them to the court. The prosecuting attorney, in response to these requests, with a pretense of answering them, and against the protest of counsel for respondent, then addressed himself to tbe court and jury, arguing tbe questions of fact to the jury. Counsel for respondent protested that the case was to be submitted without - argument, and excepted to the ruling of the court in permitting this course to be taken. The prosecuting attorney, however, was permitted 'to proceed, and did proceed, with the argument upon the .merits, in which he dwelt to some considerable extent upon the testimony of Dr. Siebert, arguing that his testimony showed conclusively that the respondent was guilty as charged. When this case was in this Court before, it was .reversed, on the ground that the statements made by the •deceased to Dr. Siebert, and to which Dr. Siebert was permitted to testify, were no part of the res gestee, and incompetent. The people, in order to make this testimony competent, on the present trial claimed by the doctor that the ■deceased said he was about to die from his wounds, and the testimony of Dr. Siebert as to what deceased said was then admitted as a dying declaration. Dr. Siebert testified •that deceased told him that— “There had been a fight over at his saloon, and that he had been cut with a knife by the defendant, Mr. O'Brien." The prosecuting attorney, in his further address, dwelt upon this part of the case. In speaking of the testimony of Dr. Siebert, as to the conversation with deceased, he .stated that the deceased said: “I got them from the hands of Chris. O'Brien. I got •.these mortal wounds from a knife in his hands.” Among -other things, the prosecuting attorney said to áhe jury: “Now, gentlemen of the jury, of course the defendant will claim self-defense, and I want you to aid us in the trial of this cause. Pay strict attention to all the testimony, both pro and con. Put yourselves in the manner ■of jurors and detectives." Bespondent’s counsel called the attention of the court to the use of this language, and said he would take an exception to the invitation • to the jury to act as detectives, in addition to their other duties, when the court responded: “ Take an exception.” The prosecuting attorney thereupon qualified the statement by adding: “In detecting the evidence, it is your duty as jurors.” It is evident that the court permitted the prosecuting attorney to go over the merits of such parts of the case, and argue them fully to the jury. This argument, undoubtedly, had its effect upon the jury. It was a plea for the conviction of the respondent, and a statement that there could be no question of doubt as to the facts or the law. It was an undue advantage over the respondent, which the court should not have permitted. It was prejudicial to the rights of the respondent for the prosecuting officer of the county to call upon the jurors to act as detectives, and for the court, when its attention was called to that kind of argument, to say to counsel, “ Take an exception.” The duty of the jury was to listen to the testimony, the arguments of counsel, and the charge of the court, and, when they retired for deliberation, to give the respondent the benefit of every reasonable doubt. Perhaps the line of argument indulged in by the prosecuting attorney would not have been as potent' for conviction had it not been for his conduct throughout the trial, when his manner of conducting the examination of witnesses was open to grave criticism. His questions were leading, and, when objected to, were repeated, and the court itself, it seems, was unable many times to prevent it. The witnesses for the defense were criticised in the presence of the jury. John Luth was asked if he knew the penalty of perjury. The court instructed the prosecuting attorney that he must not say to the witnesses for the defense that they were committing perjury; if they were, he would have a right to contradict them by other testimony. The prosecuting attor ney responded that he would take that course, but he knew he was right. The conduct of the trial by the prosecuting attorney was well calculated to prejudice the jury against the respondent, and in the closing argument advantage was taken of it. We do not think the respondent has had that fair and impartial trial which is guaranteed by the Constitution. The conviction must be set aside, and a new trial granted. Hooker, C. J., McGrath and Montgomery, JJ., concurred. Grant, J., did not sit..	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Grant, J. Plaintiff's husband was killed on the morning of October 12, 1890, before daylight, on the track of the Chicago & Northwestern Eailroad. The condition of his body, which was found after daylight, showed that he had been struck by a passing train. Plaintiff claims that he came to his death by reason of intoxication, to which the defendant, a saloon keeper, contributed. There was evidence tending to show that he was in the habit of getting intoxicated. The plaintiff testified: “My husband got drunk whenever he could get liquor, and, when he got his pay, he would spend more or less of his wages in drinking. Sometimes he would spend five or six or seven dollars, and sometimes more. He didn't get drunk oftener than twice a month. Every time he would go out, of course, he would get drunk. This was true of him for the last eight or nine years." The deceased worked in a saw-mill at Carney, a small saw-mill town situated on the Chicago & Northwestern Eailroad. Nadeau, another small town on the same road, is two miles distant. There were no saloons in Carney, but there were some in Nadeaii, including the defendant's. The deceased left home between 6 and 7 o'clock in the evening, and went to Nadeau. In going between these two places, it was common for foot passengers to walk upon the railroad track. The deceased Avent to some of these saloons during the night, including that of the defendant, where he, Avith others, remained till betAveen 12 and 1 o'clock in the morning. The defendant says that he came there between 11 and 12 o'clock, and admits that he had one glass of beer and a glass of cider while there, and that he once saw him under the influence of liquor. The deceased had purchased a bottle of whisky at another saloon during the evening, and had also drunk at some of them. There was also evidence tending to .show that the' deceased conducted himself that evening as he usually did when intoxicated, and that he spent the most of his time from 7 to 1 o’clock in the saloons. The declaration is in the usual form in such cases. Plaintiff recovered verdict and judgment. 1. The evidence of intoxication at the time the deceased was in the defendant’s saloon and drank there is weak, but we think there was some evidence tending to show that fact. The deceased was in the habit of getting intoxicated, and, according to the evidence of the plaintiff, his appetite for intoxicating liquor was strong, and he gratified it whenever opportunity offered. He had spent a considerable part of the evening and night in the saloons, and there was evidence tending to show that he was in defendant’s saloon between one and two hours when the defendant was violating the law in keeping his saloon open. We do not think the court erred in refusing to instruct the jury that there was no evidence that the deceased was intoxicated. 2. It is contended that there was no evidence that the deceased was killed by the railroad train, or by reason of intoxication. It is urged in this behalf that the night was dark and stormy; that the deceased had no lantern; that he might have been killed for the purpose of robbery, and his body placed on the track; or that he might have stumbled and fallen on the rail, and injured himself, so as to be unable to avoid the train. ' We think all these were questioas for the jury. "Under the evidence, the manner in which he came to his death was for the jury, not the court, to determine. 3. The court instructed the jury that plaintiff could not recover unless she had proven either that the deceased was intoxicated when the defendant sold the liquor to him, or that he was a person in the habit of becoming intoxicated. The -learned counsel for the defendant insists that there can be no recovery in such cases without proof that the defendant knew that the person was in the habit of becoming intoxicated. The statute does not predicate the right of recovery upon such knowledge on the part of those selling intoxicating liquors. It gives an absolute right of action against those who have caused or contributed to the intoxication which results in injury. Judgment affirmed. The other Justices concurred.	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McGrath, J. This is an appeal from a judgment for' plaintiff in an action for false imprisonment. Plaintiff, on October 20, 1891, was a member of the common council of the city of Muskegon. The Merchants’ National Bank was the financial depository of said city. John Torrent was president of said bank, and defendant Lange was cashier. On that date, plaintiff, as alderman, presented to the common council of the city, at a session thereof, the following preamble and resolution: “Whereas, by a late decision of the Supreme Court of this State, a decree of the circuit court for the county of Muskegon, in chancery, was affirmed against John Torrent, and which decree will in all probability compel the said Torrent to pay. at least $125,000; and whereas, the said Torrent is the principal surety of the Merchants’ National Bank on its bond as depository of the moneys of the city of Muskegon; and whereas, this council does not deem it entirely safe to leave the city’s money on deposit in said bank without additional security to be approved by this council: “ Therefore, he it resolved by the common council of the city of Muskegon that, for the security of said city, an order be drawn on the city treasurer in favor of Leonard Eyke, the city treasurer, for the sum of $184,000, and that the money so received by said Leonard Eyke as the proceeds of said order be deposited in the other four banks of the city in equal proportions, and there kept until such additional security to the satisfaction of this council be given by the said Merchants’ National Bank. “John Wachsmuth.” A motion to refer the resolution was lost by a vote of three to nine. A motion to adopt was lost by a vote of five to seven. On October 26, 1891, the Merchants’ National Bank commenced an action on the case for libel by capias, which was issued upon the affidavit of the defendant Lange. An order to hold to bail in the sum of $2,000 was indorsed by a circuit court commissioner, and plaintiff was arrested, committed to jail, and afterwards gave bail. It is contended that the order to hold to bail protects the defendants. The officer indorsing the order was one of special and limited jurisdiction. The affidavit disclosed that the resolution was offered by plaintiff as a member of the common council to that body, and related to a matter in the line of plaintiffs duty as a public officer. In other words, the affidavit, upon its face, showed that the resolution charged as libelous was, as a matter of law, absolutely privileged. So far from setting forth any facts and circumstances tending to show grounds for granting the order, the affidavit expressly negatived any liability whatever to the plaintiff. The defect was therefore jurisdictional, and the order was absolutely void, and affords no protection to the parties instituting the proceedings, procuring the order, and delivering the process to the sheriff for execution. An'arrest and imprisonment,in a civil case upon void process is as one without process, and cannot be justified. Good faith, honest belief, and the advice of counsel may be shown to rebut the presumption of malice, and to avoid punitive damages, but not to justify an arrest and imprisonment under an absolutely void process. Johnson v. Maxon, 23 Mich. 129; Johnson v. Morton, 94 Id. 1; 7 Amer. & Eng. Enc. Law, 679, 681 (note 1), 19 Id. 516; Vredenburgh v. Hendricks, 17 Barb. 179; Fischer v. Langbein, 103 N. Y. 84; Miller v. Adams, 52 Id. 409; Bonesteel v. Bonesteel, 28 Wis. 245; Fenelon v. Butts, 53 Id. 344. It is urged that malice cannot be charged against a corporation unless it is shown that the act done was ordered by the board of directors. The suit was instituted in tbe name of the corporation. Its cashier made the affidavit, in which he alleged that— “He is cashier and agent of the Merchants* National Bank of Muskegon, Michigan, the plaintiff named in the annexed writ of capias ad respondendum, and is duly authorized to and makes this affidavit for and in behalf of said plaintiff.'’ The attorneys for the plaintiff were the regular attorneys of the bank, were employed and paid by the bank, and one of the attorneys was 'at the time a director in said bank. ■ A motion was made by defendant to quash the capias, which was granted. Application was then made to this Court by the bank for a mandamus directing the circuit court to set aside the order quashing the writ. The expenses of that proceeding were shown to have been paid by the bank. The cashier must be presumed, prima facie, to have had authority to direct the commencement of the suit. Frost v. Machine Co., 133 Mass. 565, where it was held that the general manager or agent of a corporation must be presumed to have had authority to direct the issue of a writ of replevin, for the improper service of which the corporation was sued. The ratification of an unauthorized act of an officer of a corporation may be presumed from acts of recognition and acquiescence. Beach, Priv. Corp. § 196. Again, defendants plea sets forth that the alleged acts, if committed at all, were committed by the “said defendant Herman 0. Lange, acting as the cashier and agent of the Merchants* National Bank.** In order to avail themselves, in any event, of want of authority, the fact should have been pleaded. Beach, Priv. Corp. § 863. It is now well settled that a corporation may be liable in tort, even though a malicious intent is necessary to be proven. The malice of the agent is imputable to the corporation. Cooley, Torts, (3d ed.) p. 136; 7 Amer. & Eng. Enc. Law, 684; Beach, Priv. Corp. §§ 428, 445, 447, 453, 455. As is said by Mr. Beach (section 455): “The doctrine that an action will not lie against a corporation for a tort is exploded. The same rule applies to corporations as to individuals. They are equally responsible for injuries done in the course of their business by their' servants. This is said to be so well settled as not to require the citation of authorities.” See, also, Bacon v. Railroad Co., 55 Mich. 224, 228; Goodspeed v. Bank, 22 Conn. 530; Carter v. Machine Co., 51 Md. 290; Reed v. Bank, 130 Mass. 443; Vinas v. Insurance Co., 27 La. Ann. 367; Railroad Co. v. Jackson, 81 Ind. 19; Quigley v. Railroad Co., 11 Nev. 350; Miller v. Railroad Co., 8 Neb. 219; Williams v. Insurance Co., 57 Miss. 759; Railroad Co. v. Schuyler, 34 N. Y. 30. In Goodspeed v. Bank the court say: “But, after all, the objection to the remedy of this plaintiff against the bank in its corporate capacity is not so much that, as a corporation, it cannot be made respon-, sible for torts committed by its directors, as that it cannot be subjected to that species of tort which essentially consists in motive and intention. The claim is that, as a corporation is ideal only, it cannot act from malice, and therefore cannot commence and prosecute a malicious or vexatious suit. This syllogism or reasoning might have been very satisfactory to the schoolmen of former days; more so, we think, than to the jurist, who seeks to discover a reasonable and appropriate remedy for every wrong. To say that a corporation cannot have motives, and act from motives, is to deny the evidence of our senses, when we see them thus acting, and effecting thereby results of the greatest importance every day. And, if they can have any motive, they can have a bad one; they can intend to do evil as well as to do good. If the act done is a corporate one, so must the motive and intention be. In the present case, to say that the f vexatious suit/ as it is called, was instituted, prosecuted, and subsequently sanctioned by the bank, in the usual modes of its action, and still to claim that, although the acts were those of the bank, the intention was only that of the individual directors, is a distinction too refined, we think, for practical application.” The judgment is affirmed. Hooker, 0. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.	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McGrath, J. Complainant had given a mortgage to his father, who died testate in May, 1888, leaving the mortgage to complainant, charged with the payment of decedent’s debts, his funeral expenses, the erection of a monument upon the family burial lot, and the payment of $400 to complainant’s sister, Mrs. Bursons. Defendant was named, appointed, and qualified as executor. Complainant had, in 1888, paid the funeral expenses and debts, and had erected the monument. ■ Woodworth had a personal claim against the husband of Mrs. Bursons of $457, for which he held Bursons’ notes. He regarded this claim of little value, and considered complainant as solvent. In November, 1888, he made an arrangement with Mrs. Bur-sons by which he was to surrender her husband’s notes, take her receipt in full for the legacy, and take complainant’s note for $400, and look to him for that amount. This arrangement was carried out. Bursons’ notes were surrendered, Mrs. Bursons gave her receipt “ in full of the legacy,” and complainant gave his note to Woodworth for $400, payable one year after date. The receipt given by Mrs. Bursons was filed in the probate court. No assignment of Mrs. Bursons’ claim was asked for or taken. Defendant’s version of the transaction is as follows: '' Q. Did you at the time agree with Hannah Bursons and her husband to take the note or obligation of Abraham De Coo for $400, in payment of her legacy? “A. Yes, that was the agreement upon which the notes were surrendered. * * * " Q. Soon after your return home, did you see Abram De Coo, Jr., in relation to this matter, state to him the arrangement that you had made with Hannah Bursons and her husband, and request him to give you his note of $400? “A. Well, it was, I think, in May. I went down to C-rand Ledge, and I stayed with Abram over night, and I told him there that I had made this arrangement; and he gave me a note, at my request, for $420, in paymen't of this legacy and some other business.” Complainant testifies that when he gave the note to defendant the latter ■ agreed to close up the estate and discharge the mortgage. Defendant does not deny this. His testimony is as follows: “ Q. To refresh your recollection, at the time Mr. De Coo gave you the $400 note, did you not state to him, in the presence of his wife, that everything was fixed up satisfactorily? 'Come up, and we will go to Charlotte and discharge the mortgage?’ "A. I did not; not in them words. " Q. Did you say so in substance? "A. I will state what I said: I stated then that we would come out sometime, and straighten the business all up, and I would get my discharge and the discharge of ■the bondsman. " Q. And you meant, of course, that that included the discharge of the mortgage? “A. Yes, of course; all of the business. * * * ‘‘Q. Was there anything said, at the time you took the note, that you took it in payment of the legacy? “A. I think there was. Well, nothing in particular said, more than this. Abe and I settled up, and added $20 that he also owed me, and put -it all in one note. “Q. What was said about your taking that note in payment of the legacy? “A. Well, we was to meet at Charlotte, and settle up the business. ******** “Q. You say this was after he had given you the note? “A. Yes. Now, this was not the talk, but it was my supposition, — that he would come out, and the whole thing, would be settled up, so that I could get my discharge; and that would include the discharge of the mortgage. This I said to Abe; that some time we would go out to Charlotte, and we would settle the whole matter up, so that I could get my discharge. After this note was signed, I went and saw Abe, and wanted him to go to Charlotte and fix this matter up, so that I could get the release of Mr. Hudson, who was on my bond. There was a day set, and on that day I came down here. I came for the purpose of making a final settlement.” He says further: "I never asked him to pay the note but once, and that was about six months after it became due. At the time I took the note, I considered him perfectly solvent. If I had known his financial condition, I would not have taken this note. I never expected to get my pay on the Bursons notes.” Defendant kept the note for 1 year and 10 months, then returned it under cover, and, as executor, commenced a statutory foreclosure of the mortgage. His theory now is that he was mistaken in regard to complainant’s solvency at the time that the note was given, and that he had. a right to surrender the note, and sue on the original obligation. But the original obligation was due to Mrs. Bur-sons. Complainant was released from that obligation, and assumed another, — the indebtedness of Bursons. Mrs. Bursons receipted in full for the legacy, Woodworth filed that receipt in the probate court, complainant gave his personal obligation to Woodworth, and both parties agreed that the mortgage should be discharged, the estate closed, and Woodworth’s bondsman released. Complainant owes defendant $400, but, in consideration of his assumption of the promise to Woodworth, the latter agreed to discharge the mortgage and close np the estate. The very security which he claims the right of succession to he agreed to discharge, and that agreement entered into the consideration for the note. He cannot now be allowed to revive the mortgage, nor can he be permitted to use his office as executor to enforce payment of an obligation running to himself. The decree below is reversed, and a decree entered here for complainant, with costs of both courts. Long and Montgomery, JJ., concurred with McGrath, J.	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Grant, C. J. (after stating the facts). Manifestly, the election law was wholly ignored in the appointment of Mr. Kerr, in intrusting the ballots to him, and permitting him to have free access to the electors after they had passed into the voting‘precinct, and into the booths themselves. It is urged that the inspectors of election acted in good faith, and supposed they had the right to appoint a man as an instructor of election. It is difficult to understand how intelligent men should reach this conclusion. The law makes no such provision, but makes it the clear duty of one inspector to keep possession of the ballots, and to hand them to the voters, after another inspector has opened the package, and still another has put his initials upon them. It is due to the member^ of the election board to say that there is no evidence that they acted from corrupt motives. If, however, this conduct can be sustained, and the plain provisions of the law ignored, rascals can very readily make the same plea, and it would be difficult to expose their rascality. These provisions of the law have been held mandatory. Attorney General v. McQuade, 94 Mich. 439; Attorney General v. Stillson, 108 Mich. 419. By a reference to the latter case, on page 421, it will appear that the interpreter, an officer provided by the act, was stationed very near to, and in plain sight of, the inspectors, and talked with the voters, as they came in, in a foreign language. It does not appear that there was more evidence of fraud in that case than in this. That case differs from this only in two particulars: First, that the conversation between the interpreter and the voters was not in the English language, as it was in this; and, second, that the “instructor,” as he was called in this case, had a better opportunity to secretly influence electors than did the interpreter in that. If these provisions are mandatory, — and we have so held, — they cannot be evaded by showing that the parties acted in good faith and that voters were not influenced. The law was intended to prevent just such transactions and chances .to influence voters, and courts cannot fritter them away by permitting jurors to find that there was no fraud and that voters were not unduly influenced. The judgment must be set aside, and one entered for the relator. The other Justices concurred.	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Grant, C. J. (after stating the facts). 1. The rights of boom companies and others in driving logs down the navigable streams of this State were settled in Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. Under that decision log drivers have no right to stop the logs flowing down the stream so as to interfere with the natural flow of the water with the running logs in it. If stopping the logs caused the water to overflow, the boom companies are responsible in damages for the overflow. In such cases the pleader need only allege the obstructions, the stoppage of the water, the consequent overflow and damage, to make his declaration sufficient. It is unnecessary to add the allegation that this was negligently done. The act speaks for itself, and carries with it the obligation to respond in damages. Negligence is not a necessary element of liability. It may be necessary to stop the logs in order to save them, and the boom company might be liable to the log owners for loss if it failed to stop them. But this necessity does not relieve the company from liability for tbe overflow. The demurrer was therefore properly overruled. 2. If the declaration had alleged the destruction of so many tons of hay each year, we think the position taken by the defendant would have been sound, because hay is not grass in a growing state, but the grass after it has been cut and dried for fodder. Webst. Diet.; Cent. Diet. But under the declaration in this case it is manifest that the word was not used in this sense, because it referred to it as growing upon the land, and described the injury as occurring to the “ growing hay.” We think there was no opportunity of being misled, and that the instruction to direct a verdict was properly refused. Judgment affirmed. The other Justices concurred.	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Moore, J. This case was tried before the judge without a jury. The judge made the following findings: “1. On the 8th day of July, 1895, the plaintiff, being the owner of the ‘Adams Block,’ so called, on the east side of Front street, in the city of Marquette, in which block was located a gallery known as ‘Childs’ Art Gallery,’ rented the said art gallery to the defendant for the term ending April 30, 1897, to be occupied for an art gallery, for the rental of $10 a month until May 1, 1896, and $20 a month, payable on the last day of each month, for the remaining 12 months. Said lease was in writing, and contained, among other provisions, the following: “ ‘And also that said party of the second part [the defendant] will, at his owm expense, during the continuance of this lease, keep the said premises and every part thereof in as good repair, and at the expiration of the term yield and deliver up the same in like condition, as when taken, reasonable use and wear thereof and damage by the elements excepted.' “Then follows the usual clause for peaceable and quiet enjoyment on paying the installments of rent aforesaid. The lease was received in evidence upon the trial, and is made a part of this finding. “2. The defendant entered into possession of the said art gallery, which consisted of a number of rooms, including an operating room, which had a skylight of glass about 13 by 18 feet in size, such as is in general use in the photograph and like business. During the continuance of such lease, and in the month of August, 1896, the defendant applied to the plaintiff for a reduction of the rent for the remainder of the term, and complained of the dullness of business. After some discussion of the subject, the plaintiff agreed to reduce the rent to $15 per month for the remainder of the term, upon condition that said defendant was to remain a tenant for another year, to wit, from May 1, 1897, to May 1, 1898, at the old rental of $20 per month. These terms were agreed upon, and such arrangement was made by the parties. “3. The skylight referred to contained large lights of glass, 20 by 30 inches, and in the month of March, 1897, during the term of said written lease, some men in the employ of plaintiff, while engaged in throwing snow from a roof adjoining said skylight, accidentally broke two or three lights of glass in said skylight, the snow falling thereon. An attempt was made by the plaintiff’s agent to repair the injury, and two more lights were broken in the process, making five lights broken in all. No putty was used in the attempted repairs, the frame and woodwork being wet and the weather cold, but nails were driven in, fastening the glass. The next day one of the lights of glass broke across where the nail had been driven, and the defendant called the attention of the plaintiff’s agent to the broken glass, and complained of it. The said damage done to the skylight by the falling snow was not properly repaired, and the skylight leaked badly whenever it rained, or whenever the falling snow melted, during all the subsequent occupancy by defendant, rendering it necessary to use boxes and pans to catch the water, and rendering it unpleasant and unsuitable, if not impossible, to do a profitable business in the operating room at such times, and materially affecting the business of the defendant, the falling.water injuring the carpet, curtains, and furniture of defendant, of which condition the defendant complained to the agent of the plaintiff. “ 4. At the close of the term of the written lease, to wit, on May 1, 1897, the defendant was in arrears for rent for February, March, and April, 1897. The defendant was called upon for rent by the agent of the plaintiff at the close of each month, and he refused to pay the rent until the skylight was repaired, and so stated to such agent. The defendant continued to occupy the premises under the verbal arrangement and agreement of August, 1896. The plaintiff’s agent applied to the defendant monthly for the payment of rent. The defendant on these occasions pomplained of the leaking condition of the skylight, and paid no rent (except $15 in June, which was applied in payment of the February rent), and said he wanted to see the plaintiff,- and he also complained that the rent was too high. This condition Of things continued until August 2, 1897, when the plaintiff wrote a letter to the defendant, of which the following is a copy: , “ ‘Marquette, Mioh., August 2, 1897. “ ‘G. A. Werner, Esq., “ ‘City. “ ‘ Dear Sir: .September last I agreed with you that in consideration of your agreeing to pay $20 per month for rent of gallery from May 1, ’97, to April 30, ’98, and also agreeing to pay this rent promptly on the 1st of evei'y month, that I would take off $5 a month from your lease until May 1, ’97. Trusting your honor to do as you agreed, I told my clerks to collect only $15 a month until May 1, ’97, and $20 after that. On this agreement you are now $90 behind with your rent, that was to have been paid promptly. Will you please give us check or pay this back rent at once ? “‘Yours truly, . “‘S. Adams.’ “Soon after receiving this letter, the defendant saw the plaintiff, and complained that the rent was too high, denied that he had ever agreed to pay $20 a month after May 1, 1897, and complained of the leaky condition of the skylight, and refused to pay any rent until the skylight was repaired. The plaintiff refused to repair the skylight, claiming that it was the duty of the defendant to do so under the terms of the lease. The defendant then said to the plaintiff that he would move out, and somewhere from the 10th to the 16th day of August, 1897, he commenced to make preparations to move,- and arranged to repair his own building for the business. He continued, however, to occupy the plaintiff’s premises until about September 15, 1897. Although the plaintiff 'had refused to repair the skylight, he sent a man into the gallery soon after the defendant had determined to move out, and about August 21st, with instructions to'repair the skylight. The defendant objected to being disturbed, and said he-was going to move out, and told the man to wait until he had moved. The same man came back about a week later, and was again sent away by defendant. The defendant at this time was engaged in moving out, having already removed the negatives and some stock. The plaintiff finally sent men to repair the skylight. They commenced the work about September 7,1897, and completed it about September 17th. They put in 15 new lights of glass, and three men worked türee days or more. During the time they were at work the defendant completed moving out, and vacated the premises, to the knowledge of the plaintiff. “5. At the time of the commencement of this suit, rent remained unpaid for the months of March and April, 1897, at the rate of $15 per month, and for May, June, July, August, and September, 1897, at the rate of $20 per month, —making, in all, $130. The defendant was entitled to a credit for work of $2, leaving a balance due the plaintiff of $128, to the close of the month of September, 1897, for rent. Before the trial of the case, the defendant tendered to the plaintiff, and paid into court, the sum of $160.25 in full for damages and costs to that time. I find that the amount so tendered was sufficient to pay the plaintiff’s demand and the costs of said suit up to the time of such tender. “ From the foregoing facts I find, as matter and conclusion of law, that the said premises, by reason of the leaky condition of said skylight, were in an untenantable condition, and were unfit and unsuitable for the carrying on of said business, and that it was the duty of the plaintiff to repair the same; that the plaintiff’s servants, while in his employ, having injured the said skylight as aforesaid, it became and was the duty of the plaintiff to properly repair the same; and that his refusal and neglect to repair said skylight, after complaint and notice by the defendant, justified the defendant in terminating the lease and vacating the premises; and that the conduct of the plaintiff in the premises amounted to an eviction in the law.” When the original lease was made, as well as when it was modified by the verbal arrangement, the building was adapted to the needs of the tenant, who had hired it for a particular business. This was understood by the landlord. Through the act of the landlord, injuries were done to the building which rendered it practically useless for the purpose for which it was hired. The attention of his agent was called to the condition of the building. He undertook to make repairs. His efforts resulted in making a bad matter worse. Through the act of the landlord, represented by his employes and agent, the tenant was deprived of the beneficial use of the building. The conclusion of the circuit judge is justified by the following cases: Young v. Collett, 63 Mich. 331; Pridgeon v. Boat Club, 66 Mich. 326; Bostwick v. Losey, 67 Mich. 558; Leonard v. Armstrong, 73 Mich. 577; Pierce v. Joldersma, 91 Mich. 463; Grove v. Youell, 110 Mich. 285; Fisher v. Nergararian, 112 Mich. 327. Judgment is affirmed. The other Justices concurred.	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Grant, C. J. (after stating the facts). For about a year plaintiff had crossed the street at this place, and at the same time of the day, when cars were running frequently. She was therefore entirely familiar with the situation, and the danger incident! to the place, and the necessity of care upon her part. She stood about 6 feet from the track till the east-bound car had passed. Can it be doubted that the moment she had crossed that track and entered upon the place between, at which time she was about 5 feet from the other track, she could have seen the approaching car, had she looked ? If this be so, how can it be said that she had performed the duty which she owed to herself, — to look before advancing upon the other track ? It is evident that she did not look until she had stepped upon the track where the car was approaching. She had walked about 15 feet without looking. The car approaching on the south track was too far away to give her any apprehension. She had only to glance to the right as she • advanced after the car on the south track moved away from her, and she would have seen the car •approaching. This case cannot be distinguished from McGee v. Railway Co., 102 Mich. 107 (26 L. R. A. 300, 47. Am. St. Rep. 507); Henderson v. Railway Co., 116 Mich. 368; Borschall v. Detroit Railway, 115 Mich. 473. Judgment reversed, and new trial ordered. The other Justices concurred.	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Grant, C. J. (after stating the facts). The only ground of negligence upon which plaintiff could recover was that submitted to the jury, viz., the failure to have an employé stand upon the footboard of the tender to warn him. The object of the rule requiring an employé to be upon the footboard when backing across public highways is for the protection of the public, and not of the employés of the company. Rohback v. Pacific Railroad, 43 Mo. 187. There was no more danger to the plaintiff in working upon this crossing than there was at any other part of the tracks in the yard outside the highway. There is no testimony tending to show that employés understood that this rule was intended for a protection to them, or that the plaintiff so understood it. Evidently he knew that he was going into a place of danger; that it was his duty to keep a sharp lookout for his own protection; and that he did not rely upon such a warning, because he stood there 10 to 15 minutes, waiting for the engine to pass over. All the witnesses who testified upon the subject, both those for the plaintiff as well as for the defendant, testified that it was the plaintiff’s duty to watch out for approaching cars, and to get out of the way. One of the rules of the company provides: “ Trackmen may expect trains at any moment, and must always be on the lookout and prepared for them.” It is expected, and it is not unreasonable, that trackmen should look put for approaching trains and engines, and especially in yards, where they may be expected at an}*- moment. There was a train going upon another road, and there was a mill near by, making some noise. The law did not permit the plaintiff to rely upon his sense of hearing alone. Obviously he did not intend to, but it is certain that he did. He knew that the engine might come that way. The engineer had signaled for the right to cross. There is nothing to show that he did not hear this signal. The gates were closed. A glance at his surroundings would have warned him of danger. A glance every few seconds towards this engine would have disclosed its approach. Such precaution would not have interfered with his work, and, if it would, there is nothing to indicate that the defendant prohibited him from taking it, or that it expected him to work without taking it. Keefe v. Railway Co., 92 Iowa, 182 (54 Am. St. Rep. 542), is very similar in its facts to this case. The plaintiff’s intestate was struck by the tender of an engine which was backing up. The court said: “The presence of the tracks and cars thereon, and the movement of engines, were constant warnings to him of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger. These rules are founded upon the necessities of the business of operating railways. They are reasonable and just, and are fully sustained by the decisions of this and other courts.” Where plaintiff, an employ.é, stood with his back to the approaching cars, and did not look back or watch for the moving engine, and was struck, it was said: ‘ ‘ It cannot be that, under these circumstapces, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employés who had all the time knowledge of what was to be expected. We see in the facts as disclosed no negligence on the part of the defendants, and if, by any means, negligence could be imputed to them, surely the plaintiff, by his negligent inattention, contributed directly to the injury.” Aerkfetz v. Humphreys, 145 U. S. 418. Under circumstances somewhat similar, the supreme court of Massachusetts held that an employé had no right to abandon the use of his eyes, and rely upon a warning from every car that might be shunted upon the track where he was working. Lynch v. Railroad Co., 159 Mass. 536. See, also, Schaible v. Railway Co., 97 Mich. 318 (21 L. R. A. 660); Daly v. Railway Co., 105 Mich. 193. The plaintiff was clearly guilty of contributory negligence. It is unnecessary to discuss the other points raised. Judgment reversed, and new trial ordered. The other Justices concurred.	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Montgomery, J. This is certiorari to review proceed ings had before John Cummiskey, circuit court commissioner of Livingston county, resulting in an order for the removal of the cause from Livingston to Wayne county for trial. The return shows that on the hearing of the petition for removal it appeared that the attorneys of both parties resided in Wayne county; that the plaintiff resided in Livingston county; that the judge of the Livingston circuit court was disqualified by reason of having been of counsel in relation to the subject-matter, while none of the judges of the Wayne circuit court were disqualified from hearing the cause. Upon this showing the ordeiwas made. The statute (section 6495) provides: “That whenever any civil suit or proceeding shall be pending in any circuit court in this State, either on the law or equity side of said court, in which the judge of said court * * * has heretofore been consulted ox-employed as counsel iix the subject-matter to be litigated in said suit, * * * the same may be transferred to some other circuit court in the maxxxxe'r provided by this act." Sectioix 6498 provides for a hearing upon the application, and further provides that— “If he [the commissioner] shall be satisfied that the-judge of the circuit court where such suit is pending is disqualified to sit in said cause, within the intent and meaning of the first section of this act, he shall grant an order for the transfer of said cause or proceeding to the-circuit court of some other county, which couxxty shall be specified in said order." It is clear that the proofs offered showed that the order was justified, unless it be held, in accordance with 'the-plaintiff’s contention, either that the commissioner failed to obtain jurisdiction to make the order because of the insufficiency of the petition, or that there was an abuse of discretion on his part in transferring the cause at all, in view of the fact that a trial could have been had before another judge, or that he, in a similar manner, abused his discretion in transferring the cause to Wayne, instead of Washtenaw, county. The criticism upon the petition is that it was not verified, and that it failed to set forth that the judges of the Wayne circuit court were qualified. The statute does not require the petition to be verified. Section 6496. It does state that such application shall be in writing, and shall set forth the grounds specifically for such transfer. Section 6498 makes provision as to the method of furnishing the evidence upon which the commissioner acts. The statute does not require that the petition shall' set forth that the judge of the circuit to which the cause is to he transferred is qualified to sit. This fact, it is true, should be shown to the commissioner, but this showing is made on the hearing of the application, after notice to the other side. This must necessarily be so, for it cannot be known to the applicant to what circuit the commissioner would be disposed to order the case transferred. The fact that another circuit judge was expected to hold a term of court in Livingston county could not affect the right or duty of the commissioner upon the application in question. The statute is imperative. If the showing before him complies with the statute, as was said' in Pack v. Circuit Judge, 74 Mich. 33, “the only matter left to his discretion is the circuit and county to which the cause shall be transferred.” It is claimed, also, that there was an abuse of discretion in not removing the cause to Washtenaw, rather than to Wayne, county. None of the attorneys resided in Washtenaw county, but. it does appear that the defendant’s road runs through that county, and that it is more convenient to the witnesses who are residents of Livingston county to attend the case in Washtenaw county. Without expressing any opinion as to whether the defendant has any such residence in Washtenaw county as would have authorized a removal of the cause there, we think there was no such abuse of discretion as would justify this Court in vacating the order made. The order will be affirmed, with costs. The other Justices concurred.	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McGrath, J. This is a bill by certain tax-payers of the village of Frankfort against tbe trustees and officers of said village, to restrain tbe payment of moneys under a contract entered into in May, 1890, by the council, with George L. Davis, trustee, for a water supply to said village. After the execution of said contract a corporation was formed, which succeeded to all the rights of said George L. Davis under said contract. The bill, is fatally defective, in that neither said Davis nor said corporation, so succeeding to his rights, is made a party defendant thereto. All the parties in interest, and whose rights may be affected, ought to be made parties. Jenn. Oh. Pr. 21, 22; Puter. PI. & Pr. (Mich.) 37. The other parties to the contract in question would not be concluded by any decree herein, and the village, in case of a decree against it, would be subject-to still further litigation. The decree of the court below, dismissing the bill, is affirmed, with costs to defendants. The other Justices concurred.	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Per Curiam. On September 1, 1981, defendant, Gaylen Hayward, was convicted by a jury of second-degree criminal sexual conduct as charged, in violation of MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). After being sentenced to serve not less than 3-1/2 years nor more than 15 years in prison, defendant appeals as of right. Defendant was charged with engaging in sexual contact with a nine-year-old female. At the preliminary examination, the complainant testified that on the evening of December 12, 1980, defendant, on more than one occasion, rubbed her genital area with his hands. The complainant’s testimony was corroborated by the testimony of a 13-year-old male who was present at the time of the event. Prior to trial, the prosecutor filed a motion in which she sought, under MRE 804(a)(3), to have the complainant declared unavailable as a witness and to use the complainant’s preliminary examination testimony at trial as substantive evidence. After a hearing held on July 8, 1981, the trial court granted the prosecutor’s motion, finding that the complainant was unable to recollect the events of December 12, 1980: "I don’t know why this child can’t remember. I don’t think that’s important. Certainly psychiatric examination might shed some light on this why she doesn’t remember, but I don’t think that is critical to my decision. "The central fact as it appears to me — appeared to me, she did not remember the important facts of these incidents. This child is young enough. I find it difficult to believe that she’s trying to mislead this court. As far as her memory is concerned, I think that she does not remember. I think that’s not surprising, since this thing she relates in her preliminary examination indicates she’s suffered a traumatic experience, and for that reason alone she’s blocking it out. "I’m satisfied that she’s not misleading the court on her lack of memory, and you may have an order, Mrs. Hughes, indicating that the witness is not available, and so you may use her — testimony in the preliminary examination. — However, I’ll let you use that portion of the testimony today — for the impeachment — impeaching her testimony. I won’t let you use her whole testimony today. That part going to her — the issue of her lack of memory, I think that that is a question for me to decide, not the jury. For that reason, also, I’ll not let the child be called at trial to question her concerning her lack of memory. I don’t think that’s a jury question.” On defendant’s motion for a rehearing, a second hearing was held a month thereafter on the issue of the complainant’s inability to remember the events to which she testified at the preliminary examination. While reafiirming his ruling that the preliminary examination transcript of the testimony could be used at trial, the trial court ruled that the complainant’s testimony at the two hearings subsequent to the examination could be used to impeach the complainant. On appeal, defendant raises several issues. First, he maintains that the trial court erred in allowing the prosecutor, over objection, to place the preliminary examination testimony of the complainant in evidence at trial. The applicable evidentiary rules, MRE 804(a)(3) and MRE 804(b)(1), provide: "(a) Definition of unavailability. 'Unavailability as a witness’ includes situations in which the declarant— "(3) has a lack of memory of the subject matter of his statement; "(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: "(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Prior to the adoption of the Michigan Rules of Evidence by the Supreme Court, we held, in People v Thomas, that it is appropriate for a trial court to admit the prior recorded testimony of a witness who was unable to remember the events to which he testified at an earlier hearing. The Thomas Court relied upon People v Pickett, where the Supreme Court upheld the admissibility of the preliminary examination testimony of a prosecution witness who refused to testify at trial on grounds that he would incriminate himself. In a case decided subsequent to the adoption of MRE 804, we held that the prior recorded testimony of a witness who is declared to be unavailable as a witness because of lack of memory is admissible into evidence at trial. Our review of the record reveals that defendant vigorously and effectively cross-examined complainant at the preliminary examination. Prior recorded testimony of a witness is considered trustworthy because the witness testified under oath and the opponent had a fair opportunity and proper motive to examine the witness at the earlier proceeding. "Unavailability of a witness based on a failure of memory” is described by Professor McCormick in the following passage: "If the witness has lost his memory of the relevant matters, because of the failure of his faculties due to disease or senility, this is a good ground of unavailability. If the gap in the recollection or fading of memory is due merely to the lapse of time, the effect is the same, namely the inability of the witness to give to the court his former firsthand knowledge of the facts. In common sense it seems that the legal consequence, that is, the use of the former testimony, should likewise be the same. Some courts, however, have jibbed at this point, on the ground that this would open the door to a perjured claim of forgetfulness by a witness who learns that the adversary has discovered facts which give a new handle for cross-examination. The danger of the success of such an attempt, which would expose the witness to cross-examination on his motives and his memory, seems greatly outweighed by the need for the use of the former testimony when the assertion of forgetfulness is true. Forgetfulness by a disinterested witness of facts of no personal moment to him, in the course of a delayed lawsuit, is frequent and familiar enough. The inconvenience of this narrow view, that forgetfulness is not a ground of unavailability, it seems, should be avoided by treating lapse of memory if complete as a ground of unavailability, or if partial as a ground for admitting both the former, and the present testimony of the witness.” (Footnotes omitted.) In United States v Amaya the Fifth Circuit Court of Appeals held that the trial judge did not abuse his discretion in deciding that a witness who testified at a prior trial was unavailable to testify at a subsequent trial where, prior to the commencement of the second trial, the witness was involved in an automobile accident and sustained a loss of memory regarding his prior testimony. Similarly, in United States v Davis, the court held that former testimony of a witness was admissible where the witness testified at trial as to his inability to remember his prior testimony. The crucial factor in determining whether prior re corded testimony is admissible under MRE 804(a)(3) and FRE 804(a)(3) is not the unavailability of the witness; rather it is the ability of the witness to recollect the prior recorded statements. In the within matter, we conclude that the trial court did not abuse its discretion in applying the "unavailability of a witness hearsay exception” with respect to complainant’s prior recorded testimony. At two hearings held subsequent to the preliminary examination and at trial, defendant cross-examined the complainant regarding her claim that she was unable to remember the events of December 12, 1980. We find that the former testimony was sufficiently trustworthy to be admitted as an exception to the hearsay rule. Defendant also assigns as error the trial court’s admission of testimony concerning a statement made by defendant to the investigating officer, Dana Steidler, that he "preferred younger women or young girls that were inexperienced so he could teach them”. Defendant asserts that his sexual preferences were not relevant to the prosecution and, in fact, were highly prejudicial to his defense. As part of his investigation of the case, Steidler, a City of Hastings police detective, interviewed defendant. While not admitting that he engaged in sexual contact with complainant, defendant, after being advised of his Miranda rights, informed Steidler that he (1) possessed a collection of pornographic books, (2) considered most women to be whores, and (3) preferred young and inexperienced women. Prior to trial, defendant filed a motion to suppress testimony concerning the foregoing state ments, alleging that they were not freely and voluntarily made. Thereupon, a Walker hearing was conducted, after which the trial court suppressed, as irrelevant, all of defendant’s statements other than his stated preference for young and inexperienced women. It is noteworthy that defendant neither objected to nor requested a cautionary instruction concerning Steidler’s testimony in regard to defendant’s sexual preferences. Absent a showing of manifest injustice, specific objections to the admission of evidence cannot be raised for the first time on appeal. Although we are inclined to agree with defendant that his sexual preferences were not relevant to the charged offense, we do not find that manifest injustice was occasioned by admission of the evidence. Thirdly, defendant maintains that the trial court erred in permitting the prosecutor to impeach him with evidence of a prior conviction of attempted unlawful use of an automobile, an offense which carries a maximum one-year sentence. Essentially, defendant argues that it was improper to allow the prosecutor to impeach him with evidence of a misdemeanor offense that did not involve theft, dishonesty, or false statement. The trial court permitted impeachment of defendant with evidence of four prior convictions: two larceny in a building convictions, one larceny under $100 conviction, and one attempted unlawful use of an automobile conviction. On appeal, defendant does not dispute the propriety of the use of evidence of the three larceny convictions for impeachment pruposes. MRE 609(a) provides: "(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if "(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and "(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.” The foregoing evidentiary rule is sometimes held to have modified prior Michigan law which prohibited the use of evidence of prior misdemeanor convictions to impeach a defendant in a criminal case. Under MRE 609(a), evidence of a prior misdemeanor conviction involving theft, dishonesty, or false statement is admissible for impeachment if the trial court determines that the conviction is more probative on the issue of credibility than unfairly prejudicial to the witness. The elements of the specific intent offense of unlawful use of a motor vehicle are (1) the motor vehicle did not belong to the defendant, (2) having obtained lawful possession of the vehicle from the owner, the defendant used it beyond the authority which was given to him, and (3) the defendant must have intended to use the vehicle beyond the authority granted to him, knowing that he did not have the authority to do so. Unlawful use of a motor vehicle is a lesser included offense of unlawfully driving away a motor vehicle (UDAA), a felony commonly known as "joyriding”. The distinction between the two offenses is that UDAA (joyriding) requires the defendant to take possession of the motor vehicle without the owner’s permission, while the misdemeanor offense of unlawful use of a motor vehicle is committed when an individual, who has been given lawful possession of a motor vehicle, uses it beyond the authority which has been granted to him by the owner. A description of the felony offense of UDAA (joyriding) is embraced in the following passage: "The taking, using, or operating of a motor vehicle without the consent of the owner is made a criminal offense by specific statute in many jurisdictions. Although such a statutory offense may be designated larceny, the common-law definition of larceny is changed by eliminating the requirement of intent permanently to deprive the owner of his property. Such statutes have been enacted in order to cover, not a 'larcenous’ taking, but a 'wrongful’ taking without the consent of the owner. Such offense is separate and distinct from the offense of larceny, and does not supersede it. But it has been held to be a lesser included offense of larceny. "While the elements of the offense depend upon the wording of the statute, they usually consist of taking possession of a vehicle, driving or taking it away, willfulness, and lack of authority; proof of intent to permanently deprive the owner of the property is not required.” (Footnotes omitted.) As illustrated in Perkins, Criminal Law (2d ed), pp 272-273, joyriding statutes were enacted by various states in order to provide a criminal penalty for the unlawfully taking away, without intent to steal, of a motor vehicle: "The social problem back of this legislation is well known. When the automobile began to appear and was limited to the possession of a few of the more fortunate members of the community, many persons who ordinarily respected the property rights of others, yielded to the temptation to drive one of these new contrivances without the consent of the owner. This became so common that the term 'joyrider’ was coined to refer to the person who indulged in such unpermitted use of another’s car. For the most part it was a relatively harmless type of trespass, although it was quite annoying if the 'joyrider’ had not returned when the owner came back for his automobile. The chief harm was due to the fact that the 'joyrider’ was frequently not a skillful driver, and sometimes unintentionally damaged the car while using it. "It was when 'joy-riding’ was at its height that most of the legislative enactments providing a penalty therefor were passed and the mere prevalence of this type of wilful trespass is sufficient to explain the creation of this statutory crime. The severity of the punishment attached (the crime being a felony in many jurisdictions) is attributable to two factors: First, the trespass occasionally resulted in great damage to the car, as previously mentioned; second, the prevalence of this kind of trespass made it very difficult to secure convictions in cases of outright larceny of motor vehicles, because the claim of an intent to return usually seemed plausible.” From the foregoing discussion, it is apparent that the UDAA (joyriding) statute does not apply to one who takes an automobile with the owner’s consent but uses it in excess of the permission granted to him. This concept was articulated in State v Boggs, where the Iowa Supreme Court held that if the owner consents to allow another to operate his automobile, the person given lawful permission cannot be convicted of operating an automobile without the consent of the owner, notwithstanding that the use thereof clearly transcended the permission granted by the owner. Under MRE 609(a), the crime of unlawful use of a motor vehicle, a misdemeanor punishable by imprisonment for not more than two years, may be used to impeach a defendant in a criminal case, since the crime is punishable by "imprisonment in excess of one year”. However, since defendant herein previously had been convicted of attempted unlawful use of a motor vehicle, which carries a one-year maximum sentence, the offense could not be used for impeachment purposes unless it involved theft, dishonesty, or false statement. In our view, the act of using a motor vehicle without authority is a crime involving dishonesty. In Black’s Law Dictionary (4th ed), p 554, dishonesty is defined as "disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity”. Dishonesty has also been defined as "a disposition to deceive”, and "a lack of honesty, probity, or integrity in principle”. _ The Ninth Circuit Court of Appeals held that, within the evidentiary rule permitting impeachment by proof of commission of a misdemeanor involving dishonesty or false statement, evidence of an offense which entails an element of misrepresentation or falsification could be used for impeachment. We hold that unlawful use of a motor vehicle is an offense involving a breach of trust, misrepresentation, or an inclination to deceive, because the actor, who had lawful possession of another person’s motor vehicle, breached the trust reposed in him by using the vehicle in excess of the stated authority. Consequently, the trial judge properly permitted the prosecutor to impeach defendant with evidence of the prior conviction of attempted unlawful use of a motor vehicle. We note also that had we held it improper to allow impeachment by the use of the one-year misdemeanor, the error would have been harmless beyond a reasonable doubt. Affirmed. The Michigan Rules of Evidence were adopted on January 5, 1978, to be effective on March 1, 1978. 61 Mich App 717, 719; 233 NW2d 158 (1975). 339 Mich 294; 63 NW2d 681 (1954). People v J D Williams, 117 Mich App 505, 509-510; 324 NW2d 70 (1982). Lilly, Evidence, § 74, pp 251-254. McCormick, Evidence (2d ed), § 253(5), pp 611-612. 533 F2d 188 (CA 5, 1976), reh den 540 F2d 1086 (1976). 551 F2d 233 (CA 8, 1977), cert den 431 US 923; 97 S Ct 2197; 53 L Ed 2d 237 (1977). See, also, United States v Pfingst, 477 F2d 177 (CA 2, 1973), cert den 412 US 941; 93 S Ct 2779; 37 L Ed 2d 400 (1973). See Walden v Sears, Roebuck & Co, 654 F2d 443 (CA 5, 1981). Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Defendant’s objection to the testimony was not based on relevancy grounds; rather, he asserted that his statement to the investigating officer was involuntary. People v Peery, 119 Mich App 207, 211; 326 NW2d 451 (1982). See People v Renno, 392 Mich 45, 56; 219 NW2d 422 (1974). The statute prohibiting the taking or using of a motor vehicle without authority has been interpreted to cover a bailment or a rental agreement. People v Smith, 213 Mich 351; 182 NW 64 (1921); OAG, 1914, p 690 (April 27, 1914). People v Crosby, 82 Mich App 1, 3; 266 NW2d 465 (1978), lv den 406 Mich 971 (1979); CJI 24:2:01. MCL 750.414; MSA 28.646; MCL 750.413; MSA 28.645. UDAA was referred to as "joyriding” in People v Stanley, 349 Mich 362, 364; 84 NW2d 787 (1957), People v Helcher, 14 Mich App 386, 387; 165 NW2d 669 (1968), and People v Lerma, 66 Mich App 566, 567; 239 NW2d 424 (1976), lv den 396 Mich 848 (1976). See 9 ALR3d 633, 645; CJI 24:2:04; People v Blocker, 45 Mich App 138, 142; 206 NW2d 229 (1973), aff'd 393 Mich 501; 227 NW2d 767 (1975). 7A Am Jur 2d, Automobiles and Highway Traffic, § 349, pp 534-535. In Michigan, the first joyriding statute was enacted in 1907, 1907 PA 44, § 1. 181 Iowa 358; 164 NW 759 (1917). Gee v California State Personnel Board, 5 Cal App 3d 713, 719; 85 Cal Rptr 762 (1970). Tucker v Lower, 200 Kan 1; 434 P2d 320 (1967). United States v Ortega, 561 F2d 803, 806 (CA 9, 1977).

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J. H. Gillis, J. The question presented by this appeal is whether an action for legal malpractice may be validly assigned. We hold that it may not. Plaintiffs commenced this action alleging that defendant had committed legal malpractice during his representation of Linda Avery in a prior lawsuit. Following a bench trial, the court found in favor of defendant. Plaintiffs appeal. On January 1, 1972, a vehicle driven by Linda Avery collided with an automobile in which Gail Joos was a passenger. Gail Joos and several other parties in the Joos vehicle filed suit in tort against Linda Avery and Mickey Avery, the owner of the automobile. The Avery vehicle was insured by Auto-Owners Insurance Company, which retained William J. Drillock, defendant herein, to represent the Averys in the lawsuit. The coverage limits of the insurance policy were $40,000 per accident and $20,000 per person. Prior to trial of the Joos v Avery suit, all plaintiffs except Gail Joos settled for a total of $23,000, leaving $17,000 in available insurance benefits. The matter was tried and the jury returned a verdict in favor of Gail Joos in the amount of $65,000. Auto-Owners paid Joos the $17,000 of remaining benefits, plus interest. Linda Avery and Mickey Avery then executed an assignment of their rights against Auto-Owners to Gail Joos. Joos thereafter commenced the present action against Auto-Owners, alleging that Auto-Owners had refused in bad faith to settle the Joos v Avery suit within the policy limits. Linda Avery subsequently executed a document which purported to partially assign to Gail Joos her rights against William J. Drillock. An amended complaint was thereafter filed by Gail Joos and Linda Avery against Auto-Owners and William Drillock. The amended complaint repeated the allegation against Auto-Owners of a bad faith refusal to settle and, in addition, alleged that William Drillock had committed legal malpractice in his representation of Linda Avery during the Joos v Avery suit. The malpractice claim involved primarily Drillock’s alleged failure to notify Avery of settlement offers made by Joos, failure to settle the case within available policy limits, and failure to make proper discovery. Prior to trial of the instant case, the claim against Auto-Owners was dismissed pursuant to a settlement in which Auto-Owners paid $46,300 to Gail Joos and $400 to Linda Avery. Following a bench trial on the malpractice claims, the court ruled in favor of defendant, finding that no malpractice had occurred. We first note that, contrary to plaintiffs’ argument, the assignment issue is properly before this Court. Defendant Drillock challenged the validity of the assignment in the trial court, but the court never issued a specific ruling on the question. Under these circumstances, it was unnecessary to file a cross-appeal to bring the issue before this Court. The assignability of a legal malpractice action is apparently a question of first impression in this state. As a general rule, actions which are deemed to survive death are assignable under the common law. State Mutual Life Assurance Co of America v Deer Creek Park, 612 F2d 259, 265 (CA 6, 1979); Detroit v Bridgeport Brass Co, 28 Mich App 54, 59, fn 5; 184 NW2d 278 (1970), lv den 384 Mich 828 (1971). Under MCL 600.2921; MSA 27A.2921, "[a]ll actions and claims survive death”. However, survivability is not the only test. Other jurisdictions have held, for public policy reasons, that legal malpractice actions are not assignable. This was the holding in Goodley v Wank & Wank, Inc, 62 Cal App 3d 389; 133 Cal Rptr 83 (1976). The California Court of Appeals based its decision on the "uniquely personal nature of legal services and the contract out of which a highly personal and confidential attorney-client relationship arises”. 62 Cal App 3d 395. The court noted that an attorney’s duty to his client arising out of the professional relationship is a personal one running solely to the client. Because of the inherent nature of the attorney-client relationship it has been traditionally restricted to only the parties involved. The California court cited the following public policy considerations underlying its decision: "It is the unique quality of legal services, the personal nature of the attorney’s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment. The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty, and who have never had any prior connection with the assignor or his rights. The commercial aspect of assignability of choses in action arising out of legal malpractice is rife with probabilities that could only debase the legal profession. The almost certain end result of merchandizing such causes of action is the lucrative business of factoring malpractice claims which would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, promote champerty and force attorneys to defend themselves against strangers. The endless complications and litigious intricacies arising out of such commercial activities would place an undue burden on not only the legal profession but the already overburdened judicial sys tem, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client. "* * * [T]he ever present threat of assignment and the possibility that ultimately the attorney may be confronted with the necessity of defending himself against the assignee of an irresponsible client who, because of dissatisfaction with legal services rendered and out of resentment and/or for monetary gain, has discounted a purported claim for malpractice by assigning the same, would most surely result in a selective process for carefully choosing clients thereby rendering a disservice to the public and the profession.” 62 Cal App 3d 397-398. Similar reasoning was employed in Christison v Jones, 83 Ill App 3d 334; 405 NE2d 8 (1980), wherein the Illinois Court of Appeals held that a legal malpractice action was not assignable and was therefore not an asset of a bankrupt’s estate. The court noted that while survivability of an action is the usual test to determine assignability, it is not the sole test. Rather, the assignability of a cause of action must be based upon an analysis of the claim sought to be assigned as well as upon the public policy considerations involved. The court made the following observations concerning the dual nature of a legal malpractice cause of action: "It is primarily a tort action for negligence based upon an attorney’s failure to exercise a reasonable degree of skill and care in representing his client. (Smiley v Manchester Ins & Indemnity Co, 71 Ill 2d 306; 375 NE2d 118 [1978]). Yet, the duty allegedly breached in such an action arose out of the establishment of the attorney-client relationship by a contract for legal services. As we noted previously, the injuries resulting from legal malpractice are not personal inju ries, in the strict sense of injuries to the body, feelings or character of the client. Rather, they are pecuniary injuries to intangible property interests. While focus on these aspects of the malpractice cause of action might indicate placement of it under the class of tort actions for injury to personal property, such placement overlooks the personal nature of the relationship, with attendant duties, that exists between an attorney and client. It is a breach of those duties within the relationship which forms the real basis and substance of the malpractice suit. "* * * We find that the personal nature of the relationship and the duty imposed upon the attorney, coupled with public policy considerations surrounding that relationship and any potential assignability of breaches thereof (giving rise to causes of action in legal malpractice) lead us to conclude that the legal malpractice claim is not subject to assignment.” 83 Ill App 3d 338-339. This Court finds the reasoning set forth in Goodley, supra, and Christison, supra, convincing. See, also, Chafee v Smith, 98 Nev 222; 645 P2d 966 (1982). In view of the personal nature of the attorney-client relationship and the public policy considerations discussed above, we conclude that a legal malpractice cause of action is not subject to assignment. Linda Avery’s attempted assignment to Gail Joos of her legal malpractice claim against William Drillock was therefore invalid. The remaining discussion pertains to plaintiff Linda Avery only. In a prior agreement noted earlier in this opinion, Linda Avery and Mickey Avery assigned their rights against Auto-Owners to Gail Joos. Since the terms of that assignment effectively released Linda Avery from liability on the excess judgment, i.e., the amount by which the Joos v Avery judgment exceeded the available policy limits, the amount of the excess judgment plainly does not constitute damages recoverable by plaintiff Avery. However, Avery has alleged that defendant Drillock’s malpractice resulted in damages to her above and beyond the excess judgment. It is therefore necessary to review the trial court’s findings regarding the malpractice issue. In the previous appeal of this case, a panel of this Court stated: "We do not hesitate to hold that under the allegations of facts before us, an attorney has, as a matter of law, a duty to disclose and discuss with his or her client good faith offers to settle.” Upon a careful review of the record and briefs, we hold that the trial court clearly erred in determining that no malpractice occurred. Plaintiffs established by a preponderance of the evidence that defendant breached his duty to disclose and discuss settlement offers with Avery. The case is therefore remanded to the trial court for a determination of the amount of damages, if any, incurred by plaintiff Avery as a proximate result of defendant’s malpractice. The judgment of no cause of action as to plaintiff Gail Joos is affirmed for the reasons stated herein. The judgment as to plaintiff Linda Avery is reversed and the case is remanded for a determination of damages, if any. Affirmed in part, reversed in part, and remanded. No costs, neither party having prevailed in full. The assignment provided: "I, Linda K. Avery, do hereby partially assign my claim for malpractice against William J. Drillock in the handling of the case against me by Gail A. Joos to Gail A. Joos, the Plaintiff, under the terms and conditions set forth in my previous assignment to Gail A. Joos wherein I assigned to her my claim against Auto-Owners’ Insurance Company. "This Assignment is intended to be a partial Assignment and to apply to the Judgment, interest, and costs of the above-named case. Linda K. Avery retains to herself her claim against William J. Drillock for his malpractice in handling the above-named case above and beyond the Judgment, interest, and costs entered against her in the above-named case.” The trial court originally dismissed plaintiffs’ action for failure to produce expert testimony. This Court reversed. Joos v Auto-Owners Ins Co, 94 Mich App 419; 288 NW2d 443 (1979), lv den 408 Mich 946 (1980). Our opinion does not involve the prior assignment except to the extent the terms thereof were incorporated by reference into the subsequent assignment of Linda Avery’s rights against William Drillock. "2 We express no opinion as to whether plaintiffs can prove their allegations by a preponderance of the evidence. We merely state that if they can, then they are entitled to a judgment.” Joos v Auto-Owners Ins Co, 94 Mich App 419, 424; 288 NW2d 443 (1979), lv den 408 Mich 946 (1980). The assignment provided in part: "It is agreed that the said Plaintiff will pursue the claim of the Defendants against-Auto-Owner’s for their failure to settle said case, and that the Plaintiff will make no attempt to execute against the said Defendants or either of them personally other than pursuing the claim against Auto-Owners until a settlement or final adjudication of said claim is made. At the termination of the litigation against Auto-Owner’s Insurance Company, irrespective of the outcome of said litigation, the Plaintiff shall execute a total and final release of the said Defendants, Linda K. Avery and Mickey Avery if the Defendants have complied with the terms of this agreement.”

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Per Curiam. Plaintiffs appeal from the trial court’s order granting Williams Brothers’s motion for summary judgment, GCR 1963, 117.2(3). In the early morning of November 19, 1977, Pamala Karrar, an 18-year-old high school senior, left her parent’s home for work at the Tick-Tock Restaurant in Hastings. On her way, she drove down a portion of Usborne Road between Vedder Road and Brown Road. At some time, the wheels on the passenger side of her vehicle left the pavement and dropped onto the shoulder. At that point in the road, the pavement was three inches above the gravel shoulder. She continued 176 feet with her passenger side tires on the shoulder and then attempted to turn the wheels back onto the pavement where the pavement dropped 5-1/2" to the shoulder. After she returned all of the tires to the pavement, Ms. Karrar’s vehicle left the opposite side of the road, slid and rolled down the embankment and crashed into a tree. As a result, Ms. Karrar suffered serious injuries. The portion of the highway on which the accident occurred had recently been repaved by Williams Brothers Asphalt and Paving Company, Inc., defendant herein. Williams Brothers had entered into a contract with the Michigan Department of State Highways to repave that portion of Usborne Road. The contract did not require Williams Brothers to grade the shoulders after completion of the project. Under the contract, the Barry County Road Commission was to replace the gravel shoulders and to warn motorists of the low shoulder condition. Williams Brothers commenced its repaving project sometime in October, 1977, and completed its work and left the site on October 26, 1977. The job was inspected and approved by the area engineer for the Federal Highway Administration on November 17, 1977. . Between the completion of the repaving project and the time of the accident 24 days later the road commission had not replaced the shoulders. Nor had the road commission posted warnings of the low shoulders. On November 16, 1979, plaintiffs instituted this action against the county board of road commissioners and Williams Brothers. Plaintiffs alleged that Williams Brothers had been negligent because it neither replaced the shoulders nor warned motorists of the dangerous condition. On March 5, 1982, Williams Brothers moved for summary judgment pursuant to GCR 1963, 117.2, subds (1) and (3). On July 3, 1982, plaintiffs moved to amend their complaint to add counts of gross negligence, wilful and wanton misconduct, and intentional nuisance against Williams Brothers. On July 9, 1982, oral arguments were heard on Williams Brothers’s motion for summary judgment. At the conclusion of the hearing, the trial court granted summary judgment pursuant to sub-rule 117.2(3) as to all counts, indicating that at the same time it was granting plaintiffs’ motion to amend. Plaintiffs contend that the trial court erred in granting summary judgment because Williams Brothers’s affidavit was insufficient. A motion brought under GCR 1963, 117.2(3) must be supported by an affidavit. Those affidavits are governed by GCR 1963, 116.4, 116.5, and 116.6. GCR 1963, 116.4 states in pertinent part: "Supporting and opposing affidavits shall be made on personal knowledge and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion. Such affidavits shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts contained therein.” Plaintiffs argue that Williams Brothers’s affidavit failed to satisfy the subrule’s "personal knowledge” requirement. The affidavit was sworn out by Williams Brothers’s attorney. In it, he stated that he had attended the deposition of Jack Kineman, the project engineer on the repaving project, had reviewed the transcript of that deposition, and, as a result, could competently testify as to the contents of the deposition. The affidavit then listed various facts drawn from the deposition. It is well settled that attorney affidavits submitted upon information and belief are not sufficient to support a motion under subrule 117.2(3). See, e.g., Jones v Shek, 48 Mich App 530; 210 NW2d 808 (1973); Allstate Ins Co v Beauregard, 119 Mich App 103; 326 NW2d 439 (1982). Such affidavits are insufficient because they do not show that the affiant, if sworn as a witness, could testify competently as to the facts set forth in the affidavit. Jones v Shek, supra, p 532. In the present case, defense counsel did not submit his affidavit upon information and belief. But his affidavit has the same defect. He stated merely that he could testify as to the contents of Kineman’s deposition. Defense counsel had no personal knowledge of the facts related by Kineman. Were he sworn as a witness, defense counsel could offer only inadmissible hearsay. Thus, the affidavit was insufficient to support a motion under subrule 117.2(3). Under some circumstances, however, the party moving for summary judgment may be excused from filing an affidavit that complies with subrule 116.4. See GCR 1963, 116.6; Brooks v Reed, 93 Mich App 166; 286 NW2d 81 (1979). Subrule 116.6 states: "When Affidavits Are Unavailable. Either party may state in his affidavit that he cannot present the material facts essential to justify his position because such facts are known only to persons whose affidavits he cannot procure. "The affidavit shall name such persons and state why their testimony cannot be procured, together with a belief and reasons therefor as to the nature of their probable testimony. Thereupon the court may make such order as may be just, either denying the motion or ordering a continuance to permit the affidavit to be supported by further affidavits to be obtained, or depositions to be taken, or answers to interrogatories to be furnished, or discovery to be had.” Williams Brothers argues that its attorney swore out the affidavit because Kineman was unavailable to do so. Even so, defense counsel’s affidavit does not fulfill the requirements set out under subrule 116.6. Thus, Williams Brothers’s failure to submit an adequate affidavit under subrule 116.4 cannot be excused. Allstate Ins Co v Beauregard, supra, p 108. Reversal of summary judgment pursuant to subrule 117.2(3) is required. Allstate Ins Co v Beauregard, supra, p 107. Williams Brothers argues, however, that an affidavit was not necessary to support its motion for summary judgment pursuant to subrule 117.2(1). A motion brought under that subrule does not require a supporting affidavit. Williams Brothers contends further that the trial court could have granted its motion pursuant to subrule 117.2(1). A motion for summary judgment on the ground that "the opposing party has failed to state a claim upon which relief can be granted” tests the legal sufficiency of a pleaded claim. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1982 Supp, p 142. The inquiry is whether the claim made is so clearly unenforceable as a matter of law that no factual development thereunder could possibly justify a right to recovery. Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981), lv den 414 Mich 858 (1982). Williams Brothers maintains that the plaintiffs’ negligence claim is legally insufficient for want of a duty between itself and Pamala Karrar. However, the. complaint alleges such a duty and it is not clear that no factual development could establish that duty. Accordingly, summary judgment as to all counts is reversed. However, we consider plaintiffs’ remaining issues because they may arise on remand. Plaintiffs argue that the trial court erred in ruling that, on the undisputed facts, Williams Brothérs was not negligent as a matter of law. The trial court found that the facts upon which the plaintiff must rely to establish his case are undisputed. Those facts, the trial court found, are: (1) Williams Brothers completed its part of the construction contract; (2) the contract required the county road commission to grade the shoulders; (3) the shoulders had not been graded; and (4) the accident happened because the shoulders had not been graded. On these facts, the trial court ruled that Williams Brothers could not have foreseen that the road commission would not have graded the shoulders and that that failure would result in Ms. Karrar’s accident. When faced with a motion for summary judgment, "the court should give the benefit of any reasonable doubt to the opposing party, and should not grant summary judgment unless it finds that 'it is impossible for the claim * * * to be supported at trial because of some deficiency which cannot be overcome’. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316, 320 (1973). Inferences are to be drawn in favor of the one opposing the motion, and the court is to consider the affidavits, pleadings, depositions and other documentary evidence submitted by the parties when determining whether or not to grant summary judgment. Gamet v Jenks, 38 Mich App 719, 723; 197 NW2d 160, 163 (1972). See also McLaughlin v Consumers Power Co, 52 Mich App 663, 666; 218 NW2d 122, 124 (1974).” Sanders v Clark Oil Refining Corp, 57 Mich App 687, 691-692; 226 NW2d 695 (1975). A claim for negligence has six elements: (1) duty; (2) general standard of care; (3) specific standard of care; (4) cause in fact; (5) legal or proximate cause; and (6) damage. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). In the present case, the element which the trial court found could not be supported at trial because of some intractable deficiency was "duty”. The question of duty is one for the court. Moning, supra, pp 436-437; Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981); Smith v Allendale Mutual Ins Co, 410 Mich 685, 714, fn 22; 303 NW2d 702 (1981). The existence of facts giving rise to the duty, however, is for the factfinder. Smith v Allendale Mutual Ins Co, supra, pp 713, 714-715, fn 22. Thus, where "there 'is no genuine issue as to any material fact’ relevant to the existence of an asserted duty, the trial court may determine as a matter of law that no cause for action exists”. Miller v Miller, 373 Mich 519, 524; 129 NW2d 885 (1964). The Supreme Court has recently defined the concept of "duty” as it is utilized in a negligence action: " 'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect to conform to a particular standard of conduct toward another. Prosser, Torts (4th ed), § 53, p 324. The terse legal conclusion that a duty is owed by one to another represents a judgment, as a matter of policy, that the latter’s interests are entitled to legal protection against the former’s conduct.” Antcliff v State Employees Credit Union, 414 Mich 624, 630-631; 327 NW2d 814 (1982). In negligence cases, the duty is to conform to the legal standard of reasonable conduct in light of the apparent risk. Antcliff, supra, p 631; Moning, supra, p 437. The question of duty is, in part, one of foreseeability. Moning v Alfono, supra, p 439. It seems undisputed that Williams Brothers could have foreseen that the lack of a shoulder on a highway would be dangerous to motorists. The primary issue, however, is whether it could have foreseen that the road would have remained in that dangerous condition 24 days after the completion of the paving project. That question, in turn, depends on whether the road commission’s failure to perform its part of the contract within that time period was foreseeable. Plaintiffs have not pointed to any undisputed facts suggesting that Williams Brothers should have anticipated that the road commission would have failed to warn motorists of the drop-off and failed to correct the condition within the time period preceding the accident. Plaintiffs make much of the fact that Williams Brothers knew there would be some delay in repairing the shoulder. While that fact may have made a three to four week delay in repairing the road foreseeable, it does not make foreseeable the road commission’s failure to post warnings of the hazard. Inasmuch as the accident could not have been anticipated unless the road commission’s failure in both respects was foreseeable, the court correctly concluded that Williams Brothers owed no duty to Pamala Karrar. The trial court did not err in deciding that, on the undisputed facts, Williams Brothers was not liable for negligence. Consequently, the court also did not err in ruling that Williams Brothers was not liable for gross negligence and for wilful and wanton misconduct. Plaintiffs also argue that the trial court erred in ruling that, on the undisputed facts, Williams Brothers was not liable for intentional nuisance. . Nuisances are divided into two categories, nuisances per se and nuisances in fact. Gerzeski v Dep’t of State Highways, 403 Mich 149, 158; 268 NW2d 525 (1978) (opinion of Moody, J.). The latter category is divided into intentional nuisance and negligent nuisance. The Supreme Court in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952), citing Beckwith v Town of Stratford, 129 Conn 506, 511; 29 A2d 775 (1942), defined intentional nuisance: "A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.” Whether or not a condition constitutes an intentional nuisance is a question for the trier of fact. Gerzeski, supra, p 160. The trier of fact must determine, first, whether the particular thing or act constitutes a nuisance and, second, whether the nuisance was created intentionally. Id. Because it is undisputed that the condition of the highway at the time of the accident was created intentionally by Williams Brothers, the primary question is whether a genuine issue existed as to whether that condition is a nuisance. In Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 636; 178 NW2d 476 (1970), the Court defined nuisance as follows: "Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.” It is beyond dispute that the drop-off from the pavement ranged from three to five inches after Williams Brothers completed the repaving project. Thus, a jury question exists as to whether the highway was in a "dangerous, offensive or hazardous condition”. It cannot be said that no genuine issue as to any material fact relevant to the claim of intentional nuisance existed. The court erred in granting summary judgment on the intentional nuisance count. Reversed and remanded for proceedings consistent with this opinion. No costs, neither party having prevailed in full.

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Wiest, C. J. Defendant was convicted of feloniously having in his possession “five skeleton keys, a time bomb outfit and two steel rods,” adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes and other depositories, in order to steal therefrom, well knowing the implements to be adapted and designed for such purpose and with intent to use and employ the same for breaking and entering. We have stated but the substance of the charge. Defendant was convicted and sentenced to prison for an indeterminate term of 5 to 10 years. Defendant assigns error upon rulings of the trial court, remarks of the prosecuting attorney, and insists the verdict is against the great weight of the evidence and the trial court was in error in not granting a new trial. The evidence at the trial disclosed that the “five skeleton keys,” were common house keys, the “time bomb outfit,” was a cheap alarm clock with a battery rigged up to ring the bell, and the “two steel rods” were knitting needles. The prosecution claimed the house keys were adapted to unlocking common locks; the alarm clock and battery could be arranged to set off an explosive and the knitting needles could be used to push a key out of a lock or turn it in the lock. The statute under which defendant was prosecuted provides: “Every person who shall knowingly have in his possession, any engine, machine, tool or implement, adapted and designed for cutting through, forcing or breaking open any building, * * * knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ the same for the purpose aforesaid.” * * * 3 Comp. Laws 1915, § 15334. Three essential elements are involved in this crime: First. The tool or implement must be adapted and designed for breaking and entering. Second. It must be in the possession of one who has knowledge that it is adapted and designed for the purpose of breaking and entering. Third. It must be possessed with intent to use or employ the same in breaking and entering. Are common house keys, an alarm clock with a battery to ring its bell, and knitting needles, in and of themselves, burglar’s tools? To ask the question is to answer it. Such things are not designed for breaking and entering but for an entirely different purpose. It is not enough, to constitute their possession criminal, to say that they may be employed in breaking and entering. This statute has some provisions against strained use thereof which seem to have been overlooked in this prosecution. The term “adapted and designed” means something more than mere common household articles capable of use in breaking and entering. To come within the statute, the tools must not only be adapted, that is, capable of being used in breaking and entering, but as well designed, that is, contrived or taken to be employed 'for such purpose. Keys and tools may be so contrived as to clearly indicate the criminal purpose of possessing them. But house keys, and an alarm clock with a battery to ring its bell, and knitting needles, in a home, serve a legitimate purpose, and bear a harmless character, for they have been contrived for a useful purpose, and they afford no basis for an inference of- possession for a criminal purpose. They remain house keys and clocks and needles, unless intended to be used for the purpose of breaking and entering. It is not enough that they may be used in breaking and entering, but the intent to so employ them must appear in order to constitute the crime here charged. Keys, of course, are designed to open locks, and one may have as many house keys in his home as he may desire, and if he has more keys than locks, that fact justifies no inference that they are burglar’s tools. It is not a crime to have house keys, an alarm clock and knitting needles in a home. It is a crime to have keys, bombs and rods for the purpose of breaking and entering. There is no evidence in this record, and no circumstance disclosed, warranting any inference that defendant possessed the keys, clock and knitting needles for the purpose of breaking and entering. The trial judge instructed the jury that, in order to find the defendant guilty, they would have to find “that he had the intent to use and employ them (the keys, clock and needles) for the purpose of committing a larceny upon a building, vault, safe or other depository that he was to break into.” There are cases where the tools and implements are so clearly contrived and adapted for breaking and entering as to warrant a finding that their possession could not possibly be for any other purpose, but house keys, an alarm clock and knitting needles bear no such villainous character. The police explained how this alarm clock and battery could be arranged to set off a bomb. We apprehend from such explanation that any alarm clock can be so arranged. That an alarm clock may be made to serve a nefarious purpose does not make it unlawful to have such a time piece and a battery to ring its bell. Knitting needles are not burglar’s tools. The motion to discharge the defendant should have been granted. The police went to the home of defendant at midnight, upon suspicion that he had been concerned in burglaries, having been informed he was seen in the neighborhood of a house burglarized a few days before. When they got to defendant’s house they rang the door bell and when asked what they wanted said they wanted to talk with defendant. Defendant left the door for a moment and then came back, opened it and the police stepped in, and a free-for-all fight took place. The police claimed the defendant and his wife started the fight. After the fight was quelled, defendant was sent to the police station and his wife to a detention place for women, then the police searched the house, and found the “skeleton keys” and the knitting needles in a locked bureau drawer and the alarm clock, performing the ordinary function of a time piece, peacefully ticking the right time. A motion for the return of the articles so seized was made and denied by the trial court. The point is made that the police had no right to search the house. The police had no warrant for the arrest of defendant and no warrant for the search of his house. The disclosed reason for suspicion of defendant would not have been sufficient to procure a search warrant or a warrant for his arrest. The search made was unlawful and the motion to suppress the fruit of the search should have been granted. If the police went there to talk with defendant and obtained entrance to the house for that purpose, then, of course, they did not go there to search the premises. The fight with defendant and his wife did not operate to open the house to search. The police had all the information, upon which they acted, in time to apply for a search warrant in due course, but had they applied, their information, as disclosed by this record, would have fallen far short of authorizing the issuance of a search warrant. We do not feel called upon to enlarge upon this feature of the case for the reason that, even though the evidence was lawfully before the court, the defendant, under this record, should have been found not guilty, and the court should have so instructed the jury. The other errors alleged have been considered and only one calls for consideration. The prosecuting attorney offered to show that a boat in’ which it was claimed the defendant escaped from Canadian officers blew up. An objection to this was sustained. The statement is claimed to have been prejudicial to defendant. We think the point well taken. The only purpose of such testimony would have been to set the jury against defendant and was so clearly inadmissible and prejudicial to inject it by way of statement before the jury, and so inexcusable, as to constitute reversible error. People v. Hunter, 218 Mich. 525. Defendant was in court to meet a specific charge and the insinuation that he was acquainted with explosives was a highly prejudicial suggestion to the jury in connection with the theory that the alarm clock could be used to touch off a bomb. The conviction is reversed and a new trial granted. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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McDonald, J. This case involves the constitutional right of the defendants to hold the office of county road commissioner of Baraga county, Michigan. The proceedings are by quo warranto instituted in this court by the attorney general for and in behalf of the people. No question of fact is raised by the record. On the 7th day of April, 1922, there was a vacancy in the offices of the three road commissioners of Baraga county. Assuming to act under the provisions of chapter 4 of Act No. 203 of the Public Acts of Michigan for the year 1917 (Comp. Laws Supp. 1922, § 3848 [24] et seq.), the probate judge, county clerk and prosecuting attorney appointed the defendants to fill the vacancies. They qualified and assumed the duties of the office. ' Six days later, on the 13th day of April, 1922, the board of supervisors, acting under authority of section 4354,1 Comp. Laws 1915, appointed William Burke, Christian Jenloft and Gustav Lundberg to fill the vacancies. They qualified and are ready to assume the duties of the office. The question involved is whether the board of supervisors has the right to fill vacancies in the office of road commissioner of the county, or whether that right belongs to the probate judge, county clerk and prosecuting attorney. Section 4354, 1 Comp. Laws 1915, authorizes the board of supervisors to fill such vacancies. Subdivision 2 of sec. 5, chap. 4 of Act No. 203 of the Public Acts of 1917 (Comp. Laws Supp. 1922, § 3848 [28]), known as the “Michigan election law,” imposes that duty on the probate judge, county clerk and prosecuting attorney. The plaintiff contends that chapter 4 of Act No. 203 of the Public Acts of 1917, which relates to the filling of vacancies in public offices, is unconstitutional because it is not indicated in the title of the act as required by section 21 of article 5 of the Constitution of the State of Michigan. The title of the act is as follows: “An act to provide for the holding of elections, to prescribe the manner of conducting and to regulate elections, to prevent fraud and deception in the conducting of elections and to guard against abuses of the elective franchise.” It would not be possible to embrace in the title the various objects intended to be accomplished in the 25 chapters of the act in question. It is sufficient, as this court said in Loomis v. Rogers, 197 Mich. 265: “If provisions in the body of 'the act not directly mentioned in the title are germane, auxiliary or incidental to that general purpose.” The general purpose of the act is to provide means for choosing public officers. The means provided is by popular elections. Of course, it is understood that in the interval between elections vacancies will occur in various offices. Some will.die; a few may resign. Unless these vacancies can be filled before the next election, the general purpose of the act will not be fully accomplished. Is it not then an essential part of the general purpose to provide means for filling such vacancies? To make the law effective this must be done. As is aptly stated by counsel for defendants in their brief: “It suggests no violence to the understanding to assume that an act which properly includes provisions ‘to prescribe the manner of conducting and to regulate elections/ should include provisions with relation to the filling for the time being of vacancies arising in the offices to be so filled. Such provisions naturally, and as a matter of common sense, suggest themselves to the understanding as an essential part of the general object. * * * It is a necessary part-of the system of choosing officers that provision of some kind should be made for filling the offices in case the original choice in the manner provided becomes abortive by the occurring of a vacancy by death or otherwise.” But this applies only to the filling of vacancies in elective offices. It cannot be said that the filling of vacancies in appointive offices is an essential part of the general object of this act; for officers originally selected by appointment are in no way affected by popular election laws. The filling of vacancies in appointive offices is therefore not germane to the general purpose of an act which has only to do with elective officers. Chapter 4 of the act entitled “filling of vacancies in office” is in part unconstitutional. In as far as it provides for the filling of vacancies in appointive offices, it is unconstitutional; In as far as it provides for the filling of vacancies in elective offices, it is constitutional. County road commissioners are appointive officers; they do not acquire their office through the means provided by this act for the election of other officers. It follows, therefore, that the probate judge, county clerk, and prosecuting attorney of Baraga county, can not legally fill the vacancies existing in the office of road commissioner, and that the defendants are unlawfully holding such offices. Judgment of ouster will be entered. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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Bird, J. Defendants, Arthur Dugrey and wife, were the owners of a vacant lot in the city of Detroit. In July, 1919, they entered into a written contract with defendant Ferguson Construction Company to construct a house and garage thereon for the consideration of $9,250. A week or so thereafter the Ferguson Construction Company made an agreement with plaintiff to construct the building and garage on the basis of cost, plus 10 per cent. Plaintiff went forward with the work until he had it “roughed in.” Up to this point it had cost him $5,229.90. He was unable to carry the work farther by reason of the fact that the Ferguson Construction Company defaulted in making its payments. He received practically all of his pay for materials and work which he had furnished up to the middle of September. After that he did work amounting to $620.93, plus the bill of a subcontractor for wiring the house. On December 9th he filed a lien for work and materials in the sum of $620.93. This did not include the bill for wiring, which was $159.69. Upon the hearing to enforce the lien the trial court dismissed his bill, holding that his lien was not filed within the 60 days allowed by the statute. From the testimony it appears that the last work done by plaintiff personally was on September 26th. If the time be computed from this date, the lien filed on December 9th was invalid because too late. If the time be computed from the last work done by the subcontractor, on October 22d, the lien was filed in season. Defendants insist that plaintiff did not elect to include the subcontractor’s bill in his claim for lien, therefore he could not have the benefit of the last day of his work, and it is further insisted that if it is to be included, then plaintiff did not comply with the statute in his affidavit for a lien in stating the correct amount due. There appears to be no controversy about the amount of these bills. It is conceded that plaintiff employed the subcontractor and was liable for his bill and was obliged to pay it if the subcontractor did not enforce his lien against the premises, which he did not do. Plaintiff had a right to include the subcontractor’s bill in his statement of lien. Hatpin v. Garman, 192 Mich. 71. He intended to include it, but, by oversight, it was omitted. The subcontractor’s bill was as much a part of plaintiff’s bill against the premises as the work he did personally, and the time for filing a lien should be computed in this case from the day the subcontractor finished his work. The lien law does not contemplate that a contractor’s bill for work or materials furnished at different times for a particular job will be broken up into separate items and the items treated separately. The different items of the account will be treated as a unit. Union Trust Co. v. Casserly, 127 Mich. 183. The fact that by the omission the. affidavit did not state the amount actually due plaintiff did not in any way prejudice the owner or other lien holders. True, the statute (3 Comp. Laws 1915, § 14800), provides that “a just and true statement or account of the demand due him” shall be stated. This court has occasionally criticized some statements of liens which overstated the amount due because it was evidently the intent of the legislature to keep such accounts from being overstated to the detriment of the owner or other persons claiming liens. When the account is understated it results in no loss to anyone except to the lienor, who loses the lien against the premises for that part of his claim which has been omitted. There appears to be no conflict as to the facts in the case and there is no charge of bad faith on the part of plaintiff. The defendants are in no wise harmed by plaintiff’s failure to claim a lien for the whole amount due him. Under these circumstances, we are of the opinion that the chancellor was .in error in disposing of the case as he did. The decree will be reversed and one filed in keeping with this opinion. The plaintiff will recover his costs in this court. Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred

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Clark, J. Orson F. Wickham, a bookkeeper in the Sand’s Bank at Pentwater on November 1, 1918, made and executed a deed of his house and lot in that village and signed a bill of sale of his household goods and some other personal property. The acknowledgment was taken by Eugene W. Shober, another employee in the bank. Mr. Wickham’s daughter, Abbie I. Hunt, was named as grantee in the deed and as vendee in the bill of sale. His wife died October 15, 1918, and the daughter, leaving her home in Massachusetts, remained with the father from that date until April, 1919, when she returned to her home, remaining there until June, 1920, when she and her husband moved to Pentwater and lived with the father in his home until his death, August 25, 1920. Mrs. Hunt caused the deed to be recorded soon after the father’s death. The administrator of his estate, claiming that there were not sufficient assets to pay creditors, filed this bill to set aside the deed and the bill of sale alleging that there had been no delivery. Plaintiff had d.ecree. Defendant has appealed. The only question presented is that of delivery. Plaintiff had testimony by Mr. Shober: “I can’t really say what was done with that deed after I witnessed and acknowledged it. ■ “Q. Was Mrs. Hunt there? “A. Not that I remember; no, sir. “Q. Did you ever see any delivery of this deed to Mrs. Hunt? * * * “A. I did not, that I remember. “I next saw the deed after Mr. Wickham’s death, when I handed the papers to Mrs. Hunt. * * * “Mr. Wickham told me, — he had these papers in an envelope and he showed me where he put them in the safe and he said: Tf anything happens to me, these belong to Mrs. Hunt — these papers in here’ and, of course, when I handed this envelope to Mrs. Hunt this deed was in it. There was a bill of sale of some personal property. I handed these papers to Mrs. Hunt within a week after Mr. Wickham’s death. * * * “I do not know what Mr. Wickham did with those that day. I do not know whether he took them out of the office or not. I do not know whether he delivered them to Mrs. Hunt that day. * * * “Q. They were in an envelope marked something like this, ‘The Personal Papers of Abbie I. Hunt,’ weren’t they? “A. ‘Personal Papers of O. F. Wickham for Abbie I. Hunt,’ I think was the it was marked. * * * “He didn’t show me the contents, he just said, T am putting this envelope here,’ and showed me where he put it in the corner of the safe. He said: Tf anything happens to me these belong to Abbie.’ “Q. You don’t know whether that deed was there or not? “A. I do not. “Q. You don’t know whether Mrs. Hunt put it there or not, as a matter of fact, do you? “A. I don’t know.” With, this testimony the plaintiff rested. Defendant gave the following testimony without objection: “After his death I went to the office to get this deed. “Q. Where did you find the deed? “A. The deed was in the safe contained in the large vault in Mr. Sand’s office where my father had worked. “Q. Who put it there? “A. I did. “Q. When did you put it there? “A. I put it there the afternoon of November 1, 1918. “Q. Who was present when you put it there? “A. Miss Olive Christiansen was present in the office at that time. “Q. This bill of sale that has been spoken of here, who owned that personal property? “A. My mother did. “Q. It was your mother’s at the time of her death, was it? “A. Yes, sir. * * * “Q. Did you, yourself, put the deed in the vault? “A. I did. “Q. What did you put it in? “A. I put it in a large manilla envelope containing my own personal papers. “Q. And were there any other papers belonging to you, there? “A. Yes, sir. “Q. I will ask you whether or not you kept some of your private papers in that place. “A. I did. “Q. And had you for some time? “A. I have. “Q. I will ask you in relation to the bill of sale that has been spoken of, — who put that in the— “A. I did. “Q. When? “A. November 1, 1919.” Defendant’s husband testified that the father had often written to defendant urging her to move to Pent-water, saying: “The place is yours and I need you.” The letters were not produced. It also appears that after defendant’s coming to live with her father in June, 1920, she and her husband kept their private papers with those of the father in the bank and that Mr. Hunt had access to the vault. Mr. Hunt testified: “The papers were all together, Mr. Wickham’s and Abbie’s and mine all were in there, with a rubber band around them.” Mr. Shober and'Miss Christiansen had no recollection of seeing defendant in the bank November 1, 1918. As regards the testimony of defendant, received without objection, the estate can have no benefit of section 12553, 3 Comp. Laws 1915, prohibiting an opposite party testifying to matters equally within the knowledge of a deceased person. The testimony was received without objections, so the protection of the statute, if applicable, was waived. See Newton v. Freeman, 213 Mich. 673. Defendant claims delivery on November 1, 1918, the day the papers were made, and that she then placed such papers in the bank vault in a manilla envelope containing her private papers. All the other evidence in the case indicates that neither she nor her husband kept any papers at the bank before June, 1920. Mr. Shober’s testimony is to the effect that the envelope containing the papers which he gave to defendant after Mr. Wickham’s death was the same one that Mr. Wickham had placed in the vault when he said, “If anything happens to me these belong to Mrs. Hunt— these papers in here.” His testimony that the envelope was indorsed “Personal Papers of O. F. Wick-ham for Abbie I. Hunt” was not specifically denied. And defendant did not produce the envelope. That Shober did not know what may have been done with the papers in the meantime has no great significance for defendant claims delivery on November 1st and does not claim to have had the papers actually in possession from November 1, 1918, until about August 31, 1920, nor that they were out of the bank or otherwise disturbed during that time. Neither Mr. Shober nor Miss Christiansen had any recollection of defendant’s coming to the bank on the day in question. And there is no explanation or reason given by defendant for her claimed leaving the deed, unrecorded, in the bank until after her father's death. Nor for its being left there for upwards of a year while she lived in another State. Doubtless it was the father’s desire that his daughter should have the home, but, as we said in Clay v. Layton, 134 Mich. 317, to give effect to that desire we may not override established rules and principles essential to the protection of the rights of heirs. The trial judge had the advantage of seeing the witnesses and hearing their testimony. We are not persuaded that he was wrong in holding that there had been no delivery. See Clay v. Layton, supra; Reason v. Jones, 119 Mich. 672. The decree is affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Sharpe, J. The plaintiff sued upon two promissory notes executed by the defendant corporation and indorsed by the individual defendants. A verdict was directed against the defendants except Martha L. Garson, and directed in her favor. Plaintiff reviews the judgment as to her by writ of error. The plaintiff introduced the notes sued on and rested. Counsel for Martha L. Garson then offered in evidence a deposition of her husband, Harry I. Garson, taken in California. In it he testified that he and Martha L. Garson were married on January 25, 1904, and that they have since that time been husband and wife. Plaintiff insists that this testimony was incompetent under the statute which forbids a husband from being “examined as a witness for or against his wife without her consent.” 3 Comp. Laws 1915, § 12555. When objection was made, counsel for Mrs. Garson stated to the court: “I appear as attorney of record in this case for Martha L. Garson — I have authority and the only way she can speak in this case is through me. I have full authority to make that waiver. The waiver is very explicit in every way, and for her to make it, she has got' to speak through her attorney.” Mrs. Garson was not present at the trial. We think her consent could be expressed by her counsel. The authority of an attorney is discussed in 6 C. J. p. 637. It is there said: “Whatever is done in the progress of the cause by such attorney is considered as done by the party, and is binding upon him, even where the attorney is employed only to conduct the trial.” Hubbell v. Grant, 39 Mich. 641, is not controlling. It was there held that consent on the part of the wife may not be implied by her silence. Here the consent was expressly given by her attorney of record and the husband was called as a witness on her behalf. When the defense rested, counsel for plaintiff offered to prove that at the times the notes, of which those sued on were renewals, were given Mrs. Garson was one of the original incorporators of the defendant corporation, assisting in its management and drawing a salary therefrom; that she was the owner of substantially all the stock of the Broadway .Strand Theater Company and the Broadway Feature Film Company, and was an active officer in each of those companies; that the film company was organized for the purpose of obtaining lease' rights of films and pictures; that the theater company was organized for the purpose of conducting a moving picture theater; that contract relations existed between all these cor-porations and that the original loan was made to enable the defendant corporation to carry out its contracts with the other corporations and inured to the benefit of Mrs. Garson as a large stockholder therein. This offer was refused, the court holding that such proof would but tend to establish the fact that her obligation was that of a surety and such an obligation is not binding upon a married woman unless it be for the sole benefit of her separate estate. The law of this State on this question is, we think, well settled. In the early case of Russel v. Savings Bank, 39 Mich. 671 (33 Am. Rep. 444), an effort was made to hold a married woman liable as indorser on a note given by a corporation in which she was a stockholder. Attention was called to the statute (3 Comp. Laws 1915, § 11485) which removed her disability to contract with reference to her own property. After considering the nature of a contract of surety-ship, the court said: “But it is said that in this case the suretyship was for the benefit of a corporation in which Mrs. Russel was a stockholder, and therefore she must be supposed to have had in view in making it her own interest in the corporation. Mrs. Russel, however, was not identified with the corporation otherwise than as having an interest in it; the legal identity of each was distinct, and contracts for the benefit of the corporate estate were in no sense contracts for the benefit of the estate of one of its corporators. Talbot v. Scripps, 31 Mich. 268. It is true that if it resulted advantageously,- it might eventually bring incidental' benefit to the stockholders, but on the other hand it might also bring incidental injury; and whether beneficial or injurious, the result would have been indirect and circuitous, following not directly a contract made on her own behalf, but remotely a contract made on behalf of another. “It is not enough that such possible indirect benefits are looked for, in a contract of suretyship, for these may be in view in many cases, and especially when the wife becomes surety for the husband. The test of competency to make the contract is to be found in this: that it does or does not deal with the woman’s individual estate; possible incidental benefits cannot support it.” See, also, Caldwell v. Jones, 115 Mich. 129; Detroit Chamber of Commerce v. Goodman, 110 Mich. 498 (35 L. R. A. 96). Plaintiff’s counsel relies on Alpin v. Wade, 89 Ark. 354 (116 S. W. 667), in which it is held: “Therefore, when she signs a note as surety for the corporation in which she has purchased stock on her own account with funds of her separate estate, she becomes liable, in case of default of the corporation, for the debt which she has made her own.” In view of our decisions, we are unwilling to follow this holding. Married women are now so frequently engaged in partnership and corporate business ventures that it may be desirable to further remove the disability ereatéd by the common law, but such action must be taken by the legislature and not by the courts. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit.

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Fellows, C. J. Plaintiff is located at Pittsburgh, Pennsylvania. It is a wholesale dealer in coal. We do not understand from the record that it is an operator. Defendant is located at Detroit. It is a wholesale and retail dealer in coal. In 1918 coal was a scarce commodity in the market. Defendant’s secretary, Mr. Jones, visited Pittsburgh looking for coal to supply its customers. While there he called at the office of plaintiff and there saw a box of “Creek coal” containing about a hundred pounds. Creek coal is reclaimed anthracite which comes down the river from the washers and is taken out of the stream with grab-buckets from the bottom of the river. It is dumped into a hopper, from there to a conveyor where it is washed and cleaned of impurities as far as could be. It is used with bituminous coal largely for steam purposes. It is not used ordinarily and may lie in the river for years. Only in case of acute coal shortage is it reclaimed. Mr. Jones took home with him some of this Creek coal in a cigar box and exhibited it to defendant’s customers. Five of them ordered a car each, and defendant ordered five cars of plaintiff. They were shipped by it to defendant’s customers. The price was $2.25 per ton. The coal proved unsatisfactory to defendant’s customers and it declined to pay for it. Up to this point there is no substantial disagreement in the testimony. As the brief of defendant’s counsel is bottomed almost entirely on the claim that the transaction here involved was a sale by sample and that the court should have so held as matter of law, it becomes of prime importance to determine whether that question was for the court or for the jury. The determination of that question will determine numerous assignments of error. We have stated in outline some of the undisputed facts. We now take up some of the conflicting claims. Mr. Jones testifies in substance that he knew nothing about Creek coal, that Mr. Woodruff, president of plaintiff, explained to him the way it was reclaimed, that he took the sample home for the purpose of showing defendant’s customers, and he insists that it was a sale by sample. If his testimony was all there was in the case the court would doubtless have been justified in holding’ that the sale was a sale by sample. But Mr. Woodruff was sworn and his testimony was in sharp conflict with that given by Mr. Jones. He claims that he fully explained to Mr. Jones what Creek coal was, how it was reclaimed, and very thoroughly explained to him that it could not be burned with ordinary grates because of its fineness, that it would fall through before it would burn and that it should be used with bituminous coal; that Mr. Jones asked if he could take a sample and he told him he could, and— “Mr. Jones looked over this dishful of coal; asked about the heat value of the coal. We had some specials of analysis that had been taken for customers- of the Shamokin Valley, which we showed him, especially how they ran in volatile and ash. and BTU, heat units of coal, and we told him at the time we didn’t sell on analysis or didn’t sell on sample. We never sell coal that way.” We shall not discuss the law applicable to sales by sample; a valuable note will be found in 70 L. R. A. 658. If Mr. Woodruff told Mr. Jones when he took the sample and had the conversation with him that they did not sell by sample, a sale by sample could not be implied. The testimony’ being in sharp conflict, as we have pointed out, the court very properly left to the jury the disputed question of fact as to whether the sale was a sale by sample or not. Defendant’s counsel asked to have the following special question submitted to the jury: “Was the bulk of the coal shipped by the plaintiff to the defendant, or its customers equal to or like the sample furnished the defendant? Your answer will be ‘Yes’ or ‘No.’ ” In Kosnicki v. Railway Co., 217 Mich. 245 (on rehearing page 251), having reference to the statute permitting the submission of special questions to the jury (3 Comp. Laws 1915, § 12611), we said: “In construing that statute it has been repeatedly held that the question must be so framed as to call for an answer which may be controlling on the main issue.” • The controlling question in the instant case was whether the sale was a sale by sample or not. The special question in effect assumed that the sale was a sale by sample and asked for a “Yes” or “No” answer on a question not controlling. We think the trial judge properly refused to submit the special question to the jury. Defendant produced numerous witnesses who testified that the coal shipped was worthless. Among them were defendant’s customers who had purchased this coal from defendant. Some of them brought into court samples of the coal. Plaintiff’s counsel asked permission, which was granted, that it be permitted to take from these samples sufficient for an analysis. The samples were analyzed by a competent chemist who testified to a rather high heat unit content. All this was done over defendant’s objection. In view of the fact that defendant’s witnesses had pronounced the coal worthless, and in view of the fact that plaintiff’s testimony tended to show that it was valuable coal when used with other coal and with proper grates, we think this testimony and the proceedings were proper. It is insisted that the court erred in charging the jury that if they found the sale was a sale by sample the coal delivered must be of the same character and quality as the sample. Defendant insists he should have used the words “character, quality, kind and grade.” This objection is supercritical. The charge was a fair one to the defendant and fairly covered all the instructions it was entitled to. The case was strictly one of fact on the controlling’ question and the verdict was not against the overwhelming weight of the evidence. Assignments of error not specifically discussed have been examined and found to be without merit. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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McDonald, J. This is an action for breach of the covenants of a warranty deed executed in 1912 by the defendant, Gustave Rogge, to the plaintiffs. It is undisputed that at the time of the conveyance the defendant did not own the premises; that they were previously owned by his wife, Wilhelmina Rogge, and that she died prior to the giving of the deed. Upon her death the title vested in her children, who were also the children of defendant, Gustave Rogge. The plaintiffs built a residence on the premises, and on the 1st day of June, 1920, sold out to Gustave Trushkowski and wife. At the time of this sale an examination of the abstract disclosed the defect in the title, and notice at once was given the defendant. He sought to secure quitclaim deeds from the heirs, but they refused to execute any conveyances unless they were paid the sum of $3,000 by the plaintiffs. After considerable negotiations they agreed to accept, $2,500, but before turning over the deeds insisted that their father be released from all liability in connection with the transaction. For this purpose a release was prepared and signed by one of the plaintiffs, Charles Doebler. The purpose of this suit is to recover the money paid to the heirs to secure the outstanding titles. To the declaration filed, the defendant pleaded the general issue with a . notice of the written release. The case was tried by the court without a jury and findings of fact and conclusions of law were made and filed. Holding that the release was a complete bar to the plaintiffs’ right of recovery, the circuit judge entered a judgment of no cause of action. From this judgment the plaintiffs appeal. The important question presented by this record is as to the validity of the release. It is conceded that the grantor had no title at the time of the execution and delivery of the deed, that the title was in his children as heirs of his deceased wife, and that the plaintiffs were compelled to purchase this outstanding title for $2,500. These undisputed facts would entitle them to their damages unless the release be considered a bar to their recovery. The claim of the plaintiffs that it was secured through fraud and executed under duress is not sustained by the evidence. The objection that it was without consideration presents a more serious question. The consideration recited in the release is as follows: “The consideration for which this release is given is the securing by Gustave Rogge, of a good and valid conveyance of the said above described premises, by the heirs of Wilhelmina Rogge, deceased.” As an additional consideration the defendant was allowed to show by parol evidence that Mr. Rogge was instrumental in securing a reduction of $500 in the amount which plaintiffs were compelled to pay the heirs. There is no evidence of any agreement or understanding that plaintiffs were to release defendant from liability for such service. All negotiations for the purchase of outstanding titles were carried on by the attorney representing the heirs, and the attorney for the plaintiffs. Both were witnesses on the trial, and we must look to their testimony for the material facts on the question under consideration. Neither of them testified to any agreement as to the release other than that incorporated in the instrument. The attorney for the plaintiffs denied any knowledge of the release until it was presented at the time of the final settlement. The attorney for the heirs testified: “There was an understanding between Mr. Bloom and I as to the release. He saw the release, I submitted it to him, and that was part of the transaction, this release. There would be no deeds signed unless that release was given.” The release referred to is the one in question. It is in writing. It was made after many conferences by the attorneys alone, and it is fair to assume that it contains all of the agreements of the parties. It recites the services which defendant, Rogge was to render in consideration for the promise of the plaintiffs to release him from liability. He was to secure deeds from the heirs. From his own testimony, it is not certain that he had anything to do with securing the deeds, but if he did he was only doing what he was legally bound to do. He had by warranty deed conveyed property to which he had no title, and was legally liable for the damages which his grantees had suffered. Securing deeds for which plaintiffs were compelled to pay, and which it was his duty to furnish without expense to them, can hardly constitute a consideration for his release. The plaintiffs received no benefits; they had already a legal right to a good title. The defendant suffered no detriment in doing that which already he was legally obliged to do. He paid nothing, gave up no advantage or thing of value, but received a benefit at the expense of the plaintiffs, who were compelled to pay $2,500 for a title which he had agreed to furnish and defend. While it is not necessary that he should have paid anything in money, it is necessary that he should have done something in addition to that which he was legally bound to do. “The detriment which will constitute a consideration for a promise need not be an actual loss to the promisee. It is sufficient that he does something that he is not legally bound to do. * * * The rendition of services by one who is not legally bound to render them is a sufficient consideration.” 6 R. C. L. pp. 656, 657. It is too well settled to require the citation of authorities that doing what one is legally bound to do is not a consideration for a new promise. The circuit judge in his findings made no reference to the question of the sufficiency of the consideration. He based his conclusion of law as to the validity of the release on the fact that the plaintiffs voluntarily and freely executed it with a full knowledge of the facts and its legal effect. On the undisputed evidence, the plaintiffs were entitled to a finding that the release was without consideration and was not a bar to their recovery. The judgment of the circuit judge is reversed and a new trial granted. Plaintiffs will have costs. Fellows, C. J., and Wiest, Bird, and Steere, JJ., concurred with McDonald, J. Clark, J. The holding of the trial court that the release was a bar to recovery here is right. The judgment should be affirmed. Sharpe, J., concurred with Clark, J. Moore, J., did not sit.

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Steere, J. Plaintiff had judgment against defendant for damages sustained in a railway crossing accident at Republic avenue in the city of Alma, Michigan. Defendant seeks review and reversal on various assignments of error, the one most stressed being that plaintiff’s contributory negligence precluded recovery. The accident occurred about 10:20 a. m. of October 5, 1920, at the intersection of Republic avenue with defendant’s right of way through the city of Alma, which runs in an easterly and westerly direction and is 100 feet wide at that point. Its main line is in the center of the right of way with a side or switching track paralleling it between 8 and 9 feet further south. Plaintiff was a physician 48 years of age who had practiced his profession in the city of Alma for upwards of 20 years, and was familiar with conditions at and in the vicinity of the crossing where he was injured. Shortly before the accident occurred he drove into Alma from the east in a Dodge coupé with' the windows down and wind-shield up, going west along Superior street, which is the main thoroughfare east and west through the city. On reaching Republic avenue, which intersects Superior street at right angles, he turned and drove north on that avenue towards the Pere Marquette railway where he saw a freight train moving slowly west on the sidetrack past the crossing. From the center of Superior street along Republic avenue to the center of defendant’s right of way is 267 feet. Defendant’s line bears somewhat northeasterly and southwesterly through that section of the city at an angle to Superior street which it reaches near Grover avenue about 80 rods west of Republic avenue. Plaintiff drove up to within 13 or 14 feet of the freight train where he stopped close by a witness named Birmingham who sat in his car just east' of him waiting to cross and talked with him for a short time. When he arrived there all but one or two cars of the freight train had passed the crossing. It consisted of an engine at the west end followed by three gondola coal cars about 8 feet high from the track, a tank car about the same height and at the rear 3 box cars about 12 feet high from the track, the train being in all about. 340 feet in length. From where he had stopped his view to the west along the main track, closely paralleling the siding on its north, was necessarily cut off by the close passing freight train within the angle of his vision which it blanketed to the west along the main track. After it had cleared the street he started his car, looking as he testified east and west, and drove past the rear of the freight train onto the main railroad track just in time to be struck by a fast passenger train from the west running on schedule time of which he admitted he knew but said he did not recall having it distinctly in mind at that time. His coupé was struck about the middle by the engine of the train and thrown or carried upwards of 50 feet with him in it, injuring him severely and wrecking the coupé. The grounds of negligence alleged against defendant in plaintiffs declaration and in issue on the trial were excessive speed and failure to give the crossing signals. The engineer and fireman, as well as others who saw the oncoming passenger train and collision at the crossing, testified that the crossing signals were given by whistle of the locomotive and the engine bell ringing as the train approached, while plaintiff testified that he listened for them and they were not sounded and others near the scene of the accident gave evidence to like effect. The estimates of various witnesses as to the speed of the train ranged from 15 to 25 miles an hour. The conflicting testimony clearly made these issues questions of fact. The accident occurred about a mile and a half east of defendant’s railway station at Alma just west of the Republic Motor Truck Company’s factory which is located south of the railway and north of Superior street on the east side of Republic avenue. The long-triangle to the west, formed by defendant’s right of way as an hypothenuse on its northerly line, Superior street running directly east and west on its south and Republic avenue running north and south on its east, furnished comparatively few obstructions to a westward view over it from Republic avenue. On this triangle there were along and near Superior street a warehouse, or “shed” as plaintiff called it, á coal pile and two lumber piles. The warehouse was at the northwest corner of Superior street and Republic avenue. North of it in Republic avenue on the west side were a guy pole and two electric poles. North of it west of the avenue were a clump of bushes and two trees, one being an elm 3 inches in diameter near a fence extending west along the right of way for a short distance. Plaintiff testified that on entering Republic avenue from Superior street his view of the railroad to the west was at first obstructed by the shed and coal pile, but after he passed these obstructions he had a clear view to the west in which direction he looked and drove slowly north towards the passing freight train watching the tracks, and stopped his auto within 13 or 14 feet of the freight train passing on the side track where he looked in both directions and also at the passing freight train. The freight train had switched onto the side track just east of Republic avenue, leaving a brakeman to close the switch, and after it cleared the crossing stopped for him to get on before proceeding. Plaintiff testified: “It stopped right by, almost in the line with the transmission poles at the west margin of the road, almost even with the line of poles; the rear end stopped I should say about 18 feet from my car on an angle, the rear of the freight train was northwest of me. * * * I thought may be it would back up or go forward, but it stopped and seemed to be standing still so I looked to the east and west to see if there was any reason why I shouldn’t cross and I was a little crazy to cross but I was pretty sure that they would ring the bell or blow a whistle if they were going to back up and they didn’t so I went ahead.” While plaintiff was sitting in his auto watching for the rear car of the freight train to clear the crossing the brakeman who had dropped off to close the switch ran across the road directly in front of him and jumped on to the rear car, signaling the engineer just before he reached it to go ahead, which he did. Plaintiff admitted seeing him, but said he was not clear that he saw him “going over there and getting on the train.” Of the train with which he collided he said, “I don’t remember seeing the passenger train at all. I don’t remember hearing it at all.” His motor was then making some noise, and also the freight traini which had started up as well as the approaching passenger train. Plaintiff testified that as he passed the rear of the freight train he looked to the east and being asked if he looked to the west answered, “I didn’t have time to I don’t believe. I can answer that question I think I did.” He also testified elsewhere upon the subject: “I looked for a train, I didn’t see one. You see as the freight train went down it obstructed my view farther. I think I could see down the track before this balance went by, I could see on the south side of the freight train from the position I sat in.” Amongst others who testified to hearing and seeing the approaching passenger train from different points in that vicinity, a witness called by plaintiff named Walker was standing by a post 100 feet south of the south rail and saw him drive up and stop close to the passing freight train. He testified that while yet standing by the post he heard the whistle of the passenger train, which he first saw coming from down near Grover avenue about 80 rods away, and he continued to see it until it passed out of his sight behind the freight train. Then noticing plaintiff start his auto he ran forward in an effort to stop him, and “hollered at him,” but could not make him hear or reach him in time, although he was within about 50 feet of him when the accident occurred. Plaintiff was a man of mature years with unimpaired sight and hearing. He was thoroughly familiar with this crossing and knew that a passenger train was due from the west to pass over the main track just north of the siding upon which the freight train was passing from the east at 10:20 a. m., the time hq was about to cross. He knew that except for the moving freight train his view to the west was unobstructed, and that from but a comparatively short distance south on Republic avenue he could see an approaching train a quarter of a mile to the west. He knew if he observed what was transpiring close around him when he started to cross that the freight train had picked up its brakeman and started on. Close up to the south side of the track at the rear of the freight train he knew it cut off his view of the main track for a considerable distance at least to the west and that it would, as he states, obstruct his view farther as it went down to the west. Knowing all this, it was his duty to take reasonable precautions before driving upon the track to avoid the possible danger confronting him, which he could easily have done by stopping 100 feet south of the siding near where his witness Walker stood or by waiting until the freight train had gone sufficiently far to give him a safe view down the main track. Conceding that he was alert in looking and listening where he stopped, his own testimony shows that he stopped, looked, and listened at a place and time where he could neither see nor hear the' approaching train which was close upon him when he started to cross, while others in various locations near by with no such incentive to observe saw and heard it coming in the distance. He did not stop, look, and listen long enough at the last clear chance which could avail him, but, as he states, “a little crazy about crossing,” and anxious to proceed on his way, he stopped close behind a moving obstruction which blanketed his vision of the main track to the west over which a train was then due, and, without waiting for his view to clear in that direction, proceeded to cross the danger zone as many others have done regardless of possible danger near in the direction they could not see. Without again reviewing the rule and reasons therefor stated in Colborne v. Railway, 177 Mich. 139; Sanford v. Railway Co., 190 Mich. 390, and analogous cases, we are of opinion this case falls within that class, and plaintiff has by his own evidence shown himself guilty of contributory negligence precluding recovery. For plaintiff it is contended that this cause is within an exceptional class recognized by this court, where owing to proof of unusual stationary obstructions to a view along the track and confusing or misleading conditions of some kind at a dangerous crossing created by defendant, it has been held that whether under the exculpating circumstances shown claimed observations and other precautions taken before attempting to cross were such as reasonably careful and prudent men would and should take when in like situations was for the jury. In support of this contention Nichols v. Railway Co., 203 Mich. 372, is particularly urged, amongst kindred cases cited, as answering all opposing meritorious questions, raised by the defense and sustained by the other cases referred to. It may be first noted that in this case there was but a temporary passing obstruction which cut off plaintiff’s clear view along the track to the west from the stopping point he selected. He was a traveler upon a public highway about to pass over a railroad crossing. As such it was his duty when a transient or temporary obstruction to his view intervened to wait in a place of safety until it was so far removed that he could ascertain with reasonable certainty that it was safe for him to proceed over the crossing. Baltimore & Ohio R. Co. v. Mangus (Ind. App.), 126 N. E. 863. In the Nichols Case the obstructions to plaintiff’s view were fixed objects, buildings and dead freight cars spotted close to the highway. Unusual conditions contributed to the accident. The railroad was double tracked. After an east-bound train had passed, claiming they carefully looked and listened and could not hear or see any approaching west-bound train from where they stopped) 10 feet north of the track, they proceeded to cross and were struck by a westbound, fast running, wild or special train consisting of an engine and caboose. In the majority opinion holding plaintiff’s negligence a question for the jury, it is said in part: “Where plaintiff stopped, her view of the track to the east of the crossing was so completely obscured by the buildings of the milling plant and by the cars on the side track that she could get no view of the westbound track until she passed the cars on the side track, as they stood very close to the highway. Had she stopped further north the view would have been no better. The distance between the side track and the west-bound track was less than 20 feet, and counsel argues that plaintiff should have driven into that space and stopped. We do not think we can say as a matter of law that plaintiff was guilty of contributory negligence for not driving onto the side track or into the space between the west-bound track and side track to make observations before proceeding to cross the tracks. Ordinarily when one gets within 10 feet of a railroad track and stops, his sense of hearing, if normal and diligently used, will determine whether it is safe to proceed. This crossing at the time, however, was beset with many difficulties (stating some of them). * * * Counsel urge that this case is ruled by Sanford v. Railway Co., 190 Mich. 390. * * * Had Sanford exercised the care that the plaintiff did in stopping his car he probably would not have been in collision with the train.” We think equally strong controlling distinctions are discernible in the other cases relied on by plaintiff. It was the opinion of the trial judge that but for the Nichols Case, the Sanford Case would be controlling. In the instant case the crossing was not “beset with many difficulties.” The view was clear and unobstructed in each direction along the railroad from near it on the highway save for the passing freight train. Had plaintiff waited but a fraction of a minute in his place of safety for it to so far pass that he might ascertain with reasonable certainty it was safe to proceed, as was his duty, the accident would have been avoided. He was not only familiar with the location, but twice testified that he knew there was a passenger train due from the west on that line at 10:20 a. m. He stated he returned to Alma that forenoon a little after 10 o’clock and drove through the city to this crossing which, as the facts show and he would have realized had he been reasonably alert to the situation, brought him there about the time that train was due. Stopping where he could not see or hear it approaching the crossing, according to his own testimony, and without waiting for a moment or so until he could have seen, he drove past the rear of the freight train directly in front of the east-bound train running on schedule time. The conclusion is unavoidable that the accident which befel him was, under the circumstances and in view of his knowledge as to conditions, largely imputable to his own contributory negligence. The judgment is reversed, with costs, and a new trial ordered. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.

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Bird, J. Defendant operates a baking business in the city of Detroit and delivers its product to its customers in covered delivery wagons propelled by electricity. On the morning of July 26, 1920, one of the delivery wagons was being propelled in an easterly direction on Rowena street, in charge of Mr. Fred W. Brewin. When the wagon reached 978 Rowena street, where the mother of plaintiff lived, she and her son, 10 years of age, came out and hailed him. Brewin stopped the car, put on the brake and got out to wait upon her. While Mrs. Jackson was making her purchases some of the other children of the neighborhood came up, including the plaintiff, who was 5 years old. After the purchases were made Brewin carried them to the house, 20 feet away from his car. When he got to the house he heard his gong sound. He looked back but from where he stood he could not see the front of the car. He called to the children to stop sounding the gong and ordered them away from the car. Mrs. Jackson, mother of plaintiff, also warned them away. As he started to return to the car he saw it moving away. He-ran and caught up with it and turned off the power, and as he did so he saw a boy leave the car from the south side and step on to the forward wheel. He was thrown down and squeezed between the wheel and the curb and quite seriously injured. Subsequently plaintiff brought this suit by his next friend to recover for his injuries. The negligence charged was the failure of Brewin to remove the plug, or sometimes called the switch, which connected the electric current with the motor. The case was tried out and a jury assessed plaintiff’s damages at the sum of $5,000. After plaintiff’s case had been submitted the defendant contended: («■) That there was no negligence shown on the part of the driver of the car. (&) That any alleged negligence on his part was not the proximate cause of the injury. (c) That the electric delivery wagon was not an attractive nuisance, as the term is legally defined. For these reasons a directed verdict was requested. On the morning in question defendant’s servant, Brewin, was going down Rowena street with an ordinary covered delivery wagon, delivering baked goods. There was nothing unusual in this as he had been over the route every other day for several weeks. The proofs do not show that there was anything unusual about his delivery wagon. There was nothing about it that would distinguish it from other delivery wagons propelled by electricity, except possibly the ringing of a bell to attract the attention of his customers. On his way plaintiff’s mother hailed him and he stopped, set the brake and waited upon her. When his attention was called to the fact that children were about the front of the car, by reason of the sounding of the gong, he at once ordered them away and started back to his wagon. He did not know that children had climbed onto the front of the car. The gong sounding did not convince him -of this because the gong could be reached by one standing on the ground. It is not easy to discover what Brewin did or failed to do that would constitute negligence.. Plaintiff suggests only one thing and that was his. failure to remove the switch plug when he got out of the car. Had Brewin stopped, intending to leave the car in the highway for a considerable time where children were playing about, that argument would have force, but in this instance he did not intend to stop but a few moments and did not intend to get out of view of the car. The power was turned off, the brake was set and there was no danger of the ear starting unless someone turned on the power. The car was in the street where it had a right to be. Brewin had no reason to anticipate that the children would board the car and start it. Children had frequently come out to the car on his previous trips, but had never climbed onto the car and had not been in the habit of playing in or meddling with it. The car was not of such a character as to be classed among the attractive nuisances which are considered by Powers v. Harlow, 53 Mich. 507, 515 (51 Am. Rep. 154), and other cases following it. Such vehicles are common and are seen daily upon the streets of cities. Plaintiff’s counsel cite us to the following cases, which, it is insisted, control this one: Lee v. Bill Posting Co., 190 App. Div. 742 (180 N. Y. Supp. 295); Gumbrell v. Claussen-Flanagan Brewery, 199 App. Div. 778 (192 N. Y. Supp. 451); Albano v. Tapley & Co., 199 App. Div. 916 (190 N. Y. Supp. 910). These cases are similar on the facts, but they are distinguishable from the present one in this: In the cases cited the electric vehicles were left standing in the street some considerable time and the drivers went out of sight of them and remained out of sight of them for quite a period, and in some of the cases children had been in the habit of getting into the machines and playing in them on former occasions. These elements are not present in the case we are considering. If Brewin had left his wagon standing in the street and gone out of sight of it) and remained away for a considerable period while children were in the habit of playing in and around it, a different question would be presented. The facts in the present case are more similar to those in Vincent v. Crandall & Godley Co., 131 App. Div. 200 (115 N. Y. Supp. 600). The driver of the electric wagon stopped, set the brake and went into a store to deliver goods. While he was gone some young boys, who had climbed onto the truck, started it. It ran into a drug store and caused considerable damage. In disposing of the case the court said, in part: ‘T do not think the judgment can be sustained. Power machines are recognized as legitimate, and the condition of the machine in question, as left by the chauffeur, must be regarded as analogous to that of a horse and wagon securely tied. In either case, overt acts of wilful wrongdoers are necessary in order to change the physical condition and work mischief; and it cannot be assumed as matter of law that they are more likely to exist in one case than in the other. In this instance the proximate cause of the plaintiff’s damage was the wilful act of the boys who started the truck, just as it would be, had they wilfully untied a horse and driven it into the drug store. The same view is well expressed in the case of Berman v. Schultz, 81 N. Y. Supp. 647, where it was held by the appellate term that the act of boys, in turning the starting lever of an electric truck, left standing at rest in a public street by its operator, with the power off and the brake on, while he was making a delivery of goods to a customer, must be deemed the proximate cause of a resulting accident, exempting the owner from liability.” Other similar cases to the present one cited by defendant are Berman v. Schultz, supra; Rahd v. Duquesne Light Co., 255 Pa. 409 (100 Atl. 262, L. R. A. 1917D, 864); Frashella v. Taylor, 157 N. Y. Supp. 881; Lazarowitz v. Levy, 194 App. Div. 400 (185 N. Y. Supp. 359). In the present case, we are of the opinion that no facts were shown which should have been submitted to the jury on the question of defendant’s negligence. So far as Brewings conduct appears by the proofs he did no different than the ordinarily careful and prudent man would have done under similar circumstances. The accident was caused by an independent intervening, cause, namely: The starting of the car by the children. This was the proximate cause of the accident. The accident was an unfortunate one for the little fellow, but we do not see how it can be legally charged to the negligence of the defendant. We think the court was in error in refusing to direct a verdict for the defendant, as requested. The judgment will be reversed and a new trial ordered. Defendant will recover its costs in this court. Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, and Steere, JJ., concurred, Moore, J., did not sit.

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Sharpe, J. Plaintiff’s agent procured from defendant an order for a carbide lighting system for his farm buildings. The order contains the usual warranty of material and workmanship. It further provided: “It being understood that this instrument, upon such acceptance, covers all the agreements between the purchaser and the company and that no agent or representative of the company has made any statements or agreements, verbal or written, modifying or adding to the terms and conditions herein set forth.” The order was dated December 2, 1920, and was accepted by the plaintiff on December 10, 1920, and notice thereof communicated to defendant. On January 3,1921, plaintiff shipped the apparatus to defendant. He refused to accept it, and plaintiff brings this suit to recover the price fixed in the contract, $354.35. The defendant was permitted to offer testimony tending to prove that at the time he gave the order he told plaintiff’s agent that his basement was small and that it contained a furnace and that the agent said to him that he “could set it (the plant) right beside the furnace, that I could go around with a light of any kind, couldn’t make it explode.” He also offered proof that his brother, who had purchased a similar plant, after its installation discovered a card hanging in the basement near the plant on which in part appeared the following: “Important Notice. “Do Not Take a Light or Fire op Any Kind About This Generator. “Generator should not be placed nearer than fifteen feet to a furnace or stove. * * * “Tack this card up in a conspicuous place near your machine.” Mr. Watts, a neighbor, testified that he had purchased a similar plant from plaintiff and that included in the shipment was a card similar to that found by the brother. Defendant also offered proof that it was impossible to place the generator included in his order in his basement without having it less than 15 feet from the furnace; that he refused to accept the shipment and notified the plaintiff of such action. Plaintiff’s attorney objected to the introduction of this proof, moved to strike it out at the conclusion of the proofs, and also moved , for a directed verdict, which objection and motions were overruled. The court instructed the jury, in effect, that if the defendant had established the facts testified to as above indicated he would not be liable. A verdict for defendant resulted. There is a marked distinction between representations made by a selling agent as to facts which induce the purchaser to enter into a contract and warranties expressly or impliedly embodied in the contract. A representation is thus defined: “In the law of contracts in general, a statement, incidental to a contract, relative to some fact having reference thereto, and upon the faith of which the contract is entered into.” 84 Cyc. p. 1619. In our uniform sales act (3 Comp. Laws 1915, § 11843) an express warranty is defined as: “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.” Warranties that will be implied will be found in the section following. The rule is firmly established in this State that— “Representations in the nature of warranties antecedent to the contract cannot be urged as fraud in eases where the contract is in writing, and contains specific warranties.” Bates Tractor Co. v. Gregory, 199 Mich. 8; Youngs v. Advance-Rumely Thresher Co., 215 Mich. 682. The representation here relied on to establish fraud is not in the nature of a warranty. It was in no way related to the character, quality or title of the thing ordered or its efficiency or suitability to perform the service expected. In order to install the plant, defendant must have a place to put it. The natural place was the basement of his house, which was to be lighted by it. The assurance of plaintiff’s agent that it could be safely installed therein was in no way a warranty within the statutory or generally • accepted definition of that term. Whether it could be safely placed near the heating plant was a matter of which plaintiff’s agent had full knowledge and defendant no information. To secure such information, defendant made inquiry of the agent. Had defendant been informed of the necessity of having a 15-foot space between the generator and the furnace, he might have and probably would have under the proofs declined to give the order by reason of the expense to which he would be put in the enlargement of his basement. If he was induced to sign the order by a false statement in the nature of a representation, he would be justified in rescinding the contract. The understanding of the parties, expressed in the order, that it covered all agreements between the parties and that “no agent or representative of the company has made any statements or agreements, verbal or written, modifying or adding to the terms and conditions herein set forth” —did not preclude the defendant from relying on this defense. Peck v. Jenison, 99 Mich. 326; J. B. Millet Co. v. Andrews, 175 Mich. 350; Mishler v. International Harvester Co., 188 Mich. 104. We think the proof submitted tending to show that the generator could not be safely installed in defendant’s basement was admissible and sufficient to justify the verdict. The plants purchased by defendant’s brother and Mr. Watts were similar to that ordered by the defendant. The proofs show that Union carbide was to be used in the generator. The manner in which an accident may occur in its use is detailed in Charron v. Union Carbide Co., 151 Mich. 687, wherein it is said: “When water or considerable dampness comes in contact with the carbide it generates a dangerous gas, and when mixed with air, a spark would ignite it and cause a severe explosion.” That such danger was known to both defendant and plaintiff’s agent is apparent, else no inquiry as to where the generator could be safely placed would have been made. The assurance was given that it could be so placed in close proximity to the furnace. Before the shipment to defendant arrived, he was informed that the notice which accompanied the shipment of the two similar plants contained the warnings that— “Generator should not be placed nearer than fifteen feet to a furnace or stove. * * * “An open light should not be permitted nearer than ten feet to the generator.” What would a prudent man do in view of the probable danger if he placed the generator within 15 feet of the furnace? If unable to install the plant as others who had purchased similar plants were warned they must do, we think he was justified in rescinding the contract and refusing to accept the shipment. The issues were fairly submitted to the jury. We find no reversible error in the record. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

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Moore, J. The plaintiff is the owner of gas mains, located in the streets of the defendant city. The city let a contract to the other defendant to build a sewer at a depth of 17 feet. The plaintiff charges that the breaking of certain of its gas mains and service pipes was due in part to: (1) Negligent back-filling. (2) Insufficient tamping, immediately beneath the main; and (3) The removal of sheet piling without refilling and properly tamping the space occupied thereby. The defendant denied all of the plaintiff’s claim of negligence. At the close of the testimony a request was made for a directed verdict, counsel contending in part as follows: “I assume that the exclusive control of the streets of this city is in the city; we have had propositions many times and very thoroughly threshed out in Illinois and our courts have held in one case, in several cases, that even where there is a common-law vindication, that the exclusive control of the use of the street is still in the public, for the public uses; any right by which the gas company, a public service corporation, _ is in this street, is in the nature of a license, that it has no ability to claim that its pipe, when once laid, must lay there inviolate; that its right to maintain the pipe is at all times subject to the paramount right of the city to require its pipe to be removed or adjusted, or such things done with them as may be necessary in the exercise of the governmental powers of the city in serving a higher public need; now, the erection of a sewer would in any case have a higher right than a public service corporation. In this case the gas mains must give way, and my proposition is that the duty was involved upon this public service corporation, knowing, as it is admitted on the stand here, before that work was started by Pontarelli, that this sewer was to be constructed, it would become this corporation’s duty to go in there and see that its own mains were protected, taken care of, removed if necessary, put in such shape so they would not interfere in any way with the construction of this sewer, 17 feet down. My next proposition is that in doing that work, Mr. Pontarelli, under the contract, was exercising the city’s governmental powers, paramount of rights of this gas company.” The trial judge declined to direct a verdict and charged the jury in part as follows: “I charge you, gentlemen, that the plaintiff had the right to have its gas main there in the street and defendants had the right to construct the sewer there in the_ street, notwithstanding the fact that plaintiff’s gas main was here; the right of the plaintiff to maintain its gas pipe on Western avenue is subject and subordinate to the paramount right and power of the city of Muskegon to construct the sewer in question and in this respect the defendant Pontarelli is not chargeable with any negligence because of the fact that the city located the line of the sewer in question, and the question for you to determine, or one of the questions for you to determine, is whether the defendants there in doing the work of building the sewer, so carelessly, negligently and tmskillfully performed the work in the manner charged by plaintiff, as to cause injury and damage to plaintiff’s gas main and service pipes and cause leakage of gas. If defendant did carelessly, negligently and unskillfully perform the work in the back-filling of the trench, in insufficient tamping of the part of the trench immediately beneath the gas main, or in the removal of sheet piling without refilling and properly tamping the space which had been occupied thereby, and that such carelessness, negligence and unskillfulness on the part of the defendants, if any, resulted in damage to the plaintiff’s gas main and service pipes, and if you find that the damage, if any, did not result by reason of any negligence of the plaintiff that contributed to such injury, then the plaintiff is entitled to recover the damage which you may find from the evidence it has suffered, to which I will hereafter call your attention. “If you do not find that the plaintiff has established by a preponderance of the evidence that the defendants, or either of them, were negligent in the manner I have stated, or if you do not find that plaintiff has established by a preponderance of the evidence that plaintiff was free from negligence contributing1 to the injury or damages, then plaintiff cannot recover and your verdict should be for the defendants. “The contractor, Pontarelli, was not an insurer of the safety and security of such gas pipes, in the construction of his sewer; his only duty was to do the work of constructing the sewer with reasonable and usual care, in the usual and customary method of doing such work; if you find from the evidence that the defendant Pontarelli did the work- of constructing the sewer in the usual and customary manner and in a careful and skillful manner, then the plaintiff cannot recover. The right of the plaintiff to have its gas main in the street is subordinate to the paramount and superior right of the defendant; Pontarelli, under his contracts with the city, to lay the sewer in question, cannot be charged with any negligence if he did his work in the usual and customary way of doing that type of work, under similar circumstances and in a careful and skillful manner. If you find from the evidence that the injuries claimed by the plaintiff resulted solely from the performance of the sewer contract and doing the sewer work in the usual and customary way, in a careful and skillful manner, then the plaintiff cannot recover. The plaintiff must prove, gentlemen, negligence on the part of the defendants and the jury cannot presume or find negligence from the mere fact of injury to the pipe; if the testimony shows that the injury to the pipe, if any, might have been brought by other causes, as well as by the acts of the defendants, then the jury is not authorized to guess as to which was the cause.” There was much more of the charge than we have quoted. The plaintiff claimed damages aggregating about $16,000. The jury returned a verdict of $8,628.37. The case is brought here by writ of error. Counsel claim, we will quote from the brief: “There was an entire failure to prove negligence. The evidence as to the damages claimed is too speculative and uncertain. We respectfully submit that the case, as attempted to be made by the plaintiff, is too inconclusive to sustain the judgment. The motion to direct the verdict for the defendants should have been allowed. There was no competent evidence to submit to the jury either the question of negligence or the question of damage.” As to the claim there was no negligence. There was testimony that the backfilling and tamping was not properly done. We quote some of it: “I had charge of the inspection of that job from the inception to its completion. I had difficulty with Mr. Pontarelli in relation to the back-filling of the trench. He seemed to want to use methods of his own which were not fit. He would want to just tamp it and he didn’t want to do that right. Getting down to his back-filling, he didn’t want to do that right and there was the difficulty I had with him. That trouble existed during the entire job. I didn’t think he did this back-filling in a proper manner, because there was not enough dirt put back in. * * * Some of the filling was O. K. and some of it was not fit at all. It was not put back in layers and tamped like it should and was not wet down like it should have been. It was too loose. The dirt was not put in in layers as the contract called for and tamped down. * * * If this back-filling had been done properly, assuming that the gas mains prior to that time were in proper condition and this trench work and sheet piling had been properly done and the filling and the tamping and the watering, or whatever you term it, had been properly done, I think these mains would have been left in good condition.” The testimony was in sharp conflict and presented a question for the jury. It is said the question of damages was too speculative to justify a verdict. It is true that there was no way to meter the escaping gas, and that it could not be said to an absolute certainty how much escaped because of the breaks in the main, but it does not follow that a wrongdoes may escape all liability because of the difficulty of establishing the extent of his wrongdoing. See Hitchcock v. Knights of Maccabees, 100 Mich. 48 (43 Am. St. Rep. 423); Eesley Light & Power Co. v. 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Wiest, J. This is a bill of interpleader filed by plaintiff, an unincorporated fraternal beneficiary association, to have it determined whether the beneficiary certificate issued to William L. Mahon in March, 1905, should be paid to Elizabeth M. Mahon, the designated beneficiary therein, or to the administrator of Mr. Mahon’s estate for distribution to his heirs at law. At the time the insurance was taken out defendant Elizabeth M. Mahon was the wife of William L. Mahon. In April, 1916, upon her application, Mrs. Mahon was granted a divorce with a property provision in lieu of dower. Mr. Mahon died in June, 1918, without changing the beneficiary. About a year before his death he transferred his membership from division No. 9 to division No. 1, and, under the bylaws of the order, it was necessary to make record in the division to which he transferred' of the name of the beneficiary, and there appears in the “will book,” as of February 1. 1918, the following entry: “Name: William L. Mahon; occupation, freight cashier, Grand Trunk Railroad; age, 49; residence, 84 Linsdale avenue; entrance, Feb. 1,1918; beneficiary, Elizabeth Lennon Mahon, wife; transferred from division 9, Wayne división.” The recording secretary of division No. 1 testified that the above entry was made by Mr. Mahon and is all in his handwriting with the exception of the word “wife.” Mrs. Mahon’s maiden name was Lennon. Mr. Patrick J. Murphy, one of the national directors of the association, testified: “Q. Is there anything in the constitution or by-laws to your knowledge, Mr. Murphy, that would prevent the payment of the above benefit to the divorced wife of a member? “A. Why, divorce was unknown to our people and we have made no provision for such a contingency. “Q. When you say, ‘to our people’ what do you mean by that? “A. Members of our organization.” He further testified: “As I understand the laws of the Catholic church, if he had himself secured a divorce he would not have been entitled to the benefits of our organization. * * * “Q. Is there anything in the constitution and bylaws or otherwise which prevent payment of the death benefit to a person that is not a Catholic? “A. No, the section of the by-laws that I have just read to you places no such limitation. That section reads, ‘Death benefits shall be paid to such person or persons as the deceased member shall ordain.’ ” It is the claim of the appealing defendants that the divorce terminated the rights of Elizabeth L. Mahon; that she ceased to be dependent upon William L. Mahon after the decree of divorce, and to allow her to recover on this certificate would defeat the purpose, of the organization declared in the preamble of the constitution as follows: “Its work covers every lawful demand of friendship between its members and the protection of all dependent on them.” It is evident that Mr. Mahon was in accord with the attitude of the Catholic church toward divorce. The association, also in accord with the Catholic church, did not recognize divorce, and therefore did not provide for change of beneficiary in case of divorce. We find no statute and no provision of the laws of the plaintiff association limiting the payment of death benefits to a particular class of persons. Act No. 256, Pub. Acts 1917, revised and consolidated the laws relating to insurance, and, while section 6, chapter 4, part 3 (Comp. Laws Supp. 1922, § 9100 [194]), provides that the payment of death benefits shall be confined to wife, etc., section 29 (Comp. Laws Supp. 1922, § 9100 [219]) of the same chapter exempts societies from the provision of this law which limit their membership to any one religious denomination. Article 13, § 8, of the by-laws of the association provides: “Death benefits shall be paid to such person or persons as the deceased member shall ordain, or if said member has not so ordained, then to the administrator, executor or guardian appointed by the probate court of the county in which the said member resides.” We are urged to consider the purpose of the association, declared in the preamble of its constitution, as barring any beneficiary interest in case of divorce procured by the beneficiary. This preamble provides: “The purpose of this order is to promote the friendship, unity and Christian charity of its members, and preserve the spirit of Irish nationality. “Its membership is confined exclusively to practical Catholics, of Irish blood or descent, who love Ireland and revere the Catholic church. “Its work covers every lawful demand of friendship between its members and the protection of all dependent on them. The sick and infirm shall be cared for and the widows and orphans protected. Education and every virtue of Christian citizenship for which the Irish race is renowned shall be fostered, and by every necessary sacrifice and effort sufficient funds and property shall be contributed, collected, obtained and used to carry forward permanently, to the honor of the Irish race, the broad principles of the order herein proclaimed.” Considering this preamble and the by-laws as a part of the contract, we find nothing to prevent Mrs. Mahon from continuing as beneficiary after the divorce. Mr. Mahon was at liberty at any time to change the beneficiary. The by-laws left the designation of the beneficiary and the right to change the same at will to Mr. Mahon. He never elected to make any change of beneficiary but rather indicated by his every disclosed act that he did not care to make a change. In the absence of a controlling statute or by-law or some contract provision on the subject the designation of the wife by name as the beneficiary is not abrogated ipso facto by a subsequent decree of absolute divorce granted the wife. So far as this question is concerned there is no distinction between old line insurance where right to change the beneficiary is reserved and benefit associations where the right to change the beneficiary is a part of the law of the association. The right to change the beneficiary prevents any vested right in a designated beneficiary pending the death of the insured; We are asked to hold that the designation of the beneficiary was testamentary in character, and the reason for the designation was the marital relation and when the reason was no longer applicable, and there had been a judicial adjustment of property rights, the law of wills, as announced in Lansing v. Haynes, 95 Mich. 16 (35 Am. St. Rep. 545), should be applied here, and the designation of the beneficiary be held revoked by the divorce. This we cannot do. The reason why this cannot be done is well stated in Ladies’ Auxiliary of Ancient Order of Hibernians v. Flanigan, 190 Mich. 675. It has been held that a beneficiary designated by the mere status of “wife” loses such status and designation in case of divorce. 2 Joyce on Insurance (2d Ed.), § 818: “But a divorce does not terminate the rights of the woman in a benefit certificate on a man’s life where it is.made payable to her by name, and the statutes permit such certificate to be issued in favor of the wife or legatee, while no attempt is made to change the beneficiary after the divorce.” See, also, White v. Brotherhood of American Yeomen, 124 Iowa, 293 (99 N. W. 1071, 66 L. R. A. 164, 2 Ann. Cas. 350, 104 Am. St. Rep. 323); Schmidt v. Hauer, 139 Iowa, 531 (111 N. W. 966); Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Courtois v. Grand Lodge A. O. U. W., 135 Cal. 552 (67 Pac. 970, 87 Am. St. Rep. 137); Filley v. Insurance Co., 91 Kan. 220 (137 Pac. 793, L. R. A. 1915D, 130); Overhiser v. Overhiser, 63 Ohio St. 77 (57 N. E. 965, 50 L. R. A. 552, 81 Am. St. Rep. 612); Farra v. Braman, 171 Ind. 529 (86 N. E. 843); Brown v. Grand Lodge A. O. U. W., 208 Pa. St. 101 (57 Atl. 176). In the circuit decree was entered in favor of Mrs. Mahon. The decree is affirmed, with costs. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Fellows, C. J. Plaintiff brings this action of ejectment to recover possession of certain premises located in Grand Rapids. To the declaration is attached a copy of a deed conveying the premises to the plaintiff as grantee and executed by the Haney School Furniture Company and the recited trustees of said corporation other than the grantee, said company’s charter having theretofore expired. Defendant appeared specially and moved to dismiss on the grounds, so far as important here, that a receiver had been appointed for said company, and that the grantors and grantees in the deed were parties, to the receivership proceedings and were restrained from interfering with the receivership proceedings or the property in the hands of the receiver and that the deed was, therefore, one executed in contempt of court and void. The motion was granted and the suit dismissed. Plaintiff here prosecutes this writ of error. Some preliminary questions are presented by defendant’s motion 'to dismiss the writ of error, which motion was deferred until the hearing of the case and which will first be disposed of. The writ of error will not be dismissed for the failure to settle a bill of exceptions or a case-made. King v. Harrigan, 142 Mich. 477; Miley v. Grand Traverse Circuit Judge, 217 Mich. 415. Parties may assign error on the record under Supreme Court Rule No. 11. Where no bill of exceptions is settled and no case-made, error can be assigned only on the record. In the instant case the record is returned with the writ of error and it was highly improper to print in the printed record anything not contained in the record in the court below. To this we will refer later. The writ of error will not be dismissed, but only the assignment of error (the assignments of error having accompanied and been filed with the return to the writ of error), which assigns error on the record, will be considered. The only assignment of error we can consider, the second, is as follows: “The court erred in decreeing such a deed to be void on a motion to have the said plaintiff’s ejectment suit dismissed he had brought against said defendant, Grand Rapids Trust Company on such a motion, before a trial had on1 the merits of the case.” By this assignment of error plaintiff raises the question of the right of the court to dispose of the ease and dismiss the suit on the motion which raised the question heretofore adverted to. In Pagenkoff v. Insurance Co., 197 Mich. 166, we fully considered the section of the judicature act here under consideration (3 Comp. Laws 1915, § 12456), and we there held that while the motion to dismiss was a substitute for former demurrers, pleas in abatement and pleas to the jurisdiction, it was not permissible to try out the merits of the case on affidavits filed with the motion to dismiss. In. that case the action was on an award, which by affidavits it was made to appear had been set aside on appeal. It was held that such a defense could not be raised on motion to dismiss. In Vyse v. Richards, 208 Mich. 383, we held that former adjudication should be pleaded in bar and could not be raised by motion to dismiss. Referring to the Pagenkoff Case, we there said: “We there pointed out that the motion to dismiss now performs the function of a demurrer, a plea in abatement, and a plea to the jurisdiction, but that it does not perform the function of a plea in bar, and that defenses which formerly required a plea in bar cannot be made under the summary proceeding of a motion to dismiss.” This section of the judicature act has also been considered in the following cases: Sayre v. Railway Co., 199 Mich. 414; Gunn v. Gunn, 205 Mich. 198; Thomas Canning Co. v. Canners’ Exchange, 202 Mich. 64; Selznick Enterprises v. Garson Productions, 202 Mich. 106. An examination of the cases cited and the reasoning underlying them demonstrates that the trial court erred in dismissing this suit on the motion. Plaintiff seeks to recover in ejectment the premises in question' to which he claims to hold a deed. As against that deed and plaintiff’s right to recover defendant insists that the premises have been placed in the hands of a receiver in another case pending in the Kent circuit and that the grantors of the deed have been restrained from interfering with such possession, and that whatever title, if any, plaintiff has he has acquired in contempt of court and such deed is void. Upon a trial of the merits such defense may be made by defendant but it can not be made in a summary manner by motion to dismiss. The conclusion we have reached requires a reversal of the case. Defendant will have the usual time to file its pleadings. As is customary where the reversal is with a new trial, appellant will recover costs. But he should not recover the entire costs of printing the record before us, the major portion of which contains matters which are not properly before the court; The proper record in this case consists of the declaration with the attached exhibit, rule to plead, defendant’s special appearance and motion to dismiss, the judgment dismissing the case, the assignments of error, the index. These would have required a record of not to exceed 15 pages; everything else in this printed record of 94 pages has no place there; cost of printing record will be fixed at 15 pages only. A judgment in accordance with this opinion will be here entered. Wiest, McDonald, Clark, Bird, Sharpe, and .Steere, JJ., concurred. Moore, J., did not sit.

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Sharpe, J. On July 7, 1900, the defendant company issued to Walter S. Fillius a policy of life insurance in the sum of $1,000, in which the plaintiff, his mother, was named as beneficiary. The insured was unmarried. His occupation was that of a sailor on the Great Lakes. His mother received a letter from him, dated July 5, 1904, written at Sault Ste. Marie and directed to her at her home in St. Ignace. After a time the plaintiff and her husband, who was a marine engineer, tried to locate him, but were unable to do so. It appeared that he had made two trips on the steamer Douglas Houghton after July 5th, but left that steamer about September 1st at Ashtabula, Ohio, and no trace of him was thereafter found. It appears from the correspondence that, pursuant to proceedings taken by the plaintiff, the probate court of Mackinac county on March 8, 1915, declared the insured to be legally dead. In July, 1920, the attention of the home office of defendant was called to the disappearance of the insured. Proofs indicated by the facts above stated were furnished. The company finally declined to pay the full amount of the policy, but, as a compromise, wrote that it was— “willing to pay such an amount as would have been payable at the end of the endowment term if the assured were living; namely, $36.00,” and $50 in addition thereto. This action to recover was commenced on March 7, 1921. Trial was had before the court without a jury. Findings of fact and conclusions of law were filed. To these defendant prepared certain amendments and filed exceptions. A judgment was entered for the face of the policy and interest from the commencement of suit, $1,041.66, which defendant here reviews by writ of error. We consider the assignments discussed by counsel. Presumption of Death. Section 329, 1 Comp. Laws 1915, provides: “If any person shall' disappear and his whereabouts remain unknown for the space of seven years, and no knowledge of such person can be procured for such space of seven years, he shall be presumed to be dead.” * * * We have not assumed to set out in full the proof offered by plaintiff tending to show that the insured had disappeared and that his whereabouts' remained unknown. In our opinion it fully justified the finding that he was presumed to be dead. 17 C. J. p. 1166; John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 41; Bailey v. Bailey, 36 Mich. 181; Samberg v. Knights of Maccabees, 158 Mich. 568 (133 Am. St. Rep. 396); Woolfitt v. Histed, 208 Mich. 308; Ferrand v. Reserve Ass’n, 217 Mich. 441; 5 Joyce on Insurance (2d Ed.), § 3772. Statute of Limitations. The plea gave notice of the defense of the statute of limitations. Under section 12323, 3 Comp. Laws 1915, an action on this policy must have been commenced— “within six years next after the causes of action shall accrue, and not afterward, except as hereinafter provided.” Section 12327 provides: “If at the time when any cause of action shall accrue against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into this State.” * * * The purpose of this section is to secure to the plaintiff the same time in which to commence his action against an absent or nonresident defendant that he would have if the defendant were an actual resident of the State. Gray v. Jones, 80 Mich. 504. Both absence and nonresidence where defendant is a nonresident are necessary to suspend the operation of the statute. Campbell v. White, 22 Mich. 178; Belden v. Blackman, 124 Mich. 667. At the end of the seven-year period after the disappearance of the insured, he was in law “presumed to be dead.” Plaintiff’s right to institute proceedings on the policy then accrued. “A cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable.” Palmer v. Palmer, 36 Mich. 487, 494 (24 Am. Rep. 605). “It may well be held that the cause of action accrues to a plaintiff at the earliest time when he may, of his own volition, institute proceedings.” In re King’s Estate, 94 Mich. 411, 428. The statute would therefore have commenced to run in 1911 and would be a bar, unless the cause of action is saved by the provision in section 12327. Defendant claims that the declaration, which avers the disappearance of the insured in 1904, and the fact that under the statute he was presumed to be legally dead seven years thereafter, show prima facie that her cause of action is barred by the statute, and calls attention to the rule: “Where it appears that the cause of action is prima fade barred, the burden of proof is upon the party seeking to enforce the cause of action to show facts taking his case out of the operation of the statute.” 8 Encyclopedia of Evidence, p. 320. This rule is supported by our own cases. Ayres v. Hubbard, 71 Mich. 594, and Belden v. Blackman, supra. See, also, 25 Cyc. p. 1425. The difficulty in here applying it is that we must conclude that the prima facie case made by plaintiff shows that the cause of action was barred. A copy of the summons by which the action was commenced does not appear in the record. The title to the cause as stated in both the declaration and plea describes the defendant as a foreign corporation. In the policy offered in evidence by plaintiff it is described as the “¿Etna Life Insurance Company of Hartford, Connecticut.” It thus appeared on the face of the proceedings that defendant was a foreign corporation at the time the contract was entered into and also at the time the action was commenced. To set the statute of limitations in motion, it must appear that defendant had complied with the statutory provision for service of process upon it in this State. 2 Comp. Laws 1915, § 9280; Act No. 256, Pub. Acts 1917, part 2, chapter 2, § 4 (Comp. Laws Supp. 1922, § 9100 [69]). It would then be considered, for the purpose of being sued, as domiciled within the State. 25 Cyc. p. 908. The record contains no proof that defendant had become domiciled by complying with these statutes. The fact that it issued this policy in 1900, coupled with the further fact that plaintiff was enabled to obtain service on it in 1921, in our opinion raises no presumption that it was domiciled in the State in 1911 or thereafter before 1921. The rule is thus stated in 14A C. J. p. 1402: “To entitle a corporation to the benefit of the statute of limitations of a State other than that of its creation, it must affirmatively appear that it maintained an agent in such State upon whom service of process could have been made during the time necessary for the action to become barred. No presumption will be indulged that the corporation has been at all times amenable to process so as to enable it to take advantage of the domestic statute of limitations.” It is supported by our own cases. Conrad v. Nall, 24 Mich. 275; Campbell v. White, supra; Sproat v. Hall, 189 Mich. 28. See, also, Hubbard v. Mortgage Co., 14 Ill. App. 40; Taylor v. Union Pacific R. Co., 123 Fed. 155; Pierce v. Southern Pacific Co., 120 Cal. 156 (40 L. R. A. 350). The burden was. on defendant to show that it was domiciled in this State. Plaintiff’s claim was not barred on the proofs submitted. Proofs of Loss. It is insisted that the neglect to submit proofs of death within a reasonable time after the insured was presumed to be dead bars recovery. The policy provides for payment in the event of the death of the insured, “on surrender of this policy * * * within sixty days after satisfactory proof of the death of the said insured.” It contains no stipulation as to the time after death when such proof must be furnished. Section 4 of Circuit Court Rule No. 23 provides: “In a suit upon a policy of insurance, if the defendant shall rely, in whole or in part, upon any breach of any of the conditions, agreements, representations or warranties of the policy or application therefor, or upon the failure to perform or make good any promise, representation or warranty, or upon the failure to furnish any proof of loss, as required by the policy, there shall be added to the plea a notice plainly indicating the nature of the defense relied upon.” No notice of this defense was given. After the proofs were closed and after defendant’s counsel had moved for a directed verdict in favor of their client, they asked the court for permission to amend the plea to give notice of this defense. The motion was denied, the court holding that— “it does not appear to the court that the defendant has lost anything — lost any means of defense — or has súffered any other actual disability because of the delay ; and I do not think that the amendment would be in furtherance of justice.” While error is assigned upon the denial of the motion for leave to amend, counsel do not discuss it in their brief. Our statute of amendments (3 Comp. Laws 1915, § 12478) permits amendments to pleadings “for the furtherance of justice” at any time before judgment rendered. The defense sought to be interposed in no way affected the merits of plaintiff’s claim. The denial of the motion was within the discretion of the trial court and will not be reviewed by this court. Ripley v. Davis, 15 Mich. 75 (90 Am. Dec. 262); Shank v. Woodworth, 111 Mich. 642. Objections to Testimony. Objection was made to the introduction of certain letters claimed by plaintiff to establish a waiver. As the trial court did not base any .conclusion of law,' nor do we, on the waiver of any rights by the defendant, the admission of the letters, even if erroneous, constitutes no ground for reversal. We have considered all the assignments discussed by counsel. No reversible error appearing, the judgment entered is affirmed. Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. FELLOWS, C. J., concurred in the result. Moore, J., did not sit.

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Sharpe, J. Samuel F. Dobbins, late of the city of Marshall, executed a last will and testament on December 28, 1911. He died on February 21, 1917. In the sixth paragraph of the will he provided that all his estate, except as to sums theretofore specifically bequeathed, should be turned over to plaintiffs as trustees, to be administered as thereafter provided. In the ninth paragraph he directed that— “the net rents, issues and profits arising from said trust estate (except dividends, if any, paid upon the stock of the Marshall Furnace Co. belonging to said estate), be divided equally, share and share alike, in each year, among Dale M. Dobbins, Charles W. Dobbins and Samuel F. Dobbins, Jr., my said three sons,” with provision in the event of their death. The paragraph concluded: “All dividends accruing to my said trust estate from stock by it held in said Marshall Furnace Company shall be treated as a part of the corpus of said estate, and shall not be included in the annual distribution above provided, but shall be placed upon interest as hereinafter provided, and the interest arising therefrom shall be included in computing and making up the sum for such annual distribution.” The eleventh paragraph reads as follows: “At the end of a period of five (5) years after the date of my decease, I hereby direct that forty-five (45) per cent, of the stock of said Marshall Furnace Company, of which I may die seized or* possessed, and then belonging to said trust estate, shall be' apportioned as follows: One-third (1/3) of said forty-five (45) per cent, of the said stock shall be immediately assigned and delivered by my said trustees to my son, Dale M. Dobbins, to then become his absolute property; one-third (1/3) of said forty-five (45) per cent, of said stock shall be immediately assigned and delivered by my said trustees to my son, Charles W. Dobbins, to then become his absolute property; one-third (1/3) of said forty-five (45) per cent, of said stock shall be immediately set aside (but shall not be assigned), and the income therefrom shall thereafter be paid annually by my said trustees to my said son, Samuel F. Dobbins, Jr., during his lifetime (but the said stock shall not become his property), and upon the decease of my said son, leaving issue him surviving, said stock shall be by my said trustees immediately assigned and delivered absolutely to such surviving issue of my said son, Samuel F. Dobbins, Jr. In case said Samuel F. Dobbins, Jr., shall leave no issue him surviving, then, upon his decease, the said stock shall be immediately transferred and delivered by my said trustees to my sons, Dale M. Dobbins and Charles W. Dobbins, in equal shares, or to the survivor of them if either of them shall have deceased without issue; and in case either of them shall have deceased, leaving issue, then such issue shall take the share of such deceased son by right of representation. In case either said Dale M. Dobbins, or said Charles W. Dobbins shall decease without surviving issue prior to said forty-five (45) per cent, of apportionment of said stock, then the survivor of them shall receive the portion of stock which otherwise would have been taken by such deceased son. In case of death of either said Dale M. Dobbins or Charles W. Dobbins, leaving issue, then such issue, if still surviving, shall take the share of his father by right of representation.” The fourteenth paragraph reads: “I further direct my executors hereunder and my said trustees not to sell or otherwise dispose of any of the stock of said Marshall Furnace Company forming a portion of said trust estate, except in the event that such sale shall be absolutely necessary to meet the debts and necessary expenses of said estate after all other available assets thereof, of every nature whatsoever, shall have first been exhausted.” At the time of his death testator owned 1,070 shares of stock in the Marshall- Furnace Company. On February 21,1922, when the five-year period mentioned in the eleventh paragraph of the will expired, one-third of 45 per cent, of this stock (160.5 shares) was set apart as a separate trust fund, the income of which was payable to Samuel F. Dobbins, Jr. On May 24, 1922, a stock dividend of 30 per cent, was declared from surplus accumulated prior to February 21st of that year, no profits having been made between those dates. The plaintiffs, as trustees, seek direction as to the manner in which this stock dividend shall be dealt with by them. Samuel F. Dobbins, Jr., claims that it is to be treated as income upon the stock held in trust for him and as such turned over to him by the trustees. The two brothers, though not made parties, appeared voluntarily and express consent that it be so treated. The trial court held that the stock dividend belonged to the corpus of the trust fund, to be held intact for the remaindermen. The decree, in accordance with this holding, provided: “That said 48.15 shares arising from said stock dividend be held together with, and as a part of, said separate trust fund of one hundred sixty and one-half (I6Q14) shares in the hands of said trustees, and that said defendant be paid the dividends arising thereon, if any, hereafter declared and paid thereon out of profits of said Marshall Furnace Company earned subsequently to the 21st day of February, 1922, for and during the period of his natural life, and that the corpus of said separate trust fund so constituted, aggregating 208.65 shares, be held by said trustees, intact, for the benefit of the remaindermen, as in said will provided.” Samuel F. Dobbins, Jr., appeals. Counsel agree that if application of the dividend be made as matter of law, the authorities, as pointed out in Poole v. Union Trust Co., 191 Mich. 162 (Ann. Cas. 1918E, 622), are not in harmony. But they also agree, as was there held, that the application should be made by reference to the will itself if the intent of the testator can be ascertained therefrom. In the ninth paragraph specific provision is made as to what shall be done with “dividends accruing” from stock of the furnace company held by the trustees. It “shall be treated as a part of the corpus of said estate.” The interest thereon was to be included in making up the annual sum to which each of the three brothers was entitled by distribution. Each of them would receive the same distributive share. In the eleventh paragraph provision is made for the distribution of 45 per cent, of the stock held in the furnace company “at the end of a period of five years” after the death of the testator. The trustees then held 1,070 shares of such stock; 45 per cent, thereof was 481.5 shares. Dale and Charles were each entitled to, and the trustees assigned and delivered to each of them, 160.5 shares. The desire that the three brothers should receive the same amount of income is again clearly apparent. The remaining 160.5 shares are set apart in a separate trust fund, the income therefrom to be “paid annually” to Samuel. The only preference accorded to Dale and Charles over Samuel was in the vesting of the title in them of the shares assigned to them. They might, if they so chose, dispose of them at any time. The only money income which could be received from this stock was the amount of the cash dividends which might from time to time be paid by the furnace company. Without discussing or deciding whether a stock dividend is income, we are impressed that the income to which Samuel was entitled from the stock held in trust by the trustees was cash income only. It was the purpose of the testator to provide for the subsistence of this son by securing to him the moneys which the trustees should receive as income or profits from the stock set aside for that purpose. The entire will discloses a fixed purpose on his part to so provide that the stock of the furnace company shall be kept by the trustees during the five-year period, and thereafter by them and his sons Dale and Charles so that control of the affairs of the furnace company by them should at all times be secured. This purpose is evidenced by the tenth paragraph in which he attempted “to create and direct a testamentary voting trust,” the legal effect of which was considered in Billings v. Marshall Furnace Co., 210 Mich. 1 (9 A. L. R. 1239), wherein this section is quoted. It seems clearly to have been his intent that Samuel should not have any of this stock within his control so that it might be disposed of by him. To hold that he was entitled to the stock issued as a dividend would place him. in a position to dispose of it and thus defeat the plain intent of the testator as evidenced by a consideration of the entire will. The decree is affirmed. No costs are allowed. The costs and expenses of the trustees on this appeal will be paid out of the general trust fund of said estate in their hands as an expense of administration. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit.

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Clark, L Defendant’s wife left him against his. will and accepted employment as a waitress in a. restaurant in Detroit. She was a friend and companion of the head waitress, Lena Belle Collins. Defendant was jealous. Being troubled by reports of •misconduct of his wife and of her 'associating with Mrs. Collins, he sought an interview at the restaurant.. When refused he left, returned shortly with a pistol* entered the restaurant, shot but did not kill Mrs, Collins, shot and killed his wife, and attempted suicidé. In a trial for murder of his wife he was acquitted, the defense being insanity. For shooting Mrs. Collins, he was charged with and convicted of assault with intent to kill and murder. There was a like defense. Judgment was entered. Defendant brings error. Na serious question is presented. Judge Heston sat in the trial of defendant on the charge of murder. At the opening of the instant trial defendant’s counsel objected to Judge Heston’s sitting “on account of the remarks alleged to have been made by Your Honor to the jury after the last acquittal and printed in the several newspapers of the city.” The objection was overruled. For having sat in the former trial, the judge was not disqualified. See People v. Ferrise, 219 Mich. 471. It is said that a heading of the record will indicate prejudice on the part of the judge. We do "not so find. The record shows commendable fairness and impartiality on his part. It is urged that in this trial the court erred in receiving testimony that defendant after shooting Mrs. Collins also shot his wife. It was properly received as a part of the res gestas and to characterize the act charged. And defendant contends that proper instruction was not given relative to the consideration of such testimony. But the jury was instructed: “Now, gentlemen of the jury, we are trying this defendant for assault with intent to kill and murder Lena Belle Collins on June 5th, and that is the only charge preferred against him here. You are to determine that one question, and that question alone.” The contention is therefore without merit. In opening, the prosecuting attorney said it would-be shown that defendant after shooting the others attempted to take “his own worthless life.” Objection being made, the court stated that the word “worthless” was improper and ordered it stricken. Of the remark the prosecuting attorney later said: “I submit that was corrected at the time and stricken from the record, and I duly apologized for it, and I am sorry that I made it.” The incident does not constitute reversible error. We have considered the other questions raised. No reversible error appears. The judgment is affirmed. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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Wiest, J. Bill to restrain defendant company and its incorporators from doing business under the same name as the defunct corporation of which plaintiff is receiver, and from receiving any mail addressed to the Haney School Furniture Company. The defendants, by answer, set up the dissolution of the old corporation, asserted the right to take the name because there was no existing corporation of such name, denied the power of the court to appoint a receiver, and denied the material averments in plaintiff’s bill. Upon the bill and answer a temporary injunction was granted, awarding plaintiff all the restraint possible under a final decree. Defendants bring the case here by appeal. Plaintiff moved for a dismissal of the appeal, but in the brief filed waives such motion. The Haney School Furniture Company, of which plaintiff is receiver, was incorporated June 7, 1889, and its charter expired by limitation and no reorganization on June 7,1919. Plaintiff was appointed temporary receiver of that company April 17, 1922, and permanent receiver May 22, 1922. June 20, 1922, the defendant Haney School Furniture Company was organized by articles of incorporation duly filed. Plaintiff claims: “First. That defendants are guilty of actual fraud, which may be restrained by a court of equity. “Second. That defendants have violated their duty to the public for the purpose of confusing said company and its product with the company under receivership, and its product. “Third. That this trade name and good will are assets which equitably belong to the creditors of said company. “Fourth. That defendants’ use of said name would result in unfair competition as against plaintiff as receiver of said Haney School Furniture Company.” The injunction cannot stand unless it can be held that the right to the corporate name as representative of an existing good will is an asset in the hands of the receiver and capable of being sold. The corporation was a creature of the law, and when it finished the course fixed by law its name was no longer that of an existing corporation. The bill shows no exclusive products to which the name has attached a trade meaning. Defendants have a right to manufacture the same products at will. The purpose of defendants in taking the name is immaterial if they have kept within the law. It is said the defendants have seized the name to fool the public. If so, that fact is of no concern to the receiver unless it interferes with something he can sell and pass to others. The receiver cannot carry on the business of the old corporation, and, therefore, it is inconceivable that defendants’ use of the name will result in unfair competition as against plaintiff as receiver. From June, 1919, to June, 1922, the corporation continued as a body corporate only for the purpose of prosecuting and defending suits by or against it, to gradually settle and close its affairs, and to dispose of and convey its property, but not for the purpose of continuing the business for which it was organized (3 Comp. Laws 1915, § 11335; Comp. Laws Supp. 1922, § 9053 [32]). After the expiration of the three-year period of grace the old company was an extinguished entity incapable of transacting the business for which it was organized or of possessing a business with a good will or corporate trade name. The name did not survive the business of which it was but a permitted designation. The books are full of cases like those cited by plaintiff, enjoining the taking of the name of an existing corporation. Our statute forbids it (2 Comp. Laws 1915, § 9018, subd. 1; Comp. Laws Supp. 1922, § 9053 [13]). It must, however, be the name of an existing corporation. No case has been cited, and our search has revealed none, like the one at bar. The point relative to the name was mentioned in People v. Sticky Fly Paper Co., 144 Mich. 221, but was not decided, and was urged in State, ex rel. New Arlington Hotel Co., v. Hinkle, 115 Wash. 298 (197 Pac. 4), but was not decided. See, also, 14 C. J. p. 332; 14A C. J. p. 1099; Metropolitan, etc., Telegraph Co. v. Metropolitan, etc., Telegraph Co., 156 App. Div. 577 (141 N. Y. Supp. 598). To invoke redress there must be an existing corporation with invaded rights, or with rights of creditors to be worked out in the process of dissolution. The corporation was stricken with the paralysis of certain dissolution, June 7, 1919, for thereafter it could not continue the business for which it was organized, but was given three years in which to wind up its affairs. Notice of its dissolution by reason of termination of its existence by limitation was required to be filed with the secretary of State by a , majority of the members of the last board of directors. Comp. Laws Supp. 1922, § 9053 (33). We assume from the allegations of the bill that the receiver was appointed under the provisions of 3 Comp. Laws 1915, § 13571 et seq., relating to the winding up of the affairs of a corporation whose term of existence, as fixed by its articles of association, and whose further term for winding up its business allowed by law has expired. While this statute grants power to appoint a receiver, and speaks of the corporation, it is not an extension of the corporate existence beyond the three-year period allowed by law for winding upt its affairs. The protection of a trade name extends only to the party entitled to use it in the trade. In Mayer, etc., Junk Co. v. Chemical Co., 35 App. Cas. D. C. 425, it was said: “The terms ‘good will’ and ‘business’ are not synonymous. Good will, like a trademark, is but an incident to, and can have no existence apart from, the business in which it had its origin. ‘It is tangible only as an incident, as connected with a going concern or business having locality or name, and is not susceptible of being disposed of independently.’ Metropolitan Nat. Bank v. St. Louis Dispatch Co., 149 U. S. 436 (13 Sup. Ct. 944). In this case'the Southern Fertilizing Company wound up its affairs and abandoned its business. Necessarily, its good will became extinct. There was nothing tangible to which it might attach.” In the case at bar there was no piracy of the name. The old corporation selected the name for use in designating the entity so long as the entity legally existed and no longer. The old corporation no longer exists for any business purpose. Therefore, it can possess no good will because it can render no service to those entertaining a liking for its former products. Good will cannot exist without a going concern with a business capable of being continued to supply the wants of customers who have formed a liking for its output and management. There must be a running plant and the probable retention of customers to constitute good will. We recognize the value of good will to a going business, and its value as an asset in case of sale of such a business, but we cannot extend the holdings with reference to such recognized value to a business terminated by operation of law. The injunction restrained defendant company from receiving any mail addressed to the Haney School ^Furniture Company, and ordered such mail to be delivered to the plaintiff. Defendant is within its rights in the use of the name and it has a right to receive mail addressed to it, but mail received, if any, for the receiver must be turned where it belongs. Plaintiff moved to strike from the record certain so-called exhibits not before the circuit judge at the hearing. The record contains matter we cannot consider upon this appeal, and defendants' costs for printing the record will be limited to 19 pages. The temporary injunction should not have been granted, and is dissolved, and the case is remanded to the circuit court for such proceedings as plaintiff may be advised, not inconsistent with this opinion. Defendants will recover costs. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Fellows, C. J. Plaintiff is a corporation organized and existing under the laws of this State. On February 20, 1919, its board of directors directed its president to secure the approval of the Michigan securities commission of the sale of an additional stock issue and authorized its officers to sell such stock at par without commission. The securities commission approved the sale of the stock and the president of the company proceeded in an effort to sell the stock. He interested defendant and he agreed to purchase 50 shares of the par value of $10 per share and executed the following instrument: “April 1, 1920. “I hereby subscribe for 50 shares of the capital stock of the Peck Iron & Steel Works, a corporation organized under the Michigan laws, with a capital stock ($60,000) sixty thousand dollars, $40,000 of which is to be fully paid and non-assessable, of the par value of ten ($10) dollars per share, to be paid in the following manner: Fifty per cent, in five months and balance in six months from this date. (Signed) “E. F. Boomerscheim." Defendant refused to take or pay for the stock and this action was brought some time after the maturity date of the agreement. The trial resulted in a directed verdict, and judgment for the plaintiff. Several interesting questions are discussed by counsel which we do not deem it necessary to decide on the state of the record. Plaintiff’s counsel concede the general proposition urged by defendant’s counsel that a subscription for stock must be accepted by the corporation to make a binding contract, but insist that where, as appears by this record, the corporation offers the stock and the purchaser accepts the offer there need not be an acceptance of the acceptance; citing Southwestern Slate Co. v. Stephens, 139 Wis. 616 (120 N. W. 408, 29 L. R. A. [N. S.] 92, 131 Am. St. Rep. 1074). We need not decide this question as it was conceded on the trial that plaintiff’s president accepted the subscription and we come at once to the contention of defendant’s counsel that this was not sufficient, that there must be action by the board of directors accepting the subscription in order to make a binding contract. This question has been settled by this court adversely to defendant’s contention in the case of Toles v. Duplex Power Car Co., 219 Mich. 466, a case handed down since the trial of the instant case and which had not appeared in the Advance Sheets when appellant’s brief was filed. On defendant’s direct-examination he testified that it was represented to him that the company had orders enough and material on hand and business enough ahead so that he need not worry about paying for the stock, that the dividends would take care of it. Upon cross-examination he quite materially modified his claim as to what the representations were, and his cross-examination fairly ¿stablished that the statements as to anticipated dividends were based on anticipated new business and were promissory in character. In discussing a motion made by plaintiff’s counsel to strike out defendant’s testimony on the question of fraud, defendant’s counsel-insisted upon the right to go to the jury on that question based on defendant’s testimony in chief and the representations he then claimed had been made. The court then challenged his attention to the fact that the duty rested on him to establish the falsity of the representations: Defendant’s counsel did not offer to make such proof but insisted that the duty rested on the plaintiff to show what material and orders it had on hand at the time the stock was sold to defendant. The trial judge struck out the testimony and directed a verdict for plaintiff on the ground that the statements were promissory, basing his ruling on the cross-examination alone. We do not agree with his reasons, but the ruling was correct. We have frequently held that where the testimony of a witness given on cross-examination is in conflict with that given on direct-examination, it is for the jury to determine which, if either, version they will believe. But the burden rested on the defendant not only to establish that the representations were made but also to establish that they were false. Defendant made no proof that the representations were in fact false and offered no such proof when his attention was challenged to the rule. He can not under these circumstances complain of a ruling which withdrew the question of fraud from the. jury even though the reason for the ruling was erroneous. Defendant claimed that he had been released from the contract by the president of the company. The trial judge correctly held that there was no consideration for the release, and no proof that the president had authority to release defendant. Finding no reversible error on the record, we are constrained to affirm the judgment. Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred. Sharpe, J., did not sit.

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McDonald, J. This action is brought by the plaintiff, a banking institution of Covington, Kentucky, to recover on three promissory notes given by the defendants, payable to one Luther B. Watson, and discounted by him at plaintiff’s bank. The case has been to this court before and is reported in 207 Mich. 329. The facts are there fully stated. On the first trial there was a directed verdict for the plaintiff. The defendants appealed. The judgment of the circuit court was reversed because there was no evidence as to “when this account to the credit of which these notes were placed was drawn upon or exhausted; whether before or after the maturity of the notes, or before or after notice of the fraud, or protest.” At the close of the testimony in the instant case both parties moved for a directed verdict. The motions were denied and the case submitted to the jury. The verdict was for the defendants. Counsel for the plaintiff then made a motion for a judgment non obstante veredicto. This motion was denied, and judgment entered on the verdict. From this judgment the plaintiff appealed. In this record the evidence is undisputed that the bank took the notes and credited Mr. Watson’s account with the proceeds, amounting to $2,079.40, after which, with his consent, it charged his account with the indebtedness of the Jiffy Starter Company. This' left an overdraft in his account of $97.38, which he paid. All of this was done before the maturity of the notes, and before there was any notice of fraud or of protest. The notes were valid on their face. Under these circumstances, the bank was a purchaser in good faith and for value. The case is controlled by Fredonia Nat Bank v. Tommei, 131 Mich. 674, and by Central Savings Bank & Trust Co. v. Stotter, 207 Mich. 329, and cases cited therein. The claim that Mr. Watson was not an indorser on the notes of the Jiffy Starter Company, in payment of which the proceeds of the notes in question was applied, and that he was under no legal obligation to pay them, is without material bearing on the controlling question in the case. The bank claimed that he was under a moral obligation to pay them or to see that they were paid, because it was on the strength of his financial standing and his connection with that company that credit was extended. In any event, he consented that the proceeds of the notes in question should be used to discharge the indebtedness of the Jiffy Starter Company. In view of the undisputed testimony showing that the plaintiff was a good faith purchaser for value, it was the duty of the court to so hold as a matter of law, 'and to have. directed a verdict for the plaintiff. Failing in this, he should have entered a judgment for plaintiff non obstante veredicto. Because of this error the judgment is reversed, with costs to the plaintiff. The case is remanded and a judgment notwithstanding the verdict will be entered for the plaintiff by the circuit judge. Fellows, C. J., and- Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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T. M. Burns, P.J. On December 3, 1981, defendant was convicted of attempted breaking and entering an unoccupied dwelling, MCL 750.110, 750.92; MSA 28.305, 28.287, and of being a fourth-time felony offender, MCL 769.12; MSA 28.1084, and was subsequently sentenced to from 3 to 15 years imprisonment. He appeals as of right. During the early morning hours of August 5, 1981, two Michigan State Police Troopers and two Brighton City Police Officers received a report that a sporting goods store was being burglarized. After they arrived, they saw someone behind the store, running away from them. After a short chase, they caught the defendant. A door to the sporting goods store was standing open and both a nitrogen bottle and a motorcycle had been moved from their places. Nothing, however, was taken. Sometime previously, defendant had worked at the store. Defendant testified, on the other hand, that he had been hitchhiking that night when a car passed and some teenage boys had spit at him. After defendant responded with an obscene gesture, the car stopped and the teenagers started chasing defendant. He then hid behind the sporting goods store. However, the police arrived immediately and arrested him. Defendant was originally charged with breaking and entering an unoccupied dwelling with intent to commit larceny. MCL 750.110; MSA 28.305. In addition to charging the jury on both breaking and entering and attempted breaking and entering, the trial judge instructed the jury on entering without breaking. MCL 750.111; MSA 28.306. However, he refused to instruct the jury on either larceny in a building, MCL 750.360; MSA 28.592, or attempted larceny in a building. Defendant now claims that this refusal was erroneous. We agree. In People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), the Supreme Court ruled that: "If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error.” The trial court must always give an instruction for a necessarily lesser included offense and must give an instruction for a cognate lesser included offense if the evidence would support such a conviction. Id. Larceny in a building is a cognate lesser included offense of breaking and entering with intent to commit larceny. People v Brager, 406 Mich 1004; 280 NW2d 826 (1979). The elements of larceny in a building are: 1) an actual or constructive taking, 2) an asportation, 3) with a felonious intent, 4) of someone else’s property, 5) without that person’s consent, 6) in a building. People v Phebus, 116 Mich App 416; 323 NW2d 423 (1982); People v Wilbourne, 44 Mich App 376, 378; 205 NW2d 250 (1973). In the present case, all six elements were shown. The sporting goods store is a building; the store’s owner testified that not only did he not give anyone his consent to take anything but the property in the store was his. As such, the felonious intent can be inferred. The evidence also shows that a motorcycle was moved. Moving it supplied both the actual taking and the asportation elements. A person need not remove the item from the building to be guilty of this offense. People v Fisher, 32 Mich App 28, 32-33; 188 NW2d 75 (1971). Abandoning the property is not a defense. People v Bradovich, 305 Mich 329; 9 NW2d 560 (1943); People v Patricia Williams, 63 Mich App 531; 234 NW2d 689 (1975). Therefore, if defendant had originally been charged with and then convicted of larceny in a building, the evidence would have been sufficient to convict. On the other hand, attempted larceny in a building is a necessarily lesser included offense of breaking and entering with intent to commit larceny. People v Page, 73 Mich App 667; 252 NW2d 239 (1977). As such: "The elements of attempted larceny in a building are: (1) felonious intent to commit a larceny; and (2) an overt act of going beyond mere preparation. "Analyzing the elements, the felonious intent is the same, and the overt act can be the breaking and entering. The greater offense is completed upon the breaking and entering, while the lesser upon an overt act.” People v Keatts, 54 Mich App 618, 623; 221 NW2d 455 (1974) (Bashara, P.J., dissenting), rev’d 396 Mich 803; 237 NW2d 474 (1976). Since it is a necessarily lesser included offense, the trial court was bound to give it without looking at the evidence. Ora Jones, supra, 395 Mich 390; People v Wilkinson, 76 Mich App 109; 256 NW2d 48 (1977). Therefore, the issue is whether or not the failure to give the requested instructions for larceny in a building and for attempted larceny in a building is reversible rather than harmless error. We will analyze only the attempted larceny in a building question in this case. The case closest to the present is People v Trout, 95 Mich App 163; 290 NW2d 109 (1980). The defendant was charged with and convicted of breaking and entering an occupied dwelling. The trial court gave additional instructions for attempted breaking and entering, breaking and entering an unoccupied dwelling, and entering without breaking. However, it refused to give instructions for attempted larceny in a building, attempted breaking and entering an unoccupied dwelling, and attempted entering without breaking. Relying on People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977), this Court found harmless error. In Herbert Ross, this Court had ruled: "If the jury had doubts about defendant’s guilt of the charged offense but believed him to be guilty of some wrongdoing they could have found him guilty of one of the lesser offenses. They did not do so. We must conclude, therefore, that the jury had no reasonable doubt as to the defendant’s guilt of the charged offense.” 73 Mich App 592. See also People v Meyers (On Remand), 124 Mich App 148; 335 NW2d 189 (1983); People v Flinnon, 78 Mich App 380; 260 NW2d 106 (1977). A few months after Trout was released, the Supreme Court decided People v Richardson, 409 Mich 126; 293 NW2d 332 (1980). There, the defendant was charged with and convicted of first-degree murder. The trial court had instructed additionally on second-degree murder and voluntary manslaughter but had refused to instruct on the reckless use of a firearm or on involuntary manslaughter. Defendant testified that the gun had discharged accidentally. The Supreme Court reversed finding that, even though defendant claimed that he was not guilty of any crime, the failure to give the two requested instructions foreclosed from the jury the option of convicting him according to his own testimony. Recently in People v Rochowiak, 416 Mich 235; 330 NW2d 669 (1982), the defendant was tried and convicted of second-degree murder. Although the trial court gave an additional instruction for involuntary manslaughter, it refused to instruct for careless, reckless or negligent use of a firearm resulting in injury or death. In a 3 to 2 decision, the Supreme Court reversed: "While the arguments that it is highly unlikely that the jury would have convicted of reckless use and that Rochowiak’s theory of the case was presented to and rejected by the jury are most compelling, we are persuaded that had the jury been instructed on reckless use, in addition to involuntary manslaughter, it might have better understood Rochowiak’s theory, and have returned a verdict of guilty of involuntary manslaughter.” 416 Mich 247. The Supreme Court then established the following test for whether or not the failure to give an instruction for lesser included offenses is harmless: "The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with the defendant’s theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use, assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault).” 416 Mich 248-249. After reviewing both this Court’s and the Supreme Court’s decisions in this area, we find that the failure to give these instructions in fact prejudiced defendant. First, defendant was not convicted of the charged offense, breaking and entering, but instead of attempted breaking and entering, a five-year felony. It too strongly strains the cognate-lesser-included-offense doctrine to say that entering without breaking is in fact a lesser included offense of attempted breaking and entering. The jury was not really given a choice between the offense convicted of and the lesser included offenses for which instructions were denied. Therefore, we cannot say that the jury could have compromised on a lesser included offense if it had had any doubts about defendant’s guilt. In fact, after looking at the evidence in this case, the jury clearly compromised as it is. Second, defendant argued that he never entered the building. Only two of the five requested instructions fit this version — attempted breaking and entering and attempted larceny in a building. In People v Chamblis, 395 Mich 408, 423; 236 NW2d 473 (1975), the Supreme Court stated: "The fact that the evidence would also support conviction of the greater charged offense would not preclude the giving of the lesser included offense instructions.” In other words, the jury, the conscience of the community, may convict of the lesser offense even if the evidence more clearly shows that the defendant should instead be convicted of the charged offense. In People v Marshall, 115 Mich App 433; 320 NW2d 396 (1982), and in People v Baker #2, 103 Mich App 704; 304 NW2d 262 (1981), held in abeyance 412 Mich 859 (1982), this Court found harmless error where each trial court had instructed for an offense compatible with each defendant’s theory of defense and degree of culpability. In the present case, the jury did not reject any such offense. We conclude that defendant was denied a fair trial. Defendant next argues that he was also denied a fair trial when the trial court tape-recorded all of the jury instructions and sent the tape for the jury during deliberations. In People v Medrano, 101 Mich App 577; 300 NW2d 636 (1980), this Court affirmed where the trial court had sent a written copy of the instructions for the jury during deliberations. After it noted that the majority of jurisdictions allow such a practice, it cautioned against its use because the Supreme Court has not yet sanctioned it. But it affirmed because it failed to find prejudice in that particular case. In People v Small, 120 Mich App 442; 327 NW2d 504 (1982), this Court affirmed where the trial court sent a taped copy of the instructions for the jury during deliberations. The same result was reáched in United States v Braverman, 552 F2d 218 (CA 7, 1975), cert den 423 US 985; 96 S Ct 392; 46 L Ed 2d 302 (1975); United States v Homan, 680 F2d 1340 (CA 11, 1982); and United States v Watson, 669 F2d 1374, 1386 (CA 11, 1982): "When the jury is cautioned to consider the charge as a whole and the jury charge is accurate and complete, reversal solely because a taped or a written charge was provided to the jury is not warranted.” Although we are following these decisions, we, like they, caution against using this procedure before the Supreme Court specifically allows it. In Medrano, this Court noted: "The usefulness of written instructions is obvious. Even in simple cases, instructions tend to be long and complex, and it may be unreasonable to expect oral instructions to be fully remembered. Access to written instructions could promote jury efficiency by saving the time spent in recollection and debate over what the instructions were. * * * On the other hand, it is conceivable that written instructions might needlessly prolong deliberations. Jurors could endlessly reread a charge, debating real or imagined legal distinctions. Access could also cause undue weight to be given to particular portions of a charge.” 101 Mich App 584. These potential problems are more prevalent when using a tape recording. When using written instructions, the jury can receive a visual overview. Of course, this is impossible with a tape recording. The jury could very easily listen to only part of the instructions and unduly emphasize some part of the instructions. Therefore, we join Medrano and Small in recomménding that this procedure not be followed: "The better practice, if the trial court is faced with voluminous instructions and considers it too burdensome to repeat them, would be to contemporaneously tape-record the instructions when given in open court, then call the jury back into the courtroom to replay the instructions if the court deems it necessary. This practice would provide a record of the specific purpose to which the tape recordings were applied.” Small, 120 Mich App 445-446. Defendant next argues that the verdict card improperly imposed an order of deliberation on the jury and therefore violated his presumption of innocence. The Verdict card first listed the breaking and entering charge, then attempted breaking and entering, then breaking without entering, and last not guilty. However, we cannot believe that the order violated defendant’s presumption of innocence. At most, the verdict card, taken along with the jury instructions, suggested an order of consideration. This is not error. People v Handley, 415 Mich 356; 329 NW2d 710 (1982). Defendant last argues that he should have been charged as a second-felony offender rather than as a fourth-felony offender. The first two prior convictions were for two breaking and enterings; both occurred on October 28, 1978. Defendant claims that, because both of these breaking and enterings were from the same criminal spree, they grew out of the same transaction. A defendant may not be convicted as a third-felony offender if the two previous convictions involved one time, place, and subject and required the same evidence to convict of both. People v Lowenstein, 309 Mich 94, 100-101; 14 NW2d 794 (1944); People v Carson, 115 Mich App 202, 205; 320 NW2d 343 (1982); People v Ross, 84 Mich App 218; 269 NW2d 532 (1978). However, in the present case, as in People v Sears, 124 Mich App 735; 336 NW2d 210 (1983), and in People v Chaplin, 102 Mich App 748; 302 NW2d 569 (1980), rev’d on other grounds 412 Mich 219; 313 NW2d 899 (1981), the two prior convictions, although obtained on the same day, arose from separate transactions at different times and places and were provable through different testimony. They both could properly be used in a habitual offender information. Defendant also contends that the third prior conviction should not have been used because it was merely a two-year misdemeanor. However, this issue has been decided against defendant. People v Rice, 101 Mich App 1; 300 NW2d 428 (1980), rev’d on other grounds 411 Mich 883; 306 NW2d 102 (1981); People v Davis, 89 Mich App 588; 280 NW2d 604 (1979). ' Pursuant to People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), defendant’s convictions for attempted breaking and entering with intent to commit larceny and fourth-felony offender are vacated and this case is remanded with instructions to enter convictions for attempted larceny in a building and fourth-felony offender. If the prose cutor is persuaded that the ends of justice would be better served, the trial court, if notified before sentencing, shall vacate the attempted larceny and fourth-felony offender convictions, and grant a new trial on the attempted breaking and entering and fourth-felony-offender charges. Reversed and remanded with instructions to proceed according to this opinion. We do not understand that People v Robert Brown, 72 Mich App 749; 250 NW2d 522 (1976), concluded that attempted larceny in a building is not a lesser included offense of breaking and entering with intent to commit larceny. However, we choose to follow Page instead. People v Keatts, 396 Mich 803; 237 NW2d 474 (1976). Furthermore, the Robert Brown opinion also concluded that larceny in a building is not a lesser included offense of breaking and entering with intent to commit larceny. This holding was overruled in Brager, supra, and People v Kamin, 405 Mich 482, 496; 275 NW2d 777 (1979). Although the Court in Richardson, supra, found that the failure to instruct the jury on two lesser offenses was reversible error, we believe that Trout, supra, is distinguishable and our opinion in no way questions the continuing validity of Trout. Actually, only two Justices endorsed the reasoning of the majority opinion. He actually testified that he was not guilty of any of the charged offenses. But he clearly claimed that he never entered the building. Accordingly, this case is analogous to Richardson, supra. See Anno: Propriety and prejudicial effect of sending written instructions with retiring jury in criminal case, 91 ALR3d 382 (1979). Contra, Cornett v State, 436 NE2d 765 (Ind, 1982). In the present case, the trial court instructed: "You should consider all the instructions as a connected series, which together form the law you are to follow, and should not pick out one or some instructions and disregard the others.” We also note that the trial court did instruct on the presumption of innocence. Even though attempted larceny is a two-year misdemeanor, People v Frost, 120 Mich App 328; 328 NW2d 44 (1982), we do not need to vacate the conviction as a habitual criminal. People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979).

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Per Curiam. Plaintiffs appeal as of right from the trial court’s judgment of no cause of action rendered after a bench trial. Plaintiff Robert Mayer is a professional farmer of gladiolus. On April 9, 1979, one of plaintiffs’ farms suffered a devastating fire. Plaintiffs had been insured with defendant Hathaway Agency since 1974. Defendant Robert Kirkpatrick purchased the agency in 1976. Plaintiffs were insured through defendant Auto-Owners. After the fire Auto-Owners paid plaintiffs $301,000 and later authorized an additional $13,657 to cover loss of irrigation equipment. However, a loss of $180,000 was not covered by plaintiffs’ policy. Plaintiffs raise three issues on appeal. First, plaintiffs claim that the trial court erred in finding that Kirkpatrick was the agent of Auto-Owners and erred in finding that he was not negligent in handling plaintiffs’ insurance program. We cannot disturb these findings unless they are clearly erroneous. GCR 1963, 517.1. At trial, Kirkpatrick testified that he was an independent insurance agent and had the power to place insurance with various companies. An independent insurance agent, or insurance broker, is ordinarily the agent of the insured, not the insurer, 16 Appleman, Insurance Law & Practice, § 8722, pp 322-324., Kirkpatrick testified that he acted as the agent of the insured. Thus, we conclude that the trial court clearly erred in finding that Kirkpatrick was the agent of Auto-Owners. The court, however, did not clearly err in holding that Kirkpatrick was not negligent in handling plaintiffs’ insurance program. This issue may be analyzed under agency principles. Whether an agent has negligently dealt with the affairs of the principal depends upon the agreement with the principal, since the agreement defines the scope of the agent’s undertaking. 2 Restatement 2d, Agency, § 376, comment a, p 173. Plaintiffs alleged that Kirkpatrick failed to valúate properly plaintiffs’ buildings, personal property and commodities, resulting in inadequate insurance coverage. Kirkpatrick testified, however, that he never agreed to assume responsibility for assessing the value of these items. The testimony also shows, and the court so found, that Donald Mayer is an experienced businessman who would not assign the task of valuating his property to someone else. In light of this evidence, we cannot conclude that the trial court clearly erred in finding that Kirkpatrick was not negligent in handling plaintiffs’ insurance program. Second, the plaintiffs maintain that the trial court clearly erred in finding that Kirkpatrick had not misrepresented the nature of the fluctuating value coverage program. Donald Mayer testified that Kirkpatrick told him that this program would provide "blanket coverage” for items that fluctu ate. Kirkpatrick steadfastly maintained that Donald Mayer was aware that he had specific commodity coverage. Resolution of this factual issue depended upon the trial court’s assessment of the witnesses’ credibility. We give great weight to the trial court’s assessment of credibility and, on this record, perceive no reason for disturbing the court’s decision to believe Kirkpatrick’s testimony. Finally, plaintiffs argue that the trial court erred in finding that the language of the fluctuating value coverage endorsement was not ambiguous. Although ambiguous language in an insurance contract is always construed against the insurance company, Zurich Ins Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970), the question of whether an ambiguity exists is for the court, which may consider extrinsic facts. 17A CJS, Contracts, § 617, pp 1254-1256; Dykema v Muskegon Piston Ring Co, 348 Mich 129; 82 NW2d 467 (1957). The. only evidence tending to show ambiguity was Donald Mayer’s own testimony that he believed fluctuating value coverage to be nothing more than blanket coverage for fluctuating items. Against this testimony must be weighed Donald Mayer’s evident business acumen, his facility in adjusting his insurance needs periodically over the years in question, the specific language of the policy, the language of the endorsements referring to fluctuating inventory, Donald Mayer’s periodic alterations of his fluctuating value coverage, and Kirkpatrick’s own testimony that Donald Mayer knew exactly what he was getting. On this record, we cannot find that the trial court erred in ruling that the endorsement in question was not ambiguous. Affirmed. Costs to appellees.

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Wiest, J. A freshet in March,-1918, loosened the abutments to a highway bridge over Battle creek in the township of Brookfield, Eaton county, and let the bridge fall into the creek. The township officers closed the highway on each side of the creek, by erecting barriers at intersecting highways, and caused a temporary bridge to be constructed just north of the old bridge, with a detour or way from the highway to it, placed barriers across the highway near where the old bridge stood, and then removed the barriers at the intersecting highways. Plaintiff’s husband and his brother owned an automobile, and the evening of April 13, 1918, plaintiff and her husband, seated in the back of the automobile, with the brother as driver, and his intended beside him, started to drive to a dance, going over the highway in question. While driving at a rate of about 20 miles per hour the car approached the barrier at the west side of the old bridge opening. The driver did not notice any obstruction until about 5 feet from some old bridge planks across the road and he at once applied the emergency brakes but struck the planks, which turned the car completely around, threw plaintiff over into the opening where the bridge was out, and upon the ironwork of the old bridge where it lay in the creek, and then into the water, causing her serious injuries. She brought this suit to recover damages,.claiming the township was negligent in not placing a proper barrier at a reasonable and sufficient distance from the opening where the bridge had gone out, and in not maintaining red light signals of danger there in the nighttime. The testimony introduced in behalf of defendant tended to show that the detour from the roadway to the temporary bridge left the highway about 30 feet from the old bridge opening; that about 10 feet from the opening two or three planks were set on edge across the road, fastened to posts at each side and a pole placed across the road about waist high, resting on, the tops of the posts and a board nailed to the posts between the pole and the planks and across the road. No red light was placed at the barrier at night. The testimony in behalf of plaintiff tended to show that the detour was not observable at night, and was not indicated by any sign and the only visible objects in the highway, as one approached the old bridge opening, were planks lying flat across the road as though a part of the drive to the bridge, and placed within a few feet of the drop into the creek, and the danger was not, therefore, discoverable by the driver until the car was within five feet of the planks. Plaintiff had judgment and the case is here on writ of error. At the close of the proofs defendant moved for judgment on the ground that the driver of the car was guilty of negligencé, and such negligence was imputable to plaintiff; that the law required no warning by way of red lights at night, as the road was not closed, and that the barrier erected was sufficient. This motion was denied and the-issues submitted to the jury. Defendant, by requests to charge, and exceptions to the charge as given, brings before us all the pivotal questions in the case. Two witnesses gave testimony, without objection, relative to the position of the planks after the accident. When a third witness was asked about the position of the planks after the accident objection was made, and the question withdrawn, and counsel for defendant moved to strike out all such testimony on the subject. The court declined to do so. The position of the planks, after being struck by the car, could be of no aid to the jury, but we are not satisfied such testimony was harmful enough to constitute reversible error. The court instructed the jury: “I instruct you that that part of the highway wherein said bridge was washed away and from which a temporary road detoured from the east and west approaches thereof and around the north side thereof, was a closed road within the meaning of the statute, and it became and was the legal duty of said defendant through its officers to erect suitable barriers at the west and east ends of the closed portion and to conspicuously mark said barriers at night by red lights. It became and was also the duty of highway officials of said township having such work in charge to place notices in the form of plainly legible signs at either end of the closed portion of said highway to warn travelers along said highway of the dangerous condition thereof. And I instruct you further that the failure and neglect of said officials to comply with the above provisions of the statute is negligence on the part of said defendant township. “I instruct you that the evidence is undisputed in this case that the night was dark, that the highway to the west of said bridge was level and in good condition at the time of the accident, that the barriers were placed within a distance of from four to twelve feet from the west side of said opening into the river in said highway. It is further undisputed that no red lights were displayed at said barriers on the night in question or on any night previous thereto. _ I instruct you that this was not a compliance with the statute and constituted negligence on the part of the defendant township. “I instruct you further that the driver of said automobile was not bound to anticipate that the highway officials had been negligent in their duty or that they were approaching a dangerous condition of the highway. He had a right to assume, as does every driver of an automobile over an unfamiliar highway in this State, that if he was approaching a dangerous condition in said highway that the officials in charge would give him due and timely warning thereof. “I instruct you that if you find from the evidence that the driver when he approached said opening was in the exercise of ordinary care in the management of said automobile that plaintiff is entitled to recover.” It is insisted that this was error, and this brings up the principal question in the case. Act No. 165, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 4747 [19] et seq.), provides: “Section 1. The officials who may have in charge the work of constructing, improving or repairing roads in any county, good roads district or township in this State are hereby given authority to close any road or portion of any road, which is under process of construction, improvement or repair or upon which is located any bridge which is being constructed or repaired: Provided, That no road shall be deemed to be closed under the provisions of this act until suitable barriers have been erected at the ends of said road or of the closed portion thereof, and also at the point of intersection of such road or portion of highway with other roads. Said barriers shall be conspicuously marked at night by red lights. “Sec. 2. No road shall be closed under the provisions of this act until suitable detours around the same, or the closed portion thereof, are provided and are placed in reasonably safe and passable condition for traffic. Notices in the form of plainly legible signs shall be placed by the highway officials having such work in charge at either end of the closed high way or portion of highway and at such intermediate points along the detour, or detours, as may be necessary to plainly mark the same. Upon the completion of the work of construction, improvement or repair and as soon as the road or bridge constructed, im-i proved or repaired shall be in suitable condition for public travel, all barriers, marks and signs whatsoever erected under the provisions hereof shall be at once removed by the officials erecting or placing the same.” Defendant contends that with the detour and temporary bridge established the highway was not' closed within the meaning of the law. Authority is given to close a portion of any road “upon which is located any bridge which is being constructed or repaired.” With the bridge carried away there devolved upon defendant the imperative duty to close the approach to the pitfall created thereby. Does the provision of the statute requiring the barriers to be conspicuously marked at night by red lights apply only to barriers erected at the points of intersection with other roads? Necessity in each instance determines the portion of the road to be closed and the statute expressly recognizes necessity as a ruling guide in providing for the closing of a portion of the road. The statute serves two purposes; safeguards travelers and prevents intrusion upon roads under construction or repair. The going out of the bridge closed the road to travel at that point and the detour and temporary bridge were prepared in recognition of such fact. But, it is said, the road was not closed because the detour and temporary bridge permitted it to be used. This contention is answered by the provision in the statute that when any portion of a road is closed a detour shall be provided. The barriers erected across the roadway undoubtedly served to give warning in the daytime, but left discovery at night to the vigilance of one approaching over an apparently open highway. Boards and a pole across a road signal no warning when hidden by darkness; they, await discovery, but a red light at a barrier sends its warning of danger to meet every traveler. With good roads and fast moving vehicles the red light warning of danger, in case of obstruction or pitfall in the road, has become a necessity and the statute upon the subject is but a recognition of such need. With the bridge out the road was closed at that point, and the statute required a suitable barrier “conspicuously marked at night by red lights.” The failure to mark the barrier at night by red lights constituted negligence on defendant’s part, and the .circuit judge was right in so instructing the jury. The court also instructed the jury: “I instruct you that the township is not an insurer of the safety of persons traveling upon the highway, but is only required to keep and maintain the highway in a condition reasonably safe for public travel and if you find that the barriers erected by the defendant township at this point were sufficient to give reasonable notice to travelers on the highway that there was danger ahead, that the barriers across the highway at the point where this accident occurred were of ample size and so constructed as to be plainly visible to a person approaching from the west driving an automobile in the nighttime, provided the car was equipped with adequate lights, and the driver was watching the road in a careful manner and that it was observable at a sufficient distance ahead to enable, the driver of a car, equipped with adequate lights to have' seen the obstacle in time to have stopped, if he had his car under control, and that he could have seen this barrier had he looked, but that he did not see it until within about five feet of it and too late to stop and that the failure of the driver of this car to see this barrier until within five feet of it and too late to stop was negligence as a matter of law and this negligence is attributable to the plaintiff, she being a passenger of the car and that for this reason in case you so find, she cannot recover and your verdict should be for the defendant, no cause for action. “I instruct you that the law requires the driver of an automobile to have such lights as will show objects immediately in front of him and that he must have his machine under such control as not to run into obstructions that are visible in front of him in the highway and that if this barrier erected by the township was of such a nature that it was in plain sight and visible and the driver of the car in which plaintiff was riding, although he had sufficient lights, failed to observe the barrier and run into it and then into the river, that the defendant is not liable. “I instruct you that if the lights on the automobile in which defendant was riding were not sufficient to disclose barriers placed across the highway sufficient distance ahead to stop the car and avoid the obstruction, then the plaintiff cannot recover.” This related to the question of the contributory negligence of the driver of the car and the proximate cause of the accident and was favorable to defendant. The court instructed the jury that the negligence of the driver of the car, if he was negligent, was imputable to plaintiff. It appears that the car was driven without a license, and defendant requested the court to instruct the jury that such fact prevented recovery. This was properly refused. Spencer v. Phillips & Taylor, 219 Mich. 353. We find no reversible error, and the judgment is affirmed, with costs to plaintiff. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Fellows, C. J. The crucial questions in this case are of fact rather than of law. Plaintiff in his bill alleges former ownership of a house and lot in Highland Park and a vacant lot in Detroit which he alleges he was induced to convey to defendant for a half interest in a produce and teaming- business in Troy township, Oakland county, and that also relying on such representations he later purchased the other half of the business. He alleges in detail the representations he claims he relied upon and insists they were false and that he was defrauded out of his property. Defendant denies all the allegations of fraud and insists that he did not make the representations alleged, and that all statements made by him during the negotiations were true. Bessie O’Kelly is the wife of plaintiff. She asked and was granted permission to intervene in the case. She insists that the property conveyed by her husband was her property and asks that it be restored to her. The trial judge found the facts to be with the defendant. Plaintiff and the intervenor appeal although no brief has. been filed by plaintiff. We shall, however, consider both appeals. Plaintiff’s Appeal. A careful reading of this record convinces us that the trial judge was right and that the facts are as claimed by defendant. Mr. Davis had a fairly prosperous business which he expected to give up within a year on account of ill-health. The year prior to this transaction he did $28,000 of business; he so stated to plaintiff; he did not state to him that that amount was his profit for that year. He had regular customers; he told defendant who they were and what prices he was getting; the statements made by him with reference to the business were all true. Plaintiff admits his desire to purchase the business or an interest in it. He admits that for 30 or 40 days he was trying to induce defendant to sell to him. He says: “Yes, I had been about 30 or 40 days negotiating with Mr. Davis. I spent several nights there in an effort to induce him to sell the business. It took that long, about, for us to get together, we made several bargains but slipped' up on them. The bargains were started along about the last part of January, I think it was, about the middle of January when Mr. Davis started talking business. “Q. But the first part of January or the latter part of December, you kept on persuading, soliciting and requesting him to sell to you because he had made money enough in it? “A. Yes, sir, I sure did. I had stayed on the farm sometimes a day at a time, and talking with the help —Mrs. Blair, my wife’s friend Miss Strong, Dr. Bell, Mr. Sprung, and Mr. Davis.” The disinterested testimony shows conclusively that not only was he importuning defendant to sell but that he was importuning defendant’s employees to aid him in making the purchase and that both he and his wife went over the books and had full access to all the information desired. He says: “Mr. Davis offered me last year’s books to look over. I perhaps had them 4 or1 5 times of 20 to 30 minutes time. I had every opportunity to inquire of Miss Strong in connection with any item I was interested in particularly. I think she kept the books.” After securing a half interest in the business plaintiff opened negotiations for the other half interest, which he succeeded in purchasing on time. We are satisfied that defendant’s business was a prosperous one at the time he sold it to plaintiff but either through lack of sufficient working capital or mismanagement on the part of plaintiff or a change in times it proved unsuccessful in plaintiff’s hands. Plaintiff has not established the fraud alleged. The preponderance of the proof is with the defendant. The bill was properly dismissed. Intervenor’s Appeal. There being no fraud on the part of defendant in the transaction intervenor can not be awarded relief on that ground. But she claims that when she deeded the property to her husband she insisted that in the partnership contract between her husband and Mr. Davis which was prepared at the same time although not then signed by either, Mr. Davis being absent, there should be an agreement on Mr. Davis’ part not to engage in the same business. She claims that this clause was a material clause without which she would not have signed the deeds; that Mr. .Davis through his agent had knowledge that this clause was put in the partnership agreement upon her insistence; that such clause was afterwards stricken out by Mr. Davis and her husband, and that her husband was her agent, clothed with limited authority of which Mr. Davis had notice through his agent and that she is, therefore, entitled to the restitution of her property by Mr. Davis. We are not persuaded that intervenor’s claim can be sustained on this record. The disinterested testimony tends to show that this clause was inserted at the suggestion of the scrivener who drew the papers. Quite likely this claim is an afterthought on her part. But upon the record we do not see any reason to apply the doctrine of agency of the husband for the wife. The plaintiff was not acting as her agent. He was not acquiring the business for her but for himself. When defendant learned that the title to the property was in intervenor, he declined to have any dealings with her. Intervenor testifies: “He would have no business dealings with any woman whatever; he would not have anything to do with me.” She also says: “I owned the Highland Park property mentioned in the bill of complaint and also the vacant lot. I transferred them to my husband January 24, 1921.” It is unfortunate for intervenor that she deeded her property to her husband, unfortunate for them both that plaintiff failed to make the success of the busi ness that Mr. Davis had. But we fail to find any reason on this record which should require the defendant to respond to either of them. The decree will be affirmed, with costs of this court. Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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Fellows, J. This bill is filed for specific performance based on two writings known in the record as Exhibits A and B. Exhibit A is as follows: “Name of owner — Mrs. Chris Henning. “Address — 1452 Genesee avenue. “Description of property: Brick Building, 26x72 ft. 8 rooms upstairs, copper bath tub. Lot Gen. 150 ft. Holland 235, including blacksmith shop. Rent......................$10 Store......................$50 $60 $5,800 net to owner. 15 up. 35 down. Ass. $4500. Sale price $.................. Terms of sale — $2,000 down. “Welzeihn & Schulz, of Saginaw, Michigan, in consideration of their listing said property and endeavor ing to find a purchaser therefor, are granted the ex-elusive right to sell the same until 1st July, 1919, and said Welzeihn & Schulz are authorized to sell said property at the price, or prices, above named. In case of sale at the above named price and terms or at such other price and terms as may be agreed upon, said Welzeihn & Schulz shall retain or receive any amount exceeding five thousand eight hundred dollars. I agree to furnish abstract, tax history and merchantable title. “Dated Saginaw, Mich., April 30, 1919, “Signature: Mrs. Chr. Henning (Seal). “In presence of: if Exhibit B is as follows: “Saginaw, Michigan, May 12th, 1919. “Received of William C. Landskroener $100, being earnest money on the purchase of store building and land located on the southwest comer of Holland and Genesee avenues, better described as follows: A parcel of land in the S. E. % of section 30, town 12 north, range 5 east, described as follows: Commencing on the S. W. corner of Genesee and Holland avenues, running thence west along the south line of said Holland avenue, 235.33 feet, thence south at right angles to said Holland avenue 135 feet, thence east on a line parallel with Holland avenue 301.12 feet to the west line of Genesee avenue, thence northerly along the west line of Genesee avenue 150.16 feet to the place of beginning. Owned by Mrs. Christ Henning. Sale price to be $6,500 payable as follows: $2,200 upon execution and delivery of a land contract, balance in payments of $300 a year, this amount to include the interest at 6 per cent, per annum. “Welzeihn & Schulz guarantee to raise $2,000 on my property located at 609 Emily street, to be applied' on the purchase price of this property. _ “Mrs. Henning agrees to furnish abstract and tax history showing good merchantable title to said property. (Signed) “Welzeihn & Schulz, Agts.” It is the claim of the plaintiffs on the facts that defendant Mrs. Henning called Mr. Schulz of the real estate firm of Welzeihn & Schulz to her home to arrange for the sale of the property in question. That after some negotiations she agreed to sell at $5,800 giving as commission all sums received over that amount, and that Exhibit A upon one of the firm’s forms was then signed by her; that the firm afterwards negotiated a sale to plaintiff William C. Landskroener at $6,500 and he agreed to buy at that figure, made the down payment of $100 and received Exhibit B, and that plaintiff Minnie Landskroener, wife of William C., acquired an interest by assignment. It is their claim on the law that Exhibit A made Welzeihn & Schulz the agents of defendant Mrs. Henning with power to execute a binding contract in her behalf for the sale of the premises, and that Exhibit B was such binding contract which they are entitled to specifically enforce, they having tendered performance on their part. It is their further claim that they are entitled to invoke the doctrine of estoppel upon certain facts which we shall presently detail. It is the claim of defendant Mrs. Henning on the facts that she did not with knowledge of its contents execute Exhibit A; that she agreed to sell the premises for $8,800 net to her and that the figures were either read incorrectly to her or have been changed since she signed the paper. It is her claim on the law that Exhibit A did not give Welzeihn & Schulz power to bind her by an executory land contract and that she is not estopped under the facts to so claim. Welzeihn & Schulz are made defendants and file an answer in the nature of a cross-bill. Their claim as to the facts and law are in substantial accord with those of plaintiffs. They further insist that they have performed their brokerage agreement arid have produced a purchaser ready, willing and able to take the property on plaintiffs’ terms, that they have earned their commission and are entitled to decree for it irrespective of plaintiffs’ right to maintain their action. The trial judge found the facts to be as contended by defendant Mrs. Henning and dismissed their bill. As to the cross-bill of defendants Welzeihn & Schulz, he held that their remedy was in an action at law and dismissed their cross-bill without prejudice. Plaintiffs and Welzeihn & Schulz appeal. We are constrained to reach a different conclusion on the facts than did the trial judge. We are not persuaded that defendant Mrs. Henning has successfully impeached the written instrument admittedly signed by her. On the contrary we are persuaded that plaintiffs have established the facts claimed by them by a preponderance of the evidence. This necessitates the consideration of the interesting questions which counsel have submitted for our consideration. First and most important is whether Exhibit A should be construed as a listing agreement alone or does it carry with it the power to execute a binding contract of sale of the premises in question? The courts of many jurisdictions have had before them for consideration many contracts of varying phraseology involving the power of real estate brokers to sign binding contracts. Counsel in the instant case have been most diligent and have brought to our attention numerous decisions. As these cases deal with such a variety of expressions found in the different contracts, we feel it may be helpful to the profession to here list them. Plaintiffs’ counsel call our attention to the following cases: Stuart v. Mattern, 141 Mich. 686; Seberger v. Wood, 106 Neb. 272 (183 N. W. 363); Haydock v. Stow, 40 N. Y. 363; Peterson v. O’Connor, 106 Minn. 470 (119 N. W. 243, 130 Am. St. Rep. 618); Jackson v. Badger, 35 Minn. 52 (26 N. W. 908); Lyon v. Pollock, 99 U. S. 668; Littlefield v. Dawson, 47 Wash. 644 (92 Pac. 428); Johnson v. Dodge, 17 Ill. 433; Vanada v. Hopkins, 24 Ky. 285 (19 Am. Dec. 92); Hemstreet v. Burdick, 90 Ill. 444; Hedrick v. Donovan, 248 Ill. 479 (94 N. E. 144); Peabody v. Hoard, 46 Ill. 242; Minor v. Willoughby, 3 Minn. 225; Brady v. Fontenot, 132 La. 826 (61 South. 838); Rutenberg v. Main, 47 Cal. 213; Smith v. Allen, 86 Mo. 178; Golden v. Claudel, 85 Kan. 465 (118 Pac. 77); Jasper v. Wilson, 14 N. M. 482 (94 Pac. 951, 23 L. R. A. [N. S.] 982); Combes v. Adams, 150 N. C. 64 (63 S. E. 186); Rosenbaum v. Belson (1900), 2 Ch. Div. 267; Matherson v. Davis, 2 Coldw. (Tenn.) 443; Inhabitants of Nobleboro v. Clark, 68 Me. 87 (28 Am. Rep. 22); Valentine v. Piper, 22 Pick. (Mass.) 85 (33 Am. Dec. 715); Farnham v. Thompson, 34 Minn. 330 (26 N. W. 9, 57 Am. Rep. 59); Hunter v. Eastham, (Tex. Civ. App.), 67 S. W. 1080; Bacon v. Davis, 9 Cal. App. 83 (98 Pac. 71); Brown v. Griswold, 109 Wis. 275 (85 N. W. 363); Vermont Marble Co. v. Mead, 85 Vt. 20 (80 Atl. 852); Lee v. Lloyd, 181 N. Y. Supp. 295; Canada v. Casey, 35 N. Y. Supp. 1054; Stirn v. Hoffman House Co., 28 N. Y. Supp. 724. Counsel for Mrs. Henning call our attention to the following cases: Coleman v. Garrigues, 18 Barb. (N. Y.) 60; Gorsuch v. Berman, 270 Pa. 8 (112 Atl. 750); Yadwin v. Arnold, 94 N. J. Law, 500 (110 Atl. 903); Morris v. Ruddy, 20 N. J. Eq. 236; Marsh v. Buchan, 46 N. J. Eq. 595 (22 Atl. 128); Lindley v. Keim, 54 N. J. Eq. 418 (34 Atl. 1073); Stengel v. Sergeant, 74 N. J. Eq.. 20 (68 Atl. 1106); Carr v. Mazon Estate, 26 N. M. 308, 343 (191 Pac. 137); Craig v. Parsons, 22 N. M. 293 (161 Pac. 1117); Jasper v. Wilson, supra; Stark v. Rogers, 69 Colo. 98 (169 Pac. 146); Buckingham v. Harris, 10 Colo. 455 (15 Pac. 817); Johnson v. Lennox, 55 Colo. 125 (133 Pac. 744); Springer v. City Bank, 59 Colo. 376 (149 Pac. 253, Ann. Cas. 1917A, 520); Brown v. Hogan, 138 Md. 257 (113 Atl. 756); Slater v. Rauer, 43 Cal. App. 748 (185 Pac. 864); Duffy v. Hobson, 40 Cal. 240 (6 Am. Rep. 617); Armstrong v. Lowe, 76 Cal. 616 (18 Pac. 758); Church v. Collins, 18 Cal. App. 745 (124 Pac. 552); Salter v. Ives, 171 Cal. 790 (155 Pac. 84); Thompson v. Scholl, 32 Cal. App. 4 (161 Pac. 1006); McDermott v. Drumm, 96 Conn. 670 (115 Atl. 476); McCullough v. Hitchcock, 71 Conn. 401 (42 Atl. 81); Donnan v. Adams, 30 Tex. Civ. App. 615 (71 S. W. 580); Gould v. Rockwell, 105 Neb. 724 (181 N. W. 655); Lichty v. Daggett, 23 S. D. 380 (121 N. W. 862); Halsey v. Monteiro, 92 Va. 581 (24 S. E. 258); Glenworth v. Luther, 21 Barb. (N. Y.) 145; Grant v. Ede, 85 Cal. 418 (24 Pac. 890, 20 Am. St. Rep. 237); Shepherd v. Hedden, 29 N. J. Law, 334; Young v. Hughes, 32 N. J. Eq. 372; Siebold v. Davis, 67 Iowa, 560 (25 N. W. 778); Stewart v. Pickering, 73 Iowa, 652 (35 N. W. 690); Ballou v. Bergvendsen, 9 N. D. 285 (83 N. W. 10); Brandrup v. Britten, 11 N. D. 376 (92 N. W. 453); Weatherhead v. Ettinger, 78 Ohio St. 104 (84 N. E. 598, 17 L. R. A. [N. S.] 210); Robertson v. Allen, 107 C. C. A. 254, 184 Fed. 372; Dodd v. Groos, 175 Iowa, 47 (156 N. W. 845); Crumpacker v. Jeffery, 63 Ind. App. 621 (115 N. E. 62); Tyrrell v. O’Connor, 56 N. J. Eq. 448 (41 Atl. 674); York v. Nash, 42 Or. 321 (71 Pac. 59); Watkins Land Mortgage Co. v. Campbell, 100 Tex. 542 (101 S. W. 1078); Jones v. Howard, 234 Ill. 404 (84 N. E. 1041); Thorne v. Jung, 253 Ill. 584 (97 N. E. 1073); Furst v. Tweed, 93 Iowa, 300 (61 N. W. 857); Simmons v. Kramer, 88 Va. 411 (13 S. E. 902); Stone v. Indemnity Co., 217 N. Y. 656 (112 N. E. 1077); Larson v. O’Hara, 98 Minn. 71 (107 N. W. 821, 8 Ann. Cas. 849, 116 Am. St. Rep. 342); Ryon v. McGee, 2 Mack. (D. C.) 17; Carstens v. McReavy, 1 Wash. 359 (25 Pac. 471); Barnes v. Savings & Loan Society, 21 Wash. 448 (58 Pac. 569); Armstrong v. Oakley, 23 Wash. 122 (62 Pac. 499); Campbell v. Galloway, 148 Ind. 440 (47 N. E. 818); Shillinglaw v. Sims, 86 S. C. 76 (67 S. E. 906); Balkema v. Searle, 116 Iowa, 374 (89 N. W. 1087); Boyle v. Grassick, 2 W. L. R. (Canada) 284; Dickinson v. Updike (N. J. Law), 49 Atl. 712; Whitehouse v. Gerdis, 95 Neb. 228 (145 N. W. 338). These cases have all been examined but obviously a resumé of them cannot be undertaken. Numerous cases cited by plaintiffs’ counsel hold that the authority “to sell” in a brokerage contract carries with it the authority to do such acts as are necessary to carry out such power, including the authority to make on behalf of the principal a binding contract of sale. Others do not go so far and are in substantial accord with the doctrine announced in Rutenberg v. Main, supra, where it was said: “It is said Meinecke had power to find a purchaser satisfactory to the plaintiff, but none to make or sign the memorandum. It is true that the power of a mere broker is thus limited, although he be employed ‘to sell’ real estate, ¡because these words are construed with reference to the actual purpose of his employment. But if the language used, regarded in the light of the surrounding circumstances, clearly shows that the agency is intended to be more extensive than that of a broker, the court will so find.” That the courts will take into consideration the surrounding circumstances in construing such contracts is evidenced by the holding of the Supreme Court of the United States in Lyon v. Pollock, supra. In that case Lyon Was a resident of San Antonio, Texas, during the war of the rebellion. He there owned considerable property. He was an avowed northern sympathizer. He was apprehensive that his life was in danger and fled to Monterey, Mexico, where means of communication with San Antonio were hampered. Taking these things into consideration, together with the language employed in the letter, the court construed a letter written by him to confer authority upon his agent to enter into a contract of sale of his property located in San Antonio. The authorities cited by counsel for defendant Mrs. Henning in the main unequivocally hold that while the authority “to sell” found in brokerage contracts authorized the broker to find and produce a purchaser ready, willing and able to buy on the terms specified, that on doing so he has performed his contract and earned his commission, it does not authorize him to enter into a binding contract for his principal, that such authority must be specifically conferred. Language found in many different contracts are held not to grant such authority. An examination of the authorities cited is convincing that the correct rule is announced in Ruling Case Law (4 R. C. L. p. 262) as follows: “The most serious disagreement in the decisions arises over the question as to whether or not such a broker may enter into a binding contract of sale in behalf of his principal where he is not in express terms authorized to do so. Since it is generally conceded that his only duty is to find a purchaser who is ready, willing, and able to purchase upon the terms, specified, the overwhelming weight of authority is to the effect that a broker has no right to conclude and execute a binding contract unless such power is expressly conferred by the use of unequivocal expressions to that effect; that the employment of a real estate broker, as such, or the mere listing of property with him, or the direct instruction to find a purchaser, or any communication from the owner to the broker with respect to the sale of land, will be regarded as giving the agent only the authority to find a purchaser; and that no wider power than that is necessarily indicated by the words ‘to sell’ or ‘to make a sale/ it being a matter of common understanding that even though one uses such terms in soliciting the services of a real estate broker, nevertheless he reserves to him self the power to conclude the sale, unless there is an express provision to the contrary.” A valuable note will be found in 17 L. R. A. (N. S.) 210. The editorial writer there says: “A careful reading of the eases seems to warrant the statement that the question whether a real-estate broker has authority to make a binding contract of sale is generally one of intention, and .that the real controversy is not whether the actual grant of authority to sell gives the agent power to execute a contract of sale, but, rather, What form of expression will be deemed to establish an agency to sell, using the term in its broader sense? The inquiry to be determined, then, in each doubtful case, is whether the owner has shown an intention that his agent shall merely find a purchaser, or that he shall go further and actually effect a binding contract of sale. Since it is generally conceded that the only duty of a real-estate broker is to find a purchaser who isi ready, willing, and able to purchase upon the terms specified, the overwhelming weight of authority is that the latter intention is not inferred, except from the use of unequivocal expressions to that effect; and that the employment of a real-estate broker, as such, or the mere listing of property with him, or the direct instruction to find a purchaser, or any communication from the owner to the broker with respect to the sale of land, will be regarded as giving the agent only the authority to find a purchaser ; and that no wider power than that is necessarily indicated by the words 'to sell,’ or 'to make a sale.’ To use the often-quoted paragraph from Keim v. Lindley (N. J. Ch.), 30 Atl. 1063, and adopted in Keim v. O’Reilly, 54 N. J. Eq. 418 (34 Atl. 1073): “ ‘The mere employment of an ordinary real-estate broker to effect a sale of a parcel of land, even though the price and terms be prescribed, does not amount to giving present authority to such broker to conclude a binding contract for the same. Moreover, such authority is not usually to be inferred from the use by the principal and broker, in that connection, of the terms, “for sale,” or “to sell,” and the like. Those words, in that connection, usually mean no more than to negotiate a sale by finding a purchaser upon satisfactory terms.’ ” The same thought is quite tersely stated by the court of appeals of Maryland in Brown v. Hogan, supra, where it was said: _ “There are two distinct lines of cases on the question, but those which hold that a broker or agent has an implied power to make a contract of sale of real estate, when he is authorized to obtain a purchaser or to sell, are greatly in the minority.” The use of the words in Exhibit A, “and said Welzeihn & Schulz are authorized to sell said property,” etc., did not under the great weight of authority give them power to bind Mrs. Henning by Exhibit B, nor are we persuaded that the use of the words: “I agree to furnish abstract, tax history and merchantable title” evidence such intent. These words, or words of similar purport, are frequently found in listing contracts which come before us for consideration. We should not overlook the fact, in construing Exhibit A, that it was prepared by the brokers, not by Mrs. Henning, and was, as the testimony shows, on one of their printed forms commonly used by them in their brokerage business. ' We think Exhibit A must be construed as a listing contract only, and while it fixed their obligations inter se it did not authorize the brokers to bind Mrs. Henning by an executory contract of sale. It is not claimed by counsel that the precise question here involved has been in issue before this court. They, however, cite numerous cases from this court which by analogy are thought to be applicable. We shall consider but four of them. Stuart v. Mattern, 141 Mich. 686, relied on by plaintiffs’ counsel, is distinguishable upon its facts. This court there gave the force of authority to a letter written by defendant coupled with ratification by an acceptance of part payment, and part performance by placing the vendees in possession. Brittson v. Smith, 165 Mich. 222, relied upon by defendants’ counsel, was an action brought to recover for a broker’s commission. It was there said: “Upon the part of the plaintiffs the agreement would be performed when they produced a person able and willing to pay $6,400 or more for the place. Upon the part of the owner, the defendant, the contract would be performed if, when a purchaser was produced by the plaintiffs and $6,400 was paid or tendered him, he conveyed the farm with good title. The intending purchaser could not compel the owner of the farm to convey it to him, or to the plaintiffs.” Plaintiffs’ counsel are quite right in saying that the last sentence was not necessary to decision and must be regarded as dictum, and this is likewise true of the other two cases relied on by counsel for Mrs. Henning. The Brittson Case was followed in McGavock v. Ducharme, 192 Mich. 98, where it was said: “The defendant contends that, if Act No. 238, Public Acts 1913, does not affect the contract, it was invalidated by sections 9509 and 9511, 3 Comp. Laws (3 Comp. Laws 1915, §§ 11975, 11977), on the theory that the contract set up by the plaintiff was not one! for services, but one creating an interest in the land or power over it. But this theory was held untenable in Brittson v. Smith, 165 Mich. 222.” And in Cain v. Masurette, 196 Mich. 7, another commission case, it was said: “An agent undertaking to sell, and one undertaking to find a purchaser, are not to be distinguished, as in either case he is required to do no more than find a purchaser who is accepted, and who enters into a binding contract.” None of these cases militate against the conclusion we have reached. We are convinced that after plaintiffs had decided to buy the property Mrs. Landskroener went over to Mrs. Henning’s home, told her they were going to buy the place at $6,500, that Mrs. Henning expressed her pleasure that they were to be the purchasers as she had known Mr. Landskroener from boyhood, and told her if they had come to her she would have sold for less than the figure named. It is insisted that, relying on this talk, plaintiffs incurred expense in procuring from the bank a loan to make a payment on the contract, that they will be required to pay interest thereon and plaintiffs’ counsel invoke the doctrine of estoppel as a basis of relief. We do not think these facts estop Mrs. Henning from invoking the statute of frauds, she not having signed any memorandum, and, as we have shown, her broker not having authority to execute one for her. The plaintiffs are in no better or different position than they would have been had they made an oral agreement to buy the place and in reliance on such oral agreement incurred' the expense noted. Manifestly under such circumstances Mrs. Henning would not be bound nor would she be estopped from claiming she was not bound. There has been no part performance by being put in possession, coupled with fraud, as in Lyle v. Munson, 213 Mich. 250, nor has a deed been executed without protest from the grantor, as in Craig v. Crossman, 209 Mich. 462, nor has Mrs. Henning appealed to a court of equity to enforce an oral contract within the statute of frauds, as in Thompson v. Hurson, 201 Mich. 685, where it was held that, having appealed to a court of equity to enforce his equities under such a contract, plaintiff was estopped to invoke the statute of frauds against the equities of the defendant, nor has the purchase price or any part thereof been paid to Mrs. Henning. The case is not one for the application of the doctrine of estoppel. The trial judge was right in holding that the law side of the court was the proper forum to adjust the rights between Mrs. Henning and Welzeihn & Schulz. All that Welzeihn & Schulz could now recover would be a money decree; there are as between them no grounds for the interposition of equity. Had Mrs. Henning sought equitable relief and brought them into a court of equity they might there ask to have their rights determined, but none of the defendants invoked equitable jurisdiction, all were brought into a court of equity by other parties. Under these circumstances we think defendant Mrs. Henning may raise the question of jurisdiction. The decree will be affirmed, with single costs to appellee. Wiest, C. J., and McDonald, Bird, Sharpe, and Steere, JJ., concurred. Clark and Moore, JJ., did not sit.

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Shaebe, J. The defendants, 19 and 16 years of age respectively, tried together, review their conviction of murder in the first degree on writ of error. It is clearly established by the proofs that Paul DeLisle died at his home in Flint on December 10, 1921, and that his death resulted from poison by carbolic acid taken by him in a drink of whisky. The defendants were arrested, charged with the crime, and, as the prosecution claims, on December 11th made a voluntary confession of their guilt. This confession was made to two police officers of the city, one of whom asked defendant Austin questions and wrote both the questions and his answers on a typewriter, after which they were signed and sworn to by Austin. Summarizing, Austin stated that he and Thorpe had been working for DeLisle occasionally prior to that time; that they had both stolen money from DeLisIe; that DeLisIe had accused them of the theft and threatened to have them arrested; that on December 10th they went to DeLisle’s home at his request; they found him sitting in a chair in his house considerably intoxicated; that they went out on the lawn and “agreed to get even with him;” that he, Austin, went to the bam (Thorpe watching) and got a bottle of poison off a shelf and they both went into the kitchen and mixed the poison with whisky and put the mixture in a green beer bottle and pub it in a cupboard; that they poured out the balance of the poison, rinsed the bottle with hot water and with kerosene and put it back in the barn; that Thorpe then went into the room where DeLisIe was and asked him if he did not want a drink; that DeLisIe said he did and went into the kitchen and Thorpe showed him where the bottle was and DeLisIe— “took the bottle and placed it to his lips and drank about a cupful of it. He didn’t say anything, but he made an awful face, and he walked into the next room, and sat down on a chair.” Austin was then asked: e‘Q. How do you know it was poison? “A. I touched it to my lips. “Q. Did it bum? “A. Yes, sir. “Q. Did you think it was poison? “A. Yes. “Q. Then you and Clifford Thorpe intended to kill Paul DeLisIe because he threatened to arrest you and Clifford for taking his money? “A. Yes, sir.” He further stated that he and Thorpe found DeLisIe about two hours after and that he was then dead. He was further asked: ‘‘Q- Do you make this statement of your own free will without promise of reward or pardon? “A. Yes, sir. “Q. Have you been threatened in any way to make this statement? “A. No, sir. “Q. Were you in any fear when you made this statement? “A. No, sir. “Q. Is this statement the truth? “A. Yes, sir.” Thorpe was present when Austin was interrogated. His statement was taken and sworn to in the same way. The questions asked Austin were not repeated to him but he said he had heard Austin’s answers and that the facts as stated were true. He was, however, asked: “Q. Then you and Charles Austin intended to kill Paul DeLisle because he threatened to arrest you and. Charles Austin for taking his money? “A. Yes, sir.” The next day, the defendants, in conversation with a newspaper reporter, denied the truth of the confessions made by them, saying they were forced to make them, but there was proof that on the following day the confessions were, in substance, again repeated in the presence of the officers, and others. Both defendants were sworn as witnesses and testified that they were forced to make the confessions by threats and ill-treatment on the part of the officers. The assignments raise no question on the admissibility of these confessions. The weight to be given them was, of course, for the jury. The facts will be further stated in considering the errors relied on. The trial court instructed the jury that they must convict the defendants of murder in the first degree or acquit them. Defendants’ counsel insists that under the proofs the jury would have been justified in finding the defendants guilty of manslaughter. He preferred a request for such an instruction. Was there testimony to justify this request? Ivan Turner and Maurice Wickham, two young boys, aged 17 and 16 respectively, witnesses for the prosecution, came to the yard after DeLisle had drunk the poisonous liquid. There was some talk about drinking moonshine whisky. Turner testified on direct-examination: “Q. Did you see any bottles there? “A. While talking to Thorpe and Austin, just the one they brought out. Cliiford Thorpe brought out a bottle, a kind of a greenish colored bottle. It looked like this one here on the desk. The one marked Exhibit A. Thorpe brought that out. It was a little over half full. “Q. Do you know what was in it?' “A. I could not say for sure. Moonshine whisky was in it. I put it to my lips, but that is all. “Q. Why didn’t you taste it? “A. They started to make a fuss over it; one said it smelled like wood alcohol, the other carbolic acid, and I did not care to taste it. “Q. Did it burn you? “A. It stung a little but I don’t know what you call burn. It stung a little on my lips. That bottle there (Exhibit A) looks like the bottle Thorpe handed to me. “Q. Who else out there had a hold of that bottle while you were there? “A. Charles Austin, Maurice Wickham, and Cliiford Thorpe, and myself. Thorpe gave it to Austin when he first came out, Austin handed it to Maurice Wick-ham and Wickham handed it to me. Austin- said it smelled of wood alcohol and Maurice Wickham said it smelled like carbolic acid. When we were through with the bottle, Clifford Thorpe took it back to the house and started carrying in his wood.” On cross-examination he said: “Q. I want to ask yon when it was that this green bottle was among you boys? “A. It was just when I came home with the horse and I put him in the bam, I came out, and Maurice Wickham was kidding about getting a drink, and he (Thorpe) brought out this bottle to us, in the yard. That was the time I saw the green bottle. “Q. Why did Thorpe go into the house after that? What was said to him? “A. Maurice Wickham asked him if he had anything to drink and he said he thought they had some and he went in the house and got this bottle and brought it out, a green colored bottle, which looks like Exhibit A, pop bottle size. He handed it to Austin and Austin to Wickham. Austin said it smelled like wood alcohol. “Q. He didn’t say anything about it having poison or anything? “A. No, nor Clifford didn’t. There was no warning toi any of us boys there in the yard, by either Austin or Clifford, that the bottle contained poison. Nothing said about it at all. Some one gave it back to Clifford and he took it back into the house.” Wickham testified on direct-examination: “I was out in the back yard when the green bottle was passed around. Clifford Thorpe brought it out; that was five or ten minutes before I left. Clifford handed it to Austin, Austin back to Thorpe. Thorpe gave it to me. I smelled of it. * * * The one that was. handed to me, I should imagine, was about two-thirds full. It smelled like carbolic acid. * * * I was at the time familiar with the odor of carbolic acid. I don’t remember whether I handed it back to Thorpe or gave it to Turner. Austin said he thought it was wood alcohol, I think. He took a taste of it and spit it out. * * * “Q. Do you recall whether or not anything was said about them showing you: ‘you could not drink moonshine whisky,’ or something to that effect? “A. I think it was. “Q. Who said that and what was it? “A. Clifford said it when he brought the bottle out in the woodshed. He was going to show us we could not drink moonshine. He said he was going to show us we could not drink moonshine, that was before I smelled of it.” On cross-examination he said: “I have known Clifford quite a while; he and I and Austin were good friends. “Q. When you were offered this bottle of drink by Clifford or Austin or either of them, did they give you any warning of the danger of it? “A. No, sir, they were laughing then, they gave us no warning at all that it was dangerous to drink it. They said nothing about it being poison. Clifford said he would show me I could not drink moonshine bootleg whisky. “Q. You say that he said Paul had just drank some of it? “A. Yes, sir, he did when he went in the house. “Q. You had not any reason to suppose that either one of these boys wanted to kill you? “A. No, sir.” Roy Lawrence, a reporter for the Flint Daily Journal, was called to the police station about midnight, soon after the defendants had made the so-called second confession. He tells of an interview he had with the defendants as follows: “I asked Thorpe if he had any knowledge of this carbolic acid bottle being in the bam, and he said he knew that there was a bottle in the bam, but that he did not know what it contained. * * * I questioned particularly about whether they knew what was in that bottle, and they said that they did not know, and I asked them what was the purpose of mixing this stuff and they said they intended to dope him. “Q. Did they say why they wanted to dope him? “A. No, not that I recollect.” Both defendants as witnesses denied that they had any knowledge that the bottle taken from the barn contained carbolic acid or that , the liquid therein was poisonous. ■ Thorpe testified that after DeLisle had drunk from the bottle he, Thorpe, said to Austin: “ Tf that man ain’t crazy when he comes out, I don’t know where I am going next/ “Q. If that man ain’t crazy when? “A. When he comes out of his drunkenness.” Austin testified Thorpe said: “ ‘If this does not make the old man crazy, I will not live,’ — something like that.” The prosecution relies on the statute (3 Comp. Laws 1915, § 15192): “All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or. which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the State prison for life.” Attention is also called to the following language from the opinion in People v. Hall, 48 Mich. 482, 484 (42 Am. Rep. 477): “Murder by poison, under the statute, is always murder in the first degree, and the jury should have b.een so charged.” Reliance is also placed on People v. Repke, 103 Mich. 459, wherein this court held that when murder is committed and “there is no fact or circumstance that would reduce it below the first degree,” the jury should be so instructed. “Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the State, with malice prepense or aforethought, either express or implied.” Tiffany’s Criminal Law (How. 4th Ed.), p. 952. “Manslaughter is the unlawful and felonious killing of another without malice, either express or implied.” Id. 972. In 13 R. C. L. p. 784, involuntary manslaughter is defined as follows: _ “The crime is defined by the common law as the killing by one person of another person, in doing some unlawful act not amounting to a felony, nor likely to endanger life, and without an intention to kill; or where one kills another while doing a lawful act in an unlawful manner.” Neither murder nor manslaughter is defined in our statutes. The section above quoted simply classifies a murder perpetrated in a particular manner as murder in the first degree. It has no application until a murder has been established. Then, if the proofs show that it was perpetrated by means of poison, lying in wait, etc., the jury should be instructed that it is deemed murder in the first degree. Homicide is the killing of a human being by a human being. It may, or may not, be felonious. If felonious, it is either murder or manslaughter, dependent upon the facts and circumstances surrounding the killing. To ■constitute murder, the killing must have been perpetrated with malice aforethought, either express or Implied. The intent to kill will be implied when death results from poison intentionally administered. If it' appears that the poison was not administered with intent to take life, but to aid in the perpetration of another crime, or in order to accomplish an unlawful act, it is no less murder. But where it is not so administered, and where death as a result is so remote a contingency that no reasonable person could have taken it into consideration when. administering the poison and could not have contemplated that death would result therefrom, the homicide is manslaughter only. The statute classifies all murders perpetrated “by means of poison, or lying in wait, or any other hind of wilful, deliberate and premeditated Idlling” as murder in the first degree. Murder by poison is so included because it results from a wilful, deliberate and premeditated act. Administering poison with intent to kill is necessarily so. That the intent with which the poisonous substance is administered is material to the issue presented on such a charge was clearly recog nized in. People v. Thacker, 108 Mich. 652, and People v. MacGregor, 178 Mich. 436. In each of these cases this court held that the prosecution might show that the defendant, about the same time, was giving poison to another inmate of the household, as bearing upon the intent with which it was administered to the deceased person. The reasoning in Wellar v. People, 30 Mich. 16, and in People v. Droste, 160 Mich. 66, is instructive on the general rule that where there is testimony from which the jury might find the absence of such a felonious intent as is necessary to constitute murder, an instruction that they might convict of manslaughter should be given. On the record here presented, the jury should have been so instructed. The other errors relied on are not likely to arise on a new trial. No legal questions are presented on which counsel seriously disagree. Statements made by one of the defendants, though not in the presence of the other, are admissible. Of course, the jury should be instructed that they should not be considered in determining the guilt of the one not present. The rules governing such statements are clearly stated in People v. O’Brien, 68 Mich. 468. What the deceased had said to the witness Rosenberger, who testified to statements made by Austin, was hearsay and should have been received only to the extent necessary to a full understanding of what was said by this defendant, and the jury should have been instructed that it was not substantive proof of the fact. People v. Foley, 64 Mich. 148. Defendants’ counsel’s 17th request reads: “It is a maxim of the law, that ‘It is better for ninety-nine guilty men to go unpunished than for one innocent person to suffer unjustly.’ “This is only another way of stating the law of reasonable doubt, which lies at the foundation of all criminal prosecutions.” While counsel had a right to urge the jury to con sider the proposition stated, our attention is not called to any authority making it obligatory upon a court to state it as a rule of law to the jury. The judgment of the court is set aside and a new trial granted. The defendants will be returned to the custody of the sheriff of Genesee county to await such trial. Wiest, C. J., and Fellows, McDonald, Bird, Moore, and Steere, JJ., concurred. Clark, J., did not sit.

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Bird, J. In January, 1918, plaintiff, a young girl, 19 years of age, was married to defendant in Shanghai, China, where he was stationed as an officer in the United States navy. The following five years she spent much of her time with him in and about United States naval stations. In July, 1918, plaintiff filed her bill in the Calhoun circuit court praying for a decree of divorce on the ground of extreme cruelty. The principal specifications were drunkenness and nonsupport. There was one child, Ann Coyle, 5 years of age, who had been much in the care of her grandmother, Martha B. Warden, on account of the itinerant character of defendant’s occupation. Defendant entered his appearance in plaintiff’s suit, but filed no answer, and the bill was taken as confessed. The chancellor found the allegations of the bill supported and he granted a decree of divorce to plaintiff on September 9, 1918, and awarded the custody of the child, Ann'Coyle, to her grandmother, Mrs. Warden. Prior to defendant’s default both parties agreed upon a property settlement, and further that Mrs. Warden should be intrusted with the custody of the child. Something like a year thereafter, while plaintiff was getting ready to be remarried, it was discovered that she was in error in stating in her bill that she had been a resident of Michigan for two years immediately preceding the filing of her bill. In view of this, she filed a motion in the cause to have the decree vacated, ‘and, on October 14, 1919, she filed a second bill setting up the same causes that were set up in the first bill, and additional ones. By this time defendant was out of the jurisdiction of the court and preparations were made to get service by publication. While these preparations were going on the defendant, through his brother-in-law, Mr. Louis H. Hall, of New York, arrived at an understanding with plaintiff, whereby defendant’s appearance was entered and. both, Mrs. Warden and Mr. Hall, were to be made joint guardians, and the custody of the child to be divided between them; six months to one and the following six months to the other. Included in this arrangement defendant was to pay $100 per month for the care and support of the child. Subsequently, the second decree was granted and the agreement as to the custody of the child was incorporated into the decree. For a time the arrangement was observed. Following the granting of the decree plaintiff was remarried to a Mr. Hallock, of Evanston, Illinois, Mrs. Warden, the grandmother, was remarried to Dr. Wright, and went to Douglas, Arizona, to reside. In the fall of 1920 the child was returned to her mother in Evanston. When the six months’ period of her custody had expired the child was not returned to the custody of Mr. Hall, but this application was made in the cause under section 11408, 3 Comp. Laws 1915, by the mother, setting up the changed conditions and asking that the decree with reference to the custody of the child be amended so that she would have the custody of the child at least during the school year. The petition of the plaintiff shows, in substance, that she is happily married to Mr. Hallock; that he is a prosperous business man in Chicago and that they reside at Evanston or at Winnetka; that Mr. Hallock has become quite fond of the child and is willing she should reside with them; that the child is now attending the public school and is happy and being well cared for; that the grandmother is remarried and gone to Arizona to reside. Upon this petition the court took testimony and made a change in the decree in this: That instead of each being entitled to the custody of the child every alternate six months, the time was lengthened to one year. Plaintiff has appealed from this order. The proofs show that this young girl is in the public school, two blocks from her home in Winnetka; that the school is an excellent one and is located in a good neighborhood; that she is progressing with her studies and is happy with her playmates and in her home. In view of the showing made of the' changed conditions, we are all of the opinion that it is for the best interests of the child to be continued in this school and with her own mother. We have no doubt that the child would be well cared for and educated while in the custody of Mr. Hall. But when she is in the east she attends private school and has not the care and attention of her own mother. A girl of such tender years should have the care and love of her own mother, and if she is a suitable mother the statute gives her this right. Section 11484, 3 Comp. Laws 1915. And in addition to this, we are impressed that a public school in a good neighborhood is better for the girl’s development than a select or private school. These considerations lead us to conclude that the child should remain with her mother during the school year from September 1st to July 1st, and during the months of July and August she can go east and remain in the custody of Mr. Hall during those two months. Considerable discussion is indulged in in the briefs as to the breach of the agreement as to the girl’s custody and as to the grandmother’s lack of attention and as to plaintiff’s indifference to the welfare of the child in allowing her mother to have the custody of her when she secured her divorce. This discussion is not very important because it does not aid in determining what is for the best interests of the child. It is true, a contract was made by the parents as to the custody of the child, but even this contract, although recognized by the decree, must later give way if the best interests of the child demand it. Gittings v. Gittings, 197 Mich. 446; Weiss v. Weiss, 174 Mich. 431. It could hardly be expected that after the grandmother remarried and moved to a distant State, she would be able to give the child the care and attention that she did while living here. As to the indifference manifested by plaintiff in allowing the custody of her little girl to go to the grandmother rather than to her self, it may perhaps be excused in part owing to the fact that just at this time the “divine fire” had reached her heart and she was in that delirious, irresponsible period preceding her marriage to the man to whom she had given her heart. Her marriage followed. She has a good husband, a fine home and enough of this world’s goods to make them all comfortable. The husband is fond of the little girl and desires her to stay with them. When this change came the promptings of motherhood reasserted themselves and plaintiff is now ready to do what the natural mother should and wants to do. As we go along in life changes come to all and we think the changes wrought in this family fully justify the change in the decree. The decree will be amended by providing that the little girl, Ann, shall remain with her mother from September 1st to July 1st. During the months of July and August she shall be and remain in the custody of Mr. Louis H. Hall. In other respects the order made by the chancellor will be affirmed. No costs will be allowed either party in this court. Fellows, C. J., and McDonald, Sharpe, and Moore, JJ., concurred. Wiest, Clark, and Steere, JJ., concurred in the result.

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Wiest, J. One Tom McGarty went to Heyman Company, retail dealers in household goods at Grand Rapids, selected goods to the value of $141.55, entered into an agreement under which he was to have no title to the goods until they were paid for, paid down $10, and agreed to pay $8 a month, had the goods delivered, sold them to defendant, a second-hand dealer, and disappeared. Defendant admits buying the goods, claims he acted in good faith, had no notice of plaintiff’s rights, paid full value and cannot be held liable to plaintiff. This is an action in replevin, brought against the second-hand dealer, and, the goods not having been found on the writ, plaintiff had judgment for their value. The case is here on writ of error. The decisive question narrows down to whether the agreement between McGarty and plaintiff constituted a conditional sale in every particular, and, therefore, not necessary to be recorded, or a sale with retention of title as security. The agreement follows: “Sale Agreement Reserving Title P. 66880. “This agreement, made this 28th day of July, 1921, between the Heyman Company, a corporation, of Grand Rapids, Michigan, as .first party, and Tom McGarty, of the same place as second party, “Witnesseth: “1. First party agrees to sell to second party, upon the fulfilment of this agreement in every particular, personal property described on the back hereof. “2. Second party, in consideration thereof, and for the use of said property during the period covered by this agreement, agrees to pay to first party the full purchase price mentioned upon the back hereof, as follows: “Ten (10) dollars upon the signing of this agreement, and eight (8) dollars each month thereafter, until said purchase price has been fully paid. “3. It is hereby expressly understood and agreed between the parties hereto, that the title to the property mentioned upon the back hereof, shall be and remain in first party until all sums owing and unpaid upon this agreement have been fully paid. “4. First party agrees to deliver said property to second party at the address above given, upon the signing of this agreement, and to allow the same to remain in the possession of second party, so long as second party shall keep and perform the covenants and agreements by him to be kept and performed, and second party agrees not to remove said property from the said address without the written consent of first party. “5. First party agrees that upon the fulfilment of all the covenants and agreements by second party, by him to be kept and performed, to thereafter transfer and convey the title to said property to second party. “6. The parties further agree, that if second party shall fail to make any payment at the time herein specified, or in, any manner violates any of the terms of this agreement, that then and in such event, this agreement to sell said goods to second party, shall be void at the option of first party, and first party, without notice or demand to or upon second party, may take possession of said property, wherever the same may be, and the amount which at that time has been paid by second party to first party, shall be considered as so much paid for the use and rental of said property. “7. In case of default in any payments or other conditions in this agreement, by second party, the entire amount then unpaid upon and under this agreement, shall at the option of first party, become due and payable immediately without notice to second party. “8. It is also agreed, that first party shall have the right at seasonable times, and upon reasonable notice to second party, to enter the premises where said property is kept or stored for the purpose of making reasonable inspection thereof, so long as the title to said property shall remain in first party.” The learned circuit judge held the agreement was an executory one to sell the goods on the precedent condition of payment in the manner therein provided. If paragraph 7 had been left out of the agreement we would agree with the circuit judge, as the agreement up to that point contains nothing inconsistent with continued ownership in plaintiff, with the limited remedy in case of default of assertion of such ownership. But paragraph 7 provides for another remedy by making the whole sum due and payable at the option of plaintiff in case of any default. Unless, upon a consideration of the whole agreement this can be limited to the purpose of making deferred payments all due and payable in case of default in one, if MeGarty, after default, wanted to perform, then plaintiff could hold him for the whole debt so declared due and payable and have an action against him for such debt, and also the security of the goods so far as they would satisfy the demand. The agreement is susceptible of the latter construction and gives plaintiff a right of action to recover the agreed price for the goods wholly inconsistent with mere retention of title until paid for and the right, in case of default, to apply payments made to the use and rental of the goods. When a sales agreement permits recovery of the sum stipulated to be paid for goods, without passing title, it is consistent only with an absolute sale with reservation of title as a; lien to secure payment of the price. Young v. Phillips, 203 Mich. 566; National Cash Register Co. v. Paul, 213 Mich. 609. The agreement must be held one for security only. The agreement not having been recorded as a chattel mortgage, as it should have been, plaintiff cannot maintain this action against defendant who, it is conceded, purchased the goods from the vendee in good faith for a valuable consideration and without notice of plaintiff’s rights. National Cash Register Co. v. Paul, supra. The-judgment is reversed and a new trial granted, with costs to defendant. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred; Moore, J., did not sit.

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Steere, J. On June 3, 1921, plaintiff, who is an undertaker in the city of Grand Rapids, filed an injunction bill to restrain defendant, who was formerly his wife, from engaging in the undertaking business in her own name in said city. Defendant duly answered and hearing was had resulting in a decree denying the relief asked. The parties were married January 4, 1898, and lived together as husband and wife until September, 1917. Plaintiff was engaged in the undertaking business for several years before their separation and during that time defendant assisted him in establishing and conducting that business and becoming familiar with its duties. Prior to July 23, 1919, differences arose between them, resulting in a separation and property settlement agreement executed on that date by which plaintiff agreed to pay defendant $5,000, $1,000 down and the balance $10 per week, to turn over to her their household effects including a piano, and also an, automobile. Five days later, on July 28, 1919, she filed a bill for divorce charging extreme cruelty to which he did not appear and a decree on default was granted her October 6, 1919. It provided in substance for the payment and transfer of property as specified in their separation agreement. Plaintiff has since made the transfers of property specified and all payments provided for as they fell due. The settlement agreement entered into between the parties after their separation and prior to their being divorced provided in paragraphs 4 and 6 as follows: “4. That the said Marguerite G. Lyzen, party of the first part, does hereby agree to accept the foregoing provision and money and property in full settlement of any and all claims that she now has or may hereafter have against the said party of the second part, or in or to his estate, and in full settlement of any and all claims for alimony of every name and nature, and in full settlement of any and all dower rights that she now has or may hereafter have in and to any property of the said party of the second part, and does hereby release the said party of the second part from any and all claims for support or maintenance, it being the intention, understanding and agreement between the parties hereto that the foregoing provisions shall constitute a full and complete settlement of every right, interest or claim that either of said parties may have upon the other or in or to any of the property of either, now or hereafter. * * * “6. It is further understood and agreed that said first party shall not hereafter engage in carrying on the undertaking and funeral directing business in the county of Kent, and shall not use the name of Lyzen in carrying on any such business in said county, it being understood that this shall in no way prevent first party from working as an assistant or employee.” Upon the hearing their testimony showed and defendant admitted that after their separation and divorce she accepted employment on salary with the Berton A. Spring Company as an assistant undertaker and embalmer, and later engaged in business for herr self in the city of Grand Rapids under her own name published as follows: “Mrs. Grace Lyzen, Ladies’ and Children’s Embalmer and Funeral Director; Office and Chapel 129 East Fulton street.” Plaintiff plants his right to the relief asked on paragraph 6 of their separation and property settlement contract. We see no occasion to follow counsel in the discussion of the merits of defendant’s ground for divorce or her reasons for subsequently engaging in the business sought to be restrained, as the case in our opinion turns upon the validity of section 6 of the contract in the light of provisions of Act No. 329, Pub. Acts 1905, as amended (3 Comp. Laws 1915, § 15033 et seq.), entitled “An act relative to agreements, contracts and combinations in restraint of trade or commerce.” Section 1 of said act provides as follows: “All agreements and contracts by which any person, copartnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.” Exceptions to what precedes are provided in section 6 of the original act as follows: “This act shall not apply to any contract mentioned in this act nor in restraint of trade, where the only object of the restraint imposed by the contract is to protect the vendee or transferee of a trade, pursuit, avocation, profession or business, or the good will thereof, sold and transferred for a valuable consideration in good faith and without any intent to create, build up, establish or maintain a monopoly.” This section was amended in 1917, Act No. 171, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 15038), by adding: “Nor to any contract of employment under which the employer furnishes or discloses to the employee a list of customers or patrons, commonly called a route list, within certain territory in which such employee is to work, in which contract the employee agrees not to perform similar services in such territory for another engaged in a like or competing line of business for a period of ninety days after the termination of such contract or services.” The amendment covers a special line of employment under special circumstances involving so-called “route list” of customers or patrons within certain territory where thé employee worked, and can have no application to the facts involved here.' Neither can it be fairly said that the facts bring plaintiff within the original portion of section 6, for Lyzen was not in the separation settlement contract with his wife “a vendee or transferee of a trade, pursuit, avocation, profession or business, or the good will thereof sold for a valuable consideration in good faith,” etc. While defendant, during the time she assisted her husband, was through their domestic relations interested in the success of his business, she could scarcely be classed even as an employee and legally had no interest in it beyond her inchoate marital rights, and we are impressed that the section of their contract relied upon by plaintiff is within the purview of section 1 of the act in question, which distinctly declares “all contracts and agreements” in which any person agrees not to engage in any pursuit or business is against public policy and void. Counsel for plaintiff cite and quote from a line of authorities dealing with sale of a business or established professional practice together with good will, as to which contracts not to engage in the same enterprise in the locality where the business sold had been developed have been sustained by the courts. As no business was bought or sold in this case those authorities are readily distinguishable and call for no review in detail. In Grand Union Tea Co. v. Lewitsky, 153 Mich. 244, Act No. 329, Pub. Acts 1905, was before this court and is instructively discussed by Justice Blair in the opinion filed. A provision in a contract of employment was there under consideration by which the employee agreed not to engage in the line of his employer’s business within one year after leaving its employment. Such agreement was held on demurrer to plaintiff’s bill for an injunction a violation of the terms of the act and void as against public policy. Of the act it was said: “Construed together, the two sections (of the foregoing act) provide in substance, that all agreements not to engage in any avocation, employment, pursuit, trade, profession or business, except where the only object of the restraint is to protect the vendee or transferee of a trade, pursuit, avocation, profession or business or the good will thereof, sold and transferred for a valuable consideration in good faith, shall be void as against public policy.” Here not even a contract of employment is shown, or agreement of any kind for services beyond those contemplated by the marriage contract under which, in the absence of manumission, the wife’s services belong to the husband who was on his part bound to support and maintain her commensurate with their station in life and his ability to do so. There the prohibition held void under the statute was for one year. Here the prohibition, in a contract which was manifestly precursor to a full and final divorce be-,; tween them was for life. Of such agreements in general it is said in 6 R. C. L. p. 791, in part: “Agreements not to engage in a particular business or occupation are objectionable on two grounds — they tend to deprive the party restrained of the means of earning a livelihood, and they deprive the community of the benefit of his free and unrestricted efforts in his chosen field of activity. Not only does such restraint work injury to the public by depriving it of the industry of the restricted party in the vocation for which he is best adapted, as well as by the tendency thereof to throw the person so restrained upon the public for support, or compel him to expatriate himself and transfer his residence and allegiance to some other State or Country in order to pursue his occupation, but the tendency, of such restraint is to foster monopolies, prevent competition, enhance prices, and perhaps ultimately to enable organized capital to silence all, competition, become the sole producer, and place the public at its mercy. Considerations such as these are, no doubt, responsible for the enactment in some jurisdictions of statutes rendering void contracts whereby any one is restrained from exercising a lawful business or occupation except as specified in the statute.” Under the facts in this case it cannot in any sense be said that the purpose of the imposed covenant was to protect plaintiff in the enjoyment of a business which he had purchased from the covenantor. The decree dismissing plaintiff’s bill is affirmed, with costs. Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Moore, JJ., concurred. McDonald, J., did not sit.

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Steere, J. This case was commenced in justice’s court where plaintiff recovered a judgment of $400, and defendants appealed it to the Wayne county circuit court where on retrial before the court without a jury plaintiff was given judgment for $420, including $20 interest, and defendants have appealed to this court on various assignments of error, which are argued in their counsel’s brief under the following headings: “First. Complete and total failure of consideration for the agreement to pay commission. “Second. The defendants being only brokers, are liable for commissions only if the deal is actually closed. “Third. The verdict was against the weight of the evidence.” Return of the justice before whom the case was first tried shows plaintiff declared in assumpsit on the common counts, to which defendants pleaded the general issue. Plaintiff’s bill of particulars filed in justice’s court was: “To commission earned by plaintiff in procuring a purchaser for the property at the comer of Hastings and Willis streets, Detroit, $400.” Although other writings relating to the subject are spoken of in the testimony, including “Exhibit 2” which does not appear in the record, the only evidence in writing before this court relating to the transaction is Exhibit 1, which is as follows: “August 6, 1919, — I agree to pay Mr. H. Gonte, $400.00 commission on the deal, property will be closed, corner Hastings and Willis, sold to Mr. Morris Steinberg, from Paul Carowski. (Signed) “B. Rosenberg and “Samuel Karbel.” This was offered in evidence by plaintiff and admitted without objection. Thereafter no objection to this document was made by or for defendants during the trial beyond the contention, based on their own evidence, that it was without consideration and obtained by misrepresentation and fraud. When the defense sought to go into those questions plaintiff’s counsel objected on the ground that they were affirmative defenses which defendants had waived by pleading the general issue. Defendants’ counsel then insisted that he “pleaded that downstairs,” but it appearing that the justice had only returned “defendants pleaded the general issue,” he asked leave to amend, which the court ultimately granted and defendants were permitted to introduce such testimony upon those subjects as they desired. The parties to this litigation were, according to their description of their vocations, in the real estate business as agents or brokers. Their testimony as it reads is more or less disjunctive, in parts somewhat confusing and self-contradictory, indicating a limited command of the English language, which is apparently not their mother tongue. Of their antecedents and attainments Rosenberg testified that he had lived in Detroit 17 years, his business was “real estate,” he could sign his name but could not write English or read handwriting but could read printing, and his partner Karbel did not read English. Karbel was silent as to his attainments, his testimony of five lines consisting of an admission that Exhibit 1 contained his signature, the- property in question was sold to Steinberg prior to August 5th and Exhibit 1 “was signed a couple of weeks later, on August 6th.” Gonte, who called Exhibit 1 a “receipt,” testified that his business, was “notary public and barber,” and at the time of this transaction his “business was real estate,” with his “real estate office in the barber shop.” His version of the transaction on cross-examination is in part as follows: “I was the agent in the deal with Carowski. Carowski was the owner of the property. I was over with Carowski — I talked to him about selling the property. Rosenberg and Karbel were to pay me commission for the sale of this property. They were the agents. They came to me and said: T got a buyer, I should give him a seller.’ And I went over to the seller to make the sale of the property. I did not bring Stein-berg to them — I talked to Carowski. I brought the seller. They were to pay me commission because I gave them the seller. They didn’t notify me when the deal was closed. They got commission, $1,000. I am positive about that. * * * I was in it between Carowski and Steinberg and then after Steinberg made the $500 deposit, he was supposed to back out. And they told me I got to get another customer so that he will close the deal. * * * The first time they came over to me, they told met if I would get them a customer from Steinberg to Carowski, to buy the property, they would pay me a commission if they got a deposit from Steinberg to Carowski. They came over to me and they told me that there would not be a deal until I give them another customer from Stein-berg. Until I give them another customer that shows Steinberg that he could prove he could get what he paid for it. And that is why I would not trust them, I told them I wanted a receipt, otherwise I would not work on it. So, after they give me the receipt, I went to work. * * * I wasn’t there when Mr. Stein- berg gave a deposit on the property. They didn’t tell me anything. I wasn’t present when the receipt was made out.” The task of securing a purchaser from Steinberg upon which plaintiff went to work after defendants signed Exhibit 1, or gave him the “receipt,” as he states it, resulted in his producing a couple of men as prospective purchasers who made some kind of a bargain with Steinberg for purchase of the property, the terms of which are not disclosed but apparently then satisfactory, to him as he accepted a deposit of $300 and testified: “This man brought me customers that I could make a couple of thousand dollars with a small payment down, in order that I should sell it again.” For some undisclosed reason this deal was not carried out, as he says, “I gave back the parties $300. They wanted the money and I gave it to them,” but his deal with Carowski did not fall through. He stated of it: “I had only paid $500 down on the property. I was not going to lose the property. I had money in the bank, why should I lose it? I knew Carowski. He was a brother in my lodge.” Defendants contend that the “deal” mentioned in Exhibit 1 had reference to that between Steinberg and the customers plaintiff produced, which was not “closed,” instead of to the sale from Carowski to Steinberg, and that plaintiff falsely read them Exhibit 1, to the effect that Steinberg would give him a commission, fraudulently persuading them to sign it as witnesses. Rosenberg’s version of their signing Exhibit 1, with introductory assertion and denial, is in part as follows: “I sold the property from Carowski to Steinberg. I am still claiming the commission, and have com menced the suit for one thousand fifty dollars ($1,050). I don’t owe Gonte a cent. Mr. Karbel does not read English. He asked me when I signed, ‘Rosenberg, do you think it is all right?’ And I said, ‘The man read it for me, I cannot see any swindle in it the way that he read it.’ He read for me that if he was to sell this property from Mr. Steinberg to Mr. Gimbel and to Mr. Wolach. Where I didn’t even know the men, Mr. Steinberg has got to give him a commission. I said ‘What have I got to do with it?’ I signed at Steinberg’s house. Nobody else but me, Steinberg, Mrs. Steinberg, Mr. Gonte and Mr. Karbel were there. Steinberg refused to sign the paper. He said, ‘If you will make the deal, you will get the commission.’ And Mr. Karbel says to Mr. Steinberg, ‘you are in the real estate business. You pay me commission.’ ” The trial court, who had the advantage of seeing and hearing all the witnesses, referred to defendants as “two bright men,” and, commenting on the improbability of their being “fooled” into signing Exhibit 1 as witnesses, held their claim of fraud in that particular was not established against plaintiff’s testimony by a preponderance of evidence. The story that these real estate agents were deceived into signing as witnesses a paper showing Steinberg’s obligation to pay a commission, which he had just refused to sign, in itself heavily taxes credulity under the circumstances of this case. We are not disposed to question the court’s findings on that issue. The question of want of consideration goes with defendants’ claim that the agreed commission was not earned because the second deal between Steinberg and Gimbel and Wolach, whom plaintiff produced as purchasers, was not closed. Defendants’ counsel cites unquestioned authorities to the effect that brokers are only liable to other brokers or agents for an agreed commission if the deal is actually closed". Unquestionably the commission is not earned unless the desired result contracted for is accomplished. If service only is contracted for and performed there is a consideration irrespective of results. The merging of dealings or negotiations between parties into a binding contract and the performance of that contract are two different things. Both parties recognize the deal between Carowski and Steinberg was “closed;” and there is considerable testimony-tending to show the deal between Steinberg and the customers plaintiff produced was also closed, although it was apparently abandoned by mutual consent. Steinberg received from them in that transaction a payment of $300, ■ which he says he voluntarily returned because they asked him to, and plaintiff testified without contradiction: “I haven’t the agreement between Steinberg, Gimbel and Wolach. They took the deposit back, and they took the agreement back.” What the agreement was does not appear, but an agreement generally indicates the closing of a bargain. In Mactier v. Frith, 6 Wend. (N. Y.) 103, 115 (21 Am. Dec. 262), the court said: “What I mean by its (the bargain) being closed is, that nothing mutual between the parties remains to be done to give to either a right to have it carried into effect; either can enforce it against the other, or recover damages for the nonfulfillment of it.” But plaintiff’s claim and testimony are that the agreement, of which Exhibit 1 is a memorandum, was from the beginning that defendants would pay him $400 for his services in aiding them to successfully negotiate and close a sale of this property from Carowski to Steinberg, and his efforts at their solicitation to find a customer for Steinberg were to make certain and close the Carowski-Steinberg deal. The testimony of the parties was in direct conflict on material issues as to which it is manifest certain witnesses were intentionally testifying untruthfully. With a class of witnesses testifying in the manner this record discloses, to hear, observe them as they testify and note their manner of testifying gives more than ordinary advantage in passing on their credibility. There is testimony to support the findings of the trial court, and we are not prepared to hold his findings of fact are against the weight of the evidence. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.

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Sharpe, J. Defendant was convicted of the crime of rape upon Elizabeth Nax, the 17-year-old illegitimate daughter of his former wife. The mother was also informed against as an accessory and likewise convicted. Elizabeth was bom in Germany. Her mother left that country when her daughter was five years old, leaving her in the care of friends and relatives. She met and married defendant in Arizona. They were subsequently divorced, but soon thereafter left that State under an arrangement that they should live together as husband and wife but hold themselves' out as brother and sister, she assuming the name of Anna Berger. They came to Femdale in Oakland county in 1920 and purchased a small property, the deed running to him as a single man and to her as a widow. After the war the mother wrote to Elizabeth and a correspondence followed, resulting in the sending of passage money and the daughter’s arrival in Femdale in February, 1921. It is her claim that defendant attempted to ravish her soon after she reached the home and that with the connivance and aid of her mother he did so on the night of February 14, 1921. She made no direct complaint until March 31st following, although she claims to have said to a neighbor woman soon after February 14th that she “wanted to be taken to a Christian home.” Mrs. Beaumon, to whom she sent a note asking that she be “brought away by the police/’ was permitted to testify to the fact that complaint was made to her. While remote, in view of the fact that she was a stranger in a strange land, unable to speak our language, and that her mother, in whom she would naturally have confided, was, as claimed by her, an accomplice in the commission of the crime, we think it was within the discretion of the trial court to admit it. People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854); People v. Duncan, 104 Mich. 460. On April 13th, complainant was examined by Dr. Morris at the request of the prosecuting attorney. He found that her hymen had been ruptured and expressed his opinion that she had “probably, had intercourse,” while admitting that it might have been due to other causes. The defense then sought to show by cross-examination of the complainant, and also by offer of admissions made by her to her mother and defendant, that she had had sexual intercourse with men in Germany. The court, after listening to extended argument, ruled that the cross-examination would be permitted but that he would not permit her answers to be contradicted by such admissions. On this ruling counsel declined to cross-examine. We feel constrained to hold that the court was in error in so ruling. The proof admitted was in corroboration of her testimony. From it the jury might have found that the rupture was caused by an act of sexual intercourse. It was clearly permissible for the defense to meet this by evidence, either direct or in the nature of admissions made by her, that she had theretofore had such intercourse with another man. When the prosecutrix is above the age of consent, the rule is thus stated in 33 Cyc. pp. 1480, 1481: “Specific acts with others than defendant may be shown to rebut corroborating circumstances, as when the woman is pregnant or has miscarried or given birth to a child, or where she was infected with venereal disease, or where a physician has testified that the hymen was ruptured.” See, also, People v. Craig, 116 Mich. 388; State v. Appley, 48 L. R. A. (N. S.) 269 (25 N. D. 298, 141 N. W. 740), and note thereto; Richardson v. State, 100 Miss. 514 (56 South. 454). Counsel for the prosecution urge that we should not reverse the conviction for this error unless it is apparent that the defendant was prejudiced thereby. We cannot on this record say affirmatively that he was not. The only corroborative evidence offered was that of the doctor and the complaint made by the prosecutrix about a month after the date of the alleged offense. On the cross-examination of Elizabeth, she was shown a small book, on one page of which appeared some obscene matter, written in both the French and German languages. She denied that she had written the matter therein. Counsel for the defendant sought to show that she had so admitted to the defendant, but was refused permission to do so. Much latitude is allowed in permitting evidence to be introduced which may affect the credibility of a complainant in this class of cases. The fact that she has made similar charges against others may be shown. People v. Evans, 72 Mich. 367; People v. Wilson, 170 Mich. 669 (41 L. R. A. [N. S.] 216). We are impressed, however, that the language of the writing cannot be said to indicate a mania for accusing men of rape or that it is of a nature to indicate such a morbid condition of mind or body as justified its reception. Mrs. Bees was called as a witness by the prosecution. Her testimony on cross-examination was apparently disappointing. On re-examination counsel asked her: “Don’t you remember of saying to Mrs. Beaumon ‘no wonder the girl wants to get out?’ ” to which she answered, over objection, “I don’t know, I don’t believe so.” The answer, even if inadmissible, was not so prejudicial as to warrant a reversal. Anna Werner, the wife of defendant, called by him as a witness, testified: “I never saw any questionable relations between Frank and the girl while in Ferndale.” On cross-examination, she testified: “Q. Do you remember telling Mrs. Beaumon that Frank was planning on taking the girl and leaving you? “A. No — not that kind of a statement, ! never made that kind of a statement. “Q. And that he was using the girl all of the time? “A. No, sir, no.” In rebuttal, Mrs. Beaumon was called and permitted to testify that Anna had made such statements to her. The court carefully instructed the jury, both at the time it was received and afterwards in the general charge, that this testimony was received solely for the purpose of affecting the credibility of the witness. We find no error in this. When the wife voluntarily became a witness for her husband, her testimony was subject to the same rules of cross-examination and impeachment as applied to all other witnesses. People v. Toner, 217 Mich. 640. The conviction and sentence are set aside and a new trial ordered. The defendant is remanded to the custody of the sheriff of Oakland county to await such trial. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Steere, JJ., concurred. Moore, J., did not sit.

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Clark, J. Defendant McCray Refrigerator Company was installing, as an independent contractor, an ice box in the store of defendants Joseph Jendrek and Anna Jendrek in Hamtramck. Defendant Golinske was a truckman who delivered the sections of the ice box at the store. A foreman of the refrigerator company had charge of the unloading of the sections and directed other of its employees in that regard. Before the ice box could be installed an old ice box had to be taken out. Some of the sections were unloaded from the truck to be left temporarily without the store. The store building proper was 12 or 14 inches from the sidewalk. It was on the south side of the street. -West of it was a vacant lot. Between the show windows of the building and its westerly limit was a cornice about 6 inches in width. One of the sections as crated was 8 feet long, 7 feet wide, about 6 inches thick and weighed about 700 pounds. This section was placed leaning against the cornice. As placed it had a base of 8 feet and altitude of 7 feet. Being inclined only the inner edge of its base rested upon the sidewalk. The extent of the incline is disputed. There was testimony that the inner edge of the base was 28 inches from the store and other testimony from which it might be inferred that it was at or near the inner margin of the sidewalk, or about 12 or 14 inches from the store. The section extended east of the cornice and in front of the store window about 4 feet and west of the cornice and along and in front of the vacant lot about 4 feet. The lower part of the section was heavier than the upper part. The foreman testified that the wind at the time, about 10:30 a. m., was from the south, “it blew hard at times and then it didn’t,” and that he did not think of the wind when he placed the section in the manner indicated. Norman B. Conger, meteorologist in charge of the local office of the U. S. Department of Agriculture, Detroit, and custodian of its records, testified from original records made under his supervision and according to law that the velocities of the wind during the forenoon of that day were as follows: 8 to 9 o’clock southwest 17 miles, 9 to 10 o’clock southwest 20 miles, 10 to 11 o’clock southwest 23 miles, maximum velocity of 29 miles at 10:42, and 11 to 12 o’clock southwest 27, maximum velocity of 31 miles at 11:38. He said such wind is regarded as fresh and that it is frequent. The weather observations were made from the top of the Majestic building in Detroit. Judicial notice was taken of the proximity of Hamtramck. There was a lengthy cross-examination respecting probable interruptions.and deflections of the wind by buildings and their probable effect upon the direction and velocity of wind in adjacent streets and open places. About 10:45 or 11 o’clock two little boys were coming into the store, of which Mrs. Jendrek testified: “They were coming to the store and I said: ‘You will turn back because they are moving the ice-box, and you can not come in’ and the little boys then turned around and went away from the door. I saw the crate falling.' It fell down quickly. It fell, out towards the sidewalk, and the two little boys were just crossing, they were walking on the sidewalk when this crate fell. “Q. Was there any other boy or person near the crate when it started to fall? “A. No. It fell on them. * * * After it fell it wholly covered the width of the sidewalk from the inner edge to the outer edge.” And the foreman testified: “I was guiding the old box that we were taking out. It was on rollers. When we were doing that I heard a noise which attracted my attention. The noise was on the sidewalk. I immediately looked around to see what it was as soon as I heard the noise. * * * I went right out to the door as soon as I heard the fall. There was no one right close to it. We immediately took the section up. The piece was large, enough to completely cover the sidewalk when it fell.. “Q. Just as you turned your head after you heard, the noise, did you see anybody? “A. Yes, sir. “Q. And the people or children that you saw were out in the streets? “A. Yes, sir. “Q. Nowhere near .this crate? I mean by that, I don’t mean a mile away, but they were nowhere near this crate? “A. They were not to my knowledge.” Plaintiff’s intestate was one of the boys mentioned by Mrs. Jendrek. He was a little over 4 years of age. The section fell on him. He was fatally injured. When the section was removed his mother carried him home. There was testimony that he survived about one hour thereafter' and that he suffered pain. The declaration was under the survival act. A verdict was directed in favor of the Jendreks. There was verdict and judgment against the refrigerator company in the sum of $8,000 and it brings error. It is urged: 1. That a verdict should have been directed for appellant, there being no evidence of any negligence on its part. No one was near the section when it started to fall. The little boys were walking on the sidewalk at the time. The only theory of its falling is that advanced by plaintiff, that by defendant’s negligence it was left standing on the public sidewalk so nearly balanced that it could not withstand the wind crossing the vacant lot and striking its exposed surface. There was nothing unusual about the wind. It was of increasing velocity that forenoon. It was at times gusty. It was not such a wind as defendant might not have anticipated. If, as claimed by plaintiff, defendant placed the section upon a public sidewalk in such an insecure manner that it ought to have anticipated that it might be blown down by a wind, not unusual, defendant would be negligent, and that is true although the wind, for which neither party was responsible, contributed to cause the injury. It is said in Detzur v. Stroh Brewing Co., 119 Mich. 282 (44 L. R. A. 500), quoting from syllabus: “An owner’s negligence in maintaining a window •above a public street in such a shattered condition as to render it likely to fall and injure pedestrians is the proximate cause of an accident so occurring, although an ordinary wind may operate as a concurring circumstance to dislodge the glass.” We quote from the syllabus of Holter Hardware Co. v. Mortgage, etc., Title Co., 10 N. C. C. A. 316 (51 Mont. 94, 149 Pac. 489): “Where repairs had been made to a skylight on the roof of defendant’s building, and pieces of iron left thereon were blown by a high wind against a plate glass window in plaintiff’s building, and it was shown that winds of the same power and velocity were not unusual at that season and place, a finding that the wind, though severe, was not such as defendant ought not to have anticipated was justified, and defendant was liable for negligence under the rule that where two causes contribute to an injury, one of which is the negligence of defendant, and the other for which neither party is responsible, defendant is liable if the injury would not have occurred but for his negligence, and such rule is applicable in cases where one of the contributing causes is an act of God.” And from syllabus of Jaworski v. Detroit Edison Co., 210 Mich. 317: “If a person does an act and knows, or by the exercise of reasonable foresight should have known, that in the event of a subsequent occurrence which is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will be deemed to be the proximate cause of the injury.” And from Baldwin on Personal Injuries (2d Ed.), p. 398: “While it is true that the mere fact of an accident does not, standing alone, tend to prove negligence, yet the fact that an accident has occurred may be taken into consideration, with all of the other facts and circumstances of the case, for the purpose of determining whether in fact there was negligence. The circumstances attending an accident, when shown, may of themselves in connection with the accident, afford an inference of negligence. • If reasonable and legitimate inferences of negligence may be drawn from the accident and the attending circumstances, in the light of the testimony in the case, such inferences are then for the jury to decide.” See, also, Jacobs v. Hagenbeck-Wallace Shows, 198 Mich. 73 (L. R. A. 1918A, 504, 16 N. C. C. A. 535); 20 L. R. A. (N. S.) 95; Burghardt v. Railway, 206 Mich. 545 (5 A. L. R. 1333); Gerstler v. Weinberg, 160 Mich. 267; Butler v. Watson, 193 Mich. 322; Morrison v. City of Ironwood, 189 Mich. 117; Wilmarth v. Traction Co., 198 Mich. 428. The evidence adduced by plaintiff in support of his theory and claim of negligence made a case for the jury. 2. That Mr. Conger’s testimony was incompetent. That the observations were made from the top of the Majestic building in Detroit rather than on the spot in adjacent Hamtramck affects the weight to be given the evidence, but does not render it incompetent. 22 C. J. p. 192. The evidence was competent. 3 Comp. Laws 1915, § 12522; DeArmond v. Neasmith, 32 Mich. 231. 3. That the motion for a new trial should have been granted because the verdict is against the great' weight of the evidence and because it is excessive. We fully agree with the trial court that the verdict is not against the great weight of the evidence. The trial court, expressing doubt respecting the testimony of conscious pain and suffering, declined to hold the verdict excessive, but recommended, in case no reversible error be found by this court, that the plaintiff be required to remit down to $5,000 as a condition of affirmance. We have no means of knowing what, if any, portion of the verdict was for pain and suffering. But there was evidence sufficient to sustain a verdict therefor, though the case under the evidence is rather near the border line between the death act and the survival act. In L. R. A. 1916C, 870, will be found a list of verdicts in like cases. A review of such cases as are in point will indicate that the verdict in the case at bar is- above the - average as sustained. For circumstances under which verdicts may be held to be excessive, see Fishleigh v. Railway, 205 Mich. 145; Wilson v. Railway, 208 Mich. 411. Under the rules there laid down we think the amount of the verdict itself, under the proofs, indicates that it is excessive. For a case in point in which this question was considered and in which a verdict of $6,500 was reduced to $5,000, see Swaczyk v. Detroit Edison Co., 207 Mich. 494, and see Love v. Railroad Co., 170 Mich. 1. A great many other assignments are argued by counsel. We have considered them. Taken separately or collectively they do not warrant reversal. If plaintiff concedes by remission a reduction of the verdict to $5,000 the judgment will stand affirmed, with costs to defendant, otherwise the same will be reversed, with costs to defendant, and a new trial granted. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Clark, J. This action is on a $25,000 fire insurance policy issued to Sarah Goffe by defendant. She owned a plant in Ann Arbor in which, under the name of Ann Arbor Stamping & Metal Company, she was principally engaged in the purchase and sale of sheet metal scrap and in the manufacture therefrom and the sale of small stampings, such as automobile license plates, frying pans, shovels, hoes, spades, etc. A fire occurred in the plant between 11 and 12 o’clock in the night of December 31, 1920. She had ordinary fire insurance amounting to $375,000, and use and occupation insurance to the amount of $30,000. The insurance was written by two agents of the different companies, of which Mrs. Goffe said: “No, sir; I build up the business, and when the business is built up, Mr. Brooks and Mr. Butler came up and asked me why I didn’t take insurance. “A. I told Brooks and Butler1 that they should take a look around the shop and see what there is,- and they should give me insurance on it. “Q. When did you tell, them that? “A. When I take insurance, when they come to- the office. “Q. Every time you took a new policy, you told them that? “A. No, I just told them once, and they take care of me.”- There was a fire in the same plant on August 22, 1920, because of which Mrs. Goffe was paid $125,000 by insurance companies. Most of the insurance in question was written after the first fire. This is the first, in point of trial, of, it seems, 58 suits against 46 insurance companies brought to recover the amount of the loss. The plaintiff Ann Arbor Savings Bank, a Michigan corporation, is named in a loss payable clause as payee as its mortgage interest may appear. The policy in the case at bar is dated October 8, 1920. The loss payable clause was attached or indorsed October 27, 1920. On both of these dates the mortgage interest of the bank was $50,150 excluding interest. On December 4, 1920, the bank took another mortgage of $25,000 given by Mrs. Goffe and also signed by her husband, Jacob Goffe. The total mortgage debt at the time of the fire was $75,150 and interest. Mrs. Goffe was also indebted to some 70 creditors whose claims were said to be unsecured, in an aggregate of approximately $265,000, the bank being one of these in the sum of about $91,000. On January 6, 1921, Mrs. Goffe assigned her rights under the insurance policies to William L. Walz as trustee for herself and her creditors and gave the trustee power to collect insurance and to adjust and pay claims. Sworn proofs of loss were rendered to the companies through public adjusters which claimed of the defendant here the sum of $23,531.30 and stated the sound value of the insured property and the loss and damage thereto as follows: Loss or Cask Value Damage Building ................ $200,000.00 $68,211.92 Equipment ............... 164,871.75 98,460.50' Stock ...........'......... 393,082.53 393,082.53 Total ................ $757,954.28 $559,754.95 Prior to the proofs of loss Mrs. Goffe caused to be submitted to the adjusters representing the insurance companies a schedule of sound value and loss and damage. The extent to which such schedule is particularized is indicated by the fact that 17 pages of the record are required to print it. The plaintiffs are the bank and the trustee. The declaration is in usual form, counts on the policy, avers a total loss or damage of “to-wit $350,000” and that there is due the plaintiffs from defendant $25,000 and interest and claims damages in the sum of $25,000. Defendant demanded a bill of particulars. Plaintiffs filed and served a bill setting forth the various aggregates of value and damage and stating: “The details from which the foregoing figures are taken, comprising a great many typewritten sheets, have already been served upon the defendant company before suit was brought.” There was motion for a more specific bill of particulars. The motion was supported by affidavit and likewise opposed. In disposing of the motion the trial court said: “And it having appeared from the records in said cause and the argument of counsel upon the hearing of the motion that the records of the equipment and material were mostly, if not' entirely, destroyed by fire and therefore not available; and it further appearing from argument of counsel for the plaintiffs and the defendant that details upon which the figures submitted in the bill of particulars filed, were furnished to the defendant, and that the same comprise many typewritten sheets and that the same was binding on the plaintiffs as a bill of particulars and that the plaintiffs were willing so to be bound; and it further appearing that every courtesy had been extended to the defendant to pass upon the premises which were destroyed by fire, examine and list the condition of the damage by the destruction, and that a very thorough examination had been made. “The court is, therefore, of the opinion that if the plaintiffs in this cause file, as a part of their bill of particulars, the typewritten sheets présented to the court on the day of the hearing by the respective counsel for the parties, that the same will constitute a complete bill of particulars if the plaintiffs cause to be added to the said typewritten sheets the name or names of the maker or makers of the said equipment, dies, and tools, as is available from memory or otherwise.” The suggestion or order of the court was complied with. The motion for a more specific bill of particulars was renewed. This motion and its supporting affidavit complain of a lack of particulars of raw steel stock. The record shows nearly 8 pages of fine print of such particulars. In deciding this motion the trial court again said: “This court is advised by the admissions of counsel for the defendant in court upon the argument of the motion that the bills of particulars filed were satisfactory. except as to the steel, and this, it is claimed by the defendant, should be more specifically described. It will appear from the statement attached to the supplementary motion that the defendant has a very complete itemized statement of the steel claimed to be destroyed. This statement furnished to the defendant and made a part of the motion is complete in every detail. It gives the defendant complete knowledge of the dimensions of the steel, number of piles of the steel and the volume and kind of material. The parties may differ as to the volume and price per ton, but that is a question which should be determined by the jury at the time of the trial based upon the testimony. The defendant’s counsel did not claim in his argument that the defendant was in any way surprised or that he could not prepare the case for trial, therefore, it is the conclusion of the court, after careful consideration^ of the arguments upon the two motions for more specific bills of particulars, and from an examination of the records and files, and the affidavits attached to the motions, that the decision of this court made on the 7th day of November, 1921, should be affirmed, and this motion should be denied, and the same is hereby denied.” With its plea of the general issue defendant gave notice of the following defenses which it says it urged at the trial, quoting from brief of counsel: _ “The first defense charged the assignor of the plaintiffs, Sarah Goffe, with falsely, fraudulently, and wilfully over-stating the sound value of the property, and the loss and damage thereto, in her sworn proofs of loss, and alleged the over-statement, in dollars and cents, to be several hundred thousand dollars. “The second defense charged that the assignor fraudulently and wilfully included in her proofs of loss, stock and fixtures that were not injured or destroyed by the fire. “The third defense charged the assignor with concealing the fact that stock, dies, materials and fixtures, which she alleged had been destroyed, were saved from destruction, and not injured in the fire. “The eighth defense charged that the company was not liable for a great quantity of machinery, which was described in this defense, for the reason that it was covered by a chattel mortgage, at the time of the fire, without any agreement that the company should be liable for loss on property so incumbered. “The ninth defense, being one of the five defenses relied on, charged that Sarah Goffe, assignor, and her husband, Jacob Goffe, procured the fire to be set, and the property to be damaged and destroyed, for the purpose and with the intent to defraud the defendant.” Jacob Goffe, Jack Sands and Jack Isaacs were arrested and charged with burning the property in an attempt to defraud the insurance companies. An examination was had. They were held to the circuit court for trial. After some delay, on motion of the defense and by consent of the prosecution, an order nolle prosequi was entered as to all defendants. These criminal proceedings in their various incidents were attended by the usual reports in the newspapers of the city in part to the effect that it had been said that the insurance companies were back of the prosecution in an effort to hinder the civil cases, that the companies were hard pressed for evidence, that bribery-had been charged, etc. Defendant moved to change the venue, supporting such motion by copies of the press reports of the criminal proceedings, a list of' stockholders of plaintiff bank, chiefly residents of the city, and affidavits of counsel and others asserting that, a fair trial could not be had in the county. There was, a counter showing by affidavits of residents of the city. The motion was denied. From time to time throughout the trial at the suggestion of counsel on both sides the number of spectators in attendance at the trial was noted in the record. The average daily attendance of the observations made was nine. Mrs. Goffe was illiterate. The bookkeeping was primitive. Her daughter did most of it. Her husband was manager. Fred O’Connor was superintendent. Bartz was an employee. In a few years the business had grown from a, small annual volume to better than half a million in 1920. It is said that the business was profitable, though it is also said that there was in 1920 a decided slump in the value of the steel stock which was the big item in the case. Mrs. Goffe testified of limited knowledge of and participation in the affairs and management of the business. The proofs of loss were prepared by Mr. Campbell,, an adjuster for the insured, aided by O’Connor and Bartz. Mrs. Goffe testified: “I said to Mr. O’Connor: Mr. Campbell called and asked of me: ‘We have got to have proof of loss, what was lost in the fire/ He says: T can do that for you. I will go to the shop and we will figure up what is there and what is gone, and we will take a record of that/ Then the next day he came up and gave me a slip of paper. I don’t know as it was the next day, but he had everything correct on a slip of paper. And I said: ‘Fred, is that the proof of loss ?’ And he said: ‘Yes.’ I handed that slip of paper to Mr. Campbell. I can’t remember how many sheets of paper there were; a handful, I don’t know, probably' 2 or 3, I can’t remember, there may be 4 or 5; I can’t remember. Ask Fred O’Connor, he will tell you. I can’t read so I cannot tell whether this is the paper that was handed to me or not. Mr. O’Connor could tell the figures. I believe that is the paper that Fred O’Connor handed to me. I can’t tell whether all those sheets were there when it was handed to me, or not? It was a handful. I couldn’t remember. He gave me all the loss there was on a slip of paper. * * * “I saw the proofs of claim that were presented to "the insurance company in this matter. I could not go «ver those proofs of loss on the various items — steel, machinery, and dies — because I could not write, but I was there and Mr. Campbell and Mr. O’Connor and Mr. Bartz; O’Connor made a statement and took us over the shop and showed us everything that was destroyed or damaged in the fire, and Mr. Campbell checked it off. Then I took that statement that Mr. O’Connor gave, to Detroit.” Mrs. Goffe denied that she had been guilty of fraud in connection with making proof of loss. Pertinent to defendant’s claim of fraud in the making of proof of loss there are hundreds of pages of testimony relating to the long list of items in the schedules. Space forbids a review of such testimony. An issue of fact upon the matter was made by the conflicting evidence adduced. Mrs. Goffe denied knowledge of the cause of the fire and any wrongdoing in connection therewith, and she denied having given any improper instructions to her employees respecting the making of proof of loss and that there was fraud or wrong in connection therewith. In this she has support in the record, and it appears that in the early stages of this matter she was supported by O’Connor and Bartz. But before the trial and nearly a year after the fire O’Connor and Bartz and one or two others suffered a decided change as to the facts in the case. Defendant seems to contend that these persons turned from aiding and abetting in crime, and in the effort to defraud the insurance companies, into the way of truth. Plaintiffs contend that these persons were corrupted. This difference in contention has produced questions necessitating a further statement of facts. At the trial Bartz testified at length of gross fraud in many particulars in the making of the proof of loss. When confronted with schedules of value, loss and damage written by him, he stated they were false and that he had so prepared them at the request of Mrs. Goffe or her husband. He at first refused to deny having made statements subsequent to such schedules to the effect that the claim for the insurance would not cover the loss, but later he denied making such statements. There was testimony that he had made statements of that import. Bartz also testified that Mrs. Goffe owed him about $2,400 and that she did not pay him, that he knew one Friedman on whom he and O’Connor, who also claimed Mrs. Goffe owed him about $1,700, called about a year after the fire, of which: “Q. You told Dave Friedman that if Sarah Goffe wasn’t going to pay what you claimed, that you were going to get some money from the insurance companies? “A. I didn’t say anything of the kind. “Q. And asked him to have him put you in touch with the insurance people, didn’t you? “A. That is all. “Q. Well, you told him that you had something that you would sell to the insurance company if Dave would put you in touch with the insurance companies? “A. I never said anything of the kind. “Q. In the presence of Dave Friedman and his wife in his home about Christmas time, this past Christmas? “A. I did not say anything about ‘sell.’ “Q. What did you say about wanting to get in touch with the insurance people? “A. I told him I would like to get in touch with them. I didn’t exactly do it myself. O’Connor said it at first. He said, T will get in touch with them.’ Friedman said: ‘How much do you think that ought to be worth?’ I said, ‘We don’t want any money.’ “Q. What did you say that you thought it ought to be worth? “A. I said we didn't want any money. “Q. What did O’Connor say in your presence about the money? “A. Hé did not say a word to him. “Q. What did Friedman say about the insurance money? “A, Friedman said he was going down to see them. “Q. Friedman said he was going down to see them? “A. Yes; he said he was going to get about $28,000 for the case if we would tell what was right. “Q. Friedman promised you and O’Connor $28,000? “A. Yes. “Q. If you would tell them what was right? “A. If we would tell them, and we didn’t do it. “Q. Why didn’t you tell Friedman what was right? “A. No, sir, I did not. “Q. Who have you told what was right? “A. We got in touch with somebody else. “Q. Who was that? “A. That was— “Q. That was a gentleman named Feilschmidt? “A. Yes. “Q. Now, Feilschmidt is an insurance detective, isn't he? “A. No, sir, he is not. “Q. What is he? “A. He is an investigator for the underwriters.” Bartz also testified: “Q. Did you ever make any remark to Mr. Walz, one of the plaintiffs in this case, sitting right here, about what you would do to Sarah and Jacob' Goffe if they did not come through with some money? Did you? “A. I said that I would kick it over. That is all I did tell them. * * * “Q. You also told him that if she did not come through, you would go the limit with her, didn’t you? You used the term, ‘Go the limit.’ “A. Yes.” The witness also said that Mr. Goffe stated in, substance that he had procured Sands and Isaacs to set the fire. O’Connor also testified at length of gross fraud and falsity in the schedules and proofs of loss and that his part in making them had been at the instance of Mr. Goffe. He admitted having called on Friedman with Bartz and having asked to be put in touch with the insurance investigators, but denied Bartz’s statements respecting the $28,000. He met Feilschmidt and one Lehman. They questioned him of the fire but he made to them no such statements as he made at the trial. Nor did he when questioned by the deputy attorney general. He testified: “A. I told them I was going to kick it over. “Q. You told them you were going to kick it over? “A. Yes, sir. “Q. Unless you get some money? “A. Yes, I wanted my money.” He got in touch with Feilschmidt through Lehman. The witness, when interrogated respecting his conduct and statements during a considerable period after the fire and relative to his testimony on the criminal examination, asserted that though his early statements and conduct were in the main false and fraudulent his testimony at the trial was true. Mrs. Seifert, a domestic in the Goffe home, testified that soon after the fire shet overheard a conversation between Mr. and Mrs. Goffe to the effect that they had procured the fire to be set. But this witness made on oath in April, 1921, a purported recital of facts in which there is no such statement, the recital being of contrary tenor. After meeting Feilschmidt she signed another affidavit. She also claimed that a sum of money was due her from Mrs. Goffe. The witness Kuebler, a watchman at the plant, testified of having heard pounding in the plant on the night in question. But on cross-examination he said: “Q. You know Dave Friedman? “A. Yes. “Q. And Dave took you to Chicago, didn’t he? “A. Yes. “Q. Dave paid for your ticket to Chicago? “A. Yes. “Q. And he bought you a nice suit of clothes, didn’t he? “A. Well, my wife buy them. “Q. Well, he gave your wife some money to buy her a dress and you a suit of clothes, didn’t he? “A. Yes. “Q. And after Friedman had given your wife a dress and some money, and you a suit of clothes, he took you to Chicago. Who did you see in Chicago? “A. The insurance fellow from Chicago. “Q. What? “A. The insurance fellow from Chicago. “Q. The insurance expert in Chicago? “A. Yes. “Q. What was the name of this insurance expert in Chicago that you saw? “A. I no know what his name. Mr. Friedman took me over. “Q. It was your old friend Feilschmidt, wasn’t it? “A. Feilschmidt, yes. “Q. So after you told Mr. Cavanaugh you knew nothing about the fire, and told Walz whatever you told him, and after your wife had some money and a dress and you a suit of clothes, and you had gone to Chicago at Friedman’s expense, you met Feilschmidt, didn’t you? “A. Yes, I met Feilschmidt. “Q. And then you began to hear pounding on the pipes? “A. Yes. “Q. You began to hear sledge hammers in the building, didn’t you? “A. Yes. “Q. And you began to see a fire on the floor of the living room, didn’t you? “A. Yes. “Q. As a matter of fact, they put you up in a nice hotel there, didn’t they? “A. Yes.” There seem to be marked differences in the testimony of this witness in the criminal case and in the case at bar. Mrs. Kuebler explained that her husband was paid $20 that he might be better dressed for the trip to Chicago. She denied getting a dress. There was testimony that Feilschmidt was an insurance detective, that he had been seen coming out of the office of the Underwriters’ Adjustment Company, "That is the group of insurance companies defending these law suits,” and that he had talked with other probable witnesses in the case. Defendant’s theory of the fire seems to be that the Goffes procured Sands and Isaacs to set it. In support of this counsel for defendant have fully discussed the evidence and have pointed out significant and suspicious circumstances. There is testimony which if believed might establish an alibi for Sands and Isaacs. And plaintiffs’ counsel have also reviewed such evidence, direct and circumstantial. All of which indicates an issue of fact for the jury. The jury viewed the premises. Plaintiffs had verdict and judgment for $25,001.30. Defendant has 161 assignments of error, which have been grouped under convenient heads. We agree with the trial court, for the reasons stated by him above quoted, in his refusal to require a more particular bill of particulars. See Wright v. Dickinson, 67 Mich. 580 (11 Am. St. Rep. 602); Hamilton v. Ingham Circuit Judge, 84 Mich. 393. And upon this record it cannot be said that there was an abuse of discretion in refusing to change the venue. It is said that there was error in receiving testimony of Feilschmidt’s activities in the case, in permitting him to be characterized in comment and testimony as an insurance detective and in allowing inference and argument that he had acted for the Underwriters’ Adjustment Company, the group of insurance companies defending the cases, of which defendant was one. No one urges that Feilschmidt was engaged in a worthy effort to uncover truth. Defendant disclaims him. Plaintiffs assert that he corrupted and suborned witnesses. He, Lehman and Friedman were not called as witnesses. His activities seem to have related to and to have covered th'e cause of the fire. He was seen coming from the office of said Underwriters’ Adjustment Company. This, with the character, extent and evident purpose of his operations fairly support an inference that he was acting for and in behalf of the defendant and the other insurers. In this regard we find no error., In examining a juror on the voir dire, counsel for plaintiffs asked if he had heard of Feilschmidt, an insurance detective. This was followed by questioning respecting prejudice because of Feilschmidt’s activities, etc. He was characterized as dishonest and an ex-convict. This question was asked and upon objection withdrawn: “You realize in a case of this kind, where some of these companies in which this insurance was placed, where some of these companies desired to evade their loss and to avoid payment of this claim, you realize the fact, do you not, that they may secure men whose word may be tainted by their desire to obtain money?” Defendant sought continuance and discharge of the jurors because of such examination. The court said: “I think the question has been withdrawn, and the jury did not consider it any way. The motion is denied.” The examination as continued shows further questioning respecting1 Feilschmidt. Exceptions were had. We find no proof that he was an ex-convict. Counsel were too eager to parade Feilschmidt and his doings. But in view of the withdrawal of the most offensive question, the statement of court, the evidence adduced above reviewed, the statement of counsel for defendant that “we are satisfied with the jury,” and that it does not appear that peremptory challenges of defendant were exhausted, we decline to hold the matter to be reversible error. Snyder v. Mathison, 196 Mich. 378, at page 386; Roach & Co. v. Blair, 190 Mich. 11; Church v. Stoldt, 215 Mich. 469; Link v. Fahey, 200 Mich. 308; Webster v. Stewart, 210 Mich. 13. It is claimed that there was misconduct of counsel in making improper remarks and comments throughout the trial. While exceptions were noted to several of such remarks and comments and the court in some instances struck out the objectionable matter and said that the jury would not consider it, we find no request that the jury be instructed to disregard such remarks and no request to charge upon the subject. Of a like situation it was said in Kirchner v. Railway, 91 Mich. 400: “There would be great force in this contention had counsel for defendant oh the trial called the attention of the court to the effect which the remarks of plaintiff’s counsel were intended to have upon the jury, and asked that the jury be cautioned against receiving such remarks to influence their verdict, or had counsel for defendant asked an instruction to the jury upon that subject before or at the time of the giving of the charge.” And in 12 Cyc. p. 819: “Improper remarks of counsel must be promptly ob jected and excepted to, and the court requested to instruct the jury to disregard them in order that they may be reviewed on appeal.” And see People v. Maczulski, 194 Mich. 193; Spencer v. Johnson, 185 Mich. 85; People v. Sartori, 168 Mich. 308; Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449. Of course if exceptions were taken to remarks which were of such character that they could not be cured by instruction, the rule would be otherwise. See People v. Osborn, 205 Mich. 531, and cases cited. But we find, as presented here, no remarks or comment of counsel of that character. For cases involving similar conduct of counsel, see Provost v. Brueck, 110 Mich. 136; DeLong v. Booming Co., 88 Mich. 282; Daniels v. Weeks, 90 Mich. 190; O’Dell v. Straith, 208 Mich. 497; Gagush v. Hoeft, 208 Mich. 147. We think defendant was not prejudiced by the remarks. The trial court was of that opinion, and defendant’s counsel in one instance said, “I do not think you are succeeding very much in prejudicing the defendant.” And of the purpose of a remark again said: “The court knows and the jury knows.” And as we have often said jurors must be credited with intelligence. Misconduct of counsel is often more harmful to his client than to the opposite party. And as was said in Daniels v. Weeks, supra, “We are satisfied that the jury would have rendered a verdict for the plaintiff had these remarks hot been made.” Plaintiffs’ counsel said in opening: “* * * then you gentlemen are going to hear some testimony that I judge will disgrace you, disgrace me, and disgrace every one in the court room in which it is produced, because the facts will show that in this case witnesses have been bribed with money and with whisky and with women.” There was testimony to support a charge that a witness had been suborned. And there is precedent for referring to such, misconduct as “bribery.” People v. Salsbury, 134 Mich. 537. Commonly it is so characterized. 9 C. J. p. 406. There being testimony to sustain the gist of the statement, and it not appearing that counsel made the statement from improper motives, that too many instruments were named by which the offense was said to have been committed does hot here constitute reversible error. See Prentis v. Bates, 93 Mich. 234 (17 L. R. A. 494); Porter v. Throop, 47 Mich. 313. Error is assigned upon remarks of the judge made in an effort to expedite the business of the court. The remarks do not constitute reversible error. The verdict is not against the great weight of the evidence. The judge in his charge said: “* * * the burden is upon the defendant to satisfy you by a fair preponderance of the evidence that Sarah Goffe or the Ann Arbor Savings Bank either set fire to this building or caused it to be set on fire.” This reference to the, bank was clearly inadvertent and could not have misled the jury. We find in the charge and in the refusal of requests nothing which warrants reversal. It is urged that the policy in question, Michigan standard form, was voided by the mortgage of December 4th, above stated, that it was given without the consent of the insurer, and that it was a change, in title and interest of the subject of insurance. This is disposed of by Lindemann v. Insurance Co., 217 Mich. 698, and other cases of like holding. We come to the last question to be discussed. All questions not discussed have been considered. The verdict is said to be excessive. We think it is in one particular. The trial court fixed the maximum amount of plaintiffs’ recovery under the evidence at $23,531.30 and interest from February 26, 1921, at 5% per annum. The verdict was rendered June 2, 1922, in the sum of $25,001.30. The interest allowed to plaintiffs was, it seems, $1,470, roughly 5% on the said maximum for the time. It is apparent that the jury computed interest for the time, 1 yr. 3 mo. 6 days, roughly at 5% per annum as the judge several times instructed them to do, although in the introductory part of his charge he stated that plaintiffs had consented that the interest be computed at 6% flat instead of at 5% per annum for the time. The damages were stated in the declaration to be $350,000 or 93 1/3% of the total amount of fire insurance. So as to this defendant the declaration must be held to have stated damages in the sum of 93 1/3% of $25,000 or the sum of $23,333.33; And, although plaintiffs, under the evidence, might have been entitled to a maximum of $23,531.30 and interest, because of the declaration they were limited to $23,333.33 and interest. Nor are plaintiffs aided by the ad damnum clause. See Abernethy v. Township of Van Buren, 52 Mich. 383; 2 Abbott Cyclopedia Michigan Practice (2d Ed.), p. 1394; 13 Cyc. p. 181. No amendment was sought or made. The maximum of verdict including interest under the declaration is the sum of $24,733.24. The judgment will be affirmed in that amount and plaintiffs will remit the excess. See Kenyon v. Woodward, 16 Mich. 325. This discrepancy it seems was not called to the attention of the trial court. And as it does not appear to have been pointed out on the motion for a new trial defendant may not have costs. Plaintiffs will recover costs in this court. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Fellows, C. J. By written proposal and acceptance plaintiffs and defendant entered into a contract whereby plaintiffs agreed to construct a spur track for defendant. The track was installed and has since been used by defendant. No part of the contract price having been paid, plaintiffs brought this suit counting on the contract, a copy of which was attached to the declaration, to which count was added the common counts. Defendant pleaded the general issue alone. Upon the trial plaintiffs relied upon the special count and established the contract, its performance and defendant’s failure to pay. , Defendant then sought to show in his defense that certain of the material and construction, was not in accordance with the contract. The trial judge entertained the view that this defense was the defense of recoupment and that it could not be made under the general issue. Defendant’s counsel did not ask to amend his pleadings but excepted to the ruling and here assails its correctness. The trial judge was quite right. Recoupment is defined as follows: “Recoupment is the act of rebating or recouping a part of a claim upon which one is sued by means of a legal or equitable right resulting from a counterclaim arising out of the same transaction. It is the right of defendant, in, the same action, to claim damages from plaintiff, either because he has not complied with some cross obligation of the contract upon which he sues, or because he has violated some duty which the law imposed upon him in the making or performance of that contract. It is an innovation on the strict rules of common law, and rests upon the principle that it is just and equitable to settle in one action all claims growing out of the same contract or transaction. In its original strict sense it was a mere reduction of the damages claimed by plaintiff, by proof, of mitigating circumstances connected with or growing out of the transaction upon which plaintiff’s claim was based, showing that it would be contrary to equity and good conscience to suffer plaintiff to recover the full amount of his claim, being considered in the nature of a doctrine of mere mitigation of damages, and was of very limited application. But in more recent practice the doctrine has been greatly extended in its application, and is spoken of as a liberal and beneficial improvement upon the old doctrine of failure of consideration, and is now generally regarded as in the nature of a cross action, the right of plaintiff to sue being admitted, but defendant alleging that he has been injured by a breach of another branch of the same contract on which the action is founded and claiming to stop, cut off, or keep back so much of plaintiff’s damages as will satisfy the damages which have been sustained by defendant. In some States recoupment has been made statutory.” 34 Cyc. p. 623. By the opening statement of defendant’s counsel and by the proof offered by him it appeared that defendant sought to show that certain of the material and construction did not comply with the terms of the contract counted on, that there had been breaches of the identical contract in issue. This was clearly a counterclaim for damages arising out of the very contract sued upon. Obviously this defense was recoupment. Sharpless Separator Co. v. Brown, 174 Mich. 16; American Varnish Co. v. Furniture Co., 199 Mich. 316. And notice of it must be given. Circuit Court Rule No. 23, § 5. This court has frequently held both before and since the adoption of the present rules that recoupment may not be relied upon unless notice of it be given; and the notice must point out in what respect the contract sued upon has been broken. Kerr v. Bennett, 109 Mich. 546; Detroit River Transit Co. v. Aldrich, 176 Mich. 357. In the last-cited case it was said: “Recoupment is, in its nature, a cross-action for damages, an affirmative defense in relation to which the defendant is, in effect, plaintiff and may recover a money, verdict in his favor if his claim exceeds plaintiff’s demand. Such claim must be properly pleaded, as in a declaration.” Error is assigned upon the statement of the court in his charge that the spur track had been accepted and used. The record justifies the statement. Plaintiff Gower testified without dispute that “the job was accepted by Mr. Barry and the Detroit Terminal Railroad. Cars were put in operation and put in on the tracks,” and defendant’s counsel in a colloquy with the court admitted that the track was used. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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Sharpe, J. In the fall of 1919, the defendant began proceedings for deepening and widening what is known as “Mud Lake drain,” which traverses a part of Bangor and Hartford townships in Van Burén county. Some of the landowners declined to release a claim for damages and an application for the appointment of commissioners was filed in the probate court pursuant to 1 Comp. Laws 1915, § 4883. In this application the “P. M. R. R. Co.” was named as one of such owners and the parcel of land alleged to be owned by it. specifically described. A citation was issued, addressed to such owners, in which the “P. M. R. R. Co.,” was described as the “Pere Marquette Railroad Company.” The defendant made service— “by giving the same personally to. E. B. Rich, the agent for said company, at Holland, the person named in said citation, by delivering to E. B. Rich aforesaid personally a true copy thereof.” On the day fixed for the hearing, Glenn E. Warner, an attorney residing at Paw Paw in Van Burén county, appeared for the railroad company. An adjournment was had by agreement to a later date. On that day Mr. Warner again appeared and filed objections to the court’s hearing the petition as follows: “1. Because no valid service of citation and process has been made on the said Pere Marquette Railroad Company. “2. Because this court has no jurisdiction to enter an order of any character in any way binding the Pere Marquette Railroad Company.” These objections were signed by the Pere Marquette Railroad Company by Shields, Merrzam & Sleeper, its attorneys, Glenn E. Warner, of counsel. The objections were overruled. A jury, demanded by Mr. Warner, was then impaneled, the premises viewed and proofs taken. The bridge engineer of the company was examined as a witness and gave detailed information as to the expense which the work would entail on the company. He testified that he was employed by the railroad administration, that he was bridge engineer for the Pere Marquette Railway Company before it was taken over and that he continued in that capacity without any change when it was taken over. The estimates made by him were on paper on which was printed “Pere Marquette Railway Company, Detroit, Michigan, J. Tuthill, Engineer.” Mr. Warner was present and took part in all these proceedings. The jury determined that the improvement was necessary and fixed the damages of the “P. M. R. R. Co.” at the sum of $6,500, on which the usual order was entered. Plaintiff herein, the Pere Marquette Railway Company, in its bill of complaint alleges that it owns the land and operates the railroad affected by said order, details the proceedings above set forth, says that defendant thereafter made his final order of determination and filed a certified copy thereof with the county clerk of Van Burén county, and that about a month thereafter— “a ticket agent of your petitioner was served with notice of letting contract, etc., in connection with the said Mud Lake drain, and that up to the time of serving said notice your petitioner was not aware and had not been notified of proceedings to deepen and widen the said drain.” After alleging that “irreparable damage” will result, the bill prays for injunctive relief, restraining the defendant from proceeding with the work in contemplation on the right of way of the plaintiff. After a hearing in which proofs were taken establishing the facts as above stated, and others hereafter referred to, the trial court dismissed the bill of complaint. It appears that the Pere Marquette Railroad Company, for several years in the hands of receivers, ceased doing business in 1917, all its lines of road having been then conveyed to the Pere Marquette Railway Company. At the time these proceedings were taken, the right of way was owned by the Railway Company and was being operated by the director general under the provisions of the Federal control act and the proclamations of the president issued pursuant thereto. It is said that the service on Rich, who was at that time an employee of the director general, “did not constitute legal service of process on the plaintiff.” The proceeding is one in rem. The probate court had jurisdiction of the subject-matter. Without legal service of the citation, the plaintiff as landowner might appear and, if it did so and took part in the subsequent proceedings, it could not afterwards be. heard to say that proper service had not been made on it. Mr. Warner, a reputable attorney, now representing the plaintiff in-this court, appeared in the probate court on the return day of the citation. For whom did he appear? Clearly, not for the Railroad, Company. The similarity of the names of the two companies could but lead to confusion. He frankly admitted that if he knew of the change “he had forgotten it.” Mr. Parker, who had been a member of the legal department of the Railroad Company, both before and during the receivership-, and was at the time of the hearing in the employ of the plaintiff, testified: “The director general, after he took over the railroads of the country, eliminated from the name, for purposes of his own, the word ‘company’ and wherever it was ‘railway’ he changed it to ‘railroad.’ In other words, he assumed, for the purpose of. the transacting of the business, the name United States Railroad Administration, Pere Marquette Railroad.” The record does not disclose from whom Mr. Warner received his instructions to appear. A corporation can only act through its officers, attorneys and agents. He was at that time employed as local attorney by the director general. ■ The objections were not filed on his behalf. We think it over-technical to assert that he did not appear on behalf of the landowner, the Pere Marquette Railway Company. On his first appearance he consented to an adjournment. On his next appearance he filed the objections above set forth. His action in doing so clearly indicated that he then believed the name of the owner to be the “Pere Marquette Railroad Company.” Had a suggestion been made that it was not, the proceedings could have been amended. The objections filed in no way called the attention of the court to the fact that the owner of the right of way was not properly named, nor were they intended to do so. They challenged the sufficiency of the service. No affidavits were filed in support of the objections. The affidavit showed service on an “agent for said company.” The after appearance of Mr. Warner and the part taken by him in the subsequent proceedings waived any defect in the service if there was any such. The plaintiff had its day in court. It called witnesses and was fully heard on the matters submitted to the jury. If dissatisfied with the result reached, it might have secured a review by certiorari in the manner provided by statute. In Dunning v. Drain Commissioner, 44 Mich. 518, it was said: “It appears from the return that plaintiff in ceiv tiorari had actual notice and took part in the proceedings before and at the time when the jury was struck, and there is no reason to suppose he has been taken by surprise in any of the proceedings. We are not inclined to reverse such proceedings except for very substantial faults, and the present case, in our opinion, does not call for our intervention.” On the effect of Mr. Warner’s appearance as affecting the rights of plaintiff, see Lane v. Leech, 44 Mich. 163; Ralston v. Chapin, 49 Mich. 274; Barlage v. Railway Co., 54 Mich. 564; Austin v. Burroughs, 62 Mich. 181; Dailey v. Kennedy, 64 Mich. 208; Stevens v. Harris, 99 Mich. 230; Sherwood v. Ionia Circuit Judge, 107 Mich. 136; Graham v. Cass Circuit Judge, 108 Mich. 425; Dunlap v. Byers, 110 Mich. 109; Gilmore v. Lichtenberg, 129 Mich. 275; Attorney General v. Booth & Co., 143 Mich. 89; Lyon v. Baldwin, 194 Mich. 118. The decree is affirmed, with costs to defendant. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

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Per Curiam. Defendant appeals by leave granted from his conviction of keeping more than three dogs on his premises without a kennel license in violation of Grandville ordinances, § 21, No 159-A. The defendant owns a parcel of land in the City of Grandville. On August 9, 1979, Officer Milton Zaagman, an animal control officer with the Wyoming Police Department, visited defendant and noticed that six adult dogs were present at his residence. The defendant did not have a kennel license. Section 21 of the above-cited ordinance provides in pertinent part that "[n]o person shall keep or allow more than 3 dogs in any premises without having a kennel license”. Indeed, the defendant could not have obtained a kennel license since he lived in a residential area. Section 23 of the same ordinance forbids kennel licenses to be issued in any area zoned residential. Defendant was convicted by a jury of having more than three dogs on his premises without a kennel license in the Grandville Municipal Court on June 25, 1980. Subsequently, he appealed to the circuit court. The defendant moved to dismiss the prosecution on the ground that the ordinance was beyond the police power of Grandville and was, therefore, unconstitutional. The circuit court denied the motion. A bench trial was held on December 1, 1980, at which the defendant appeared in propria persona. The defendant had two defenses. First, he maintained that he had a valid nonconforming use of the property prior to the enactment of the ordinance. Second, he argued that, properly construed, the term "premises” as used in the ordinance should not include a leased portion of a parcel of land. Apparently, the defendant, who owned 1.74 acres of land, leased 0.11 acre of that parcel to his son. The defendant and his son then each kept three dogs on their respective portions of the property. At the conclusion of the trial, the trial court found the defendant guilty. On January 21, 1981, the court imposed on defendant a $75 fine and $25 court costs in addition to six months probation. I Defendant argues that the trial court improperly rejected his "nonconforming use” defense to the charge against him. This devolves into two subsidiary issues: (1) is a nonconforming use a valid defense to the violation with which defendant was charged; and (2) did defendant establish that he had a nonconforming use when the ordinance was enacted. A Whether the existence of a nonconforming use is a valid defense to a charge of violating an ordinance that affects the use of land was first considered in Casco Twp v Brame Trucking Co, Inc, 34 Mich App 466; 191 NW2d 506 (1971). In Casco, the defendant was engaged in the removal of sand in order to excavate three lakes on property to be developed into a residential area. The township then enacted an ordinance requiring a permit for the removal of soil. The defendant failed to secure such a permit. Notwithstanding the defendant’s use of the property to remove sand prior to the enactment of the ordinance, the trial court concluded that the defendant must obtain a permit because the ordinance was a regulatory and not a zoning ordinance. This Court agreed. The Court first noted that the Legislature has imparted to townships the power to "adopt ordinances regulating the public health, safety and general welfare of persons and property” in the township, MCL 41.181; MSA 5.45(1). The Court then concluded that the soil removal ordinance was regulatory because it "purports to be an ordinance in the nature of protecting the public health”. 34 Mich App 470. The Court went on to consider whether a regulatory ordinance was subject to the rights of nonconforming users. In concluding that it was not, the Court quoted Fredal v Forster, 9 Mich App 215, 229-230; 156 NW2d 606 (1967), which in turn quoted the following language from MCL 125.286; MSA 5.2963(16), since amended, 1978 PA No 637: "The lawful use of dwelling, building or structure and of land or a premise as existing and lawful at the time of enactment of a zoning ordinance * * * may be continued although the use does not conform with the ordinance or amendment.” In its opinion, the Casco Court emphasized the words "zoning ordinance” in the statute, and concluded that only a zoning ordinance is subject to the rights of nonconforming users. The Court’s holding in Casco, that a zoning ordinance but not a regulatory ordinance is subject to nonconforming users has been followed by other cases of this Court involving township ordinances. See Norton Shores v Carr, 81 Mich App 715; 265 NW2d 802 (1978), lv den 403 Mich 812 (1978); Renne v Waterford Twp, 73 Mich App 685; 252 NW2d 842 (1977), lv den 400 Mich 840 (1977). The city argues that the city ordinance involved in the present case is a regulatory ordinance and that, consequently, it is not subject to nonconforming users. Citing Casco, the city maintains that the ordinance is regulatory because it is designed to promote the general welfare. The distinction between zoning and regulatory ordinances enacted by a city cannot be predicated on whether or not the purpose of the ordinance is to promote the general good. A city, like a township, has the power to adopt ordinances for the promotion of the public welfare. MCL 117.3(j); MSA 5.2073(j) requires a city charter to provide for "the public peace and health and for the safety of persons and property”. Also, like a township, a city is authorized by statute to establish zoning districts. MCL 125.581; MSA 5.2931. It is important to note, however, that the statute authorizes a city to establish zoning districts as a means to accomplish enumerated goals, one of which is "to promote public health, safety, and welfare”. Thus, both a zoning ordinance and a regulatory ordinance may have the common purpose of promoting the public good. The distinction, if any, must be drawn along different lines. The distinction, in fact, is not important for the resolution of the issue posed by the present case. Instead, the important inquiry is into the proper scope of the statute on nonconforming use that applies to cities. Unlike the analogous provision applying to townships, that statute does not subject only a "zoning ordinance” to nonconforming users. The statute reads in pertinent part: "The lawful use of land or a structure exactly as the land or structure existed at the time of the enactment of the ordinance affecting that land or structure, may be continued, except as otherwise provided in this act, although that use or structure does not conform with the ordinance.” MCL 125.583a; MSA 5.2933(1). (Emphasis supplied.) The emphasized words must be read in the context of the statute as a whole. Essentially, the statute authorizes a city to establish zoning districts and to regulate the use of land and structures within those districts. Thus, the statute contemplates ordinances pertaining to land use which apply, by their own terms, to only specified zoning districts. By contrast, an ordinance governing land use, but which is blind to zoning differences, is not addressed by the statute. We believe that the Legislature intended only the former sort of city ordinance to be subject to the nonconforming use provision. In the present case, the defendant was charged under the following ordinance: “KENNEL LICENSE: No person shall keep or allow more than 3 dogs on any premises without having a kennel license, except that the owner of a female dog which has given birth to puppies may keep said female dog and said puppies without obtaining a kennel license for a period of not to exceed 3 months from the date of the birth of the litter.” Grandville ordinances, § 21, No 159-A. As the city acknowledges, § 21 must be read together with § 23 of the ordinance. Section 23 provides in pertinent part: “ZONING REQUIREMENTS AND KENNEL INSPECTION CERTIFICATE: The City Treasurer shall not issue a kennel license for a kennel under the provisions of this Ordinance for any kennel located in any area zoned for residential use pursuant to the Zoning Ordinance for the City of Grandville * * *.” Read together, these provisions prohibit a person from obtaining a license to keep more than three dogs on any premises located in an area zoned residential. Since the record reveals that defendant had applied for a license prior to the issuance of the citation in question, which was denied because the property was zoned residential, a prior nonconforming use would be a defense to this prosecution. B The defendant argues that he had established a valid nonconforming use. At the trial in the circuit court, the defendant offered testimony in support of that claim and argued that such use was a defense. The trial court, however, made no finding as to whether defendant had established a nonconforming use. Because such a use is a valid defense to the charge against defendant, we remand to the trial court for the purpose of making findings of fact and conclusions of law as to whether defendant had established a valid nonconforming use. II Defendant next argues that the trial court erred in ruling that the ordinance was a constitutional exercise of the city’s police power. The constitutionality of a township ordinance prohibiting the keeping of three or more dogs in certain residential areas was considered in People v Yeo, 103 Mich App 418; 302 NW2d 883 (1981), lv den 412 Mich 931 (1982). The Court began its analysis with the following discussion of the appropriate constitutional test: "The full and free use and enjoyment of one’s property is a right which may not be restricted by government without due process of law. A property owner’s right to such unrestricted use is, however, subject to reasonable regulation by the state in the legitimate exercise of its police powers. [Citation omitted.] And to determine the validity of a particular government proscription, a test measuring 'the existence of a real and substantial relationship’ between the exercise of the police powers and the public health, safety, morals and general welfare will be applied. Grocers Dairy Co v Dep’t of Agriculture Director, 377 Mich 71; 138 NW2d 767 (1966), quoting Roman Catholic Archbishop of Detroit, supra. See also Florentine Ristorante, Inc v City of Grandville, 88 Mich App 614; 278 NW2d 694 (1979). Finally, we note the oft-applied rule that legislative enactments are cloaked with a presumption of constitutionality absent a contrary showing by competent evidence or facial invalidity.” 103 Mich App 421. After reviewing the case law from other jurisdictions, this Court concluded: "We find the authorities cited above soundly reasoned regarding the validity of these restrictive ordinances. Plaintilf correctly notes the importance of the regulation herein to preserve for area residents the sanitary and peaceful enjoyment of their property, as well as assuring humane treatment for the animals covered. Defendant’s argument that conscientious dog owners would not pose such problems to a residential community does not meet this conclusion. The township’s limited incursion on defendant’s already qualified property right does not appear unreasonable, in light of the potential detriment to” the public health, safety and general welfare resulting from an overabundance of dogs in certain residential areas.” 103 Mich App 423-424. (Footnote omitted.) The only significant difference between the ordinance reviewed in Yeo and the ordinance in the present case is that the former is more restrictive inasmuch as it allows no more than two dogs in a residential area. If that more restrictive ordinance is a valid exercise of the police power, the ordinance herein is a fortiori within Grandville’s police power. Hence, the trial court did not err in so holding. Ill Defendant contends that the ordinance is void for vagueness. He argues that the term "premises” is unconstitutionally vague. On October 25, 1978, the defendant leased 0.11 acres of his property to his son for $1 consideration. Apparently, defendant then placed three dogs in a pen located on the leased land, leaving three dogs on the remaining parcel. Defendant now argues that he could not have reasonably ascertained that the leased and unleased land taken together constituted one "premises” instead of two. For two reasons this issue is not properly before ■ this Court. First, the defendant did not raise this issue below. Constitutional challenges may not be raised for the first time on appeal, Crawford v Consumers Power Co, 108 Mich App 232; 310 NW2d 343 (1981), even if they are meritorious, Penner v Seaway Hospital, 102 Mich App 697; 302 NW2d 285 (1981). Second, the facts do not support the issue. The defendant was convicted of violating the statute on August 9, 1979. On that date', Officer Milton Zaagman of the Wyoming Police Department found six adult dogs in a pen located in an area behind defendant’s residence. Thus, the conviction does not rest on reading "premises” to include the entire parcel. Even if the defendant could not have reasonably ascertained that his and his son’s leased parcel would be considered as one premises, he cannot and does not argue that he could not have reasonably ascertained that his own residence is one premises under the ordinance. For these reasons, this Court declines to review defendant’s vagueness argument. IV Finally, the defendant complains that the trial court convicted him on the basis of potential violations of the ordinance in the future. At one point in its opinion, the trial court said that "if we accept the defendant’s definition of premises, then the defendant could lease even a 10 foot strip of his property on which could be put four, five, or fifty or sixty dogs in the area, if we allowed that type of interpretation.” The trial court’s hypothetical addressed defendant’s construction of the term "premises”, a construction that would have permitted the keeping of three dogs on the leased and unleased portions. The trial court did not find defendant guilty in order to deter the defendant from future abuse. In short, the defendant’s contention is not supported by the record. Remanded. Although defendant must obtain a kennel license under § 21 of the regulatory ordinance, he cannot be denied a license under § 23 of that ordinance because his premises are located in an area zoned residential if he had a valid nonconforming use prior to the adoption of the zoning ordinance. Moreover, if defendant had a valid prior nonconforming use and his otherwise properly submitted application for a kennel license was wrongfully denied because of the residential zoning, he cannot be convicted for failing to obtain a license under § 21 of the regulatory ordinance.

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T. M. Burns, P. J. On March 24, 1982, the trial court entered an order granting respondent’s motion to strike the Attorney General’s petition. On July 16, 1982, the trial court denied the Attorney General’s petition for a constructive trust. Petitioner appeals from both orders as of right. These appeals have been consolidated. Charles Barnhart died on August 25, 1981. Within a few hours after Barnhart died, respondent (Barnhart’s attorney) filed a petition to commence probate proceedings. The will (drafted by respondent about a year earlier) not only listed respondent as executor but also left everything to him. About nine months before he died, Barnhart (with respondent’s help) set up a revocable living trust. The trustee would make payments to Barn-hart as he requested in writing during his life. The corpus was to pass to respondent when Barn-hart died. When the trust was set up, the corpus was $80,983.62. The only other asset involved in this case is a 1980 Buick Sedan which Barnhart bought in November, 1980, for about $10,300. The car was allegedly given to respondent, who later sold it to someone else for $7,500. Eventually, petitioner intervened into the probate proceedings. He claimed that the State of Michigan was interested in Barnhart’s estate because he had died without heirs and challenged the will claiming that Barnhart was incompetent or lacked the capacity to make a will when it was executed. He also alleged that respondent had subjected Barnhart to duress or undue influence. Later, petitioner filed a petition to set aside the trust agreement because of Barnhart’s alleged lack of mental capacity, subjection to duress or undue influence, lack of independent legal advice, and mistake of fact. Petitioner further attempted to void the transfer of the car to respondent. MCL 700.181; MSA 27.5181 states: "(1) When a petition for the appointment of a personal representative of the estate of a deceased person is filed with the court and it appears from the petition that the decedent died intestate without leaving any known heirs, when it appears during the course of administration of an intestate estate that the decedent did not leave any known heirs, or when a petition is filed for the administration of the estate of a testate decedent and from the petition it appears that the devisees of the purported will would not be entitled to share in the estate but for the terms of the will and that the decedent died without leaving any known heirs; the petitioner * * * shall immediately serve notice of hearing * * * upon the attorney general * * *. "(2) In any such case, the attorney general, representing the state, shall have all the rights of any heir, representative or creditor to be heard and to contest the validity of any claim, order, appointment or any instrument purporting to be a contract or will of the decedent, and shall have all the rights granted or accruing to an heir, representative, or creditor by laws relating to the settlement of testate or intestate estates in the probate court or by way of appeal.” No one argues that the Attorney General does not have the power to intervene in the probate proceedings regarding the will itself. In re Estate of Matt Miller, 274 Mich 190; 264 NW 338 (1936). See also In re Karabatian’s Estate, 17 Mich App 541; 170 NW2d 166 (1969). The trial court, however, held that the Attorney General does not have the authority to attempt to set aside the trust itself in the probate proceedings. The trial court interpreted the words in MCL 700.181(2); MSA 27.5181(2), "In any such case” as limiting the Attorney General’s power to sitúa tions enumerated in MCL 700.181(1); MSA 27.5181(1). The court reasoned that, since the right to attack an inter vivos trust is not specifically listed, the Attorney General does not have that power in the probate proceedings. The trial court erred in not allowing the Attorney General to challenge the validity of the trust. The Michigan Code of Escheats, MCL 567.11 et seq.; MSA 26.1053(1) et seq., at § 3, places a duty on the Attorney General to protect the interest of the state in any property which is escheatable: "Whenever the attorney general has knowledge of any property which has escheated, is subject to escheat or escheatable to the state, it shall be his duty to protect the interests of the state therein and he shall immediately cause to be instituted appropriate proceedings in accordance with the general laws of this state and as in this act provided, for the purpose of marshalling, protecting and conserving such property, and he shall represent the state and protect its interests, in and to such property as well as that of the owners and/ or their unknown heirs-at-law.” MCL 567.13; MSA 26.1053(3). This statute is to be construed broadly. MCL 567.74; MSA 26.1053(64). The trial court’s interpretation of MCL 700.181; MSA 27.5181 would severely limit the Attorney General’s statutory duty to institute proceedings to marshal, protect, and conserve escheatable property. Statutes should not be construed to create such conflicts. Paquin v Northern Michigan University, 79 Mich App 605; 262 NW2d 672 (1977). Statutes should also be construed to effectuate their purpose. Zawacki v Detroit Harvester Co, 310 Mich 415; 17 NW2d 234 (1945). MCL 700.181(2); MSA 27.5181(2) specifically gives the Attorney General "all the rights granted or accruing to an heir, representative, or creditor”. Clearly the purpose of this statute is to grant the Attorney General the same rights as an heir, representative or creditor in situations where a decedent dies leaving no known heirs. An heir has standing to bring an action to set aside a trust entered into by a decedent prior to his or her death. See Schroeder v Gerlach, 366 Ill 596; 10 NE2d 332; 112 ALR 1399 (1936). A personal representative can also contest a trust agreement whereby a decedent transferred assets prior to his death and can raise questions as to the validity of the transfer. Chandler v White, 244 Mich 532; 221 NW 618 (1928). A creditor has standing to contest conveyances which had been made by decedent to a trustee which would prevent the collection of his claim. Bogert, Trusts and Trustees (2d ed rev), § 211, p 69. The trial judge’s interpretation would frustrate the purpose of this statute. Zawacki, supra. An heir, representative, or creditor has the right to contest the validity of a trust created by the decedent prior to his death. MCL 700.181; MSA 27.5181 grants this right to the Attorney General when property may be subject to escheat. Consequently, the Attorney General has the right to intervene in this case, and contest the validity of the trust and petition for a constructive trust on the proceeds of the sale of the car. Respondent also argues that petitioner should not be allowed to intervene because a number of others have interests in the property and can adequately protect themselves. However, even if an interest is already adequately represented, the Attorney General may intervene. In re Lewis’ Estate, 287 Mich 179; 283 NW 21 (1938); Van Stock v Bangor Twp, 61 Mich App 289, 299-301; 232 NW2d 387 (1975), lv den 395 Mich 806 (1975). We also note that an instrument drafted by an attorney in his own favor is looked upon with suspicion. Creller v Baer, 354 Mich 408; 93 NW2d 259 (1958). Also, when an attorney creates an account with his client in which he retains the right of survivorship, he has the burden of showing that he did not unduly influence his client. Habersack v Rabaut, 93 Mich App 300; 287 NW2d 213 (1979). It appears that respondent drafted a trust agreement for Barnhart in which the trust corpus was to pass to respondent upon Barnhart’s death. Thus, even though the record may not fully support the Attorney General’s contentions, it does show that respondent has failed to meet his burden. Considering these facts, the parties should be allowed to fully litigate this issue. The trial court erred in striking petitioner’s petitions. Therefore, both orders are reversed. Reversed and remanded. P. J. Marutiak, J., concurred. Actually two different probate court judges issued the different orders. We have referred to both as "the trial court” for convenience. Petitioner alleges that Barnhart was illiterate beyond the ability to sign his own name.

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Per Curiam. Must the Director of the Bureau of Workers’ Disability Compensation file a written order within 15 days of the date the order of the hearing referee approving a redemption agreement is mailed to the parties to exercise his right to review the redemption agreement, pursuant to MCL 418.837(2); MSA 17.237(837)(2)? The Workers’ Compensation Appeal Board held yes, in an order dated September 22, 1981, and reversed the direc tor’s reversal of the hearing referee’s redemption order. We granted the director’s motion for intervention and application for leave to appeal on July 8, 1982. We affirm the order of the board. Plaintiff, Joanne Roberts, allegedly injured her back in the course of her employment as a surgery technician/nurse-aide with defendant Marquette General Hospital. Plaintiff was found totally and permanently disabled by the hearing referee at a hearing April 13, 1981, per plaintiff’s and the hospital’s stipulation. The hospital, its insurance carrier, Employers Insurance of Wausau, and plaintiff entered into a redemption agreement wherein plaintiff agreed to redeem her claim for $25,000. The redemption agreement was approved by the hearing referee after a hearing on May 27, 1981, and was signed that date and personally delivered to both parties. Apparently, the redemption order was not received by the Bureau of Workers’ Disability Compensation until June 8, 1981. The attorneys for plaintiff and the hospital were contacted by telephone on June 9, 1981, concerning the director’s intention to review the redemption. However, written notice of the director’s intention to review the redemption order was not issued until June 18, 1981. A redemption review hearing was held on July 29, 1981, with Special Deputy Director Ervin Vahratian presiding. In an order dated September 22, 1981, Deputy Vahratian reversed the hearing referee’s approval and denied the redemption. Plaintiff and the hospital appealed to the board. The Attorney General filed a brief intervening on behalf of the Second Injury Fund, however, the board held that the Second Injury Fund lacked standing on this particular matter since it was not a party to the redemption. The board issued an opinion and order on May 11, 1982, vacating Deputy Vahratian’s order and reinstating the hearing referee’s redemption order. The board ruled that § 837(2) of the Worker’s Disability Compensation Act requires the director to issue a written order for review within 15 days from the date that the parties were served with copies of the redemption order, and since the deputy director failed timely to issue a written order he was without jurisdiction to review the redemption agreement. On appeal the director argues that plaintiff and the hospital waived any objection to the timeliness of the director’s order of review by not raising the issue at the redemption review hearing before the deputy director. We believe the matter was properly decided by the board since its review is de novo and it is within the board’s discretion to consider issues which were not previously raised. Kushay v Sexton Dairy Co, 394 Mich 69, 77; 228 NW2d 205 (1975), Nelson v General Motors Corp, 122 Mich App 499; 332 NW2d 514 (1983). Further, the issue is not waived since it concerns whether the statutory prerequisites of § 837(2) were complied with so as to give the deputy director authority to review and reverse the hearing referee’s order approving the redemption agreement. Walker v US Equipment Co, 94 Mich App 454; 290 NW2d 36 (1979). MCL 418.837(2); MSA 17.237(837)(2) provides: "The director may, or upon the request of any of the parties to the action shall, review the order of the hearing referee entered under this section. Unless review is ordered or requested within 15 days of the date the order of the hearing referee is mailed to the parties, the order shall be final. In the event of review and in accordance with such rules as the director may prescribe and after hearing, the director shall enter such order as he deems just and proper. Any such order of the director may be appealed to the board within 15 days after the order is mailed to the parties.” Under §837(2) the director has the power to review the hearing referee’s order only if such power is exercised in accordance with the statutory requirements. This section provides two methods for obtaining review. The director must review the order if requested by either party within 15 days, or the director may review the redemption order upon his own initiative by issuing an order within 15 days. If review is not requested by the parties or ordered by the director within the 15-day period, the order of the hearing referee becomes final. We doubt that the Legislature intended as sufficient notice under § 837(2) a telephone call from the director’s staff to the attorneys that the director intended to review the matter. While not defined in the statute, "order”, as commonly used in the legal context, refers to a written directive of the court or judge. See Black’s Law Dictionary (Rev 4th ed), and GCR 1963, 522(1), which requires all judicial orders, except where otherwise specifically provided, to be dated and signed by the judge. "Order” as used elsewhere in the Worker’s Disability Compensation Act, clearly contemplates a written directive. See §§ 255, 851, 858, and 863 of the act. We disagree with intervening defendant’s claim that construing § 837(2) as requiring a written order leads to an absurd result because it requires the director to issue a written order directing himself to schedule a review hearing. The order is not just for the director’s benefit. First, the requirement that the director issue an order insures that the parties will be notified of the director’s exercise of review. It is important to require the director to give written notice of his intention to review before the 15-day period has lapsed to prevent the possibility that, pursuant to the previously entered order, the money will be paid out to the employee, who then proceeds to make plans and financial commitments in reliance on the redemption order only to find that the redemption order is reversed by the director on review. Second, the director is not merely ordering himself to review the matter, but, rather, is essentially ordering the suspension of the finality of the redemption order. If the parties have not requested a hearing or the director has not issued an order for hearing within the statutory period, then the redemption order becomes final. As stated in 3 Honigman & Hawkins, Michigan Court Rules Annotated, p 8, regarding judicial orders, requiring the order to be in writing insures that the order which substantially affects rights of the parties will be recorded in precise and authoritative form. There are so many problems inherent in oral notice that we doubt the Legislature intended that the director notify the parties and suspend the finality of the redemption agreement in the manner employed in this case. There is no reasonable way to determine whether or not oral notice was actually given when the director alleges that the parties were notified, and the parties claim they were not. As the board noted in its decision, oral appeals during the 15-day period are not accepted from parties. Finally, we do not believe the purpose of the act, to protect employees from foregoing periodic payment of benefits, is defeated by requiring the order directing review to be in writing, nor do we believe that written notice places an undue burden on the director. Since a written order directing review of the hearing referee’s redemption order was not issued within the 15-day statutory period, the order of the board vacating the director’s order and reinstating the order of redemption is affirmed. Affirmed. A separate appeal concerning the effect of the determination that plaintiff was totally and permanently disabled as to the Second Injury Fund is on appeal to the WCAB. That appeal is not relevant to the instant matter.

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Per Curiam. Plaintiff filed a complaint for divorce on January 9, 1979, and a judgment of divorce was entered on August 31, 1979. Defendant subsequently sought amendment of the judgment of divorce to require plaintiff to pay support for a child born to her on June 3, 1980. Defendant claimed that the child was conceived before the judgment of divorce was entered and that plaintiff was the father. After a nonjury trial, the circuit court granted defendant the relief she sought, and plaintiff appeals by right. Plaintiff argues that defendant’s claims should have been resolved under the Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., and that he was therefore entitled to a trial by jury, MCL 722.715; MSA 25.495. However, divorce actions are tried under the procedures formerly utilized for suits in courts of equity. MCL 552.12; MSA 25.92. There is no right to a trial by jury in a suit in equity. Detroit Trust Co v Struggles, 283 Mich 471, 477; 278 NW 385 (1938). In a divorce action, the court has the power to determine whether the husband is the father of the wife’s child. MCL 552.16; MSA 25.96; Gallison v Gallison, 5 Mich App 460, 466-468; 146 NW2d 812 (1966); Pruitt v Pruitt, 90 Mich App 230, 233, fn 1; 282 NW2d 785 (1979); Smith v Robbins, 91 Mich App 284, 292; 283 NW2d 725 (1979); Gonzales v Gonzales, 117 Mich App 110, 114; 323 NW2d 614 (1982). After a judgment of divorce is entered, the trial court retains jurisdiction to alter its judgment concerning the care, custody, and maintenance of children as changed circumstances may require. MCL 552.17; MSA 25.97. On the other hand, the Paternity Act applies only to a child born to a woman who was not married from the conception to the date of birth of the child or a child who was born during a marriage but was not the issue of the marriage. MCL 722.711, subds (a), (b); MSA 25.491, subds (a), (b). Here the trial court found that the child was conceived during the marriage and that the child was the issue of the marriage. Plaintiff relies on Havens v Havens-Anthony, 335 Mich 445; 56 NW2d 346 (1953). In that case, the Court held that, while MCL 552.17; MSA 25.97 would allow the judgment of divorce to be amended to make provision for the care, custody, and maintenance of a child of the marriage not mentioned in the divorce decree, the statute did not authorize a reopening of a divorce case for a determination of paternity. 335 Mich 452. However, the Court also pointed out that the question of paternity could not have been placed before the trial court on a motion for a rehearing of the judgment of divorce because such a motion would have been untimely and because, at least with regard to the mother, the existence of a child born before the judgment was entered could not be regarded as newly discovered evidence. 335 Mich 449-450. Here, the evidence before the trial court showed that defendant was unaware of her pregnancy at the time the judgment of divorce was entered. The doctor who cared for defendant during the pregnancy testified that it had been difficult to determine when conception occurred because defendant had irregular menstrual periods but that an ultrasound test performed on November 3, 1979, when the doctor first examined defendant, had suggested that defendant had been pregnant for about 11 weeks. Defendant’s petition to modify the judgment of divorce was filed on June 18, 1980. This time sequence shows that here, in contrast to Havens, defendant’s petition wás filed within the time for obtaining relief from a judgment. See GCR 1963, 528.3. Moreover, here, in contrast to Havens, defendant’s pregnancy and the evidence concerning the date of conception were newly discovered evidence. The time sequence noted above shows that defendant could not have discovered this evidence by due diligence in time to move for a new trial pursuant to GCR 1963, 527.2. Therefore, the trial court could amend the judgment of divorce pursuant to GCR 1963, 528.3 to include a determination of the child’s paternity. While the trial court did not expressly resolve this issue in these terms, we have the power to do so pursuant to GCR 1963, 820.1(7). Affirmed.

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Per Curiam. Defendant was convicted of breaking and entering an occupied dwelling with the intent to commit larceny. MCL 750.110; MSA 28.305. He was placed on probation. After finding that defendant had violated the terms of his probation, the sentencing judge revoked defendant’s probation and sentenced him to a prison term of 7-1/2 to 15 years. Defendant appeals by right. Defendant first claims that his acquittal of criminal charges based on a set of facts precluded the revocation of his probation based on the same set of facts. His argument is based on principles of collateral estoppel to the extent that those principles are embodied in the Double Jeopardy and Due Process Clauses of the state and federal constitutions. Defendant specifically relies on the decision of the Illinois Supreme Court in People v Grayson, 58 Ill 2d 260; 319 NE2d 43 (1974), cert den 421 US 994; 95 S Ct 2001; 44 L Ed 2d 484 (1975). We believe that the position taken by the Illinois court should not be adopted in Michigan. In a majority of jurisdictions, acquittal of criminal charges does not bar revocation of probation based on the same facts. State v Jameson, 112 Ariz 315; 541 P2d 912; 76 ALR3d 556 (1975); In re Coughlin, 16 Cal 3d 52; 545 P2d 249; 127 Cal Rptr 337 (1976); Russ v State, 313 So 2d 758 (Fla, 1975), cert den 423 US 924; 96 S Ct 267; 46 L Ed 2d 250 (1975); Johnson v State, 240 Ga 526; 242 SE2d 53 (1978), cert den 439 US 881; 99 S Ct 221; 58 L Ed 2d 194 (1978); Jackson v State, — Ind App —; 420 NE2d. 1239 (1981); Scott v State, 238 Md 265; 208 A2d 575 (1965); Moore v State, 644 P2d 1079 (Okla Crim App, 1982); State v Fortier, 20 Or App 613; 533 P2d 187 (1975); Commonwealth v Brown, 281 Pa Super 348; 422 A2d 203 (1980); State v Delp, 614 SW2d 395 (Tenn Crim App, 1980); Bradley v State, 608 SW2d 652 (Tex Cr App, 1980); Marshall v Commonwealth, 202 Va 217; 116 SE2d 270 (1960); State v Cyganowski, 21 Wash App 119; 584 P2d 426 (1978). See also the discussion in People v Buckner, 103 Mich App 301; 302 NW2d 848 (1980), and People v Nesbitt, 86 Mich App 128, 136; 272 NW2d 210 (1978). We agree with the courts in the majority of jurisdictions that have considered the question that the major stumbling block to acceptance of defendant’s theory is the higher burden of proof imposed in a criminal trial. Defendant’s second claim on appeal is that the trial judge failed to find a violation of law upon which revocation of his probation could be based. We agree with defendant that the findings of fact made by the trial judge are not very clear, but conclude that a remand for more detailed findings would be useless. The findings must be read in the context of the proofs presented and the theories argued by counsel at the revocation hearing. We believe that the judge expressed in his findings of fact his belief that the proofs showed that defendant was guilty of either larceny or receiving and concealing stolen property in connection with his possession of the victim’s property shortly after the murder. We do not think that defendant’s explanation of the judge’s findings is plausible. The prosecutor concedes that defendant is entitled to be resentenced after the preparation of a new presentence report. The order revoking defendant’s probation is affirmed. Remanded for resentencing.

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WIEST, J. Defendant shot plaintiff in the thigh with a pistol ball, inflicting a flesh wound which laid him in a hospital for 17 days and caused him pain and suffering. This suit was brought to recover damages and plaintiff had verdict for $2,500. The case is here by writ of error. Defendant claims the verdict is excessive; that the court erred in not instructing the jury as requested, in permitting recovery of exemplary damages, and in charging the jury with reference to such damages. Plaintiff was a conductor on an interurban passenger car. Defendant wanted to take the car and when it did not stop he pursued it, aided by an automobile, and upon overtaking and boarding the car was in a frame of mind to find out why the car had not stopped for him. Plaintiff referred defendant to the motorman, to whom he went and got no satisfaction. Plaintiff claims that defendant thereupon became abusive and indulged in obscene and profane language and refused to desist or leave the car and struck plaintiff, and thereupon plaintiff, with the aid of the motorman, ejected him from the car, and while plaintiff was on his way to re-enter the car defendant shot him. Defendant admitted the shooting but denied striking plaintiff and denied using abusive and profane language, and claimed he expressed his willingness to leave the car but was assaulted by plaintiff and the motorman, and the plaintiff seized that part of his person mentioned by Moses in Deut. 25, 11, causing him such anguish as to render him unaccountable for his subsequent actions. The verdict indicates that the jury rejected defendant’s version of the affair. We have examined the requests to charge, and under the charge find but two calling for discussion. Defendant testified that he told plaintiff he was not big enough to throw him off the car, and during the struggle said: “Give me my grip and I will get off.” Defendant requested the following instruction: “I charge you that if you find that defendant was angry and even abusive and profane to plaintiff and the motorman of said car, this would not justify plaintiff and other employees of the railroad company in committing an assault upon defendant in attempting to eject him from the car, if he, defendant, had previously expressed his willingness to leave peaceably; therefore if you find that after defendant _ had expressed his willingness to leave the car, plaintiff and the other employees of the railroad company persisted in using violence to eject him, I charge you that the use of such violence constituted an unlawful assault upon defendant, who was entitled to resist it with such reasonable force as was necessary, in order to protect himself from bodily harm in repelling such assault.” There was no reversible error in not giving the request as we think the point involved was sufficiently covered in the following instruction: “As I said, you are to find, first, Was the plaintiff the aggressor, or was the defendant the aggressor? If plaintiff was the aggressor, — understand when I say ‘aggressor’ it does not mean he was the first one to lay hand on him, that does not make the plaintiff the aggressor — but if he laid hands on him when he was not justified in doing so, as I have indicated, then plaintiff was the aggressor and cannot recover in this case. “Second, if you find that plaintiff used more force than was necessary andi by reason thereof he did put defendant in fear of his life or great bodily harm, and being in that state of mind and without any malice drew the gun merely for the purpose of scaring them off, and if while they were rolling aiid scuffling in that way the gun went off accidentally, as defendant has given some testimony tending to show, then and in that case plaintiff is not entitled to recover.” It is said the request should have been given because plaintiff did not deny defendant’s testimony. It was not necessary for plaintiff to categorically deny defendant’s claim that he offered to leave the car, if his testimony as a whole was to the effect that no such offer was made. The court charged: “If you find for the plaintiff on all the points as alleged in the declaration, you may find: “First, actual damages, loss of wages which has been proven in the case and not disputed. “Second, you may add a reasonable sum, in accordance with your best judgment, for pain and suffering; not so many dollars for so many hours of pain and suffering, but a fair, reasonable compensation, * * * in case you find the plaintiff’s theory is correct. “On this last proposition, if you do find that the defendant deliberately and premeditatedly drew the gun and shot him, you may give, besides actual damages, that is, loss of wages and pain and suffering, what are called added or cumulative damages; that is damages for outraged feelings by reason of the malice that goes with it, if you so find. But you are to give these added damages only in case he shot him deliberately after they separated, you see.” Defendant insists that this instruction gave the jury leave to award punitive damages. It is also claimed that the declaration made no claim of exemplary damages and, therefore, none could be awarded. Probably no more difficult subject confronts the nisi prius judge in this State than giving the jury instruction with reference to exemplary damages. We are not inclined to be overtechnical in considering this instruction. We do not approve of the term “added or cumulative damages,” but feel the jury was left in no doubt as to the meaning when such damages were limited to plaintiff’s sense of outrage by reason of the malicious act of defendant. Exemplary damages are of necessity intangible in nature, and, therefore, cannot well be considered apart from those matters which are capable of exact pecuniary valuation. They may enlarge the compensatory allowance but they are not to be considered as authorizing a separate sum by way of example or punishment. If a cow kicks a man in the face the consequent physical hurt may equal that from a kick in the face with a hob-nailed boot, but the “cussedness” of the cow raises no sense of outrage, while the malicious motive back of the boot kick adds materially to the victim’s sense of outrage. If a man employs spite and venom in administering a physical hurt he must not expect his maliciousness to escape consideration when he is cast to make compensation for his wrong. If the defendant maliciously inflicted the injury then the jury had a right to take into consideration such fact together with all the circumstances disclosed and award such sum by way of compensation as the plaintiff ought to receive, and the defendant ought to be made to pay. The declaration sufficiently averred the nature of the acts on the parti of the defendant authorizing exemplary damages. The accompanying circumstances aggravating the injury by reason of the wanton and malicious conduct of the defendant need not be specially pleaded for they are not substantive elements of damages, but only serve in the capacity of characterizing the acts complained of and as an aid in measuring compensation to be awarded. The rule upon this subject is well stated in Rogers v. Bigelow, 90 Vt. 41 (96 Atl. 417), with citation of many cases. “It is very generally held that in actions for intentional wrongs, such as trespass for assault and battery, damages are recoverable for mental suffering consisting in a sense of insult, indignity, humiliation or injury to the feelings. * * * This rule is well settled where the evidence shows that the plaintiff suffered physical injury as a result of the same wrong. * * * “The test undoubtedly is whether the mental suffering and injury to the feelings are natural and proximate in view of the nature of the act. 1 Sedg. on Dam., § 43j. If so, the damage is general and recoverable without special allegations.” We have read this record and feel we would not be justified in setting the verdict and judgment aside on the ground that excessive damages were awarded. We find no reversible error and the judgment is affirmed, with costs to plaintiff. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Per Curiam. In this case plaintiff asks for a writ of mandamus, directing the secretary of State to submit to the legal voters of the State, at the coming April election, an amendment to article 11 of the Constitution, by adding thereto two new sections to be known as sections 16 and 17, to read as fellows: “Section 16. From and after August 1st, 1924, all children residing in the State of Michigan, between the ages of seven years and sixteen years, shall attend a public school until they have graduated from the eighth grade. “Sec. 17. The legislature shall enact all necessary legislation, to render said section 16 effective.” Plaintiff filed with the secretary of State, on November 27, 1922, a petition asking that such amendment be submitted to the legal voters at the April election, 1923. Section 2, article 17, of the Constitution provides: “Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed, and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which such proposed amendment is to be voted upon. Upon receipt of such petition by the secretary of State he shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected. * * * The total number of votes cast for governor at the regular election last preceding the filing of any petition proposing an amendment to the Constitution, shall be the basis upon which the number of legal voters necessary to sign such a petition shall be computed. * * * The petition shall consist of sheets in such form and having printed or written at the top thereof such heading as shall be designated or prescribed by the- secretary of State. Such, petition shall be signed by qualified voters in person only with the residence address of such persons and the date of signing the same.” * * * The secretary of State rejected the petition and refused to submit the proposed amendment, holding that, because 59,648 of the signatures on the petition were procured previous to July 7, 1922, more than four months prior to the last general State election in November, 1922, such signatures could not be considered, and the signatures thereon, procured since such November election, were insufficient in number, amounting to only 8,519. In support of the position taken by the secretary of State the attorney general contends that signatures to an initiatory petition must be attached within a reasonable period before' its filing and inasmuch as signatures on the petition filed run back as far as 20 months, the petition was not filed within a reasonable time. In the brief the attorney general appears to concede that the constitutional provision sets no time limit and asks us to hold that the provision contemplates action within a reasonable time and to determine such time. Plaintiff insists that the Constitution places no time limit on when the petition shall be signed. We cannot accept either view. The Constitution speaks on the subject, as we shall point out. The constitutional provision contains procedural rules, regulations and limitations; it maps the course and marks the way for the accomplishment of an end; it summons no legislative aid and will brook no elimination or restriction of its requirements; it grants rights on conditions expressed, and if its provisions are complied with and its procedure followed its mandate must be obeyed. Its provisions are prospective in operation and self-executing. The vote for governor every two years fixes the basis for determining the number of legal voters necessary to sign, an initiatory petition and start designated official action. This primary essential to any step at all fixes dis tinct periods within which initiatory action may be instituted. A petition must start out for signatures under a definite basis for determining the necessary number of signatures and succeed or fail within the period such basis governs. The petition in question started out in February, 1921, under the then requirement that to be effective it must have 105,853 signatures. An attempt was made to meet the requirement and failed. This petition lost all legal significance when the vote for governor at the November election in 1922 fixed a new basis and a less number of legal voters necessary to sign. The petition died with the requirement it sought but could not meet and was not raised from the dead by the advent of a new basis designating the number necessary to sign. Suppose a petition is circulated on the basis of the vote for governor and fails to receive the required number of signatures, and it is held over a succeeding biennial election for governor where the vote is less and “the basis upon which the number of legal voters necessary to sign” is smaller, will that make good under the new basis what was wholly ineffective under the old basis? Certainly not. This, if permitted, would take all sense out of the term “to sign,” and would treat the requirement that the date of signing be given as without any purpose. The supposed case is this case. At the biennial election in 1920, the vote for governor was 1,058,539, and this, as the basis, fixed the necessary number of signatures to initiate an amendment to the constitution at 105,853, while at the election in November, 1922, the vote for governor was 583,670, which would constitute 58,367 signatures sufficient. Plaintiff did not have enough signatures to file the petition four months before the November election in 1922, but held the same until a new basis for legal voters, neces sary to sign, was fixed at that election and then filed the petition, with the addition of 8,519 signatures. Plaintiff secured approval of the heading of the petition in February, 1921, and up to July 7, 1922 (that date being four months immediately preceding the November election) had secured but 59,648 of the necessary 105,853 signatures, and between July 7th and November 27, 1922, when the petition was filed secured 8,519 additional signatures. It is clear, from a reading of the constitutional provision, that a petition must be circulated after one election for governor and filed at least four months before another election for governor. Of course, the petition may be filed four months before a general election intervening biennial elections for governor, but it cannot start out under one basis and end up under another. Confessedly the petition never contained sufficient signatures to' meet the basis under which it was circulated. The identity of the petition was inseparably linked with the basis it sought to comply with, and as an initiatory petition it could not and did not survive the passing of such basis and then identify itself with a new basis wholly prospective in operation. It would be anomalous to say that a failure to comply with a former basis may constitute full compliance with a later basis. The Constitution plainly intends an expression of ah existing sense of a designated percentage of the legal voters. Such sense may be expressed after any biennial election for governor, and if in percentage of legal voters signing the petition it meets the basis under which it was circulated, it becomes effective upon filing the same with the secretary of State at least four months before the basis is changed by a subsequent vote for governor. We can add nothing to the constitutional provision and take nothing away from it. We must give effect to its every provision. The provision that “The total number of votes cast for governor at the regular election last preceding the filing of any petition proposing an amendment to the Constitution, shall be the basis upon which the number of legal voters necessary to sign such a petition shall be computed,” is prospective in operation and does not admit of' what plaintiff attempts. If the secretary of State was right in refusing to accept and act on the petition it is immaterial whether he gave a good or a poor reason for such refusal. The Constitution governs and not the opinion of the secretary of State. If the secretary of State gave a poor reason for his refusal, with a good reason right at his hand, it does not operate to the advantage of plaintiff by way of limiting the true issue here. If the secretary gave a wrong reason for a right conclusion he was only wrong in his reason. The question here is whether plaintiff has complied with the constitutional provisions. If he has, the writ asked should be granted;' if he has not, then he is not entitled to the assistance of the command of this court. The secretary of State was right in refusing to submit the proposed amendment, and the writ prayed for is denied. The matter presenting a public question, no costs will be awarded.

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Clark, J. The claim is for various services by Anna C. Brackett, a married woman, to Chauncey Burnham, deceased, covering a period from March, 1906, to November, 1914. The case is here a third time. A judgment for plaintiff in the sum of $1,727.65 was reversed, 199 Mich. 326, because of including im proper matters in her claim as submitted to the jury. A judgment for plaintiff in the sum of $1,302.36 was reversed, 207 Mich. 361 (9 A. L. R. 1299), because there was no evidence to show that the deceased, Chauncey Burnham, knew that Mrs. Brackett had been emancipated or knew of the claimed arrangement between her and her husband, William A. Brackett, who now prosecutes the claim as her executor, that she might have what she earned, or knew that contract relations between himself and Mrs. Brackett existed. To the facts stated in former opinions we may add that on this trial plaintiff had testimony which cured the infirmity which necessitated the second reversal. While a witness who supplied a part of such testimony was on the stand, arid after she had been cross-examined respecting her testimony at a former trial, counsel for plaintiff on re-direct sought to show that she had not been questioned on the particular subject at such former trial. In response to repeated objections of defendant’s counsel that the witness’ memory of the former testimony was not the best evidence the court said: “The only official record that will bind her is a paper she signed. Did she sign any paper? The stenographer’s minutes may be the official record but they are not binding. The court is not even bound by the stenographer’s minutes if he recollects the testimony different.” Plaintiff had verdict and judgment for $1,624.50, including interest. Defendant brings error. Several questions presented are disposed of by the former opinions which are the law of the case. It is urged that the remark of the court above, quoted was prejudicial and hindered defendant’s efforts to impeach an important witness by her former testimony. The witness did not contradict her former testimony. She testified of further statements made by the deceased. Her assertion that she had not been particularly interrogated relative to such statements was not specifically denied. The stenographer was not a witness nor were his notes in evidence. Whether or not the remark was correct in law (see 22 C. J. p. 440; Garaszewski v. Wurm, 204 Mich. 227), we need not determine, being of the opinion that in either event it does not warrant reversal. The charge is criticized, but we think the criticism does not merit discussion. The charge as a whole fully protected the rights of defendant. We have considered the other questions raised. No reversible error is found. Judgment affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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Steere, J. Helena Ballman made claim before the department of labor and industry for an award of compensation based on the death of her husband, Peter Ballman, alleged to have arisen out of and in the course of his employment with the D’Arcy Spring Company which is engaged in the manufacture of cushion springs in the city of Kalamazoo. On October 5, 1921, Ballman was in the company’s employ as a machine operator in its coiling room, department No. 2, where from 10 to 15 men were working under a foreman named Stevens. " He had worked there nearly two years, and was familiar with its rules, his own work, and conditions in and around the factory. The foreman, Stevens, was a spring maker of many years’ experience whose duties were the customary ones of a foreman in his department, exercising general supervision over the men and machinery for successful operation — and also, when anything went wrong with an operator’s machine, to repair, adjust, or fix it. On the day in question something went wrong with Ballman’s machine and when he called Stevens’ attention to it the latter started to remedy the trouble. Stevens had been subject to occasional headaches for several years and when he went to fix this machine he remarked to Ballman that he “would like to have went over and got some bromo-seltzer,” to which Ballman replied, “I will go and get it for you while you fix the machine.” Stevens said, “That will be all right,” giving him some change to pay for it. Ballman then went out of the building, across the street and a short distance down it over a railroad crossing to a drug store near by. On his return he was killed while crossing the railroad track by a passing freight train. When picked up he was found to have with him a bottle of bromo-seltzer and a bar of chocolate. Stevens repaired, or adjusted, the machine in a short time and was working upon another machine near it when he received word that Ballman had been killed. He heard of Ballman’s death immediately after it occurred. When asked how long it was after Ballman left him he said, “I don’t think it was hardly three minutes.” While he was working on the next machine after fixing Ballman’s, the superintendent of the plant came into the room and asked where Ball-man was, and he replied, “He was here just a minute ago — not over five minutes ago any way.” The company had a bulletin-board near the time clock located in department No. 2 where deceased was employed, upon which it posted notices from time to time, including rules of conduct for employees. About a year before Ballman was killed it promulgated and published a “starting and stopping” order which was posted upon the bulletin-board forbidding employees from leaving the plant during working hours without permission of the superintendent or secretary and treasurer. On September 2, 1921, a supplemental order calling attention to the previous one was posted on the bulletin-board and at other points in the plant, concluding as follows: “The quitting bells will ring at three minutes of twelve o’clock and at three minutes to the closing hour, at which time all power will be shut off, and employees will have three minutes in which to prepare themselves previous to leaving the plant. “NO EMPLOYEE SHALL, AT ANY TIME, LEAVE HIS DEPARTMENT PREVIOUS TO THE RINGING OF THE FINAL QUITTING BELL. (This portion of the order was conspicuously printed in capital letters.) “This order is being put into effect, and will cover each and every employee in this plant. Any abuse or deviation from the same will be sufficient reason for the release of said employee or employees.” Up to the time of Ballman’s death no infringement of this order had been brought to the attention of the secretary and active head of the company. ■ Defendant had on its force a physician and surgeon, Dr. Snyder, regularly stationed at its plant, whose •duty among other things was to look after emergency cases and temporarily care for the sick or injured employees at the plant. Stevens had applied to and received medicine from him for his headaches while working in the factory, both before and after this accident, to the extent as Stevens said that “Once in a while I would go in and maybe get a couple of aspirin tablets from him.” The accident occurred late in the forenoon and Dr. Snyder was then away, having gone to the bank after obtaining permission to go from there to his home for dinner before returning to the plant. It is not shown Stevens knew this or that it would have made any difference if he had, as he wanted bromo-seltzer and the headache medicine he once in a while went to the doctor for was aspirin. In reply to plaintiff’s application to the department of labor and industry for compensation, defendant State Accident Fund filed written denial of liability on the ground that the accident did not arise out of or in the course of Ballman’s employment, and that his death resulted from his own intentional and wilful misconduct in violating a positive rule of his employer. The arbitration proceedings were conducted at the city of Kalamazoo by a deputy commissioner of the department of labor, and industry, who made an award in plaintiff’s favor, directing defendants to pay her compensation to the amount of $12 per week for a period of 800 weeks. On appeal from this order to the commission of the department it was affirmed. That the accident on the street at the railway cross* ing resulted in Ballman’s death, the dependency of plaintiff, and amount of compensation as fixed by statute if liability existed, were conceded. Without reviewing the issues raised by defendant’s objections or making any special findings of fact or conclusions of law disclosing its theory, the commission filed only a formal order affirming the award, finding that, — ■ “there was an accident within the meaning of the compensation act arising out of and in the course of the employment of deceased.” Concededly the commission had no authority to award compensation in the absence of evidence that Ballman’s death was caused by an industrial accident arising out of and in the course of his employment. Not only does the act so provide, but this court and other jurisdictions with similar workmen’s compensation laws have so often had occasion to emphasize that axiomatic proposition that citation of authorities is needless. Ballman was employed to operate a machine in the coil room of the D’Arcy Spring Company’s factory. That was the range and scope of his employment. His duties required his presence in that room during working hours. Orders issued by his employer forbid him leaving his work and place of employment during that time. In violation of orders he left the plant, went across and down the street to a railway crossing and assumed a risk in no sense incident to his employment as a machine operator in his employer’s factory. Neither can it be even inferred from the facts shown that his volunteered errand was in his employer’s interest or in any way tended to promote its business of manufacturing springs at its plant where both Stevens and he were employed in the coiling department. The evidence does not sustain plaintiff’s contention that deceased was in the course of his employment while away from the factory because ordered to go by his foreman. It was his proposal. He volunteered to go on an errand for Stevens who simply said it would be all right, but within three minutes forgot it, as he testified when the superintendent of the plant came into the room and asked where Ballman was. No duty in the line of his employment required Ballman to leave the plant. He went during working hours at his own suggestion, in the interest of Stevens or himself or both, away from the plant, to a drug store where he got some bromo-seltzer and a bar of chocolate. In going he violated an order of his employer and was doing nothing to advance its interest. The rule upon that subject is thus stated in 26 Cyc. p. 1224: “Where a servant voluntarily and of his own motion exposes himself to risks outside of the scope of his regular employment, without or against the order of the master or vice-principal, and is injured thereby, the master is not liable.” Plaintiffs counsel seek to bring her claim under the statute on the theory that Ballman acted in an emergency to assist his sick and incapacitated fellow-employee, and incidentally to benefit their employer by helping to keep him in a condition to continue his work. The facts do not sustain that theory. No emergency is shown. Although Stevens testified he was subject to headaches and had a headache that day, the record does not even show that Ballman was so informed by him or knew either fact from any source, unless he inferred it from Stevens’ expressed desire to go for some bromo-seltzer. Stevens did not tell Ball-man he was sick or unable to continue his duties and adjust the machine for him. He “went over there to fix it” at the time he spoke of wanting to get a bromoseltzer. He did fix it in a very short time after he looked at it and was at work on another machine within a space of time which he estimates as “hardly three minutes.” Headaches had not interfered with Stevens’ working since Ballman was employed there two years before. Asked on cross-examination the last time he had to stop work on account of a headache, Stevens replied, “That is something I couldn’t tell you.” Asked further, “But not for the last several years?” he replied, “No, sir.” Had Ballman even waited until Stevens saw what was wrong with his machine he could have resumed his work operating it within from one to three minutes according to Stevens’ estimate, and, presumptively, would have been doing so at the time he met his death from an accident away from the place of his employment, resulting from a risk foreign to it. It may be conceded Ballman’s unfortunate offer and act resulted from a generous impulse to be helpful with no thought that harm to him or delay in his work might result in his leaving the plant; but his employment was a contract and his, or his dependent’s, right to compensation if he suffered an accidental injury in the course of or arising out of his employment was contractual. The nature and sphere of his employment having been determined, it could not be changed against the actual facts by his impulses or what he had in mind. He was employed to do a particular work at a particular place and left it during working hours for a mission which served his employer no useful purpose, and encountered a fatal risk which bore no relation to his employment. In the somewhat analogous case of Clark v. Clark, 189 Mich. 652, where claimant went to the assistance of his brother, for whom he worked and who was assaulted, it was said: “It may have been commendable in him to volunteer to assist his brother against such great odds, but that, does not satisfactorily answer the question what connection his acts had with his employment. * * * Had claimant remained at his work he would not have been injured. His presence at the place of fighting was in pursuance of no demand of his employment. Neither was it in aid of any material interest of his. master.” Vide, also, Bischoff v. Foundry Co., 190 Mich. 229; Carnahan v. Mailometer Co., 201 Mich. 153; Pearce v. Industrial Commission, 299 Ill. 161 (132 N. E. 440, 18 A. L. R. 523). In volunteering this errand for Stevens, Ballman assumed a task unexcused by habit or custom, outside the place and line of his employment, not in pursuance of the interest of his employer; in the absence of any peril requiring him to act in an emergency and involving a risk not belonging to or connected with what he was required to do in fulfilling his contract of service. The errand upon which he went was not negligent or unauthorized conduct within the sphere of his employment, which in itself does not necessarily prevent recovery, but an act involving street and railroad risks entirely outside of and beyond the limits of such sphere. An order from Stevens for plaintiff to leave the plant and place of his employment during working hours in violation of published rules, presumably known to both, would have been beyond his authority as foreman in the coiling room, as was his consent which he so soon forgot when the superintendent inquired for Ballman. In Pearce v. Industrial Commission, supra, claimant was injured by a fall upon the sidewalk in a public highway while going to get supplies for the noonday lunch of himself and fellow employees in a building near by, who had an agreement among themselves to purchase supplies to be prepared and consumed by them in the building where they .were employed in preference to carrying cold lunches. Pearce was general agent of the building and under him the chief engineer was authorized to look' after details. He was authorized to hire and discharge most of the employees, including claimant. On that day the engineer fold him to go for their noonday supplies, in doing which he fell in the street and was injured. Although he was acting under orders of his superior, the court there held claimant’s injuries while absent from his place of employment on such errand did not arise out of his employment within the meaning of the compensation act. A valid award requires correct application of the act to found facts of which there is evidence. This record fails to furnish any evidence of certain essential facts on which to base the formal conclusion of the commission that the accident in question “arose out of and in the course of” Ballman’s employment. Its order of award is therefore reversed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.

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Clark, J. The cause went to hearing upon plaintiffs amended bill for divorce and defendant’s answer and cross-bill. A property settlement was agreed upon in court. Proofs were taken in behalf of plaintiff and the cause adjourned to consummate the property settlement and to settle a decree. Later plaintiff appeared in court with her attorney and stated that she was dissatisfied with the property settlement. Thereupon it was agreed in open court by the parties and counsel that an appraisal of the property be made by experts to be selected by the parties and that such appraisal be reported into court and that the court decree such division of the property as to him seemed just and equitable. The appraisal was made accordingly. From the decree entered plaintiff has appealed. Her complaint is of the award. Defendant contends that the decree was by consent and that therefore there can be no appeal, citing Chapin v. Perrin, 46 Mich. 130; Brick v. Brick, 65 Mich. 230; Owen v. Yale, 75 Mich. 256; Cameron v. Smith, 171 Mich. 333. This case is distinguishable. Plaintiff consented that the appraisal should stand as the evidence of value of the property and that the case should then be treated as submitted. She was not thereby precluded from raising the question she here presents, that the award is inequitable. The appraisal of the real estate which consisted of a home and other property in Grand Rapids and lots in California was the sum of $26,525. The personal property, being household furniture, was of the value of $1,000. The decree awarded to plaintiff the home and other real estate all of the value of $10,750 and the household furniture appraised at $1,000, a total of $11,750, and it required defendant to pay plaintiff $50 per month for a period of six years, and to pay $100 appraisers’ fees and an attorney’s fee of $100. The remaining real estate was awarded to defendant. The real estate was held by the entireties. The court was not required to divide the real estate held by the entireties equally between the parties. He might make such division between them “as he shall deem equitable and just.” 3 Comp. Laws 1915, §§ 11416, 11437, 11438; Allen v. Allen, 196 Mich. 292. Had the court, in granting the divorce, made no division of the property, the parties would have become tenants in common of the real estate. Section 11437, supra,. But the court gave to plaintiff property of the value of $11,750, to defendant property of the value of $15,775, and required defendant to make the monthly payments to plaintiff as stated and to pay certain costs and charges. Whether such provisions are equitable must be determined upon the record. But the only evidence in the case respecting the property is the appraisal. The testimony relates solely to plaintiff’s claimed cause for divorce. It is apparent that counsel at the hearing did not contemplate an appeal, nor the making of a record for appeal. The pleadings seem to indicate that defendant is a physician and that, although plaintiff did usual household duties and collected rents, the property was acquired through defendant’s earnings. There is no proof of his income and the various allegations of it are denied. She is about 50 years of age, he about 64. They were married in 1893 and have no children. Both parties charged extreme and repeated cruelty. The trial judge had the parties before him. Doubtless, too, he had from statements of counsel knowledge of facts not disclosed by this record. . We cannot say, upon the record, that the award is inequitable. The decree is affirmed, without costs. Fellows, C. J., and Wiest, Bird, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.

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Sharpe, J. Plaintiffs presented the following claim against the estate of James Gourlay: “The sum of three thousand, three hundred and thirty-three dollars and thirty-three cents ($3,888.83), being one-third of the amount due upon certain notes executed by Gourlay Brothers and James Gourlay, January 1, 1890, and February 21, 1890, for ten thousand ($10,000.00) dollars, and of which the said Catherine C. Linn and Plelen G. Linn are the owners of a one-third interest by virtue of the provisions of a certain decree entered in the district court of the United States for the eastern district of Michigan, southern division, on the second day of October, 1911, in a certain cause in which Catherine C. Linn and Helen G. Linn appeared as plaintiffs and John Craig, James F. Gourlay and Jean Fair Gourlay appeared as defendants.” It was disallowed by the commissioners on claims. On appeal to the circuit court it was again disallowed by direction of the court because barred by the statute of limitations. The judgment entered is here reviewed by writ of error. The facts tending to support the claim are as follows : Prior to February 21, 1890, George Craig, the grandfather of plaintiffs, had made loans aggregating $10,000 to Gourlay Brothers, a copartnership, of which James Gourlay was a member, and to James Gourlay, individually, and received from them the notes described in the claim presented. He turned these notes over to his son, John Craig. In 1908, plaintiffs brought suit in the Wayne circuit court, in chancery, alleging that these notes were held by John Craig in trust for himself, for Mrs. James Gourlay, daughter of George Craig, and for plaintiffs, children of a deceased daughter; that Gourlay had secured the payment of the notes by transferring certain property to John Craig, and praying that their rights to a one-third interest in the notes be determined, that an accounting with John Craig be had, and that he be ordered to pay them their interest in said notes or be required to dispose of the property turned over to him by Gourlay to secure such payment and apply the proceeds of the sale to such purpose. The cause was transferred to the Federal court for the eastern district of Michigan. A decree was made on October 2, 1911, wherein it was determined that John Craig held the notes in trust for complainants, who “became vested with an undivided one-third interest” therein. The lien of the cestuis que trustent on the property transferred by Gourlay to John Craig was declared, but was made subject to the personal lien of John Craig thereon for certain moneys advanced by him to Gourlay, fixed by the court, at $58,884.74. The decree provided that complainants might have— “at any time the right to apply to this court for an order directing said trustee, John Craig, to sell the property deeded to him by the said defendants Gourlay, for the purpose of paying the said trust notes.” While the record does not show that such an order was afterwards made, it contains an order confirming a sale, from which it appears that “all the property held in trust in this cause by said John Craig” was sold for $50,000, — less than the individual lien of John Craig thereon. To the defense of the- statute of limitations plaintiffs say that their claim under the notes became merged in this decree, that the limitation statute applying to judgments applies thereto and that the claim is not yet barred by that statute. The decree does not fix the amounts due on the several notes, nor does it find James Gourlay liable for the payment thereof nor provide for a personal decree against him for any deficiency arising after such sale. Neither was any such relief prayed for in the bill of complaint. This is doubtless explained by an allegation in the bill, admitted by James Gourlay in his answer: “That in 1898 the said James Gourlay went through bankruptcy.” We do not think any fair construction can be placed upon this decree which will support the claim here presented. The judgment is affirmed, with costs to appellee. Fellows, C. J., and WSlbst, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

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Wiest, J. In this suit plaintiff seeks a decree direct ing defendant Margaret Dunne to return to him 21 shares of stock in the defendant banks, transferred by him to her September 10, 1920, claiming he was induced to make such transfer by fraud practiced upon him. The banks, named as defendants, have no interest in the suit, being brought in merely to restrain the transfer of the stock pending litigation, and in the course of this opinion we will speak of Margaret Dunne as the defendant. Plaintiff and defendant were married January 17, 1917; he was a widower, aged 56, and she a widow, aged 57. He was a drop-forge manager, earning about $6,000 a year, and she had property. They opened a joint deposit account in a bank, in which he placed some of his earnings and she placed money from her property. In September, 1919, plaintiff bought 20 shares of Hackley National Bank stock at $170.15 per share, and 22 shares of Union National Bank stock at $150 per share, and paid for the same by checks drawn on the joint bank account. Defendant claims the intended purchase of the stock was talked over between them, and it was agreed the investment should be made out of their joint funds on deposit, and the certificates taken in their names, and she supposed this had been done until, on August 10, 1919, she saw in a local newspaper a list of the stockholders in the Union National Bank, and discovered the stock was in the name of plaintiff. Upon making such discovery she claims she called his attention to the agreement under which it was to be purchased, and he transferred to her one-half of the stock. He claims she practiced dissimulation and wiles upon him and wheedled him into giving her the stock, making him believe their marital affairs were running blissfully, while,- in fact, she had made up her mind to leave him, and took this method of getting his property. This she denies, and claims he well understood from what she had said to him, and from her acts, that she intended to leave him, and upon her upbraiding him for taking the stock all in his own name, contrary to their agreement, he suggested the transfer and thereby, although belatedly, performed the agreement. The case presents only issues of fact. If defendant demonstrated affection toward plaintiff, as he claims, while, in fact, she nourished hate in her heart and an intention to leave him, and dissembled her true feelings and assumed a mere sham to induce him to give her the bank stock, then she employed the semblance of an appealing affection as a screen for the accomplishment of a nefarious purpose, and she should be made to disgorge. On the other hand, if he gave her bank stock in pursuance of an agreement, under which it was purchased, then he is without remedy. The circuit judge found for defendant and, upon reading and re-reading this record, we cannot say he was wrong. The testimony of the parties is in sharp conflict upon every phase of the case. He claims she left him at the bank at the time the stock was transferred and did not return home, and eight days later filed a bill for divorce, while she claims that after performing an errand she returned home and remained four days. We are satisfied there was serious trouble between the parties before the stock was transferred, but whether the transfer was made by reason of simulated love on her part, or to fulfill an agreement under which it was purchased, or as a peace offering in the hope of reconciliation, we cannot say. Her testimony is corroborated to some extent by that of Mrs. Lyons who heard plaintiff say he had purchased bank stock for himself and wife. We get no help from the bank deposits. We find no occasion to review the testimony at length in this opinion. The burden rested upon plaintiff to establish the alleged fraud by a preponderance of the evidence. We cannot find that he has met such burden. The decree below is affirmed, with costs to defendant. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Clark, J. Taxpayers of the defendant school district paid under protest school tax to the treasurer of plaintiff township and later commenced suits against the township to recover back the amounts paid. The tax was wholly void, not having been authorized by the voters of the district. The township satisfied the judgments of the taxpayers as to both damages and costs and then brought this suit against the school district. The controversy relates to the amount of costs so paid, $197.18. The declaration has two theories for recovery, first, that the amount was paid by the township for and in behalf of the school district and that the district in good conscience ought to return it, and second, that the township "contested and defended said suits at the request and with full knowledge and consent of said school district No. 3, township of Coe, and its duly constituted school board.” A verdict for defendant was directed and judgment entered. Plaintiff brings error. We think there can be no recovery on the first theory. An attempt was made to shift responsibility for the invalidity of the tax from the school board to the township clerk. The question of such responsibility is unimportant here. In this State the treasurer is not a mere tax collector. We have a township treasury. People v. Bringard, 39 Mich. 22 (33 Am. Rep. 344). The township treasurer after collecting the taxes must keep the funds, except State and county taxes, until lawful orders are presented upon which he may pay them out. Section 5706, 2 Comp. Laws 1915, and section 4498, 1 Comp. Laws 1915. The school taxes and other taxes assessed “become at once a debt to the township.” Section 4496, 1 Comp. Laws 1915. If they are not otherwise collected suit may be brought by the township. Township of Bangor v. Transportation Co., 112 Mich. 601; section 4043, 1 Comp. Laws 1915. One paying taxes under protest may sue the township for the amount paid. Section 4049, 1 Comp. Laws 1915. The township may be put to expense in the collection of taxes. It pays for spreading taxes. It may likewise be held to pay costs in suits to recover them when paid under protest. Daniels v. Township of Watertown, 55 Mich. 376. We know of no rule by which the township may charge against a school district such expenses or costs or any portion thereof. Such burden seems to have been placed upon the townships. In Byles v. Township of Golden, 52 Mich. 612, plaintiff sued the township to recover back the taxes paid. It was held: “It was not claimed in this case that the township was liable for the amount of the State and county taxes received by the treasurer, but it is insisted that for all moneys which were to be retained in the township treasury it was liable. This would include school and highway taxes, which the treasurer pays out on orders from the proper school and highway authorities, and which, it appears in this case, he had paid out before the suit was instituted. There is an apparent hardship in holding the township liable for moneys thus paid over; but on the other hand when the plaintiff traces his moneys to the treasury of the township it would seem plain that a right had accrued in his favor which could not be discharged by subsequent action of the township authorities to which he was in no sense a party. The defendant has received his money and must account to him for it; not to any one else.” And respecting the right to recover taxes of a general levy see Bank of Tustin v. Township of Burdell, 184 Mich. 131. In Mineral School Dist. No. 10 v. Pennington County, 19 S. D. 602 (104 N. W. 270), it was held, quoting from syllabus: “Laws 1897, p. 131, chap. 57, § 1, subd. 5, authorizes school districts to levy taxes and report the amount to the county auditor, who is required to include this tax as a part of the tax to be collected by the county treasurer. Laws 1897, p. 60, chap. 28, § 79, makes the county treasurer the collector of all taxes, and requires him to place them, when collected, to the credit of the proper fund. Section 95 (page 65) provides that the county treasurer shall immediately after each settlement pay over to the treasurer of any municipal corporation or any organized township or any body politic all moneys received by him, arising from taxes levied and collected, belonging to such municipal corporation, etc. A county treasurer, in attempting to collect certain taxes assessed by a school district upon property within its boundaries, was enjoined from so doing by a Federal court, and expended money in defending injunction proceedings. The taxes were afterward collected. Held, that the county had no right to retain a portion of the sum so collected as the school district’s share of defending the injunction suit.” And it was said: “The duty of the county treasurer to pay over the amount collected to the school district being imposed by law, he could not legally retain any portion thereof from such district in the absence of any statutory authority authorizing him so to do.” And see 26 R. C. L. p. 454; Matteson v. Town of Rosendale, 37 Wis. 254; 2 Cooley on Taxation (3d Ed.), p. 1491; 11 L. R. A. (N. S.) 1104; Jones v. Wright, 34 Mich. 371. The rule might be otherwise if the statute provided for making a deduction or apportionment of such costs or expenses. See Town of Spooner v. Washburn County, 124 Wis. 24 (102 N. W. 325). Plaintiff had testimony that, respecting the defending of the suits of the taxpayers to recover back the amounts they paid, a conference of the members of defendant’s school board and of plaintiff’s township board was had at which there was discussion and oral understanding that the township would defend and that: “the school board would stand the expenses,” “the school board agreed to stand the costs.” Plaintiff seeks to hold the defendant district upon this agreement. We pass the question of whether the agreement was made by the district board acting as such. The school district was under no legal obligation to pay such costs as might be taxed against the township in such suits. The statute, as we have seen, placed upon the township the duty of spreading and collecting taxes and it may be sued to recover taxes paid. If the district board might bind the district to pay such costs, it might also employ counsel to defend the suits or to assist the treasurer in collecting the school taxes and it might furnish aid to the supervisor in spreading such taxes. We think the school board without such power. See Jenney v. Township of Mussey, 121 Mich. 229, and cases there cited; 35 Cyc. p. 899; 2 Comp. Laws 1915, chap. 107. It may be that the voters of the district could authorize the employment of counsel and the payment of costs and charges in suits to defend, or to collect its taxes (Jenney v. Township of Mussey, supra; Cooley on Constitutional Limitations [7th Ed.], p. 307), but that question is not before us. The court was right in directing a verdict. Judgment affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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Fellows, C. J. This action is brought to recover money paid on a contract executed by defendants as vendors and plaintiff as vendee for the sale of certain real estate located near Ravenna in Muskegon county, and which contract it is claimed plaintiff rescinded because of fraud in its procurement. While not mentioned in the contract, it seems to be admitted that certain personal property went with the land. Plaintiff was a miner in the Upper Peninsula and elaims to have no knowledge of soils or of farming. His son and son-in-law were at Muskegon and came in contact with defendant Louis Simon. Their testimony tends to show that they saw the farm in the winter time when the snow was on the ground, and that defendant Louis Simon then represented that the farm was worth $9,000, consisted of 110 acres, was good soil, that there were 20 acres of the farm on the other side of a creek called Crockery creek, that a certain power company was going to erect a dam in the creek and that it had agreed to buy 20 acres of the land and pay $8,000 for it, and that there were 30 or 35 acres of wheat growing on the land. The son notified his father who came down to Ravenna, and it is claimed like representations were made to him, and that, relying on such representations, he paid $1,000 down and entered into the contract with defendants to purchase the land at $9,000. It is established beyond dispute that the farm consists of but 80 acres, that there is not 20 acres on the other side of the creek, that the power company had not agreed to buy 20 acres for $3,000. The proof reduces the acreage of wheat considerably, and there is quite convincing testimony that the soil is poor and the farm not worth over $2,000 to $2,500. Defendants deny the representations in toto. Plaintiff moved on the farm in the spring and left it in the summer, when, as his testimony would indicate, the condition of the crops satisfied him he had been defrauded. He claims to have tendered back the contract, to have left the tools on the farm, but admits that some feed which went with the place had been fed to the stock and that some potatoes and apples had been used. He claims to have tendered some chickens back to defendant and upon his refusal to accept them he took them, and cared for them. At the close of plaintiff’s proofs, defendants’ counsel moved to strike out the testimony, dismiss the case and direct a verdict for defendants. These motions present the important questions in the case. The rule is well recognized in this State that one seeking to rescind a contract on the ground of fraud must act promptly upon the discovery of the fraud. But this rule does not require one to act upon hearing neighborhood gossip or before he has had a reasonable opportunity to satisfy himself that, he has been defrauded. In Barron v. Myers, 146 Mich. 510, Mr. Justice Hooker, speaking for the court, said: “The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. If he acts with reasonable promptness thereafter, it is sufficient. The law of laches should be used as a shield and not a sword.” In Gridley v. Tobacco Co., 71 Mich. 528, it was said: “To entitle a party to rescind a contract on the ground of fraud or false representations he must act promptly after he has discovered the fraud or the falsity of the representations. He would, however, be entitled to a reasonable time to investigate and to ascertain whether the representations made were true.” And in Hicks v. Steel, 126 Mich. 408, it was said: “The interview in March indicates that they had a suspicion, if not belief, that the note was not good; but this alone was not enough to require an attempt to rescind.” See, also, Place v. Brown, 37 Mich. 575; Hamilton v. Hulled Bean Co., 143 Mich. 277; Cornell v. Crane, 113 Mich. 460; Simonds v. Cash, 136 Mich. 558; John Schweyer & Co. v. Mellon, 196 Mich. 590. Nor does the defrauded party owe to the one who defrauds bim an obligation to use diligence to discover the fraud. Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); Lewis v. Jacobs, 153 Mich. 664. Plaintiff’s testimony tended to show that not long after he came to the farm he was told by some of his neighbors that he had been beaten in the deal, that he went to defendant Louis Simon and told him what he had heard; that Louis said to him: “John, don’t listen to them--of Yankees, they tell you all kinds of bull.” Louis also said that if he did not “be good with him” and pay the taxes he would throw him off the farm, but if he was good with him he would grant certain extensions. The plaintiff was an ignorant foreigner. After this talk he cultivated the crops and remained on the farm until some time in the summer. The jury might legitimately draw the inference that he remained on the farm until the season had far enough advanced to demonstrate by the condition of the crops that the soil was not productive and that he had been defrauded. He then left the farm, leaving the crops as they were and declined, if one of defendants’ witnesses told the truth, an offer of $400 for the crops. He had put on the farm 100 loads of manure. Defendants were not in any way prejudiced by plaintiff’s occupancy of the farm until midsummer. We think the court correctly held upon the facts in the case that it was for the jury and not for the court to determine whether the plaintiff acted with reasonable promptness after he learned he had been defrauded. The personal property was not mentioned in the contract, but it is undisputed that it was included in the deal. Some feed was used up; some potatoes which were of little value were fed to the hogs; a few apples were also consumed. This rendered it impossible to tender to defendants all that was received by plaintiff. Defendants’ counsel insist that inasmuch as plaintiff could not under these circumstances place defendants in statu quo he can not rescind. The trial judge entertained the view that plaintiff’s inability to' return these small items did not defeat his right to recover and that the jury might deduct the value of the property consumed. This view is in accordance with the holdings of this court. In Wright v. Dickinson, 67 Mich. 580 (11 Am. St. Rep. 602), the action was brought to recover money paid on a void contract. Mr. Justice Champlin, speaking for the court, said: “In either case the purchaser must place the other party in statu quo, so far as is practicable for him to do so; and in either case the equities, so far as can be measured by a pecuniary standard, can all be settled and adjusted in the suit. “In this case there is no occasion to call for the interposition of a court of equity. There are no deeds to be surrendered up and canceled, nothing which is required to be perpetuated by a decree. All there is to be ascertained can be ascertained by a jury; and that is, how much in equity and good conscience ought the defendants to repay of the purchase money they have received. All benefits which the plaintiff has received will have to be deducted, and these can be ascertained and allowed for in a common-law proceeding. The value of the timber cut and removed, and all other benefits which the plaintiff has derived from these contracts, can be adjusted in this action.” In Snyder v. Markham, 172 Mich. 693, the plaintiff had purchased certain “patent rights” and machines covered by the patents. Some of the machines had been sold. Plaintiff sought to rescind the contract for fraud. This court sustained his right so to do, the trial judge having charged the jury that they should deduct the value of the machines sold. In American Trust & Savings Bank v. Moore, 161 Mich. 436 (137 Am. St. Rep. 518), it was said: “We all know that in such a case it is usually the duty of the vendor to tender back the note or. property paid, as a condition to the right to recover his property. Exceptions to this condition are when, as in this case, the paper is worthless in the hands of the vendee, and where the vendor is unable to tender back the paper.” And in Munzer v. Stern, 105 Mich. 523 (29 L. R. A. 859, 55 Am. St. Rep. 468), it was said: “The general rule requiring the surrender, or offer to surrender, what has been received, upon the rescission of a contract voidable for fraud,, is not one of universal application, and has many exceptions. It does not require unreasonable or impossible things to be done.” See, also, Henderson v. McRae, 148 Mich. 324; Weiser v. Welch, 112 Mich. 134; Bechtel v. Barton, 147 Mich. 318. Defendants’ counsel also insist that the case should not have been submitted to the jury as to the defendants other than Louis. They made no representations and it is insisted they are not liable. In the recent case of Moynes v. Applebaum, 218 Mich. 198, we fully reviewed the authorities and held that the principal in a real estate deal was liable for the false representations of his agent. We need not go over the ground again. In the instant case all four defendants joined in the contract rescinded. Jointly they received and now hold $1,000 of plaintiff’s money procured, as the jury found, by fraud. We do not perceive any rule of law which would be violated by requiring them jointly to respond, nor do we perceive that the fact of coverture would permit a married woman to keep money thus fraudulently obtained. We have not taken up' each assignment of error and considered it separately. All have been considered. None of the assignments of error would justify a reversal. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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McDonald, J. This ease is here for review on writ of certiorari to the department of labor and industry. While employed as a skilled sawyer by the Central Paper Company of Nogi, Michigan, on the 10th day of June, 1913, William C. Burley suffered a severe injury to three fingers of his right hand, resulting in the amputation of one-half of the third finger and of the second and fourth fingers at the knuckles. At the time of the accident his weekly wage was $27. On the 10th of July, 1913, by agreement, the plaintiff received $650 compensation at the rate of $10 per week for a period of 65 weeks for the loss of three fingers. Thereafter, on the 22d day of May, 1916, on the theory that he had lost the complete use of his right hand as a result of the injury, a supplemental agreement was entered into wherein it was agreed that plaintiff should be paid $10 a week for 85 weeks, which payment, together with the amount previously paid, was understood to be compensation for loss of the hand under section 10 of the act for a period of 150 weeks at $10 a week. This settlement was approved by the board and payment was made in full in accordance therewith. On the 23d of September, 1921, the plaintiff filed a petition with the board to reopen the case and to be allowed compensation for total disability. A hearing was had before a deputy commissioner, who found that the petitioner was totally disabled and was entitled-to compensation at $10 per week for 400 weeks or $4,000, but that defendants should be credited with the amount previously paid for the loss of the hand, leaving a balance of $2,500 payable to the plaintiff. The defendants appealed to the board where the decision of the commissioner was affirmed. They are now here asking to have the award vacated for the following reasons: ■ First. That the settlement of May 22, 1916, which was filed with the board and approved by it, was conclusive and that the board had. thereafter no juris-' diction to grant a rehearing. Second. That there was no evidence to support the findings, and Third. That, having been paid for the loss of a member, he was not entitled to compensation for total disability. Did the board' have jurisdiction to open the case and grant plaintiff a rehearing? The settlement of May 22, 1916, was for the loss of a hand. It was ap-' proved by the board. Full payment was made thereunder and final settlement receipts were signed and filed. No appeal was taken, but sometime thereafter the plaintiff filed a petition to reopen the case, claiming that he was totally disabled by reason of injuries to his arm and hand, and that he had signed the settlement in ignorance of his rights under the facts and the law, having been induced to do so by misrepresentation of the defendant company. On the hearing no attempt' was made to support the claim that the settlement was induced through fraud or misrepresentation. The board, however, for other reasons, did not regard the settlement as having any binding effect but credited defendants with the amount paid thereunder. Counsel insist that in this the board was in error, that the settlement was conclusive, “the legal equivalent to a final award,” and that the board had no jurisdiction to grant a rehearing. They have cited many cases from this court which they claim support that contention. It is true, this court has held that such an agreement is equivalent to a final award (Estate of Beckwith v. Spooner, 183 Mich. 323 [Ann. Cas. 1916E, 886]); and that the board has no authority to grant a rehearing of matters already decided by it; but it has not held that where the physical condition of the injured employee has changed the board may not on petition reopen the case and grant such increased compensation as the facts and the law warrant. The law authorizes the board to review any weekly payments at the request of the employer, insurance company, or employee. In Estate of Beckwith v. Spooner, supra, this court said: “On the hearing of such petition for review it can be stated as a general rule that the essentials leading up to the- award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry.” If,- however, there has been no change in the physical condition of the injured employee, the board is without authority to grant a rehearing. Pocs v. Buick Motor Co., 207 Mich. 591; Diebel v. Construction Co., 207 Mich. 618; Jones v. Iron Works, 212 Mich. 174. As to whether there has been any change in his physical condition after the settlement, the plaintiff testified on redirect-examination as follows: “Q. Did you have in mind at the time you signed these that you might be able to go back and saw? “A. Yes, I thought I could. “Q. And this amount of money was paid you for the loss of the hand only? “A. The loss of the fingers, yes. “Q. And at the time you had the loss of your hand what was the condition of your right elbow and ' shoulder ? “A. In the same condition then as now. “Q. When you settled the second time was your arm in the same condition then as it is now? “A. I think it was about the same then. “Q. You had at that time a limitation in your elbow like Dr. Scholtes said and as you claim yourself you can’t pull your arm back in the shoulder? “A. Yes, sir. “Q. You understood in May, 1916, you were being paid for the loss of the hand? “A. Yes, sir.” In view of this testimony showing no change in the plaintiff’s physical condition, the board was without authority to reopen the case and grant further compensation. It follows that the award must be vacated. Defendants will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Fellows, C. J. (after stating the facts). Defendant’s counsel discusses the question of whether plaintiffs are bona fide holders of the note and whether the note is a negotiable instrument. We are unable to perceive that this discussion is pertinent to the issue. Obviously the note itself is a negotiable instrument, but plaintiffs make no claim of rights as bona fide purchasers. Mr. Shattuck, who handled the deal for the bank, frankly states that he knew the plan under which the association was financed and the purpose for which the note was given. What plaintiffs do claim is that the defendant gave this note to the association under an agreement known to defendant, plaintiffs and everyone else connected with the transaction, that it was to be used as collateral at plaintiffs’ bank, and that the note was used for the exact purpose defendant knew it was to be used for when he gave it and strictly in accordance with his contract with the association. Defendant’s counsel seeks, to bring this case within Toledo Scale Co. v. Gogo, 186 Mich. 442, and Stevens v. Venema, 202 Mich. 282 (L. R. A. 1918F, 1145). Neither case is applicable. In both cases defendants were induced to sign a contract which, cunningly concealed, contained a promissory note capable of being detached from the balance of the contract. In neither case did the defendant understand he was signing a promissory note. In the instant case defendant signed both a note and a contract with the knowledge so far as this record discloses that he was signing a note and contract, the note to be detached and used as collateral, the contract expressly providing that it should be so used. Whether the contract was detached and given to him when he signed the note or was detached by the association of which he was a member afterwards does not appear and defendant has not seen fit to enlighten us, but the note was used by the association of which he was a member exactly as he deliberately agreed it should be used. The cases cited and the instant one are not comparable. Manifestly the plaintiffs may not recover beyond the amount of their lien. But the amount of their lien was upwards of $10,000, while the judgment was for $104.17. It must be equally manifest that plaintiffs are not precluded from proceeding to collect from defendant the amount of his note because they hold other collateral. If such were the law it is difficult to perceive how they would be able to realize on any of the collateral held by them. Plaintiffs’ action was upon the note, not upon the contract between defendant and the association, and it was proper to count upon the note alone. By a series of innuendos unjustified by the record but running through several pages of the brief, plaintiffs are charged with in some way perpetrating a fraud on defendant. The trial judge did not find any fraud in the case and would not have been justified in finding it. There is not a scintilla of evidence to sustain a claim of fraud. The plain, cold facts of this lawsuit demonstrate that defendant and others entered into an unsuccessful business enterprise and that defendant is now seeking to compel plaintiffs to stand the loss of his ill-starred venture. The judgment will be affirmed. Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

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Clark, J. On motion the bill to foreclose a mechanic’s lien was dismissed. Plaintiff has appealed. The bill alleges that under a written contract between the parties plaintiff equipped a certain factory building of defendant with a system of automatic fire sprinklers. We quote from the contract: “That the said system is not, and shall not, become a fixture, but shall be, and remain personal property, and the title and right of possession thereto, shall remain in the said Phillips-Michigan Company until fully paid for. Said second party expressly agrees that it acquires no title to such system until it has so paid in full therefor. * * * “All deferred payments hereunder shall become due and payable forthwith in case of any default by second partyBut the said first party, if it so elect, may at any time declare said system to be the property of the said second party and avail itself of any lien or supply law or other remedy.” The bill also alleges that the materials constituting the system so furnished have become a permanent part of the factory building and that they have greatly increased its value. It also alleges that plaintiff, under the paragraph of the contract last above quoted, “did so elect to declare said system to be the property of said defendant, and did avail itself of the right to and did file a statement of lien.” * * * Counsel state the grounds of the motion to dismiss: “* * * ^at inasmuch as the parties had con tracted expressly that the property should be' and remain personal property and not become a fixture, that such property could not form thei basis of a lien for the reason that all of the authorities are agreed that the basis of any lien upon the land is that the property becomes a part of the land, enhancing its value and, as .some of the cases declare, is devoured by the land. This was the basis upon which the circuit judge rendered his decision.” . Counsel cite cases where the right of lien has been denied for materials or articles which were not used in the building and became no part of it. We think these cases not in point. The language of the bill respecting the right of lien is that plaintiff furnished “labor and material in and for altering and improving of said factory building,” etc. This is agreeable to the provision of section 14796, 3 Comp. Laws 1915. The contract purports to reserve title of the materials in the plaintiff. But it provides that promissory notes for the full purchase price shall be given, that upon default the whole amount shall become due, and “That the acceptance of such notes or other notes or bills of exchange or other security for, or the taking of any acknowledgment of the claim, or the giving of time for payment thereof, filing or enforcing any lien, or the taking of any proceedings for recovery or the recovery of a judgment for the claim shall not merge, waive, pay, satisfy, prejudice or destroy the retention of or affect the title of the first party to such system nor any right reserved or applicable.” So the contract purports to reserve title and to give an inconsistent right of action to recover the debt without passing title! The rule in such cases is that the intent of the parties was to make an absolute sale with reservation of a lien by way of security. See Young v. Phillips, 203 Mich. 566; Atkinson v. Japink, 186 Mich. 335. The holding in Warner Elevator Manfg. Co. v. Loan Ass’n, 127 Mich. 328 (89 Am. St. Rep. 473), is decisive of the question presented. Defendant’s contention there, as here, was: “The gist of the defendant’s contention is that a mechanic’s lien can only exist where work or materials have become a part of the realty. It is said that this is not so when the title to personal property is reserved in the vendor; that in such a case the personal property does not, in law, become a part of the realty, although affixed to it.” It was held: “But the authorities forbid the assumption that a reservation of title is inconsistent with the existence of a statutory lien, holding that there may be cumulative remedies, and consequently that absolute inseparability is not a condition to the existence of the statutory lien. Phil. Mech. Liens, § 9, states that the lien is a cumulative remedy provided by statute, and an incidental accompaniment to the contract, which may be pursued in connection with ordinary remedies. Case Manfg. Co. v. Smith, 40 Fed. 340 (5 L. R. A. 231), was a case where one reserving title set up a statutory lien. It was held that the retention of the title was in the nature of a specific lien upon the identical machinery furnished, and not inconsistent with the statutory lien.” And see Perkins v. The Golden Girl, 185 Mich. 200. The order dismissing the bill is set aside, with costs , to appellant. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Steere, J. Defendant, Boske, was convicted in the circuit court of Berrien county under an information charging that he did, on or about January 25, 1922, “wilfully, maliciously and wantonly, and without cause, cut down, destroy and otherwise injure” certain fruit trees growing on a farm owned by one Fred Hauck in the township of Sodus in said county. The case is here for review on exceptions before sentence. Defendant’s assignments are directed to claimed errors in the charge of the court, improper argument by the prosecuting attorney, overruling defendant’s motion for a directed verdict, and refusal to grant a new trial. Boske was a married man 38 years of age who owned and lived upon a 40-acre farm about a half mile south of Sodus village in Sodus township, Berrien county, on the west side of a north and south highway directly opposite a 40-acre farm owned by Hauck, who was a married man 40 years of age living upon a 47-acre farm about a mile distant at the time of events involved here. The two men were of German birth but had lived in Sodus township and known each other for over 20 years. Both testified they never had any trouble and were always friendly, as were their wives, who visited each other in a social way from time to time. In the spring of 1921, Hauck planted a portion of his 40 opposite Boske’s farm to fruit trees-. He set out a peach orchard of 250 trees in the southeasterly portion of the 40 back of the unoccupied house situated upon it and 70 apple trees in a field directly across the road from Boske’s place. He visited these new orchards some time in December, 1921, and did some work around the trees. At that time he noticed nothing wrong with them. He again visited and examined them the following March when he discovered that the great majority of those small trees had been partly cut off an inch or more below the surface of the ground he had hilled up around them, of which he testified the cuts on the apple trees appeared as though made with pruning shears and on the peach trees by a small tree-trimming saw. He reported his discovery to the sheriff who went out to the place with him and investigated the situation. Boske was engaged that day trimming grape vines some distance back of his house. When called to dinner by his wife he saw Hauck, the sheriff and a number of others had gathered in the field opposite his place and went over there to see what was going on, as he stated. While there he asked the sheriff, whom he did not then know, what it was about. The latter gave him an evasive answer to the effect that they were investigating what kind of fertilizer would improve that soil and after some further talk Boske returned to his place. The sheriff soon went over to and catechized him on the subject, and before they separated accused him of the depredation they were investigating, advising him to try and settle the matter up with Hauck. Boske stoutly denied any knowledge that the orchards had been cut or destroyed until the sheriff showed him what had been done, arid stoutly protested his innocence. Before accusing him of the offense the sheriff had discovered a small apple tree near the highway opposite Boske's house which had been injured by the branches of a large maple tree falling on it from the opposite side of the road the fall before. The large maple was 3% feet in diameter and proportionately tall. Boske cut it down for wood with the assistance of two men the preceding November and tried to fall it upon his own land, but it went in the opposite direction across the road and its top reached' to one of the small apple trees near the road, crushing it down. Boske straightened it up and braced it with some sticks tied around with a piece of cloth. When called there the following March the sheriff noticed this and on examination found the tree cut beneath the soil in like manner as the other apple trees. When asked about it Boske related the circumstance of his falling the maple tree on it the fall before arid fixing it up above the ground, but denied all previous knowledge of it or the other fruit trees being cut below the ground as related, and emotionally protested against the imputation that he was the offender. He admitted neglecting to tell Hauck of the mishap, with the explanation that he expected to plant another tree in its place if it did not come out all right in the spring. His arrest and conviction for maliciously cutting and destroying the young orchards followed. The evidence offered by the prosecution was entirely circumstantial. No witness testified to seeing Boske in this orchard beyond the little tree he had ministered to until the day the sheriff was there. The testimony was undisputed that during the many years that he and Hauck had known each other their relations had always been friendly, with never any trouble between them or members of their families. Based upon this condition of the record, defendant’s counsel first strenuously contended that there was no competent evidence to carry the question of malicious, wanton, and wilful destruction by him of Hauck’s orchard to the jury, and their request for a directed verdict or, at least, their motion for a new trial on-the ground that the verdict was against the great weight of evidence, should have been granted. And further urge that prejudicial error entitling defendant to a new trial is shown under various assignments argued in counsel’s brief. We are not prepared to indorse counsel’s contention that a verdict should have been directed because of total absence of testimony to show motive or otherwise tending to support the prosecution’s theory of guilt. There was testimony, denied by defendant, of remarks made by him which, if found true, gave room for an inference of motive within the field of disputed facts as well as other disputed circumstances in the case, upon the import of which, if-found true, reasonable minds might honestly differ. As we are of opinion a new trial should be granted for other reasons, that feature of the case need not be further discussed. In his argument to the jury counsel for the prosecution asserted that Bridgman, the sheriff, “knew that he had the guilty man,” and, in reply to objection by defendant’s counsel, said, “The jury will understand and that is legitimate argument, that that was what George Bridgman knew,” followed by the court’s ruling that “if the jury will understand it in that light, proceed with the argument.” This gave room for the jury to understand they might consider in their deliberations the fact that the sheriff knew he had the guilty man, or at least give consideration to the sheriff’s opinion that he had. It was the duty of the jury to pass upon the facts and decide the question of guilt or innocence uninfluenced by the opinions of others. The import of such argument was an appeal for conviction, on the opinion of the sheriff. Upon the trial no character witnesses were called. In his closing argument to the jury counsel for the prosecution commented on the fact that defendant had lived in Sodus township 20 years and did not call any character witnesses to establish his good reputation. On counsel for defendant objecting and taking exception to the statement, the court said: “Counsel for the people had a right to comment on the failure of defendant to call witnesses to testify to any material matter here in issue. * * * He is commenting on the failure of defendant to call witnesses to establish good reputation, as I understand it.” A controversy then followed in which counsel for the prosecution stated the comments were in reply to argument of defendant’s' counsel referring to his good character. This the latter emphatically challenged to the extent of saying of the statement “that is untrue,” and on counsel for the prosecution’s assertion in reply, “the law is, we have a right to comment on the failure,” defendant’s counsel was asked by the court if he claimed the prosecution “has no right to comment on the failure of the respondent to bring witnesses to show good character?” to which counsel replied, “I certainly do,” and the court said, “Well, I am not sure about that.” After further expression of doubt the court finally sustained the objection, with the statement the jury would be cautioned not to pay any attention to the remarks of the counsel on the subject. In his charge the court left this issue of fact between counsel in the air and did not enlighten the jury upon the law of the subject but, “in view of what arose,” charged them “there is no evidence in this case one way or the other as, to respondent’s character or reputation,” followed by some remarks as to the controversy, concluding: “If any remarks have been made to the jury, or argument, on the question of defendant’s character or reputation, that should be ignored by the jury entirely.” It is a well-settled rule that an accused’s character or reputation cannot be put in issue by the State and an equally well-settled corollary that the prosecutor may not comment on the failure to call witnesses to sustain his character, unless his counsel is so indiscreet as to invite it by making assertions on the subject outside the record. People v. Oblasen, 104 Mich. 579. And where such unprovoked comments are made by the prosecutor it was said in People v. Evans, 72 Mich. 367, 382: “The error was not cured by the court after-wards instructing the jury that they should not consider such argument.” Vide, also, Quinn v. People, 123 Ill. 333 (15 N. E. 46). No inference can arise against an accused that he is guilty of the offense charged because he offers no evidence of his good character. In view of what occurred the jury should at least have been so instructed. The evidence on the part of the prosecution was entirely circumstantial, and all circumstances claimed to support the theory of guilt were urged by the defense as susceptible of an innocent construction. It was purely a case of inference as to the ultimate fact. From the record we are impressed that this feature of the case involved prejudicial error militating against a fair and impartial trial of the accused. Other errors complained of which might call for consideration are not likely to occur on a re-trial and need not be reviewed. The verdict must be set aside and a new trial granted. Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.

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McDonald, J. The plaintiff files his bill for the specific performance of an oral agreement which he claims to have made with his wife, Ottilie Weiland, in June, 1912, in which he was to furnish money necessary for repairing and remodeling her house on Russell street, in the city of Detroit. In consideration therefor, she was to put the title in their joint names, creating an estate by the entirety. The plaintiff paid the consideration but the wife refused to make the conveyance. About the 25th of September, 1919, she deeded the property to Antonia Emanuela, in pursuance of a land contract made on the 22d day of September, 1917, the consideration for which was $5,200. The deed was made without the knowledge or consent of the plaintiff. He claims she concealed this transaction from him and to prevent him from getting any part of the proceeds, deposited the money in the Wayne County & Home Savings Bank in the joint names of herself, as Herminie Brecht, and Emilie Bacherl, her sister. Domestic trouble arose between the parties and a divorce case was brought by the plaintiff in the county of Washtenaw. On the hearing the circuit judge filed an opinion in which it is claimed he made a division of their property between them, but, before a decree was signed and entered, Ottilie Weiland died. At the time of her death, on the 2d of February, 1920, there was $3,682.80 remaining on deposit in the bank, in the joint names of Herminie Brecht, who was actually Ottilie Weiland, and her sister defendant, Emilie Bacherl, who claims the fund by right of survivorship. Before Ottilie Weiland died she made a will, and the administrator, defendant Mack B. Stielau, claims this fund as a part of the estate. Fred Wagner, a former husband, is a beneficiary under the will and is here made a party defendant. Before her death she withdrew $500 from the amount on deposit, and paid it to one Michael Wurmlinger, who is also made a party defendant. The plaintiff claims the fund as survivor under the oral agreement of June, 1912. The defendants answering deny that the plaintiff furnished, money for remodeling the house, or that there was any agreement between him and his wife that he should be given any interest in the property. On the hearing the circuit judge found that the oral agreement was made, as claimed by the plaintiff, that there was sufficient part performance to avoid the statute of frauds, that the plaintiff was entitled to specific performance, that the proceeds of the sale of the property belonged to him as survivor, and directed the bank to pay to him the $8,657.80, remaining on deposit. That the $500 paid to defendant Michael Wurmlinger was also a part of the proceeds of the sale, and that the $400 of it should be returned to the plaintiff. We think the evidence supports the finding of the circuit judge that the oral agreement was made as plaintiff claims, and that he paid $1,800 for the repairs and remodeling of the house. The important question involved and relied on by defendants is that if the oral agreement was made by the parties, it was void under the statute of frauds and there was no such part performance as would take it out of the statute. The circuit judge based his conclusions as to part performance on possession, improvements and payment of the consideration. The facts as to possession appear to be that the plaintiff was at first living with Ottilie Wagner on the premises as a boarder; that he married her in April, 1912; that after the marriage they continued to live at the same place until November, 1912, when they rented the property and moved to Ecorse. About two months after the marriage the oral agreement was made. His possession, if it can be said that he had any, did not constitute an act of part performance, because it was not taken under the oral agreement and in reliance on it, but was exclusively referable to the domestic relationship of the parties. First he was a boarder, then the husband of the owner, and this relationship continued until the property was rented and the family moved to Ecorse. The character of the possession did not change after the oral contract wasi made. There is no evidence of any act or statement by the wife showing a recognition, of plaintiff’s interest in the property. On the contrary, she declined to acknowledge his claim and refused to make the conveyance. Possession with his wife of the premises following the oral agreement together with a recognition by her of his joint interest would present a different situation. See Murphy v. Stever, 47 Mich. 522. As to improvements, the plaintiff made none. They were made by the owner and he paid for them. That was his agreement. The bill states it as follows: “That in June, 1912, about two months after the. marriage between your plaintiff and said Odelia Weiland, an agreement was orally entered into by and between your plaintiff and his said wife at that time, to the effect and tenor that if this plaintiff would pay all the necessary bills for rebuilding and repairing said house on said lot, putting in new foundations, changing the same into a two-family flat, putting in modern plumbing, bathroom, gas, and painting the same, that the said Odelia Weiland would change the deed of said premises to an estate in the entirety, in the names of your plaintiff and said Odelia Weiland,” etc. The only witness who testified to a contract and to the improvements supported this allegation in the bill. The only thing that plaintiff did in part performance of the contract was to pay the consideration. For this he could have been compensated in an action for damages. “The mere payment of consideration by the purchaser which is susceptible of being compensated by damages, is not sufficient to take the case out of the statute.” Grindling v. Rehyl, 149 Mich. 641 (15 L. R. A. [N. S.] 466). “It is not payment alone that will take a case out of the statute, but this with possession, and acts done as owner in reliance thereon, that cannot ordinarily be compensated in damages, which entitles a party to an enforcement of a verbal agreement relating to the sale of lands.” Peckham v. Balch, 49 Mich. 179. See, also, Lamb v. Hinman, 46 Mich. 116; Kelsey v. McDonald, 76 Mich. 188. There are other facts and circumstances presented by the record which I think might materially affect plaintiff’s right to relief in equity, but these it is not necessary to discuss. As I view the whole matter, it is simply a case where the plaintiff has paid out money under a void contract. He has not presented a case where specific performance is necessary to do full justice and prevent fraud. “It has never been deemed proper to grant redress on a parol contract for a part performance capable of full pecuniary measurement. Generally there must have been a change of possession of the land in controversy, which is always regarded as involving considerations not easily estimated in damages. There are very few other cases where parties are placed in any such predicament as to require protection to save them from being defrauded. “It is not the policy of courts of equity to enlarge the exceptions to the statute of frauds. Where parties see fit to neglect the means it provides for putting their agreements into a form which will prevent disputes, they must usually be content to trust to each other’s promises, and not ask the courts to relieve them against the consequences of their own carelessness.” Webster v. Gray, 37 Mich. 37. The decree of the circuit court will be reversed. Costs will go to the defendants. A decree will be entered dismissing the plaintiff’s bill. Fellows, C. J., and Wiest/ Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Clark, J. This is an action for damages for assault and battery. Plaintiff was plowing out a ditch along a private right of way between the farm of his mother and the farm of defendant, in which right of way both owners asserted rights and concerning which there had been trouble and litigation between them. Defendant’s wife attempted to stop plaintiff’s plowing upon and across a way of defendant, as she claims, leading from such right of. way to defendant’s premises. Defendant came from his work to the scene of the trouble, claims that plaintiff assaulted his wife, whereupon he struck plaintiff. The defense, in the main, was that he struck in defense of his wife. There was a verdict of no cause of action upon which judgment was entered. Plaintiff brings error and contends: 1. That it was error to receive testimony of the former differences relative to the right of way. The answer to this is that the matter was brought into the case by the opening statement of plaintiff’s counsel and by his examination of witnesses. 2. Defendant was called for cross-examination under the statute and, examined by plaintiff’s counsel, stated that he had been arrested for the assault and battery and that he had- pleaded guilty and paid a fine. As to the incident defendant later testified over objection of counsel for plaintiff: “Q. That is before Judge Monte? “A. Yes. “Q. He said if you admitted it he would give you a small fine? “A. Yes, he said that would be all there would be to it. “Q. Did the judge tell you that he would give you a small fine if you would plead guilty? “A. Yes.” Plaintiff contends that this constitutes reversible error, citing Breitenbach v. Trowbridge, 64 Mich. 393 (8 Am. St. Rep. 829), where, in a civil action for assault and battery, it was said: “The court also erred in permitting testimony to be given in relation to what took place in Justice Miner’s court upon the trial there of a criminal action growing out of the same transaction. It was proper to give all that the defendant said there by the way of admission, but what Justice Miner said to him was incompetent, and had a manifest tendency to prejudice the jury.” We have examined the record in that case. It is not authority for the contention here made. The rule is stated in 5 C. J. p. 685: “Where defendant has pleaded guilty to a criminal charge of the same assault or battery, the record of his conviction on that plea may be introduced as an admission on his part against interest, and is also admissible in rebuttal to contradict defendant; it is not conclusive, however, but is subject to explanation.” It was said in Yeska v. Swendrzynski, 133 Wis. 475 (113 N. W. 959), quoting from syllabus: “In a civil action for assault and battery, where evidence was introduced of a criminal prosecution for the same assault in which defendants had pleaded, guilty, it is not error to allow defendants to give explanation as to their reasons for such plea, consisting in pressure of farm work and expense of repeated journeys to the place of trial.” See, also, Risdon v. Yates, 145 Cal. 210 (78 Pac. 641); Satham v. Muffle, 23 N. D. 63 (135 N. W. 797). The testimony was admissible. No other question merits discussion. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Bird, J. In January, 1920, plaintiff, a farmer boy, 18 years of age, went to Cadillac to work during the cold weather. After doing some work in a factory he hired to the Grand Rapids & Indiana Railway Company to work in and around its round house. His time was largely taken in shoveling cinders. On Sundays he was assigned to work with a steam shovel operated at the end of a boom 80 feet long, which was engaged in transferring coal from coal cars to locomotive tenders. His particular work on the Sunday in question was shoveling coal from the corners of the car so that the steam shovel or dipper could get hold of it. In the latter part of the afternoon he left his work on an errand to the cab of the locomotive, which was being coaled. After a short interval he was ordered back to his work on the car by Louis Manning, who was operating the steam shovel and who was his superior. Plaintiff immediately complied with the order. When he reached the coal car he placed his hands on top of the side of the car, which was about eight feet high, to help himself up, and while in that position the operator swung -the empty shovel back to the car and permitted it to drop on plaintiff’s right hand, thereby crushing the first, second and third fingers. Defendant was charged with negligence in permitting the shovel to drop on to plaintiff’s fingers. The case was submitted to the jury under the Federal act and a verdict returned of $2,500. The principal ground of complaint of the defendant is that the trial court should have directed a verdict in its behalf because there was no testimony which showed that it was negligent in the premises. The grounds of negligence alleged in the declaration are somewhat numerous. Among them are allegations that defendant did not furnish plaintiff with a safe place in which to work. That it did not furnish safe tools with which to work; that the tools were defective. It was also charged that defendant’s servant operating the steam shovel was incompetent and that the steam shovel was operated in a negligent manner. We do not think that any question of safe place was involved. There is some testimony that one of the small wheels upon which the base of the steam shovel revolved was flat and would slide instead of turning. The testimony of several of defendant’s witnesses was to the effect that this would not affect the operation of the steam shovel. If the operation were affected in any way by the defect it does not clearly appear in the testimony. It does appear that the day in question was the second day that Manning had operated the steam shovel, and that he was not well versed in operating it. It was shown that he ordered plaintiff to resume his work in the car. Plaintiff, in compliance therewith, started for the car. The top of the coal car being higher than his head, he reached the top of it with his hands to assist himself in getting into the car. As he did so, Manning lowered the steam shovel or dipper in such a way as to permit it to drop on plaintiff’s hand. Manning was in a position to command a view of the shovel at all times. He could also see plaintiff executing his order, and it was open for the jury to infer that had he been giving attention to his work, or operating the shovel in a proper manner, he could have avoided coming into collision with plaintiff’s hand. Whether the collision was due to Manning’s inattention or to his incompetency is not very important as both phases are covered in the declaration. It is argued at some length that the steam shovel was in plain sight of plaintiff and that he knew from the noise it made that it was being returned to the car and that he. should have observed and avoided it, and that his failure to do so constituted him guilty of contributory negligence which was the proximate cause of the injury, and, therefore, he could not recover. When plaintiff started to get upon the car he could not see the dipper but he quite likely knew that it was being returned to the car because of the noise it made. But this would not advise him that it would be dropped on the side of the car rather than in the car. The dropping of the dipper on the side of the car was an unusual thing and plaintiff had no reason to expect that the dipper would go bumping along on the top of the side of the car before it was lowered into the car.- Had it not done this plaintiff would not have been injured because his head was not above the top of the car. Had the proofs shown that it was customary for the dipper to go bumping along on the top of the sides of the car, and plaintiff knew of it, a different question would have been presented. The mere fact that plaintiff knew there was more or less oscillation óf the dipper when it was being returned to the car did not charge him with notice that it was liable to come in collision with the top of the car. The question of plaintiff’s contributory negligence was one of fact for the jury and we think it was properly submitted to them under the Federal rule. It is argued that the happening was one of the dangers incident to the employment, and, therefore, it was assumed by plaintiff when his employment began. We think it is clear that the dipper was dropped on to plaintiff’s hand either because it was negligently operated or because of the incompetency of the operator, as neither Manning nor plaintiff anticipated it would drop on the side of the car rather than in it. It could hardly be said that this, as a matter of law, was one of the hazards which plaintiff’s contract of employment included. The trial court submitted to the jury the question of assumed risk, saying to them in part that: “I further charge you that if you find that this danger was known to the plaintiff, or that by the exercise of reasonable diligence on his part, he ought to have known the danger at the time he went to work, and at the time he was injured, it will be your duty to find a verdict for the defendant in this case. “The jury is instructed as a matter of law, that a servant when he enters the service of an employer implicitly agrees that he will assume all risks which are obvious and naturally incident to the particular service in which he engages, and if the jury believe from the greater weight of the evidence that the injury to the plaintiff was. only the result of one of the risks ordinarily incident to the work in which plaintiff was engaged and was obvious and not otherwise, then he cannot recover in this case and your verdict should be no cause of action.” This instruction on the question of assumed risk was fully as favorable as defendant was entitled to. The further point is made that the verdict is excessive. The testimony shows that plaintiff has lost the use of three fingers on his right hand. This is important to him as he labors with his hands. The testimony shows that the injury caused him much pain and suffering. The injury is a permanent one and will always be a handicap to him in his work. We are not impressed that the verdict is excessive. The judgment is affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Clark, J. Plaintiff by deed became the owner of 8 lots in Detroit. The deed was subject to “a real estate mortgage in the sum of $200 on each lot or parcel of land aforesaid which the second party hereby assumes and agrees to pay.” The mortgagees were Andrew J. Keary and Ella R. Keary, defendants. The mortgage contained a power of sale. Under the provisions of chapter 249, 3 Comp. Laws 1915, relating to foreclosure of mortgages by advertisement, the premises were sold February 5,1918, to the mortgagees. The sheriff made and executed a deed and delivered it to the register of deeds pursuant to the statute. At the expiration of one year, the period of redemption, the premises not having been redeemed, the register delivered the deed to the purchasers as the law directs. On March 8, 1918, the soldiers’ and sailors’ civil relief act was approved by the president. 40 U. S. Stat. pp. 440-449 (U. S. Comp. Stat. Ann. Supp. 1919, § 307814a et seq.) On September 29, 1918, plaintiff entered the military service of the United States, and on May 14, 1919, he was honorably discharged. He filed a bill to redeem from the foreclosure, having tendered the amount . due. His bill was dismissed. He has appealed. In measuring the period of redemption from foreclosure by advertisement should the period of military service be excluded? We quote three sections of the act: “Section 100. That for the purpose of enabling the United States the more successfully to prosecute and carry on the war in which it is at present engaged, protection is hereby extended to persons in military service of the United States in order to prevent prejudice or injury to their civil rights, during their term of service and to enable them to devote their entire energy to the military needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the continuance of the present war. “Sec. 205. That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have1 accrued prior to or during the period of such service. “Sec. 302. (1) That the provisions of this section shall apply only to obligations originating prior to the date of approval of this act and secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of the military service and still so owned by him. “(2) In any proceeding commenced in any court during the period of military service to enforce such obligation arising out of nonpayment of any sum thereunder due or out of any other breach of the terms thereof occurring prior to or during the period of such service, the court may, after hearing, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of his military service— “ (a.) Stay the proceedings as provided in this act; or “(b) Make such other disposition of the case as may be equitable to conserve the interests of all parties. “3. No sale under a power of sale or under a judgment entered upon warrant of attorney to confess judgment contained in any such obligation shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved by the court.” In dismissing the bill Judge Webster said: “An examination of the soldiers’ and sailors’ civil relief act has satisfied me that (whether designedly or through oversight) it has failed to cover the case of a statutory redemption period which began to run before the passage of the act. This being true, plaintiff’s right to redeem expired February 5, 1919.” * * * His opinion is fully supported by Taylor v. McGregor, State Bank, 144 Minn. 249 (174 N. W. 893), where it was held, quoting from syllabus: “The act * * * has no application to the nonjudicial proceeding for the foreclosure of a real estate mortgage by advertisement, as authorized by our statutes, which was fully completed by a sale of the mortgagedi property prior to the commencement of the military service of soldier affected, though the period of redemption had not then expired.” And citing the above case a majority of the court held in Wood v. Vogel, 204 Ala. 692 (87 South. 174), quoting from syllabus: “The right of redemption given by Code 1907, § 5746 et seq., from judicial and qmsi-judicial sales is a mere personal privilege, and must be exercised within the two years prescribed; hence the soldiers’ and sailors’ relief act (U. S. Comp. Stat. Ann. Supp.' 1919, § 30781/4e), declaring that the period of military service shall not be included in computing any period of limitation, does not apply so as to extend the time within which the right of redemption may be exercised.” The act does not in precise terms refer to a limitation or foreclosure such as this. If the act must be strictly construed the opinion of the trial judge and the cases cited are right. But we think the act should be construed liberally to accomplish the congressional purpose indicated in the section quoted. Of a somewhat similar statute it was said in Stewart v. Kahn, 11 Wall. (U. S.) 493: “A case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning. The intention of the lawmaker constitutes the law. The statute is a remedial one and should be construed liberally to carry out the wise and salutary purposes of its enactment.” We quote from Ozawa v. United States, U. S. Adv. Ops. 1922-23, p. 11, decided November 13, 1922: “It is the duty of this court to give effect to the intent of congress. Primarily this intent is ascertained by giving the words their natural significance; but if this leads to an unreasonable result, plainly at variance with the policy of the legislation as a whole, we must examine the matter further. We may then look to the reason of the enactment, and inquire into its antecedent history, and give it effect in accordance^ with its design and purpose, sacrificing, if necessary,, the literal meaning in order that the purpose may not fail. See Church of the Holy Trinity v. United States, 143 U. S. 457 (12 Sup. Ct. 511); Heydenfeldt v. Mining Co., 93 U. S. 634, 638.” Of the act it was said in Steinfield v. Insurance Co. (N. H.), 112 Atl. 800: “It was not the legislative intent that the remedial purpose of the act should be defeated by a narrow or technical construction of the language used. Halle v. Cavanaugh, 79 N. H. 418 (111 Atl. 76).” And see Clark v. National Bank, 282 Fed. 589. The provision of our statute limiting the right of redemption from this foreclosure of mortgage to one year is not strictly a limitation of action. But relative to like limitations in analogous cases the act has been construed liberally and, we think, rightly. In Kuehn v. Neugebauer (Tex. Civ. App.), 216 S. W. 259, it was said:. “On April 25, 1918, this cause was reversed and was remanded to the district court of Hays county for a new trial. 204 S. W. 369. No motion for rehearing was ever filed. A few days prior to August 30, 1919, the appellee paid the costs of the appeal, and requested the clerk of this court to issue a mandate to the trial court, in. order that he might proceed with the prosecution of the cause, which request was refused by the clerk, upon the ground that the costs had not been paid within one year from the date of the judgment of this court, as required by article 1559, Revised Statutes.” And held, quoting from syllabus: "Soldiers’ and sailors’ civil relief act * * * authorizes the appellate court to grant a motion of an appellee, requesting it to instruct the clerk to issue a mandate, although costs had not been paid within one year from the reversal of a judgment in favor of appellee, it appearing that appellee, entered the military service of the United States, before he became aware of reversal of his judgment, and served overseas .until within three months of filing his motion, notwithstanding Rev. Stat. 1911, art. 1559, which leaves the appellate court without discretion to order the issuance of the mandate when costs are not paid within the year.” And also said: "The writer thinks it is proper to add that he is 'Of the opinion that article 3078%e, relating to limitations of actions, is also applicable to this case, and that the time limited by article 1559 for the payment of costs of an appeal and the taking out of a mandate did not run against appellee during the period of his military service. It is appreciated that this case probably does not fall within the strict letter of the last-named section (205), and that it would be giving it a very liberal construction to hold it applicable here. However, in view of the broad purposes of the act expressed in the first section and the remedial nature of every provision in it, it is believed by the writer that the subject-matter of this motion falls within the spirit of article 3078%e, without further elaboration of the question.” In Halle v. Cavanaugh, supra, there was motion to abate an action. The plaintiff died in the May term. The second term thereafter was the January term. The statute of that State provided that the administrator had two full terms in which' to appear and assume prosecution of the suit. No one appearing, the motion to abate was granted. The plaintiff’s husband was the executor of her will. He had been drafted into the military service of the United States. That fact was relied upon under the act to toll the statute. The court said: “The question here is whether this right to appear and prosecute a pending suit, which would abate but for such appearance, is covered by the Federal statute, which in terms applies to ‘The bringing of any action.’ There is no other provision in the Federal act which would afford any relief to the person so situated. The general purpose of that statute is declared to be to extend protection to persons in the military service to prevent prejudice or injury to their civil rights during their term of service. Id. % 100. In view of this declared object, it is reasonable to conclude that the intent was to include the procedure here involved. It follows that the husband had two full terms of court after the' death of his wife, and exclusive of the time he was in the service in which to appear as an individual and assume the prosecution of this suit.” Also: “The purpose of this act was the protection of persons in the military service of the United States, to prevent prejudice to their civil rights during their term of service by making provision for the temporary suspension of legal proceedings and transactions relating thereto.” (Italics supplied.) In the Steinfield Case the action was assumpsit on a policy of indemnity insurance. The policy provided that suit must be brought within 90 days after payment of loss. The suit was brought about 5 months after such payment but during this period plaintiff was in the military service. The section of the statute relied upon was section 205 above quoted. Defendant contended that the time for bringing suit was limited by the contract and not by “any law” and that therefore the statute did not apply. It was held: “The application of the Federal^ act is not limited to statutory provisions. It applies to all law, and provides, in substance, that notwithstanding the State law limits the action as by contract agreed, that law shall not apply while the plaintiff is in the service.” And for instructive cases relative to the act see Hoffman v. Savings Bank, 231 Mass. 324 (121 N. E. 15); Morse v. Stober, 233 Mass. 223 (123 N. E. 780, 9 A. L. R. 78); John Hancock Mut. Life Ins. Co. v. Lester, 234 Mass. 559 (125 N. E. 594); Olson v. Gowan Lenning Brown Co. (N. D.), 182 N. W. 929; Studt v. Trueblood, 190 Iowa, 1225 (181 N. W. 445); Pierrard v. Hoch, 97 Or. 71 (191 Pac. 328); Great Barrington Sav. Bank v. Brown (Mass.), 132 N. E. 398; Erickson v. Macey, 231 N. Y. 86 (131 N. E. 744, 16 A. L. R. 1322); Hickernell v. Gregory (Tex. Civ. App.), 224 S. W. 691; Austby v. Mortgage Co. (Mont.), 207 Pac. 631; Lewis v. Publishing Co. (Kan.), 208 Pac. 254; Konkel v. State, 168 Wis. 335 (170 N. W. 715); 16 A. L. R. 1327; 9 A. L. R. 1, 78. And the statutes of the State must yield to the act. Konkel v. State, supra. Had the foreclosure been in chancery (3 Comp. Laws 1915, § 12676 et seq.), and had plaintiff’s induction into the service occurred during the period of redemption there limited, the court, as was said in the Kuehn Case, might have and doubtless would have entered an order staying the execution of its decree upon proper application or upon its own motion upon being apprised of requisite facts. No reason appears why the act should be applied to a chancery foreclosure and not to a foreclosure by advertisement. And we think the act should be held to apply to the statutory limitation for redemption in the case at bar. The protection of those in the service by the suspension of legal proceedings and transactions which might prejudice their civil rights was the prime purpose of the act. We give effect here to the congressional intent by answering the above question affirmatively. Defendant Ebert, his counsel says, “does not claim to be a bona fide purchaser for value without notice.” The opinion, of the trial judge correctly disposes of another question raised, which we need not discuss. The decree is reversed. Decree will be entered here permitting redemption upon payment to defendants or to the clerk of this court of the amount of principal due, expenses of the foreclosure and unpaid interest to the date of the tender (the amount we hope will be agreed upon by counsel, or it may be determined upon settlement of the decree), and setting aside the sheriff’s deed and the deed to Ebert, with costs of both courts to plaintiff. Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Steere, J. Defendant was separately tried and convicted in the recorder’s court of Detroit under an information charging him and three others named William Sawyer, Dea Jones and Robert Jones with having, on December 23, 1921, committed the crime of robbery on Alexander D. Licitar, manager for the Schulze Baking Company’s store, located at 6052 Fourteenth street, near McGraw. It is undisputed that on the day in question the four men jointly charged rode together in an automobile driven by Robert Jones to near the Schulze Baking Company’s store, where they stopped and waited until Licitar came out of the store carrying a package wrapped in a newspaper, when he was held up and robbed of several hundred dollars by Sawyer and Dea Jones who covered him with loaded revolvers, threatened his life and seized from him the package which contained money he was taking to a bank for deposit. The two robbers then ran to the waiting automobile, jumped in and were rapidly driven away by Robert Jones with whom Rubel had remained while the robbery was committed. In their rapid drive to escape the car skidded into the curb as they were turning a corner and smashed a wheel. Rubel, Sawyer and Dea Jones then jumped out and ran, but were soon captured by an officer to whom they were pointed out by a party who saw them escaping, and the package of money recovered. Rubel’s defense was that he took no part in perpetrating the robbery and did not know the others were out for that purpose. His counsel adhere to that contention and say in their brief: “All the assignments of error can be grouped under the general proposition that the case should not have been submitted to the jury.” There was no claim on the part of the prosecution that Rubel physically participated in fhe direct act of robbery. Conviction was urged on the theory that he entered into a conspiracy with his associates to commit the crime and was present, aiding and abetting under an agreement or concerted plan to that end, while his counsel contend the testimony falls so far short of showing he was in any way a party to an illegal agreement or conspiracy that a verdict should have been directed in his favor. Rubel had formerly worked at the Schulze Baking Company’s store under Licitar, leaving there in October, 1921. Dea Jones, who had pleaded guilty, was called as a witness by the prosecution and related the story of the hold-up somewhat in detail. He testified that Rubel came over with Sawyer to where he lived the morning when plans were perfected for the enterprise. The automobile was furnished by his brother Robert who was a jitney driver and they armed themselves before starting. His talks upon the subject were with Sawyer, who was the leading spirit, but Rubel was present in the room and could have heard what they said. On cross-examination he was asked: “You don’t know whether Rubel heard any part of that conversation or not?” and replied, “I am positive.” After telling of stopping in front of the baking company’s store where they waited for some time, he was asked how he happened to get out of the automobile, and replied, “Well, I was told that this— Rubel just said, There is that guy now, if you want to get him,’ ” and then proceeded to relate how .he and Sawyer did get him. When arrested after fleeing from the scene of the crime in company with the actual hold-up men, who were yet armed and in possession of their booty, Rubel was taken in company with one of the Jones boys before the prosecuting attorney where they were interviewed. After being advised of his rights and informed that anything which he said might be used as evidence against him, Rubel was asked if he wanted to tell what part he took in the hold-up and replied he took no part in it, but said he would give a truthful statement as to his presence in that vicinity. A stenographer in attendance took down in shorthand what was said, and upon the trial was called as a witness. He testified to the correctness of his minutes and was permitted by the court against objection to read the statement. The record shows defendant’s rights were properly safeguarded and we find no error in the admission of the testimony. In the course of his account of how he accompanied his associates that morning with no anticipation of what was in store, he was asked and answered as follows: “Did you have any talk this morning about holding up the cashier of the Schulze Baking Company? “A. No, sir, not until we got over there. “Q. Did you have any talk before about going over there and holding up this cashier? “A. Not with those two fellows. I talked with Sawyer that I needed the money. “Q. Did you suggest this place in particular? “A. He asked me if I knew any place. He suggested a place before and I wouldn’t go and I told him about this place. * * * When we got over there we stopped on Fourteenth and Marquette so we could watch the door of the Schulze Baking Co. We waited about an hour or an hour and a half before any one came out. When the cashier came I didn’t do anything. Sawyer and Dea Jones got out and the other fellow drove round the block on McGraw. The fellows that got out had guns.” Upon his trial defendant did not take the stand as a witness and this testimony stands undisputed. But eliminating the evidence as to his admissions there was abundance in the record both direct and circumstantial to carry the question of his having understandingly co-operated and aided in the perpetration of the robbery to the jury. Upon the requisite proof to show conspiracy it is said in 2 Wharton’s Criminal Evidence (10th Ed.), 1482 et seq.: “The evidence supporting a conspiracy is generally circumstantial; it is not necessary to prove any direct act, or even any meeting of the conspirators, as the fact of conspiracy must be collected from the collateral circumstances of each case. It is for the court to say whether or not such connection has been sufficiently shown, but when that is done the doctrine applies that each party is the agent of all the others, so that an act done by one, in furthering the unlawful design, is the act of all, and a declaration made by one, at the time, is evidence against all.” The trial court in a clear and fair charge carefully went over the various phases of the case and explained to the jury the rules of evidence and presumptions protecting the rights of an accused in criminal trials, and with defendant’s requests before him gave in exact or equivalent language their substance so far as competent. No material error in the rulings or charge of the court being found, the conviction and sentence will stand affirmed. Fellows, C. J., and Wiest, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.

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Wiest, J. This is a suit by plaintiffs, who are husband and wife, against their son-in-law and daughter, to set aside a deed to a 40-acre farm in Ottawa county, executed and delivered by plaintiffs to Joe Boster on July 8, 1918. Plaintiffs claim the deed was executed-in pursuance of an agreement under which Joe Boster was to pay them $2,500 in cash; and that upon obtaining the deed Mr. Boster refused to make payment and claimed to own the farm. Defendants claim that the consideration for the deed, including the personal property on the farm, was Mr. Boster’s agreement to assume and pay the debts then owing by plaintiffs and to provide them with a home and support the rest of their lives, and in case they could not get along together, plaintiffs should be paid $2,000 and leave the farm. At the hearing plaintiffs claimed they were to have $2,500 in cash and also their home on the farm and support for life. The learned circuit judge found that the consideration for the deed was the agreement claimed by defendants, decreed that defendants pay plaintiffs $2,000, less a share in the proceeds from the farm during the season of 1921, and made such payment a lien on the farm. Plaintiffs have appealed and insist the deed should be set aside. We have care fully read the record and find ourselves in accord with the conclusion reached by the circuit judge. Plaintiffs claim they paid $1,800 for the farm in 1913, built a barn thereon, repaired the house, removed stumps and by cultivation materially improved the place. The farm was poor soil and yielded less than the bare necessities of life and to exist plaintiffs had to run in debt to a small extent. The place was subject to a mortgage of $400, which Mr. Boster assumed. Mr. Boster and his wife worked some in Chicago and earned money with which to pay plaintiff’s debts, the interest on the mortgage and the cost of improvements upon the buildings. Trouble arose between the parties and defendants, by advice of counsel, left the farm upon the commencement of this suit in May, 1921. Since that time plaintiffs have had the proceeds from the farm. Defendants aver they are willing to pay the $2,000 as they agreed, and claim they have paid the debts of plaintiffs. Considering the character of the soil, condition of the buildings, the quantity of tillable land and the livestock and farm implements at the time the deed was executed, the farm, livestock and implements were worth about $2,500. We are persuaded, as was the circuit judge, that: “It is not reasonable to believe that defendants would agree to pay the full value of the property and then further agree to give plaintiffs a home for life.” We are satisfied the consideration was to provide a home for plaintiffs and support them as long as they lived, to pay their debts, and, if trouble arose, plaintiffs should leave the farm and be paid $2,000. The decree is affirmed, with costs to defendants. Fellows, C. J., and McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

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Per Curiam. Defendant appeals by leave granted from the trial court’s order denying defendant’s motion for summary or accelerated judgment. Plaintiff, a locksmith, filed a complaint against defendant, alleging that it committed "simple negligence” and, alternatively, "willful, wanton and gross conduct [sic]” inasmuch as defendant listed plaintiff’s advertisement in the yellow pages of defendant’s telephone directory under "Loans” rather than "Locksmiths”. Defendant moved for summary or accelerated judgment. It asked for accelerated judgment, pursuant to GCR 1963, 116.1(2), on the ground that the Public Service Commission, not the circuit court, has jurisdiction over plaintiff’s claim. It asked for summary judgment, pursuant to GCR 1963, 117.2(1), for the reason that 1979 AC, R 460.1960(3) and General Telephone Company of Michigan Tariff MPSC No. 7 limit defendant’s liability for errors in a directory listing to refund of the charge for the listing and that plaintiff’s charge had been refunded. The trial court denied the motion. This Court granted leave on October 6, 1982. There are two issues on appeal. First: Does the circuit court or the Public Service Commission have jurisdiction over plaintiff’s claim? Second: Assuming arguendo that the circuit court has jurisdiction, is defendant’s liability limited by the applicable code and tariff provisions? I The Supreme Court has discussed in several cases the circuit court’s jurisdiction to adjudicate a plaintiff’s claims against a telephone company. In Harbaugh v Citizens Telephone Co, 190 Mich 421; 157 NW 32 (1916), a declaration for trespass on the case against a telephone company for wrongful refusal to connect plaintiff’s telephone with a city exchange, charging loss of business, was held to state a cause of action for which damages could be recovered. Harbaugh recognized that in some situations a court of general jurisdiction is the proper forum in which to sue a telephone company. In Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich 472; 65 NW2d 748 (1954), the plaintiff sued for damages suffered due to negligence of a telephone company in assigning a number. The Court found that the plaintiff’s action could be adjudicated by the circuit court because the action was one "sounding in tort”. This holding was reaffirmed in Muskegon Agency, Inc v General Telephone Co of Michigan, 350 Mich 41; 85 NW2d 170 (1957). The latest word from the Supreme. Court on this topic is found in Valentine v Michigan Bell Telephone Co, 388 Mich 19; 199 NW2d 182 (1972). The plaintiff brought suit alleging that the telephone company had not provided him with adequate service. The trial court granted defendant’s motion for summary judgment. The Court, on review, discussed the jurisdiction question at some length. The Court described the jurisdiction of the Public Service Commission as follows: "[T]he code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission. Ordinarily, a party aggrieved by the provisions of a tariff or code should seek relief by an attack upon those provisions before the Public Service Commission and from it to the Ingham County Circuit Court.” 388 Mich 26. The jurisdiction of the circuit court is set forth in the following passages: "If a plaintiff’s cause of action is based upon a claim that the utility has violated Public Service Commission promulgated tariffs or codes, or if the claim covers some action by the utility outside of the regulations of the Public Service Commission, a court of general jurisdiction is the proper forum. * * * Harbaugh, supra, and Muskegon Agency cases, supra, have clearly established that the proper forum for a claim sounding in tort is a court of general jurisdiction of this state.” 388 Mich 25-26. "A claim that sets forth facts showing a plaintiff suffered damage as a result of a violation of the tariffs and regulations can be entertained by a court of general jurisdiction, or a claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction.” 388 Mich 30. Thus, under Valentine, if the plaintiffs claim sounds in tort, it is for the court; if it is a claim on a contract, it is for the Public Service Commission. The principles of Valentine must be applied to the instant case. That task is considerably easier in light of this Court’s decision in B & W Rustproofing, Inc v Michigan Bell Telephone Co, 88 Mich App 242; 276 NW2d 572 (1979). The plaintiff alleged in its complaint that the defendant failed to include its new number in the latest telephone directory. This Court concluded: "The complaint sets forth allegations contending that defendant acted in a negligent manner. Since the complaint alleges tortious conduct on the part of defendant it was properly brought in circuit court.” 88 Mich App 245. (Footnote omitted.) This case also involves an allegation that the telephone company acted negligently regarding a listing in a telephone directory. Thus, the action was properly brought in circuit court. II The next issue is whether the defendant’s liability is limited by the applicable code and tariff provisions. 1979 AC, R 460, 1960 (3) provides: "(3) The telephone utility is not liable for errors in or omissions from directories except in cases where a specific charge has been made for a listing; in no event shall the liability for such error of omission be beyond the amount of the specific charge.” General Telephone Company Tariff MPSC No 7, First Revised Sheet 8.1 provides: "For the convenience of the service, a directory for each exchange is published from time to time, but as experience demonstrates that errors and omissions will occur with more or less frequency, the Telephone Company is not liable for errors or ommissions from the directories except in cases where a specific charge has been made for listing; in no event shall the Telephone Company be liable for any such error or omission beyond the amount of such charge.” The defendant argues that, under Valentine, plaintiff’s recovery is limited by these provisions. In a passage quoted above, the Court said that the "code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission.” 388 Mich 26. But, as this language makes clear, these limits apply only to a claim based on the contract between the parties. As a recent case of this Court indicates, recovery is not so limited when the action sounds in tort. In Hunter v General Telephone Co, 121 Mich App 411; 328 NW2d 648 (1982), the plaintiff sued the defendant for the failure of its employees to give out the correct number of his business. The plaintiff sought damages for the alleged negligent, reckless, wilful, wanton, malicious and intentional misconduct of defendant. The defendant argued that its liability was limited by 1954 AC, R 460.1960(10.2) [1979 AC, R 460.1960(2)]. That provi sion limits the telephone utility’s liability for damages arising out of "mistakes, omissions, interruptions, delays, errors, or defects in transmission” to "an amount proportionate to the charge to the customer” for the affected period of service. This Court rejected the defendant’s argument. Valentine, this Court said, "appears to affirm the notion that, once tortious conduct is properly alleged, a plaintiff may proceed in a court of general jurisdiction against a telephone company to recover full tort damages without regard to 1954 AC, R 460.1960(10.2). There is no indication in Valentine that any tort action against a telephone company which is properly brought in a court of general jurisdiction is nonetheless subject to the limitations on liability set forth in the regulation and tariffs.” 121 Mich App 419-420. Although critical of Valentine, the Hunter Court' found itself constrained to follow it. See Hunter, supra, p 421. Hunter correctly construed Valentine. Indeed, Valentine is consistent with earlier case law which establishes that a plaintiff who sues a telephone utility in tort is entitled to full tort recovery. See Harbaugh, supra, p 428; Muskegon Agency, 340 Mich 482. Thus, the plaintiff in the present case is entitled to full tort recovery. The trial court did not err in denying defendant’s motion for summary or accelerated judgment. Affirmed. No costs.

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Cynar, J. The lower court granted a summary judgment pursuant to GCR 1963, 117.2, subds (1) and (3) in favor of defendant Dollie Cole against plaintiff Robert H. Pastor Building and Real Estate Development Company. Summary judgment was granted based upon plaintiffs failure to possess a valid residential builder’s license as provided under the residential builder’s act. MCL 338.1501 et seq.; MSA 18.86(101) et seq. Plaintiff appeals as of right from this judgment. The sole question is whether plaintiff needed to be licensed under the circumstances of this case in order to prosecute this action against defendant. Plaintiff filed a complaint seeking specific performance or, in the alternative, damages for the breach of an oral agreemept entered into with defendant. The complaint alleged that Robert H. Pastor was the sole stockholder and president of plaintiff company. The complaint further alleged that about March, 1978, Pastor and defendant met "to consider and negotiate an agreement for acquisition of a parcel of real estate known to plaintiff, and to agree upon the terms of acquisition and a joint agreement for such acquisition, platting, development, marketing and distribution of anticipated profits”. Paragraph 6 of the complaint asserts: "As a result of said meeting * * * an oral agreement was reached by and between plaintiff and defendant whereby plaintiff would purchase the real estate described in Exhibit A, * * *. Plaintiff would utilize its expertise to improve, develop, plat and market the land described in Exhibit A with the exception of one (1) lot containing an existing residential home to be retained by defendant, and the net proceeds of sale would be divided equally between plaintiff and defendant.” Plaintiff alleges that in the initial stages of the development of the subject real estate defendant notified plaintiff of her intention to disregard the oral agreement. Plaintiff alternatively sought specific performance of the agreement or monetary damages in excess of $50,000. Defendant filed a motion for accelerated or summary judgment arguing, in part, that plaintiff lacked the capacity to sue because of its failure to obtain a license as required by the residential builder’s act. This motion was denied. Defendant then raised this issue as an affirmative defense, interposing also the statute of frauds, the rule against perpetuities, estoppel and lack of clean hands, unconscionability, fraud and undue influence. Thereafter, defendant filed a third-party complaint, seeking damages against Robert H. Pastor individually. The third-party complaint alleged a breach of fiduciary relationship, fraud, intentional infliction of emotional distress and invasion of privacy. This case was assigned to a new judge upon the death of the original judge. A jury trial was commenced, and plaintiff presented the testimony of Robert H. Pastor. At the close of the second day of trial, defendant renewed her motion for summary judgment, noting that Pastor had testified that at no time during the transaction in question had plaintiff company ever possessed a builder’s license. The trial judge, believing himself to be bound by the prior judge’s denial of the motion for summary judgment, indicated that the issue would more properly be resolved by a motion for directed verdict at the conclusion of plaintiff’s proofs. At the conclusion of Pastor’s testimony, however, the trial judge granted summary judgment to defendant. The judge held that the statute requiring the licensing of residential builders was applicable and that it precluded plaintiff from maintaining suit against defendant. The trial court issued a written opinion, finding that the plaintiff company was unlicensed and was subdividing land for purposes of future construction of homes for a profit and that, therefore, the alleged oral contract was void and unenforceable. The residential builder’s act, MCL 338.1501 et seq.; MSA 18.86(101) et seq. (subsequently repealed and replaced by MCL 339.2401 et seq.; MSA 18.425[2401] et seq.), provided that a person engaged in business as a residential builder or residential maintenance and alteration contractor or salesman must obtain a license, unless particularly exempted by the act. "No person engaged in the business or acting in the capacity of a residential builder and/or residential maintenance and alteration contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract * * MCL 338.1516; MSA 18.86(116). The effect of this provision is to preclude noncomplying contractors from recovering on their residential building or alteration contracts even where the contract has been complied with in all respects, thereby in some instances bestowing a substantial windfall to the party claiming the defense. Bernard F Hoste, Inc v Kortz, 117 Mich App 448, 451; 324 NW2d 46 (1982). The courts of this state have consistently upheld this harsh penalty for noncompliance with the residential builder’s act. See, e.g., Alexander v Neal, 364 Mich 485; 110 NW2d 797 (1961); Green v Ingersoll, 89 Mich App 228; 280 NW2d 496 (1979); King Arthur’s Court v Bedgley, 47 Mich App 222; 209 NW2d 488 (1973). The cases construing the residential builder’s act are difficult to follow. A review of some of those cases will be helpful. "[T]he important criterion for coverage by the statute is not the existence or type of structure, but rather the nature of its occupancy.” Artman v College Heights Mobile Park, Inc, 20 Mich App 193, 199; 173 NW2d 833 (1969). For example, a trailer park is residential property under the residential builder’s act. In Brummel v Whelpley, 46 Mich App 93; 207 NW2d 399 (1973), the plaintiff was a licensed real estate broker who owned an undeveloped lot. He negotiated to sell the lot and to build a home on the lot for the defendants. Although the plaintiff was not a licensed builder, he did hire a licensed builder to construct the house. When the defendants refused to pay the balance owing on the house, the plaintiff sued for specific performance of the contract or, in the alternative, for damages. The defendant moved for a summary judgment, contending that the plaintiff was not a licensed residential builder as required under MCL 338.1501 et seq.; MSA 18.86(101) et seq. In reaching its holding, the Court observed that the plaintiff was the only person to whom the defendants could look for performance. The contract was, therefore, void and unenforceable. Brummel, supra, p 96. In King Arthur’s Court, supra, the plaintiff as the owner, operator and developer of a trailer park entered into an agreement with the defendant for the construction of the trailer park. The plaintiff brought an action to discharge a mechanics’ lien imposed by the defendant. The defendant, an unlicensed residential builder, counterclaimed for amounts claimed under the lien. This Court, following Artman, held the residential builder’s act to be applicable to the construction of trailer parks. The Court reluctantly ruled that the defendant’s failure to comply with the requirements of the act was a valid defense if the contract was made after the effective date of the act. King Arthur’s Court, supra, p 266. In Reynolds v College Park Corp, 63 Mich App 325; 234 NW2d 507 (1975), lv den 395 Mich 823 (1975), the plaintiff and several other individuals entered into a joint venture to develop a mobile home park, which resulted in College Park Corporation. The plaintiff, a stockholder and director of the defendant corporation, disposed of his interest therein and brought suit for compensation from the defendant for his labor and services in the construction and development of the mobile home sites. The plaintiff prevailed although defendant raised the defense that the plaintiff lacked a residential builder’s license. "As the Supreme Court stated in Tracer v Bushre, 381 Mich 282, 290; 160 NW2d 898 (1968): 'The residential builders law is essentially a consumer protection measure.’ ” Reynolds, supra, p 329. In Reynolds, the Court differentiated its decision from Brummel by observing that in Reynolds the person required by the act to be licensed was the defendant and not the plaintiff because the definition of residential builder better fit the defendant developer of the mobile home park than the plaintiff. "Otherwise, defendant would divert the statute’s thrust of consumer protection and use it as a shield against worthy, nonconsumer claims.” Reynolds, supra, p 330. The rule of Reynolds was not modified by Charles Featherly Construction Co v Property Development Group, Inc, 400 Mich 198; 253 NW2d 643 (1977). In Featherly, the plaintiff built condominiums for which full payment was not made. The defendants owned or participated in financing the condominium development. Plaintiff’s principal argument was that the licensing act was designed to protect individual homeowners and not owners of whole developments like the defendants. The circuit court dismissed the plaintiff’s action because the plaintiff had not complied with the residential builder’s licensing act. The Court of Appeals affirmed the circuit court, and the Supreme Court affirmed the Court of Appeals. The Supreme Court distinguished Reynolds on its special facts. In Reynolds, the plaintiff was a former director and shareholder of the defendant, and the defendant was the entity properly required to have a builder’s license. Featherly, supra, pp 206-207. Under the facts in this case, we find Reynolds controlling. Although plaintiff company is engaged in the business of developing the subject land, it allegedly did so pursuant to the joint venture agreement. Assuming, as this Court must for the purpose of the summary judgment motion, that plaintiff’s allegations are true, it was the joint venture which was the actual developer and which should have been licensed. Following the reasoning in Reynolds, if the joint venture had been licensed, plaintiff would have been exempted by the provisions of MCL 338.1503(d); MSA 18.86(103)(d) from compliance with the act. Thus, plaintiff may sue defendant if its suit is characterized as one for compensation based upon its own performance notwithstanding the fact it was not licensed. Reversed and remanded for trial. We do not retain jurisdiction.

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Bronson, P.J. The Police Officers Association of Michigan (POAM) appeals from a decision finding that it acted in bad faith and an order vacating an arbitration award, restoring plaintiff to his previous position and directing the parties to conduct an arbitration hearing in which plaintiff is allowed to participate. On May 5, 1980, the Ecorse Police and Fire Commission promoted plaintiff, then a patrolman, to the rank of detective. On May 7, 1980, Corporal Frank Chirillo sought the assistance of POAM in filing a grievance concerning plaintiff’s promotion. POAM was the exclusive collective-bargaining agent for both plaintiff and Corporal Chirillo. Its collective-bargaining agreement with the city provided the following grievance procedure: "7.1: Whenever a police officer has a complaint or grievance, he shall take it up first with the Union. "Step 1: "7.2: The Union may file the grievance with the Chief of Police to attempt to settle the dispute. The Chief shall answer the grievance within ten (10) days. "Step 2: "7.3: If the answer is unsatisfactory to the Union, the Union may appeal the dispute to the Police and Fire Commission to be heard at the next regular meeting. The Police and Fire Commission shall answer the grievance within thirty-five (35) days from when it is filed. "Step 3: "7.4: In the event the Union is not satisfied with the disposition of the dispute, the Union may file the dispute with the American Arbitration Association or the Michigan Employment Relations Commission (MERC) for final and binding arbitration in accordance with their rules. "7.5: The City and Union shall share the cost of arbitration.” POAM pursued Corporal Chirillo’s grievance to arbitration. It contended that plaintiffs promotion had violated the collective-bargaining agreement due to the city’s failure to post and fill the job opening according to the provisions of the agreement. The city contended that the position filled by plaintiff was not covered by the vacancy or job assignment provisions of the agreement. On February 12, 1981, an arbitration hearing was held. Plaintiff attempted to appear at the hearing with his attorney. POAM’s representative asked that plaintiff be excluded from the heáring unless the city wished to call him as a witness. The arbitrator granted POAM’s request. At the conclusion of the hearing, POAM, the city and the arbitrator agreed that plaintiff should be requested to submit his arguments in writing to the arbitrator. On February 17, 1981, plaintiff’s attorney submitted a letter to the arbitrator. He reiterated plaintiff’s position, stated before the hearing, that the arbitrator was without jurisdiction to make an award directly affecting plaintiff. He argued that, even if the arbitrator had possessed jurisdiction to decide plaintiff’s claim to stay in his job, plaintiff’s right to due process had required his participation in the arbitration hearing. He also argued that a favorable disposition of Corporal Chirillo’s grievance did not require plaintiff’s demotion. On March 13, 1981, the arbitrator ruled in favor of Corporal Chirillo. He specifically noted that POAM had not asked that plaintiff be removed from his position, but only that a detective position be posted and filled according to the terms of the collective-bargaining agreement. The city had contended that the arbitrator was without power to affect plaintiff’s position. He ruled that the city violated the collective-bargaining agreement by promoting plaintiff. His award stated: "3. The Employer shall reconsider the promotion of Officer Demings by offering the Detective position filled by Demings to the most senior qualified member of the bargaining unit, if other than Demings. In so doing the Employer shall first offer the position to the members of the bargaining unit and then fill the position with the most senior qualified employee in the bargaining unit seeking the position.” On June 1, 1981, the city rescinded plaintiff’s promotion and resolved to keep the position to which he had been promoted vacant. On June 26, 1981, plaintiff filed an action in circuit court seeking a preliminary injunction restoring him to his previous position, monetary damages and other relief. Named as defendants were the city, its police and fire commission and POAM. Plaintiff’s claims can be characterized as follows: 1. The city violated the collective-bargaining agreement by demoting him; 2. POAM arbitrarily refused to file a grievance on his behalf concerning the alleged violation; 3. Certain of the allegations made in Corporal Chirillo’s grievance were equally applicable to other promotions, yet no grievances were filed in those cases; 4. His demotion resulted from his wrongful exclusion from the February 12, 1981, arbitration hearing; 5. The city and POAM discriminated against him on the basis of race. Claims 2, 3, and 4 were alleged to be breaches of POAM’s duty of fair representation. At a hearing on plaintiff’s request for a preliminary injunction, plaintiff asked the court to make a preliminary decision based only on the question of the union’s duty of fair representation. The trial court ruled that POAM breached its duty to represent plaintiff fairly by refusing to allow him to participate in the arbitration of Corporal Chirillo’s grievance. The court entered an order setting aside the arbitrator’s award, directing that a new arbitration proceeding be conducted with plaintiff’s participation and restoring plaintiff to the position of detective retroactive to the date of his demotion. Later, the court stayed that part of the order directing that a new arbitration hearing be conducted and entered the provisions of the preliminary injunction as a final order. At that time, it denied defendant POAM’s motions for summary and accelerated judgment. POAM has appealed; the city has not. POAM claims that Michigan should not recognize, as a cause of action, a claim that a public employee union breached its duty of fair representation. Such a cause of action may be asserted in federal and state courts for private sector employees covered by the provisions of the federal Labor Management Relations Act (LMRA) under § 301 of that act, 29 USC 185. Vaca v Sipes, 386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967). Plaintiff, an employee of a political subdivision of a state, is not covered by the federal labor laws. LMRA, § 2(2), 29 USC 152(2). Plaintiff, the city and POAM are subject to Michigan’s analogous public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. POAM argues that the absence, in PERA, of a provision analogous to § 301 of the LMRA indicates that no cause of action for breach of the duty of fair representation exists for the state’s public employees. The inclusion of the jurisdictional grant in § 301 confirmed the congressional intent that other provisions of the LMRA for redressing unfair labor practices did not constitute an exclusive statement of the rights created by that act and did not eliminate or militate against the right to seek relief in federal courts for violations of a collective-bargaining agreement. Wilson & Co v United Packinghouse Workers of America, 83 F Supp 162 (SD NY, 1949). Section 301 was intended to eliminate obstacles to bringing a claim of a breach of a collective-bargaining agreement in federal court, International Longshoremen’s & Warehousemen’s Union v Juneau Spruce Corp, 342 US 237; 72 S Ct 235; 96 L Ed 275 (1952). The jurisdictional grant does not give federal courts any different or additional powers than a state court would have had if the action had been brought there. Mercury Oil Refining Co v Oil Workers International Union, CIO, 187 F2d 980 (CA 10, 1951). The Michigan Supreme Court has recognized that a right of action exists for breach of the duty of fair representation. Lowe v Hotel & Restaurant Employees Union, Local 705, 389 Mich 123, 145; 205 NW2d 167 (1973). Our Supreme Court stated that the duty arose out of the statutory power of exclusive representation granted unions in § 9 of the National Labor Relations Act (NLRA), 29 USC 159. Bebensee v Ross Pierce Electric, Inc, 400 Mich 233, 244; 253 NW2d 633 (1977). The Court held that a union’s power to bargain exclusively for the employees of a bargaining unit, and to make binding agreements governing the individual member’s employment, implicitly imposed on the union the duty of fairly representing all members of the unit. Bebensee, supra, pp 244-245. See also Humphrey v Moore, 375 US 335; 84 S Ct 363; 11 L Ed 2d 370 (1964); Ford Motor Co v Huffman, 345 US 330; 73 S Ct 681; 97 L Ed 1048 (1953). In Michigan, a public employee’s union is granted the same power of exclusive representation by §11 of PERA, MCL 423.211; MSA 17.455(11), as is granted unions in the private sector by § 9 of the NLRA. As in the private sector, the power of exclusive representation implies the duty to represent fairly. See Saginario v Attorney General, 87 NJ 480; 435 A2d 1134 (1981) (Clifford, J., concurring). The statutory grant of the power of exclusive representation might infringe on the due process rights of a member of a bargaining unit absent the implication of a duty to represent fairly. Local Union No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO v National Labor Relations Board, 368 F2d 12 (CA 5, 1966), cert den 389 US 837; 88 S Ct 53; 19 L Ed 2d 99 (1967). We think that, for public employees, the existence of the right to fair representation must be implied from the grant to unions of exclusive bargaining rights. In the present case, the duty to fairly represent its members in the grievance procedure must be implied from the union’s exclusive control over the procedure. Having concluded that the duty of the public employee’s union exists, we have no doubt that a cause of action exists under state law where the duty is breached. Plaintiff is claiming that the city breached its contract with him; his claim of the union’s bad faith precludes the employer from barring his claim by relying on plaintiffs failure to pursue the exclusive grievance procedures provided under the contract. Plaintiff’s cause of action is the same as that of an employee in the private sector. POAM claims that plaintiffs suit was barred by his failure to exhaust administrative remedies, specifically his failure to bring an unfair labor practice charge with the Michigan Employment Relations Commission (MERC). We agree that MERC has jurisdiction over public employees’ fair representation claims. MCL 423.210; MSA 17.455(10) makes it unlawful for a labor organization to restrain or coerce a public employee in the exercise of his right to organize and engage in concerted activity. Under federal law, the breach of a union’s duty of fair representation is an unfair labor practice because it may result in employees’ unwillingness to participate in their union, thus restraining their right to engage in protected concerted activity. Local Union No 12, supra. Montana’s Supreme Court has interpreted provisions in its public employment relations statute, identical to ones appearing in PERA, as conferring jurisdiction over fair representation claims on the body which considers unfair labor practice claims. Teamsters, Local No 45 v State ex rel Board of Personnel Appeals, 635 P2d 1310 (Mont, 1981). The unfair labor practice provisions of both PERA and the Montana statute are patterned closely after those of the NLRA. Interpretations of the NLRA and state labor laws patterned after it are often persuasive in the interpretation of PERA. We hold that MERC has jurisdiction over fair representation claims. POAM claims that plaintiffs failure to file an unfair labor practice charge with MERC was a failure to exhaust administrative remedies barring him from seeking judicial relief. We cannot agree. Our Supreme Court has held that MERC’s jurisdiction and authority to determine unfair labor practices under PERA is exclusive. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 118; 252 NW2d 818 (1977). We cannot decide the exhaustion claim without considering the possibility of exclusive jurisdiction. This Court has decided a public employee’s fair representation suit without considering this question. Martin v Shiawassee County Bd of Comm’rs, 109 Mich App 32; 310 NW2d 896 (1981). Faced with a very similar statute, the Montana Supreme Court decided that its courts had concurrent jurisdiction over fair representation claims. Teamsters, Local No 45, supra. See also Ford v University of Montana, 598 P2d 604 (Mont, 1979). In the private sector, the NLRB does not have exclusive jurisdiction over fair representation claims and the federal and state courts have not required exhaustion of administrative remedies. Thomas v Ford Motor Co, 396 F Supp 52 (ED Mich, 1973), aff'd 516 F2d 902 (CA 6, 1975), cert den 421 US 988; 95 S Ct 1991; 44 L Ed 2d 478 (1975); Crawford v Pittsburgh-Des Moines Steel Co, 386 F Supp 290 (D Wyo, 1974). At least one federal court has held that the NLRB does have exclusive jurisdiction over fair representation claims where the claim against the union is not coupled with a claim that the employer breached the collective-bargaining agreement. Local Union No 12, supra. Despite the broad language of Lamphere, supra, acknowledging MERC’s exclusive jurisdiction over unfair labor practices, we do not believe that MERC’s jurisdiction over fair representation claims is exclusive. The Lamphere Court cited three reasons for its holding that a school district may not sue a teachers’ union for damages caused by a peaceful strike made illegal by PERA. The first was the conviction, upon a review of the language and history of PERA, that PERA was to occupy the public labor relations field completely in dealing with public employees’ peaceful strikes. Second was the absence of any common-law precedent for the cause of action pled by the school district. Third was the public policy against recognizing a new cause of action which might unsettle a precarious balance of power in public sector union-management relations. Lamphere, supra, pp 107-108. These reasons do not militate in favor of holding that MERC has exclusive jurisdiction over fair representation claims where breach of a collective-bargaining agreement is pled against the employer. In Lamphere, the Court examined PERA and found that the careful wording of the act’s exten sive anti-strike provisions indicated a legislative intent to exclude resort to all other remedies to settle disputes arising out of a public employees’ strike. The Legislature did not discuss fair representation claims at all in PERA. Jurisdiction to hear fair representation claims must be implied from the very general provisions of MCL 423.210; MSA 17.455(10). Furthermore, the main provisions of PERA were enacted in 1947, long before fair representation claims were recognized as unfair labor practice claims by the NLRB in Miranda Fuel Co, 140 NLRB 181; 51 LRRM 1584 (1962), enforcement den 326 F2d 172 (CA 2, 1963). Vaca v Sipes, 386 US 171, 177-179; 87 S Ct 903; 17 L Ed 2d 842 (1967). It is unlikely that our Legislature actually contemplated the treatment of a breach of the duty of fair representation as an unfair labor practice. We cannot say that anything in the language or history of PERA suggests an intent to treat fair representation claims like illegal strike claims. In Lamphere, the Supreme Court found no applicable precedent for the cause of action pled by the school district, i.e., for damages to an employer caused by a strike made illegal by PERA. Conceding that the jurisdictional question is not resolved by our conclusion, we find no difference between plaintiffs claimed cause of action and one pled by a private employee. In bringing a fair representation suit, an employee is only marginally interested in enforcing his rights under PERA. He is primarily interested in enforcing his contract rights under the collective-bargaining agreement against the employer and his right to an agent’s good faith dealing against the union. It is the contractual nature of a fair representation cause of action that convinced the United States Su preme Court that neither exclusive NLRB jurisdiction nor the exhaustion doctrine applied to keep such cases out of the courts. Vaca, supra, pp 183-187. The rights enforced by a fair representation suit are not just rights granted by PERA; they are rights arising from the law of contract. While PERA allowed public employers and employees to enter into relationships which gave rise to the right of fair representation, it was the fiduciary or agency relationship and not the statute which gave rise to the duty. Independent of anything in PERA, the right to fair representation exists whenever public employees are represented by an exclusive bargaining agent. We conclude that the rights enforced in a fair representation suit are common-law rights; a statutory remedy for a common-law right is cumulative, not exclusive. Lamphere, supra, p 127. The third factor supporting the finding of exclusive jurisdiction in Lamphere was the Court’s assessment of public policy considerations. An assessment of the same considerations here leads us to conclude that neither exclusive MERC jurisdiction nor the doctrine of exhaustion required dismissal of plaintiffs suit. Our courts commonly hear fair representation suits which arise in the private sector. In such cases, state courts apply the uniform federal common law. In most cases, the same principles will apply to public employees’ fair representation suits. In Lamphere, the provisions of PERA provided a comprehensive framework for the resolution of the dispute between the parties. The procedures of PERA are not designed to resolve fully all fair representation claims. It is clear from Lowe that the union may be held liable in damages for breach of the duty of fair representation, a remedy not available from MERC. In many fair representation cases, an arbitration decision may be involved which gives rise to cross-claims seeking confirmation or vacation of the award. Jurisdiction to decide fully many fair representation disputes may only be found in the circuit courts. Moreover, MERC’s resources may be allocated in such a way that fair representation claims are not accorded the same attention or priority that claims affecting a bargaining unit at large are. Such an allocation would make sense given MERC’s major purposes under PERA. We hold that MERC does not have exclusive jurisdiction over public employees’ fair representation claims. For many of the reasons we have stated in discussing the public policy aspects of exclusive MERC jurisdiction, we conclude that exhaustion of MERC remedies is not required before bringing suit. The fair representation suit involves common-law rights not guaranteed by PERA. These rights are usually enforced by courts, not by administrative agencies. There is no reason to believe that MERC’s expertise in handling fair representation claims exceeds that of the courts. Most importantly, full resolution of fair representation claims may not be available in MERC. We reject POAM’s claim that plaintiff is bound by the arbitrator’s decision requiring his demotion. A plaintiff who proves his union’s bad faith in a grievance-arbitration procedure may avoid the bar imposed by the arbitrator’s decision affecting him. We next turn to POAM’s claim that its motion for summary judgment for failure to state a claim should have been granted. A motion for summary judgment based on GCR 1963, 117.2(1) challenges the legal sufficiency of the plaintiff’s claim and is to be considered by an examination of the pleadings alone. Every well-pleaded allegation must be accepted as true. The test is whether plaintiff’s claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. McMath v Ford Motor Co, 77 Mich App 721; 259 NW2d 140 (1977). It is true that conclusory statements of unfair representation, standing alone, may fail to state a claim upon which relief may be granted. See Carry v Consumers Power Co, 64 Mich App 292, 298; 235 NW2d 765 (1975). However, plaintiff’s allegations herein appear to be as reasonably specific and factual as they can be in the circumstances. Plaintiff alleges, inter alia, that: (1) POAM arbitrarily refused to file a grievance on plaintiff’s behalf; (2) plaintiff’s demotion resulted from POAM’s grievance on behalf of another worker and its manner of pursuing the grievance; (3) plaintiff was excluded from the arbitration hearing at POAM’s request, although he appeared with his attorney; (4) POAM failed to challenge other promotions equally challengeable; and (5) POAM’s acts reflect disparate treatment based in part on his race. We hold the trial court did not abuse its discretion by refusing to grant POAM summary judgment. Taking every well-pled allegation as true, factual development can possibly justify a right to recovery on an unfair representation claim. Affirmed. Costs to appellee.

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Mackenzie, P.J. Defendant City of Wyoming appeals as of right from a judgment rendered in favor of plaintiff after a jury trial held in Kent County Circuit Court. On February 12, 1980, plaintiff injured his shoulder in a sledding accident at Pinery Park, which is owned and operated by defendant. At trial, after the presentation of plaintiffs proofs, defendant moved for summary judgment, relying on the defense of governmental immunity. The trial court denied defendant’s motion. The jury returned a special verdict finding defendant negligent and that defendant’s negligence was a proxi mate cause of plaintiffs injury. The jury set plaintiffs damages at $70,000. However, the jury also found that plaintiff was 85% negligent, and a judgment for $10,500 was entered. On appeal, defendant contends that the trial court erred by denying its motion for summary judgment. We must decide, therefore, whether defendant is entitled to such immunity. MCL 691.1407; MSA 3.996(107) provides in part: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.” The statute quoted above shows that, rather than determine simply whether the activity is a governmental function, we must determine whether the governmental agency in question performed that activity in the exercise or discharge of a governmental function. See Duncan v Detroit, 78 Mich App 632, 634; 261 NW2d 26 (1977); Cronin v Hazel Park, 88 Mich App 488, 491; 276 NW2d 922 (1979); Antkiewicz v Motorists Mutual Ins Co, 91 Mich App 389, 395; 283 NW2d 749 (1979); Weaver v Duff Norton Co, 115 Mich App 286, 292; 320 NW2d 248 (1982). See also Brand v Hartman, 122 Mich App 326; 332 NW2d 479 (1983) (Mackenzie, J., dissenting). For example, operation of a mental hospital is a governmental function but operation of a general hospital is not. Compare Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), with Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). Yet undoubtedly many of the same activities are involved in the operation of both types of hospitals. Driving a car is not inherently a governmental function, but in Trommater v Michigan, 112 Mich App 459; 316 NW2d 459 (1982), the car was being driven in the discharge of the governmental function of implementing the Social Welfare Act, and immunity therefore applied. Conducting a swimming outing is not inherently a governmental function, but in Willis v Nienow, 113 Mich App 30; 317 NW2d 273 (1982), the swimming outing was being conducted in the discharge of the governmental function of providing an effective program of out-of-home care for delinquent or neglected children placed in the custody of the Department of Social Services, and immunity therefore applied. In the present case, defendant was operating a sledding hill as part of a free public park. Unfortunately, the Supreme Court has not yet been able to agree on a single standard for determining when an activity by a government agency is in the exercise or discharge of a governmental function; instead, three theories have emerged which were surveyed by the Supreme Court in Ross v Consumers Power Co, 415 Mich 1; 327 NW2d 293 (1982). Nevertheless, two decisions of this Court involving a similar factual setting provide guidance. In Daugherty v Michigan, 91 Mich App 658; 283 NW2d 825 (1979), and, more recently, in Feliciano v Dep’t of Natural Resources, 97 Mich App 101; 293 NW2d 732 (1980), we found that the state’s operation of a public swimming area was not protected by governmental immunity. We likewise conclude in the present case that defendant’s operation of a free public sledding hill was not an activity entitled to governmental immunity, and therefore the trial court properly denied defendant’s motion for summary judgment. However, we do not rule out the possibility that in another context a governmental agency might be found to be engaged in the exercise or discharge of a gov ernmental function when it operates a sledding hill. Defendant’s remaining contention on appeal is that the jury’s verdict finding defendant 15% negligent was against the great weight of the evidence. Only where a party moves for a new trial before the trial court on the ground that the verdict is against the great weight of the evidence is this issue preserved for appellate review. Armstrong v Woodland Mutual Fire Ins Co, 342 Mich 666, 671-672; 70 NW2d 786 (1955); Murphy v Sobel, 66 Mich App 122, 127; 238 NW2d 547 (1975); Walls v Transamerican Freight Lines, 37 Mich App 307, 309; 194 NW2d 422 (1971). Defendant failed to make such a motion, and consequently we decline to review this claim. Affirmed. Plaintiff may tax costs. C. W. Simon, J., concurred. R. M. Maher, J., concurred in the result only.

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Per Curiam. Plaintiff Charles Beer, City Administrator for the City of Fraser, suspended city police Sergeant Norman Spinelli for 30 days and recommended his permanent suspension to the city’s civil service commission. Sergeant Spinelli appealed the administrator’s suspension to defendant commission, which conducted a hearing. On April 15, 1981, the commission reversed Spinelli’s suspension and ordered that he be reinstated. Charles Beer, as city appointing authority, and the City of Fraser thereafter filed an action for superintending control against the civil service commission, contending that the commission’s ac tion was contrary to law because there was no evidence to support the decision to reinstate Spinelli. Plaintiffs sought an order from the circuit court compelling the commission to suspend and discharge Sergeant Spinelli. Defendant commission filed a motion for summary judgment, contending that under the firemen and policemen’s civil service act, specifically MCL 38.514; MSA 5.3364, only the "person removed” may appeal the commission’s decision and that the city and city manager have no standing to appeal the commission’s decision. The circuit court granted the commission’s motion, relying upon Hendricks v Sterling Heights Police & Fire Dep’t Civil Service Comm, 85 Mich App 646; 272 NW2d 170 (1978), lv den 405 Mich 826 (1979). Plaintiffs appeal as of right. In Hendricks, a suspended Sterling Heights police officer appealed to the Sterling Heights Civil Service Commission and the commission ruled his suspension improper and ordered his reinstatement. The city manager then filed a complaint for superintending control in the circuit court, seeking reversal of the commission’s ruling. The circuit judge reversed, but this Court vacated the decision of the circuit court and reinstated the decision of the civil service commission, holding that the city manager lacked standing to obtain review of the commission’s decision in the circuit court and, therefore, the circuit court’s order on appeal was void. The Court in Hendricks noted that, although the issue was one of first impression in Michigan, the Court was following the majority of other jurisdictions in holding that an administrative officer of a governmental entity (or the governmental entity itself) lacks standing to appeal the decision of a reviewing agency of such governmental entity, except to the extent that legislation gives the officer the right to do so. The Court went on to find that, while the applicable legislation, the firemen and policemen’s civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq., provides for appeal to circuit court by the removed employee, it is silent with respect to any appeal by the city or its administrator. The Court interpreted that silence as indicating that the Legislature considered the decision of a city’s civil service commission as a final decision of the city and thus the city would not appeal its own decision. With the exception that the city, as well as the city appointing authority, has sought to challenge the commission’s decision in the instant case, the facts here are virtually identical to those before the Court in Hendricks. The Court in Hendricks, however, failed to take into account the unique nature of the action brought in circuit court. At issue was not whether the city or city official had authority to appeal to the judiciary the decision of the civil service commission; rather, the issue was whether the city or city official had standing to seek an order for superintending control against the commission where it was alleged that the commission acted unlawfully. These are separate and distinct actions with different parties and different purposes. The process of seeking an order of superintending control is not an appeal. It is an original civil action designed to require the defendant to perform a clear legal duty. People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970); Michigan Ass’n for Retarded Citizens v Wayne County Probate Judge, 79 Mich App 487, 492; 261 NW2d 60 (1977). A superintending control order enforces the superintending control power of a court over lower courts or tribunals. GCR 1963, 711.1. A circuit court has jurisdiction to issue orders of superintending control over administrative tribunals of a judicial or quasi-judicial nature. Lepofsky v City of Lincoln Park, 48 Mich App 347; 210 NW2d 517 (1973). A city civil service commission acts in a quasi-judicial capacity when it renders a decision on an appeal by a removed employee. See In re Fredericks, 285 Mich 262; 280 NW 464 (1938). An order of superintending control is not available to a plaintiff who has another adequate remedy by way of an appeal. GCR 1963, 711.2. The determination, made by the Court in Hendricks, that a plaintiff has no right to appeal is but a necessary first step in the determination of whether a plaintiff can bring an action for superintending control. Admittedly, a party seeking an order for superintending control must still have standing to bring the action. Standing is the legal term to be used to denote the existence. of a party’s interest in the outcome of a litigation; an interest that will assure sincere and vigorous advocacy. Michigan License Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319, 324; 266 NW2d 808 (1978). A party lacks standing to bring a complaint for superintending control where plaintiff has shown no facts whereby it was injured. Genesee Intermediate School Dist v Genesee Circuit Judge, 78 Mich App 8; 259 NW2d 226 (1977); Inglis v Public School Employees Retirement Bd, 374 Mich 10; 131 NW2d 54 (1964). We believe that, where the party challenging the commission’s action is the city itself, a political subdivision rather than an officious public officer, there exists a sufficient interest in the outcome to insure sincere and vigorous advocacy so as to confer standing. Unlike the city, the individual officer may challenge the commission’s decision merely because he is disgruntled at being overruled or seeks some political advantage; he has no direct or legal interest in the outcome. The city, on the other hand, as the political unit employing the police officer, is directly affected by the commission’s decision that the employee may not be dismissed. Thus, to the extent, dicta in Hendricks indicates a city lacks standing to seek an order of superintending control over its civil service commission, we decline to follow that decision. The decision of the circuit court dismissing plaintiffs’ action is reversed and remanded as to the City of Fraser and affirmed as to Charles D. Beer, the city appointing authority.

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Moore, J. Certiorari to the industrial accident board to review its allowance of the plaintiff’s claim as the widow of Alexander Hanna who was in the employ of the Michigan Steel Castings Company, and who was injured September 14, 1917, and who died on September 18th. It was the claim of the widow, and the industrial accident board so found, that the death was the result of the injury. In the brief of counsel for the appellants the discussion is under the following heads: 1. There can be no recovery if Hanna was injured by a board flying from an unknown source. 2. There can be no recovery if Hanna was injured by a board he was attempting to cut on the saw. a. Because as a matter of law the accident did not occur in the course of the employment of Alexander Hanna by the Michigan Steel Castings Company. b. Because as a matter of law the accident did not arise out of the employment of Alexander Hanna by the Michigan Steel Castings Company. c. Because as a matter of law Alexander Hanna was injured by reason of his intentional and wilful misconduct. d. Because the accident was not the proximate cause of the death of Alexander Hanna. Each of these propositions is discussed at' great length by counsel and their conclusion is that this court should reverse the order of the industrial accident board, and hold that the defendants are not liable to plaintiff for the death of Alexander Hanna. 1. As to the first of these propositions there can be no possible doubt that Mr. Hanna was at work for the defendant company in some capacity, the company claims as a cleaner which did not call upon him to use any buzz saw. His widow claims he was at work as a carpenter. It was while he was engaged at work for the company, and because of that employment that he was injured and if as a result of the injury he died, it is difficult to escape the conclusion that liability followed. 2. We shall not attempt to follow the discussion of «ach subdivision under this head but will attempt tosíate the claims of the respective parties, what is shown by the record and our conclusions. Mr. Hanna at the time of the accident had been employed by the defendant six months or more. He was 5S years of age. It is the claim of his widow that his work called upon him to push boards against a circular saw for the purpose of sawing them, and that one of them was thrown against him with great violence, hurting his hand and chest, and that as a result of his injuries his death followed. It is the claim of the defendant that Mr. Hanna was employed as a cleaner and that no part of his duty required him to use the buzz saw, and that if he did so that he was violating a positive order, and that he was guilty of intentional and wilful misconduct. It is the further claim that the only injury Mr. Hanna received was to his hand and that he died of pneumonia, to which the injury he received did not at all contribute, and that the court should say as a matter of law that the injury was not the proximate cause of his death. The claim that Mr. Hanna was guilty of intentional and wilful misconduct is based upon the testimony of the foreman; we quote some of it: “Q. State whether or not you had ever said anything to Mr. Hanna about operating or not operating any of the saws in your department. “Mr. Crowley: I object to that testimony. “Mr. Zierleyn: I think it is very proper, Mr. Crowley. “Mr. Crowley: I desire that my objections stand as a matter of record. “Mr. Zierleyn: Answer the question. “A. I took him off the carpenter work because I did not think his eyesight was good enough for it, he had. to put glasses on for it, and I told him if he would not keep off the saw I would have to fire him, and not only told him that but I told his son, too.” Mr. Hanna knew what conversation he had with the foreman upon that subject. He is not here to give his version. Such a contingency has been guarded against in section 12553, 3 Comp. Laws 1915. The language of the statute is not ambiguous as a reference to it will show. It has often been construed by this court as is shown by the many cases cited in the notes to section 12553. See, also, the case of Horn v. Arnett, 91 N. J. Law, 110 (102 Atl. 366). The testimony of the foreman should not have been received. With it eliminated there is nothing to indicate that Mr. Hanna was warned not to use the saw. It is said that the case presented by the plaintiff when the improper evidence is eliminated, must be determined as a question of law in favor of the de fendant. This makes it necessary to give a résumé of the testimony most favorable to the plaintiff. After the accident the company made a first report to the accident board in which it was said: “Occupation of employee carpenter.” “Date of accident September 14, 1917.” “Nature and cause of injury bruised left hand.” A second report was made September 19, in which the following appears: “Place of accident in detail, Carpenter shop. Cause and manner of accident, Was cutting wood for wedges. In taking pieces from the saw one piece caught and struck him on the joint of the first finger of left hand. This finger was off at joint. It jammed stump of finger and bruised it.” Against the objection of defendant Mr. Hanna’s doctor was allowed to testify: “Why he said that he had received it at a machine sawing wood. A piece of wood flew from the machine and struck him across the chest.” In his testimony appears the following: “Q. Do you at this time lay any stress upon the injury to the hand, or the injury to the chest or both? “A. Yes I do on the injury to the chest. The hand was simply an abrasion of the hand that was ceptic, but I do not believe it had — did not have any factor towards causing his death. “Q. It was the alleged injury to the chest which was the factor that finally resulted in his death in your opinion? “A. Resulted in pneumonia, yes. “Q. In other words the injury to the chest was the thing that caused the pneumonia in your opinion? “A. Yes. * * * “Q. The question is this, perhaps it would be more simple to say it in this way: In your opinion the cause of pneumonia was the blow on the chest? ‘‘A. Yes, sir. * * * “Q. And the pneumonia caused the death? “A. Yes, sir. * * * The man was at that time delirious and he was carrying a tremendously high temperature and rapid pulse and I thought there was a septic condition going on at that time. The man at the first time I seen him, I would not have taken anything he said to me anyway, because he was not in his right mind, he was delirious. So the next time I seen him I went into the matter closer and I found the hand was not the entire cause of the pneumonia but the chest had been injured. “Q. Would the infection in any way superinduce the pneumonia? “A. I do not think in this case. “Q. Could it contribute to the cause of death? “A. Yes, perhaps by having an embolus leave the wound in the hand and cause an infarction in the hand, that would probably cause pneumonia but the post mortem showed that the pneumonia was of too large an area for embolic pneumonia. “Mr. Crowley: So that in your judgment, doctor, I understand you now that the blow on the chest caused this traumatic condition. “A. Yes, I made the diagnosis of traumatic pneumonia caused by the concussion of the board striking the chest.” A witness who was at work about 50 feet away from Mr. Hanna testified the latter was cutting a piece of wood on the saw. “Q. What kind of a piece of wood did he have at the saw? “A. It was a piece of pine about 18 inches long. “Q. How wide or how thick was it? “A. Well, when I seen it it was in two pieces, I only seen one piece of it and it was about five inches wide. “Q. About five inches wide. You don’t know what he was going to saw that for do you? “A. No. “Q. What was the first notice — what was the first you noticed with respect to this accident? “A. I looked up and I seen him holding his han<3 to his side. “Q. Was he holding his hand to his right side? “A. Yes. * * * “Q. Now, did you see this piece' of wood that he was . working with after that? / “A. Yes, sir. “Q. Did you noti.ce anything peculiar about the wood ? “A. It was broken that is all. “Q. Did you notice any links of a chain in the wood? “A. Yes. “Q. What kind of chain was that? “A. I think it was a kind of four-cornered piece. “Q. What kind of chain was it, a watch chain? “A., A watch chain, yes. * * * “Q. Where was the rest of the chain? “A. In his pocket. “Q. Which pocket? “A. Why, I think it was the vest pocket. “Q. Vest? “A. The vest pocket. * * * “Q. What caused you to look up and notice what was happening at that saw? “A. When I heard that piece fly over the saw. “Q. When you heard the piece of wood fly over the saw? “A. Yes. “Q. Did it strike the saw? “A. Yes, it struck the saw. “Q. How do you know it struck the saw? “A. Why, it would not have went back otherwise. “Q. I assume then that it made a noise? “A. Yes. “Q. And you heard that and glanced up ? “A. Yes. “Q. When you first glanced up what was Mr. Hanna doing? “A. He was holding his two hands on his left side. “Q. On his left side? “A. Yes.” The piece of wood after it struck Mr. Hanna flew 10 or 12 feet down an open stairway and hit Mr. Thomas who was coming up the stairs, knocking him down. The record shows that part of the duties of a carpenter are to make molding flasks and in doing so that the carpenter would use a circular saw in preparing some of the pieces. Mrs. Hanna testified as to what happened on the evening of the accident, in part as follows: “A. Well, the usual time he got home about a quarter to six to the best of my knowledge, “Q. What condition was he in whirs he arrived home? \ “A. Well, his hand was terribly swollen and very much inflamed and he said he was very weary and complained terribly of his breast. “Q. Did you examine his hand? “A. Yes, sir, I was ordered by first aid to bathe it in hot water. I told him my best judgment called for cold water, but he said no, he was told at the hospital, hot water. “Q. Did you make an examination of his breast? “A. Yes, sir, I did. “Q. What did you notice particularly about his chest? “A. There was a very, red place on his chest. “Q. Where was that? “A. On his chest, as near as I can tell you, over his lungs.” It is urged that what Mr. Hanna told the doctor about how he was hurt was improperly admitted. We think this was so under the case of Ginsberg v. Burroughs Adding Machine Co., ante, 130. But with this testimony omitted we think it cannot be said there was no testimony upon which to base-the award of the industrial accident board .and their finding that the injuries to Mr. Hanna were the proximate cause of his death. Under such circumstances this court will not interfere. See Reck v. Whittlesberger, 181 Mich. 463; Papinaw v. Railway Co., 189 Mich. 441; Vogeley v. Detroit Lumber Co., 196 Mich. 516. The award is affirmed, with costs to the plaintiff. Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

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Per Curiam. This is an application for mandamus to compel the secretary of State to submit a proposed constitutional amendment to the people at the next general election. The petition filed with the secretary of State was signed by 47,652 persons claiming to be legal voters. It is conceded that but 43,469 legal signatures were necessary in order to secure the submission of the proposed constitutional amendment to the people. The secretary of State refused to submit the proposed amendment to the people upon the ground that only 38,631 .of the signatures are legal; the balance of said signatures being those of women who signed between November 10th and December 5, 1918. On November 5, 1918, a constitutional amendment was adopted by the people of the State conferring the franchise upon women. If that amendment took effect on the date of election, November 5th, the signatures of the women signers were legal, should have been counted by the secretary of State, and the mandamus should issue. If, however, as held by the secretary of State, under The advice of the attorney general, said amendment conferring the franchise upon women did not become effective until 30 days after the election on November 5th, that is, not until December 5, 1918, the signatures of the women upon said petition should not be counted and the secretary of State should be held properly to have refused to submit the proposed amendment to the people. It is the contention of relator that the amendment became effective on the date of election, to wit, November 5, 1918, under section 1 of article 17 of the Constitutionwhich follows: “Any amendment or amendments to this Constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by two-thirds of the members elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas and nays- taken thereon; and the same shall be submitted to the electors at the next spring or .autumn election thereafter, as the legislature shall direct; and, if a majority of electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments, the same shall become part of the Constitution.” That section appears to be exactly the same as section 1 of article 20 of the Constitution of 1850, which was construed by this court in the case of The Seneca Mining Co. v. Secretary of State, 82 Mich. 573 (9 L. R. A. 770). We there held that such amendments took effect from the time of their ratification by the popular vote. The difficulty with relator’s position arises out of the fact that in 1913 by concurrent resolution an amendment to the Constitution was effected, section 2 of article 17, which is in part as follows: “Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which such proposed amendment is to be voted upon. Upon receipt of such petition by the secretary of State, he shall canvass the same to ascertain if such petition has. been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected. Any constitutional amendment initiated by the people as herein provided, shall take effect and become a part of the Constitution if the same shall be approved by a majority of the electors voting thereon and not otherwise. Every amendment shall take effect thirty days after the election at which it is approved.” * * * It is the contention of relator that the sentence, “Every amendment shall take effect thirty days after the election at which it is approved,” refers only to amendments proposed by the initiative and not to amendments proposed by the legislature. We are unable to agree with this contention. This language is plain and unambiguous. Considering both provisions, we are of opinion that the latter, last adopted, is controlling and applies to all amendments. The mandamus is denied.

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Steere, J. On January 19, 1916, plaintiff’s traveling salesman solicited a “Christmas goods” order from defendants for their next ensuing Christmas trade. After examination of his samples an order was given for 1,000 “frame purses,” style 3551, amounting to $130. A form of order furnished by plaintiff’s salesman was then filled out by him and signed “O. Deitz & Son,” by defendant Oswald Deitz, who was given a copy. This order was also apparently signed by plaintiff, through P. O. Camburn, “Salesman No. 102” and read in part as follows: “How to ship: Freight (on or about) Dec. 1st, * * * F. O. B. cars our factory, * * * We will ship goods as close to dates desired as possible, but we cannot bind ourselves to exact dates, except when specially ordered.” Plaintiff did not ship the goods within the time specified. On December 18, 1916, it wrote in reply to a letter from defendant as follows: “Cincinnati, Ohio, Dec. 18, 1916. “Mr. Oswald Deitz, “Ann Arbor, Mich. “Dear Sir: We are in receipt of your letter of the 16th relative to your order for purses. “In reply beg to advise that these purses are being finished up today and will go forward to you immediately.” Defendants’ letter of the 16th was not produced by plaintiff, but its counsel testified that Oswald Deitz told him he wrote plaintiff about that time, stating he bought the purses for his Christmas trade, and “if they had not sent the goods by freight so that he would be sure to get them at Christmas, he wanted them to send them by express.” Defendant admitted writing such a letter. In his cross-examination he was asked about this letter and answered as follows: “If they had not sent them by freight, they were to send them by express so that you could get them before Christmas. “A. Yes, to hurry them up.” On December 19, 1916, plaintiff delivered the goods to the express company at Cincinnati, Ohio, carriage prepaid, directed to defendants at Ann Arbor, Mich., where they did not arrive until December 29. Defendants refused to receive or accept them because too late for their Christmas trade and so advised plaintiff. Correspondence followed between the parties, in concluding which plaintiff wrote defendants on January 5, 1917: “The chances are had we made a freight shipment, you would not have received them yet. “We insist upon our pay as per contract.” The claim was then put in the hands of counsel and, payment being refused, this action followed. Plaintiff’s declaration is as follows: “The plaintiff says: “1. That it is a corporation organized and existing under the laws of the state of Ohio. “2. That the defendants are copartners engaged in business in Ann Arbor, Michigan. “3. That the defendants are indebted to the plaintiff in the sum of $130.41 for goods sold and delivered by the plaintiff to the defendants at their request, as follows: “1000 frame purses, style 3551, ordered in writing on January 19, 1916, and delivered on December 18, 1916 ..........................(.................$130.00 Freight on same................................41 Total .................................. $130.41 “4. Whereas the plaintiff claims a judgment for the sum of $200.” Defendants pleaded the general issue and gave notice that the goods were ordered for their .Christmas trade of 1916; that plaintiff neglected and failed to ship and deliver the purses ordered in accordance with the terms of its contract, but delayed delivery until after Christmas when the goods were of no value to defendants who then and for that reason would not accept and “never have received the said goods.” Upon the trial objection was made by defendants’ counsel to any testimony under plaintiff’s declaration as to a subsequent modification of the contract declared upon, in relation to which no waiver of any of its terms is pleaded. Opportunity was given to amend the declaration, which plaintiff’s counsel did not desire to do, and in reply to the court relative to plaintiff’s claim under its declaration said, “We rest on the declaration we have.” On conclusion of the testimony each of the parties requested a directed verdict, and after argument the court directed a verdict for defendants. The assigned errors of the court complained of are formulated in the brief of plaintiff’s counsel as follows: # “1. It held that there was no waiver of the original time of delivery by reason of defendants’ subsequent request for shipment. “2. It held that the delay caused by the carrier was chargeable to the plaintiff, notwithstanding that it had made full and complete delivery to the defendants when it delivered to the carrier.” Defendants contend that all plaintiff’s evidence as to subsequent waiver of its admitted breach of the contract was inadmissible under the declaration; that even under the evidence erroneously admitted there was no waiver and defendants’ letter of December 16th, written after breach of the contract “to hurry them up,” was at most but a waiver conditioned upon the goods being received by them before Christmas. The written order introduced in evidence by plaintiff at the trial showed these goods were to be shipped on or about December 1st. The testimony showed they were shipped by express, prepaid, on December 19th, and plaintiff introduced evidence against objection showing they were so shipped pursuant to defendants’ letter of December 16th. Defendants contend this evidence was. not admissible because waiver or modification of a contract declared upon cannot be shown unless pleaded. Conceding this general rule as applied to a special count on a particular contract, plaintiff contends it was not required to and did not declare specially on any alleged contract; but declared generally and set up a cause of action under a common indebitatus count in assumpsit for goods sold and delivered, thus leaving the whole transaction open to proof. Plaintiff’s, claimed cause of action is a money demand for the price of goods sold and delivered, necessarily involving a contract of sale as originally made or modified, but which can be recovered under the common counts in assumpsit without specially pleading the contract. So pleaded, the whole transaction is open to any proof showing a right to recover money actually due as alleged, whether under a contract of sale as originally made, as modified, waived in any particular or beneficially performed in part. Allen v. McKibbin, 5 Mich. 449; Begole v. McKenzie, 26 Mich. 470; McGraw v. Sturgeon, 29 Mich. 426; Ladue v. Seymour, 24 Wend. (N. Y.) 59; Kerstetter v. Raymond, 10 Ind. 199. In 2 Smith’s Leading Cases, 34, it is said: “If there has been a special contract which has been altered or deviated from in particulars, by common consent, general assumpsit will lie.” Clearly the gist of plaintiff’s short count is indebitatus assumpsit “for goods sold and delivered by plaintiff to defendants at their request” (purely a common count), followed by what might be regarded as a brief bill of particulars, evidently intended to give in outline such information regarding the transaction as would reasonably inform defendants of the nature of the case they were called to defend, to meet the suggestions upon that subject found in section 2, chap. 14 of the judicature act (3 Comp. Laws 1915, § 12454) and Circuit Court Rule No. 22. This added information does not transform plaintiff’s general indebitatus count into a special count on a particular contract. It states what goods were sold and delivered to defendants at their request, when and how ordered, when delivered, and the amount claimed due. No special contract under which the goods were ordered is set out. It was incumbent upon plaintiff to prove the facts stated, as it would have been any further facts in a bill of particulars had defendants seen fit to demand one, but the count as a pleading would remain the same, permitting other or further proofs which tended to establish an indebitatus liability under the common counts. There was no error in admitting the testimony objected to. It is undisputed that defendants wrote plaintiff on December 16th to ship the goods by express if they had not been sent by freight, “to hurry them up;” that plaintiff on receipt of the letter promptly replied with assurances, and delivered the goods to the carrier designated the next day with transportation prepaid. The original order was for the goods F. O. B. plaintiff’s factory in Cincinnati and no change was made in that particular. Nothing thereafter remained to be done by the vendor. By the usual time required for express shipment between Cincinnati and Ann Arbor the goods should have arrived at their destination within from 12 to 24 hours. The fault for delay in transporting to point of delivery was with the express company designated by defendants to receive the goods for them at Cincinnati. “In general a delivery of goods to a common carrier, and a fortiori to one specially designated by the buyer, is a delivery to the buyer. * * * A common carrier is agent of the buyer for receiving the goods.” * * * Hobart v. Littlefield, 13 R. I. 341. The general rule is stated as follows in Templeton v. Equitable Manfg. Co., 79 Ark. 456 (96 S. W. 188): “If the goods are to be delivered to a carrier specially designated by the vendee, the carrier becomes the agent of the vendee, and delivery to it is delivery to the vendee; if the contract is silent as to the mode of delivery, then a delivery by the vendor to a common carrier in the usual and ordinary course of business constitutes delivery to the vendee; where no carrier is specified, and a choice is open to the shipper, the selection of any one in good faith in the due course of business is sufficient. The effect of the delivery in proper manner to the carrier is to transfer the title and to fix the time and place when the title passes. Mechem on Sales, §§ 736, 739.” “Where goods are delivered by the vendor, in pursuance of an order, to a common carrier for delivery to the buyer,' the delivery to the carrier passes the property, he being the agent of the vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee.” Benjamin on Sales (7th Am. Ed.), § 399. The proofs contain nothing indicating an agreement that plaintiff should transport the goods to Ann Arbor, retaining title and control until it had delivered them direct to defendants there. It contracted to deliver F. O. B. cars at its factory in Cincinnati, only changed by defendants’ letter directing that they be sent by express, “to hurry them up.” On receipt of this instruction plaintiff delivered the goods at its factory point to the carrier defendants designated, with transportation prepaid to destination, in abundant time to reach Ann Arbor .several days before Christmas according to the usual time of carriage by express between those points. Nothing in' the original order or defendants’ subsequent direction to ship by express indicates that delivery to the carrier was not a delivery to the purchaser. That delivery to the carrier is delivery to the purchaser of merchandise in the absence of an agreement to the contrary is the recognized rule in this State. Althouse v. McMillan, 132 Mich. 145; Kuppenheimer v. Wertheimer, 107 Mich. 77. In the latter case it is held that even the stipulated right of the purchaser to inspect the goods sent him by a common carrier before paying for them, does not change the rule. Vide, also, Mee v. McNider, 39 Hun (N. Y.), 345, 109 N. Y. 500. Upon this record a verdict should have been directed for plaintiff. The judgment is therefore reversed, with costs, and a new trial granted. Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

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Steere, J. This action was brought against de fendant as initial carrier to recover damages sustained by plaintiffs on a carload of potatoes shipped from Bailey, Mich., on November 3, 1917, over defendant’s line and connecting carriers, to Louisville, Ky. The potatoes were intended for ultimate delivery at Camp Zachary Taylor, located near Louisville on the Southern railroad. After this camp was established the Southern road opened a station at that point, called Dumesnil, to handle the freight business which the camp demanded and developed. A firm named Marshall & Kelsey, of Indianapolis, Ind., had secured from the quartermaster of the camp a contract to supply it with a quantity of potatoes, and sublet a contract to a produce broker of Grand Rapids named Mosely to supply 40 carloads, of which plaintiffs, who were produce dealers and handled potatoes, furnished a part, the ear in question being one of several which they shipped in that connection. The price of the potatoes to plaintiffs was $2.63 per hundredweight, less freight rate from Bailey to Indianapolis. The bill of lading, issued by defendant, shows it was N. Y. C. Car No. 151,473, containing 300 sacks of potatoes weighing 45,000 pounds, billed from Bailey, Mich. — destination Louisville, Ky., consigned to the order of J. F. French & Co. — route C. C. C. & St. L., often called the “Big Four.” Upon the bill is the direction, “Notify Marshall & Kelsey, c/o Captain Bernard, Commissary at Camp Zachary Taylor,” and “Allow inspection.” The car was moved under a standard uniform bill of lading, and a billing of like import accompanied the car showing routing, destination, consignee, etc. Defendant was the initial carrier and the Big Four railroad was both the connecting and terminal carrier. No claim of negligence is made as to time or manner of transporting the car over its route from point of shipment to Louisville, its destination and contracted point of delivery. Plaintiffs’ grievance, and claimed ground of negligence which resulted in the damages sought- to be recovered, is a reconsignment of the car by the terminal carrier at Louisville for further movement over another line, without authority of the assignee at the destination point or requiring surrender of the original bill of lading for cancellation. The trial court held that, as a matter of law, under the undisputed evidence, the terminal carrier was guilty of negligence in that particular and defendant liable for resulting damages, if any; and submitted to the jury the question of damages with proper instructions upon that issue, as to burden of proof, measure of damages if any were shown, etc. Plaintiffs recovered verdict with judgment thereon for $689.20. Defendant’s counsel properly saved adverse rulings desired reviewed by seasonable objections, motions, request for directed verdict, etc., and concisely point out in their brief that they center to a “narrow and Well-defined” issue, saying: “There is involved simply a construction of the Federal uniform bills of lading act passed in 1916 (39 U. S. Stat at Large, p. 538-542) in connection with the so-called Carmack amendment.” When the car was loaded and started from Bailey, its point of shipment, plaintiffs received from defendant, its initial carrier, the original order bill of lading covering this car, of the standard form approved by the interstate commerce commission, to which they attached a draft for the selling price drawn on Marshall & Kelsey of Indianapolis and turned it over to their local bank at Grand Rapids, receiving credit therefor on their commercial account and the bank forwarded the bill of lading with draft attached to •the Commercial National Bank of Indianapolis for collection. As it turned out, the Indianapolis bank, in careless disregard of its duty as a collecting agent, handled the shipping bill in a way which made possi ble the complications which followed. Instead of requiring payment of the draft before surrendering the shipping bill to the payor, it detached the bill from the draft and intrusted it to Kelsey, who took it with other bills to Dumesnil, and, on about November 14th or 15th, left it at the Southern railroad station with one of its employees named Bindner who worked in the station as cashier. The agent of the Southern road at Dumesnil, named Baker, testified that he never had the bill of lading for that car and could not say that it was in the office, but the cashier had the same authority as he to deliver shipments. Bindner testified that he was not holding those bills for the Southern railroad company, but they were given to him by Kelsey, who had a whole lot of stuff in his pocket, to keep for him, and he (Bindner) “chucked them in a drawer” and was holding them for Kelsey. The car arrived at Louisville on November 9th and remained at the Big Four station until November 16th, when Bindner called up by ’phone the trackage clerk of the Big Four at Louisville, námed Smith, told him he had the bill of lading and to let the car go out to the camp. Bindner testified that he did not do this under Kelsey’s. directions or as agent for the Southern railway but on his own hook because the car was Overdue; he had looked at the routing which was over the Big Four and he knew the government needed potatoes. Smith testified that on receiving this word from Bindner he told him if the Southern railway would guarantee him “our car service” and he had the bill of lading, he would send it out and, although he knew that under the rules of the Big Four he should not let the ca^r go without surrender of the bill of lading he “took the chance” and reconsigned the car by changing the destination in the way bill with charges to follow and sent it forward over the Southern railway line, which received and moved it under the altered way bill marked “Dumesnil, Kentucky So. R. R.,” delivering it at its destination on November 18th, charging a six cent local rate for the haul from Louisville to Dumesnil. This car arrived at Louisville over the Big Four line on the evening of November 9, 1917. Kelsey had told Smith that he was stopping in that city at the Watterson hotel and asked to be notified by ’phone when cars, which he expected, arrived for his firm, and Smith on the next day (November 10th) first attempted to get him by ’phone, but being unsuccessful sent a regular form postal card notice by mail, addressed to the firm, care of the Watterson hotel, with a 5-day return mark on it, containing full information relative to the car and stamped across its face in large letters “Present Bill of Lading.” Smith testified it was the rule of the company that a car billed as this one was should not be delivered without surrender of the bill of lading. When the car arrived at Dumesnil it was placed on the side tracks near the commissary buildings and, as was shown against plaintiffs’ objection, was subsequently rejected with numerous other cars on inspection by quartermaster officers, on what date does not appear, on the ground that the potatoes were suffering from “field frost,” as diagnosed by Captain Hanson, while Col. Pearson stated that when his attention was called to them they were badly frost-bitten and rotten, and he directed Hanson to reject the cars from which they were taken; that as he recollected it the weather was extremely cold at that time and he could not tell whether they were frosted en route or in the field. Bindner gave the original bill of lading back to Kelsey who returned it to the Indianapolis bank which reattached the draft to it, and returned it to plaintiffs’ attorney who delivered it to them on December 7th. Plaintiffs’ first notification of rejection of the car was by a telegram Bindner sent to Mosely at Grand Rapids, Mich., on December 4th, telling him the , car in question and certain others had been rejected, and Mosely informed plaintiffs of it on December 5th. The original bill of lading was then in possession of the Indianapolis bank with the draft. After the original order and draft were returned to plaintiffs they gave the Grand Rapids bank a check for the amount of the draft and surrendered the original order to defendant’s division freight agent in exchange for a bill of lading reconsigning the car to plaintiffs at Memphis, Tenn., where the goods could be and were dispqsed of, to the best advantage, as is claimed, but at a loss, for recovery of which this action was brought. Plaintiffs’ contract was with Marshall & Kelsey, of Indianapolis, to whom they „old this carload of potatoes to be delivered at Louisville, Ky., with right of inspection at point of delivery. The right of the purchaser to examine the goods while in the hands of the carrier before accepting them was at the point of delivery only. There is nothing in the acts relied upon which restricts or affects the right of any of the parties connected with the transaction as the law upon that subject previously stood. The law relative to the effect of a “notify” clause in the bill of lading as heretofore settled in this jurisdiction and many others is well digested with numerous citations, as follows, in 10 C. J. p. 259: “Where a bill of lading or a shipping receipt contains a clause providing that a third person shall be notified of the arrival of the goods, or where it contains this clause and an additional clause reciting that the goods are shipped to the consignor’s order, the carrier is not authorized to treat the person to be notified as á consignee, and if it delivers the goods to him without production and surrender of the receipt- or the bill of lading, it will be liable to the true owner of the goods for any loss resulting from such delivery.”- This court has spoken definitely to that effect and emphasized the significance of a provision in the order bill of lading that its surrender properly indorsed shall be required before delivery of the consignment. Perkett v. Railroad Co., 175 Mich. 253; Turnbull v. Railroad Co., 183 Mich. 213; Thomas v. Blair, 185 Mich. 422; Churchill v. Railway Co., 188 Mich. 376. It is defendant’s contention that these decisions are largely emasculated in their general import and become wholly inapplicable here by reason of the negotiable characteristics given a bill of lading by the act of congress passed August 29, 1916, to take effect January 1, 1917, entitled “An act relating to bills of lading in interstate and foreign commerce” (39 U. S. Stat. at Large, p. 538), construed in connection with the Carmack amendment of the interstate commerce act under which this action was brought. Counsel’s position is pointedly stated in part as follows: “The rules of ordinary contract law have absolutely nothing to do with this case because this case involves a negotiable instrument and not a contract of the common law. * * * Mr. Bindner, while he had possession of the bill of lading, exercised the authority which its mere possession conferred and obtained the car from the Big Four. Bindner by virtue of his possession (not ownership) of the bill of lading, was a person to whom the Big Four, the delivering and terminal carrierwas justified in making delivery of this car. The Big Four did make delivery of the car to Bindner while he was in possession of the bill of lading, and thereby did what it was authorized to do by section 9 of the bills of lading act.” That act, containing 45 sections, is in its nature related to and supplemental of the interstate commerce law, which, as enacted in 1887, underwent various amendments by the act of June 29, 1906 (34 U. S. Stat. at Large, p. 584, chap. 3591), especially as to section 20 relative to carrier’s liability, commonly called the Car- mack amendment, which made the initial carrier in interstate transportation liable for through carriage to point of destination under the bills of lading required to be issued therefor. The material concluding portion of that lengthy amendment of section 20 (of the 1887 act — section 7 of the 1906 act) is as follows: _ “That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company, to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” Section 9 of the act of 1916 relating to bills of lading, upon subdivision (c) of which defendant relies, is as follows: “Sec. 9. That a carrier is justified, subject to the provisions of the three following sections, in delivering goods to one who is— “ (a) A person lawfully entitled to the possession of the goods, or “(b) The consignee named in a straight bill for the goods, or “(c) A person in possession of an order bill for the goods, by the terms of which the goods are deliverable to his order; or which has been indorsed to him, or in blank by the consignee, or by the mediate or immediate indorsee of the consignee.” The section immediately preceding (8) and three sections following (10, 11, 12) also relate to delivery, and so far as material are as follows: “Sec. 8. * * * a carrier, in the absence of some lawful excuse, is bound to deliver goods upon a demand made either by the consignee named in the bill for the goods, or, if the bill is an order bill, by the holder thereof, if such a demand is accompanied by— “(a) An offer in good faith to satisfy the carrier’s lawful lien upon the goods; “(b) Possession of the bill of lading and an offer in good faith to surrender, properly indorsed, the bill which was issued for the goods, if the bill is an order bill; and “(c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the carrier. “In case the carrier refuses or fails to deliver the goods, in compliance with a demand by the consignee or holder so accompanied, the burden shall be upon the carrier to establish the existence of a lawful excuse for such refusal or failure. “Sec. 10. * * * where a carrier delivers goods to one who is not lawfully entitled to the possession of them, the carrier shall be liable to any one having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section; and, though he delivered the goods as authorized by either of said subdivisions, he shall be so liable if prior to such delivery he— “(a) Had been requested, by or on behalf of a person having a right of property or possession in the goods, not to make such delivery, or “(b) Had information at the time of the delivery that it was to a person not lawfully entitled to the possession of the goods. * * * “Sec. 11. * * * if a carrier delivers goods for which an order bill had been issued, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the bill, such carrier shall be liable for failure to deliver the goods to any one who for value and in good faith purchases such bill, whether such purchaser acquired title to the bill before or after the delivery of the goods by the carrier and notwithstanding delivery was made to the person entitled thereto. * * * “Sec. 12. * * * if a carrier delivers part of the goods for which an order bill had been issued and fails either— “(a) To take up and cancel the bill, or “(5) To place plainly upon it a_ statement that a portion of the goods has. been delivered with a description, * * * he shall be liable for failure to deliver all the goods specified in the bill to any one who for value and in good faith purchases it, whether such purchaser acquired title before or after the delivery of any portion of the goods by the carrier, and notwithstanding such delivery was made to the person entitled thereto.” These are Federal laws, for controlling interpretation by the Federal courts in their final analysis, and the State courts when called upon to deal with them are governed by the construction declared in decisions of those courts, where they have spoken. Counsel do not cite and we have not found any adjudication directly construing the provisions of the statute upon which defendant relies. The scope and purpose of the Carmack amendment, of which the iater act is but supplemental, has frequently been before the United States Supreme Court for consideration of its various provisions. Its manifest purpose is, as interpreted by that court, to create in the initial carrier unity of responsibility for transportation to destination and bring contracts for. interstate shipments under one uniform law, to which end a proper receipt, or bill of lading, must issue therefor. “The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment so far as is valid under the act.” Kansas City Southern R. Co. v. Carl, 227 U. S. 639 (33 Sup. Ct. 391). In Adams Express Co. v. Croninger, 226 U. S. 491 (44 L. R. A. [N. S.] 257, 33 Sup. Ct. 148), holding that a contract in a bill of lading relative to rates was not in violation of the act, the court said: “The statutory liability, aside from responsibility for the default of the connecting carrier in the route, is not beyond the liability imposed by the common law as that body of law applicable to carriers has been interpreted by this court as well as many courts of the States.” In view of the history of the interstate commerce law, its administration and the many decisions of both Federal and State courts recognizing certain of its features as but declaratory of common-law principles, it is wide of the mark to assume that because enacted into statute the rules of the common law have nothing to do with this inquiry. This order bill of lading under which the shipment was made, while now negotiable under the act of 1916, possessed those attributes in like degree and had often been recognized as such by the courts years before the act was passed. That act, which counsel in their briefs designate the “Uniform bills of lading act,” nowhere in express language, either in its title or body, prescribes a form for or even mentions a uniform bill of lading. As “An act relating to bills of lading in interstate and foreign commerce,” its subject-matter is suggestive of the name and instructive of its purpose in the particular that many of its provisions and requirements harmonize with and follow in general plan the standard uniform bills of lading which the interstate commerce commission had approved as such and which, by years of use, had become familiar to commerce. Those forms, after careful consideration in the light of experience, had been approved by the commission and adopted by shippers and carriers, without direct legislation therefor, to meet the general requirements of. the Carmack amendment. In practical application, as' the law was administered by the commission and inter preted by the courts, they had through years of trial and test apparently proved satisfactory and efficient for conduct of the gigantic and complicated business of interstate and foreign transportation. It is fairly inferable that the intent of this act was to strengthen by legislative indorsement that which had for efficient administration of the interstate commerce law been worked out, adopted, and approved by the combined efforts of shippers, carriers, and the interstate commerce commission. If it was the purpose of the act to impose limitations on these long used and often construed bills of lading to an extent which changed the settled law in the important particular claimed, it would seem that, in the absence of a prescribed form and in view of the context, a clearer declaration than that relied on would be found somewhere in the act. The form of order bill of lading used by defendant in this case and delivered to plaintiffs, stating in bold type on its face that its surrender properly indorsed “shall be required before the delivery of the property,” is the prescribed form set out at length in connection with the opinion and order of approval thereof filed by the interstate commerce commission after full hearing, on June 27, 1908 (14 Interstate Commerce Commission Rep. 346). Two forms are there recognized, as also in this act. An order bill of lading though negotiable represents property, not money, and the certainty of its surrender before delivery of the property it describes is a matter of serious significance in financing consignments for transportation, as pointed out .by Judge Knapp, chairman of the commission, in the portion of the opinion discussing the two approved forms of bills of lading, as follows: “The main point in this connection is that the ‘order’ bill will possess a certain degree of negotiability, while the ‘straight’ bill will be nonnegotiable and is to be so stamped upon its face. Moreover, and this is a matter of consequence, the order bill of lading will be required to be surrendered upon or before the delivery of the property to the consignee. It is believed that this plan will in large part meet the requirements of the banking concerns of the country which advance vast sums of money upon bills of lading and are entitled to a reasonable measure of protection.” Section 8 of the act under consideration affords the carrier full protection by refusing delivery of the property when demanded by the consignee or holder of an order bill of lading, unless possession of the same properly indorsed thereon is surrendered. Section 42 of the act specifies that “unless the context of the subject-matter otherwise requires, * * * 'holder’ of a bill means a person who has both actual possession of such bill and a right of property therein.” That definition clearly did not fit Bindner who had no right of property nor interest in the bill, nor control of it or right of possession beyond its safe keeping, for Kelsey, which accommodation trust he executed by “chucking” it with other papers into a drawer and handing it back when called for, in the meantime, however, on his “own. hook” without instructions from any one telling Smith, who neither saw nor asked for the order, that he had it, with the results before detailed. But, eliminating him as a.“holder” under the strict statutory definition, it may be conceded that nev-‘ ertheless, under subdivision (c) of section 9 he was entitled to delivery of the shipment as a person in possession of the order bill indorsed in blank "by the consignee. Defendant in fact did not deliver the goods direct to him but turned them over by an irregular reconsignment to another carrier on the strength of his statement that he had the bill, without asking for it or even seeing it, in admitted violation of its own rules and of the distinct provision on the face of the order bill under which it had received the consign ment, that its surrender should be required before delivery. By statute the carrier is made liable for the acts of its agents. The act nowhere prescribes the form of shipping bill which should be used nor in express language forbids that used here, and generally. Resorting to context to determine the intent of subdivision (c) of section 9 in the connection used, especial importance is given to surrender of the order for cancellation on delivery, for protection of the carrier, both in preceding and following provisions, read in connection with which it may be fairly inferred, taking all the related provisions together, that when a person in bare possession of the bill, not shown or known to have any actual interest or right of property therein, demands delivery of the goods, the carrier is only justified in complying on surrender of the bill to it; or, at least, as tinctured by the context and in view of the general purpose of the act, the provision relied on is not to be construed as prohibitive of a contract requirement in the order bill of lading issued by the carrier to that effect. Other points raised and discussed have not been overlooked, but regarding the controlling question, as stated by defendant’s counsel, to be the construction of the act of 1916 in connection with the Carmack amendment, and agreeing with the construction, as applied to the facts in this case, by the trial court, we find no occasion to disturb the judgment, which is therefore affirmed. Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

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Moore, J. The bill of complaint in this case was filed to quiet title to lots 1 and 2 in Fulton’s addition to the village of Buchanan. The plat of said addition was executed on November 10, 1866, and covers lots numbered from 1 to 58 inclusive. It was properly recorded. The record title to lots 1 and 2 is in the plaintiff. The defendant, Michael O’Brien, answered fully the averments of the bill of complaint, and asserted title in defendant by adverse possession. The answer ends as follows: “Answering the 13th and 14th paragraphs of the plaintiff’s bill of complaint, defendant says that he has a good valid and legal claim and that he is entitled to said premises free and clear from any claims or pretended claims of the plaintiff and therefore the defendant asks the benefit of a cross-bill and prays that the plaintiff’s bill of complaint be dismissed and that an order and decree be entered in this cause confirming the said defendant’s title to lots 1 and 2 and decreeing that the said plaintiff has no right, title or interest therein.” The case was tried upon its merits in open court. From a decree in favor of the plaintiff the case is brought here by appeal. Counsel contend that under the facts “disclosed by the record a bill to quiet title cannot be maintained and that an action of ejectment is the only remedy. Counsel for the appellee says this contention was not mentioned before the trial court.’ An examination of the record does not show it was, indeed the prayer of the defendant’s answer asking for affirmative relief is inconsistent with the claim. The only remaining question requiring consideration is, Did defendant show title by adverse possession? The doctrine of title by adverse possession has been before this court many times. Some of the cases are Yelverton v. Steele, 40 Mich. 541; Paldi v. Paldi, 95 Mich. 410, and Simons v. McCormick, 202 Mich. 485. The testimony offered in behalf of the defendant, especially that of his tenant, did not show such actual hostile and continued possession as is required to establish title by adverse possession. The decree of the lower court is affirmed, with costs in favor of the plaintiff. Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.

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Stone, J. This is an action on the case for damages for false imprisonment of plaintiff against the defendant Berry, sheriff of Kent county, defendant Griswold, deputy sheriff, and defendant Hyde, probation officer of said county. The following are some of the salient features of the case: The wife of the plaintiff had filed a bill against him for divorce in the circuit court for the county of Kent, in chancery, on June 17, 1914. On July 1, 1914, upon the petition of the wife, the court upon due hearing ordered the defendant therein (plaintiff here) to pay to the register of the court the sum of $15 per week in advance, the first payment to date from June 29, 1914, and a like sum of $15 on Monday of each week thereafter for her support, and the- support of the minor children of said parties, during the pendency of the suit. Also that said Richard E. Oxford pay to the register of the court the further sum of $50 for complainant therein for the purpose of supplying her said children with necessary clothing and immediate supplies. Also that he pay to the register within 30 days from the date thereof, the further sum of $25 for solicitor’s fees. On September 9, 1915, upon the sworn petition of the complainant therein, alleging that said Richard E. Oxford was in arrears on said order, in the sum of $256.50, and had violated said order, and had failed and neglected to pay said amount for such purposes, it was ordered by the court that a precept of attachment issue out of and under the seal of the court, directed to the sheriff of said county, commanding him forthwith to take the body of said Richard E. Oxford, and keep him in actual custody, and bring him forthwith before the court, and keep and detain him until it should make some further order in the premises, or until the defendant therein should be discharged according to law. Under date of September 11, 1915, appears the following order duly entitled in said cause, as. a court order, and signed by Willis B. Perkins, the circuit judge: “In this cause a writ of attachment having been heretofore issued out of and under the seal of this court against the defendant, Richard E. Oxford, for his misconduct and contempt in violation of the order for payment of alimony, heretofore issued in this cause, which writ of attachment was directed to the sheriff of the county and was returnable forthwith, and the sheriff having returned that he had attached the said Richard E. Oxford and taken his body, and had him in custody before the court, on the said 11th day of September, A. D,. 1915, and the said Richard E. Oxford having been personally before the court by virtue of said attachment on the said 11th day of Sep tember, A. D. 1915, and it appearing to the court, after having heard the answer of the said defendant, Richard E. Oxford, that the said Richard E. Oxford is guilty of, and has committed the misconduct and contempt charged: It is ordered and adjudged that the said Richard E. Oxford is guilty of the said misconduct and contempt alleged, and that the said misconduct and contempt was calculated to, and did, injure and impair and prejudice the rights and equities of the complainant in this cause, and it is therefore ordered that the said Richard E. Oxford be, and he hereby is, ordered to stand committed to the charge and custody of Joseph E. Hyde, probation officer of this court, and to remain charged with such contempt until all sums of money due and unpaid on the order for alimony, heretofore referred to, be fully paid and satisfied, or until the further order of this court.” After this order of September 11, 1915, no further order of the court appears to have been made in said cause, and the plaintiff herein was treated as on probation, under the charge and supervision of defendant Hyde, as probation officer. Said probation officer permitted this plaintiff to return to his home in Big Rapids, and he was visited there by the said probation officer. Act No. 239, Pub. Acts 1913 (3 Comp. Laws 1915, § 11449), being entitled— “An act to authorize courts of record to place parties found guilty of contempt of court for failure to pay alimony, temporary or permanent, on probation in divorce and separate maintenance cases,” —is discussed by counsel. It may be said in passing that there is no claim that plaintiff was ever sentenced for contempt of court, or that any commitment for contempt has ever been issued against him. Later, and on the 22d of November, 1915 (the plaintiff herein being still in arrears in the payment of alimony), upon the verbal request and report of the defendant Hyde, Judge Perkins signed and deliv ered to said defendant a paper called in this record a “bench warrant” in the words and figures following: "Greeting. “To the Sheriff of said County: “In the name of the people of the State of Michigan: You are hereby commanded to arrest the body of Richard E. Oxford, and bring him forthwith before the circuit court for the county of Kent, to answer unto an information filed against him in behalf of said people by the prosecuting attorney of the county of Kent, aforesaid, for the crime of contempt of court, failure to pay alimony. “Given under my hand and the seal of said court, at the city of Grand Rapids, this 22d day of November, A. D. 1915. “Willis B. Perkins, “Circuit. Judge. “Prosecuting Attorney.” Concerning this bench warrant defendant Hyde testified, on cross-examination, as follows: “I caused the bench warrant (defendant’s exhibit 10) of November 22d to be issued. I did not file any affidavit with Judge Perkins before it was issued, and did not after either of these bench warrants. After the clerk made it out, I took it up to Judge Perkins and asked him to sign it, and he did. I read it when it was made out in the clerk’s office. I read what was there. Don’t know whether Judge Perkins read it before he signed it or not. He looked at it; he didn’t read it aloud. * * * “Q. Well, you know what an information is, speaking of the criminal law, do you not? “A. Yes, sir. “Q. Yes. And you know what a crime is, speaking of criminal law, do you not? “A. Yes, sir. “Q. You knew who the prosecuting attorney was at that time, did you not? “A. Yes, sir. “Q. Did you ever present this document to the prosecuting attorney of Kent county? “A. No, sir. “Q. The prosecuting attorney had not filed' any information against Mr. Oxford, had he? “A. No, sir. “Q. You knew that at the time you presented this to Judge Perkins, did you not? “A. Sure. “Q. Yes, and you knew that Mr. Oxford had not committed any crime, didn’t you? “A. No, he had not committed any crime. * * * I knew that no affidavit had been filed with Judge Perkins as the basis for the issuance of that bench warrant. When I saw Mr. Oxford in jail in November, 1915, he was in the big cage upstairs. They keep persons convicted of and charged with felonies and misdemeanors in that cage. I couldn’t tell you how many were there at the time I saw him. ' “Q. Well, would you say there was one, or twenty? “A. Well, I would say there was one, but I would not say there were twenty. “Q. You would say there were more than one, and less than twenty, would you? “A. Yes, sir; easy. I talked with him there just a few minutes at that time. After Judge Perkins signed it, I took the bench warrant of November 22d to the sheriff’s office and presented it to Mr. Gibbs, the chief deputy, and asked him to see that it was served. I didn’t tell the clerk, that I remember of, what to put in the bench warrant when he made it out. He wanted to know what it was and I told him it was a bench warrant for Richard E. Oxford, contempt of court, failure to pay alimony, and he made that part out in accordance with my instructions. The written part was dictated by me.” The plaintiff herein was arrested in Big Rapids on November 22, 1915, on the said bench warrant by the defendant Griswold, and brought to Grand Rapids. Referring to the bench warrant of November 22d, defendant Griswold, on cross-examination, testified: “This is the only document I had in my possession when I -went to Big Rapids at that time and took Mr. Oxford into custody. I had no written commitment. I first brought him to the sheriff’s office. Don’t remember whether we had any conversation going from the train. I would not say whether or not he requested a hearing before the judge. If he says he did, I wouldn’t deny it. After bringing him to the sheriff’s office, I went to see if the judge was there. Mr. Oxford was not there. He was in the sheriff’s office, and did not hear what took place between me and the judge. After I came out from the judge’s office, I took him over to the jail and did not bring him before the judge that night. Exhibit 10 is the only document I had in my possession at that time with reference to Mr. Oxford. From November 22d to November 29th, I did not bring Mr. Oxford before the judge. Don’t recollect having any talk with Mr. Oxford at the jail. I didn’t know, at that time, in what part of the jail he was confined. I learned later. I knew that the reason for his arrest was that it was claimed he was not paying alimony.” It appears to be undisputed that the plaintiff was placed in that part of the jail reserved for the detention of persons charged with and convicted of crime, and was kept there until November 29, 1915, when he was released, but not as the result of any hearing in court. Again, and on December 27, 1915, another bench warrant was issued for the arrest of the plaintiff, signed, and in the exact form, except as to date, as was the writ of November 22, 1915, and issued under similar circumstances. Referring to this last warrant, defendant Hyde testified: “I had a second bench warrant issued on December 27th for the same purpose — to get Mr. Oxford to pay alimony; that was the sole purpose.” Referring to this second arrest, the defendant Gris-wold testified: “I next saw him the morning of the 4th of January. I arrested him that morning. Exhibit D-12 is the only document I had in my possession then. On this occasion, I also first took him to the sheriff’s office, in the court house. It was in the morning. I think I took him into Judge Perkins’ office. I won’t say for sure. I am pretty positive I took Mr. Oxford into the judge’s office with me on that occasion, but I might be mistaken about that. I left him in the office in charge of Mr. Gilman when I went to dinner, and he took him to jail at my request and told him that the court ordered him over. I did not bring him to court at any time, from January 4th to February 10th for a hearing. The only written authority I had was exhibit 12.” The plaintiff testified that from the time he was arrested on November 22d, until his release on November 29th, he was not brought before any court or magistrate and given a hearing. Referring to the last arrest he testified: “On the 4th of January, 1916, I was again arrested at my office in Big Rapids by Mr. Griswold. He took me to Grand Rapids. * * * He took me to the sheriff’s office, in the court house. We stayed there a little while and he went out. I told him I wanted to see the judge, and he came back and told me the judge was not ready for me, that we would have to go down to the jail. “Q. Did you tell him what you wanted to see the judge for? “A. Yes; I wanted a hearing. * * * “Q. Did he tell you when the judge would be ready for you? “A. No, sir. Then he took me down to the jail, and put me in the same place as before, in the same part of the jail. * * * On this occasion I was there from January 4th to February 10th, 87 days, during which time I was not out of the cage at all.” Judge Perkins was called and sworn as a witness for the defendants. Relative to the bench warrants, and to the action taken thereunder, on direct examination, he testified as follows: "I remember issuing the bench warrants of November 22d and December 27, 1915. My recollection is that Mr. Oxford appeared before me with the probation officer shortly after the bench warrants were issued. “Q. Do you recall what disposal was made of the matter on the two occasions that Mr. Oxford was brought before you on those two bench warrants? “A. Yes. On one or two occasions. I directed the officer to take him to jail to await further action of the court. * * * I think those were the occasions when Mr. Oxford was brought before me on those bench warrants with the probation officer. Of course, I have had a great many similar cases since that time, and my recollection is rather indistinct, but that was the usual custom and that is my recollection as I have it now in reference to this.” On cross-examination he testified: “Q. Now, I think you said you didn’t know whether Mr. Oxford was actually brought before you on that bench warrant, or not? “A. I can’t tell whether it was this one or some other bench warrant. I know he was brought before me on the so-called attachment of September 10th or 11th. He was brought before me on one or more of those bench warrants subsequent to the order placing him on probation. I wouldn’t fix the date at all. If he was brought before me on either of the bench warrants, he did not have any hearing at that time. No witness sworn or testimony taken at all. * * * He had no hearing before me between January 4, 1916, and February 10, 1916, and he had no hearing before me between November 22,, 1915, and November 29, 1915, that I recall, and during those periods, I issued no sentence or commitment confining him to the county jail.” Section 4 of Act No. 105 of the Public Acts of 1913 (1 Comp. Laws 1915, § 2032) is referred to by defendants as authorizing the issuance of the bench warrants. On February 10, 1916, upon the petition of the plaintiff, a writ of habeas corpus was issued out of the circuit court for the county of Kent, by Judge Mc Donald, directed to the defendant Berry, for the purpose of inquiring into the cause of plaintiff’s imprisonment. The return of said defendant stated among other things as follows: “That said Richard E. Oxford was in his custody by virtue of an order of the circuit court for the county of Kent, in chancery, bearing date September 11, 1915, in the case of Nellie M. Oxford, complainant, v. Richard. E. Oxford, defendant, whereby the said Richard E. Oxford was adjudged guilty of contempt of court, and the said Richard E. Oxford was ordered to stand committed to the custody of Joseph E. Hyde, probation officer of Kent county, and the said Richard was taken into custody and placed in said county jail, by the authority and direction of the said Joseph E. Hyde, as probation officer, and under and by virtue of the authority of a bench warrant, issued December 27, 1915, by the Honorable Willis B. Perkins, circuit judge, under the seal of said court,” copies of which were attached. The hearing was adjourned to, and took place February 19, 1916, at which time Judge McDonald determined and made an order as follows: “That the order of this court, bearing date September 11, 1915, in the case of Nellie M. Oxford, complainant, v. Richard E. Oxford, defendant, whereby the said defendant was ordered to stand committed to the charge and custody of Joseph E. Hyde, probation officer of said county of Kent, did not authorize the commitment of said Richard E. Oxford to the county jail of said county, without the further order of the court, and it appearing that no further order was made therein; and it further appearing that the sheriff and deputy sheriff had no right to detain the petitioner in the Kent county jail, and especially in that part of the jail reserved for the detention of criminals; it is therefore .ordered that the said'petition be, and the same is hereby granted, and the said Richard E. Oxford be, and he hereby is discharged from the custody of the said Charles Berry, sheriff of Kent county.” The plaintiff was thereupon discharged from custody, and on August 26, 1916, he began this suit. The declaration counts upon the said arrests of November 22, 1915, and January 4, 1916, alleging that plaintiff was arrested— “without any process, and without any lawful process fair on its face, and without any sworn evidence being first filed with a magistrate immediately prior thereto, charging this plaintiff with the violation of some law for which lawful process could issue [defendants did] unlawfully cause the arrest of plaintiff, and did then and there unlawfully take him to the county jail of Kent county aforesaid, and did then and there, from November 22d to November 27, 1915, without any hearing, and against his will, unlawfully detain him in a cell, in that part of said jail reserved for, and where persons held for, and convicted of high crimes and misdemeanors were incarcerated, which part of the jail was infested with rats, and cockroaches, and did then and there unlawfully open, inspect and read plaintiff’s outgoing mail, and did then and there greatly injure him, in his good name,” etc., —in violation of his constitutional rights, naming them, and contrary to section 10534 of the Compiled Laws of 1897 (3 Comp. Laws 1915, § 14762). A similar charge is made with reference to the arrest of January 4, 1916. Under the plea of the general issue the defendants gave a lengthy notice that they would justify their action under the said order of September 11, 1915, and said bench warrants and the statutes applicable to such proceedings. At the close of all the testimony, and upon the motion of the defendants, the trial court directed a verdict and judgment for the defendants to be entered, and the plaintiff has brought the case here on writ of error. There is a large number of assignments of error. Instead of treating them separately, we will consider the points argued by appellant in his brief, all of which a,re covered by the assignments of error. It is first claimed by appellant that the order made by Judge McDonald in the habeas corpus proceeding was a final order, and that the matters passed upon and determined by him are res adjudicaba, not only as to defendant Berry, but as to defendants Hyde and Griswold, they having made affidavits in support of the return of the sheriff to said writ, as to matters not within his personal knowledge. Appellant refers to the case of Castor v. Bates, 127 Mich. 285 (89 Am. St. Rep. 471), as supporting this contention. We do not think that case a parallel one. In that case the plaintiff, having been arrested on a ca. sa. at the instance of the defendant, sued out a writ of habeas corpus, and, on the hearing, after notice to defendant under 3 Comp. Laws 1897, § 9885, was discharged on the ground that the judgment upon which the execution was issued was void, it was held that such adjudication was conclusive in a subsequent action against defendant for false imprisonment. An examination of that case will show that defendant appeared as a party, and was heard in the case. In the instant case neither Griswold nor Hyde appeared or took any part in the proceeding, so as to be in any sense a party thereto. Neither of them had any control over the proceeding. We do not think they are bound by the judgment or order. Fowler v. Blount, 191 Mich. 575. There is respectable authority which holds that an order or judgment in a habeas corpus suit is res adjudicaba as to the person charged with unlawfully restraining another of his liberty, until reversed in some proper proceeding. State, ex rel. Durner, v. Huegin, 110 Wis. 189 (85 N. W. 1046, 62 L. R. A. 700); 21 Cyc. p. 349. It is the next claim of appellant that the order of September 11, 1915, was void, and no justification. We do not agree with this contention. In our opinion the court had jurisdiction to make the order of September 11, 1915. The plaintiff had. been arrested upon an attachment issued in pursuance of Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443), entitled: “An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for divorce.” He had been brought before the court and had had a hearing. It will be noted that the declaration does not count upon his arrest upon the attachment which brought him into court on that occasion. We passed upon this statute in Whitman v. Branstrom, 202 Mich. 457, and said: “The statute contemplates that the party is not yet in contempt, and could not be, under our statutes and decisions until he had had a hearing in court.” That hearing seems to have been had on September 11, 1915. We agree with counsel for appellant that the order made on that date indicates that the court had in mind the statute relative to contempt, to enforce civil remedies as amended by Act No. 230, Pub. Acts 1899, as the order set forth that the misconduct was calculated to, and did injure and impair the rights and equities of the complainant. It will be observed that no judgment was pronounced upon the plaintiff for the contempt of court, of which he was found guilty. Counsel next discuss the probation law, and claim that the provisions of the uniform probation law (Act No. 105, Pub. Acts 1913) are not applicable to husbands found guilty of contempt of court for nonpayment of alimony; and that Act No. 239, Pub. Acts 1913, seeking to enlarge the scope of the uniform probation law, is unconstitutional. We do not find it nec essary to pass upon this question, for we are of the opinion that the defendant therein (plaintiff here) being at large, and having been found guilty of contempt, it was competent for the court to issue a bench warrant for his arrest. A bench warrant is defined as a process issued by the court itself, or “from the bench,” for the attachment or arrest of a person; either in case of contempt, or where an indictment has been found against him. Black’s Law Dictionary. It will be observed that this bench warrant was issued by the court, directed to the sheriff of the county, commanding him in the name of the people of the State of Michigan to arrest the body of Richard E. Oxford and bring him forthwith before the circuit court for the county of Kent; and it was under the seal of the court, thus distinguishing it from the writ passed upon by us in Whitman v. Branstrom, supra. The next question discussed is whether the bench warrants were processes fair upon their face, and a protection to the persons acting under them in arresting the plaintiff. Applying the definition of process that may be said to be fair upon its face, we refer to the definition in Cooley on Torts (2d Ed.), at p. 538. This language has been referred to recently in Brown v. Hadwin, 182 Mich. 491 (L. R. A. 1915B, 505), and in Whitman v. Branstrom, supra. It appears from this record that these bench warrants were filled out by defendant Hyde. He testified that they were printed blanks, and that he inserted the written matter, which consisted of the words “contempt of court — failure to pay alimony.” It, was a fact, appearing from this record, that the plaintiff was then prima facie guilty of contempt of court— failure to pay alimony, and that defendant Hyde stated the facts in that regard. The printed form contained certain redundant matter, because no information had been filed in behalf of said people by the prosecuting attorney of Kent county. Those words, we think, were mere surplusage in the printed form, and the gist of the charge was “contempt of court — failure to pay alimony.” After a somewhat lengthy examination of this subject, we are of the opinion that the warrants for the arrest of the plaintiff were fair upon their face, and a protection to the officers making the arrests. The writs issued from a court or body having authority by law to issue processes of that nature, and there was nothing upon the face of the papers to apprise that officer that they were issued without authority; nor does it appear that they were issued without authority. It follows, we think, from what we have said, that all of the defendants were protected in making the arrests of the plaintiff on the occasions complained of in the declaration. * Whether the conduct of the defendant Berry was justified in detaining the plaintiff for the length of time he was incarcerated in the county jail under the circumstances appearing here, presents another question. From this record it is a disputed question and may be said to be doubtful, whether the plaintiff was ever brought before the court in pursuance of the command of the writ. At all events, even if the officer was directed by the circuit judge who issued the writ, to take him to jail until such time as he could hear him, this did not justify the sheriff in holding him an unreasonable length of time. The writ did not command the sheriff to take the plaintiff before the circuit judge who signed the writ, but “before the circuit court for the county of Kent.” We will take notice that there was more than one judge of that court, and there is no claim that the circuit court was not in session during the period of imprisonment. It is elementary that, even in criminal cases, when the officer has made the arrest it is his duty, as soon as possible, to bring the party before the court according to the import of the warrant; and if the officer be guilty of unnecessary delay in so doing, it is a breach of his duty; and his duty is the same whether the arrest was made with, or without process. He must take him before the court as soon as he reasonably can. If the time when the arrest is made be unseasonable, as in or near the night, whereby the officer cannot attend the court, or if the party be sick or the like, the officer may secure the prisoner in a house or other place until the next day, or until such time as it may be reasonable to bring him into court. See English cases cited in Tiffany’s Crim. Law (Howell’s 4th Ed.), p. 103. This rule is applicable in cases of civil contempt, as well as in criminal contempt of court. It is the duty of the officer who makes the arrest under warrant to exercise reasonable diligence in presenting the person arrested before the court; and it has been held repeatedly that where the officer unreasonably delays in making the arraignment, the delay amounts to false imprisoment. In Anderson v. Beck, 64 Miss. 113 (8 South. 167), it was held that the unexplained detention of the prisoner arrested on warrant, for more than 30 days without bringing him up for examination or trial amounted to false imprisonment. What amounts to reasonable diligence in presenting a prisoner before the court depends upon the peculiar facts in each case. And whether a prisoner was detained for an unreasonable length of time before being presented for examination or trial is usually a question of fact to be determined upon the circumstances attending the particular arrest and detention. The facts are here in dispute, and therefore they became questions of fact for the jury. It follows that where all the facts are conceded, or clearly established, the question whether said detention was unreasonable is one of law for the court. See the very fully extended note to the case of Atchison, etc., R. Co. v. Hinsdell (76 Kan. 74, 90 Pac. 800, 12 L. R. A. [N. S.] 94), 13 Ann. Cas. p. 984 et seq. Recent cases sustain the well-established rule that, as a prisoner is entitled to a hearing within reasonable time after his arrest, delay for an unreasonable length of time in bringing him before the court constitutes false imprisonment. Gomez v. Scanlan, 155 Cal. 528 (102 Pac. 12); Clark v. Tilton, 74 N. H. 330 (68 Atl. 335); and see numerous other cases cited in Keefe v. Hart, 213 Mass. 476 (100 N. E. 558), as reported in Ann. Cas. 1914A, at p. 716, and note on p. 717. This right may be waived by the prisoner. In the instant case it is not claimed that the plaintiff ever assented to any delay. While he claims that he was constantly asking for a hearing, the most that is claimed on behalf of the defendants upon that subject is that he made no request in the matter. In Linnen v. Banfield, 114 Mich. 98, which was an action for false imprisonment against Banfield, a police officer, and others, and after approving the directed verdict as to the other defendants, this court, speaking through Justice Montgomery, said: “As to defendant Banfield the case is different. We think there was a case made for the jury on both counts. Assuming that the arrest without warrant was justified, it was the duty of arresting officers to take accused before a magistrate at as early a date as was practicable. This arrest was made on the evening of the 31st [December] and the plaintiff was detained without bail until the evening of the 2d of January. The information upon which the warrant was sworn out was all this time in the possession of the officers. We think it should not be held as a matter of law that this delay was reasonable. Malcolmson v. Scott, 56 Mich. 465. * * * “The officers were authorized to detain the plaintiff on the charge of felony without a warrant for a rea sonable time only. 1 Am. & Eng. Enc. Law, p. 732; Rohan v. Sawin, 5 Cush. (Mass.) 281. Time is presumed to be of some importance to one incarcerated without process, and promptness is required when the information, upon which proceedings are to be based is at hand, in order that the accused may not be deprived of the right to give bail. We do not overlook the claim that the officer was acting under the instructions of the prosecuting attorney, but we know of no rule which authorizes a prosecuting attorney to enlarge the authority of the arresting officer. While such instructions may bear on the good faith of the officer’s acts and thus affect the question of damages, it must be borne in mind that good- faith does not excuse an unauthorized arrest.” Neither does it justify an unreasonable detention and deprivation of one’s liberty. There is, in other jurisdictions, an abundance of authority to the effect that an unlawful detention following a lawful arrest by a sheriff makes him a trespasser ab initio. But this court held in Friesenhan v. Maines, 137 Mich. 10, that an unlawful detention following a lawful arrest by a sheriff does not make him a trespasser ab initio, unless the original arrest was made with the .intent of being used for a subsequent wrong. We think that this rule is applicable to the instant case, as we find no evidence of such intent. Much stress is laid by appellant upon the point that the plaintiff was “incarcerated among felons,” in violation of the statute already referred to. It should be borne in mind that the plaintiff never had been sentenced, and that no commitment had been issued for his detention. "He was simply charged with contempt of court; and, in our opinion, not with criminal contempt. It is true that the border line between what may be termed “civil,” and what “criminal,” contempt is exceedingly indistinct and narrow, leaving it often a question of extreme refinement as to whether the act was. one or the other. Of course, all judgments for contempt are, in a sense, punitive, since the sentence may be fine and imprisonment in both. But here there had been no judgment pronounced. In our opinion the statute relied upon by the appellant is applicable here, and the manner in which the plaintiff was treated by the defendant Berry while in custody and where he was detained, are matters, that were pertinent in the case. There were certain cards introduced in evidence, known as the “yellow” card and the “white” card, which appeared to be instructions of the circuit judge relating to the question of probation. We think their introduction was not warranted under the notice in the pleadings, but we do not deem the question an important one. The defendants in their evidence went far afield upon the question of the merits of the divorce suit. Save as a matter of cross-examination, as affecting the credibility of the plaintiff, we do not think that was an open question upon the trial. In our opinion the court erred in directing a verdict in favor of all of the defendants; and the question whether the defendant Berry was guilty of an unreasonable detention in jail of the plaintiff should have b,een submitted to the jury under proper instructions ; and the case should go back for a new trial as to the defendant Berry, for the reasons herein stated. Judgment as to the defendants Griswold and Hyde is affirmed, with costs; and as to defendant Berry is reversed with costs, and a new trial ordered. Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit.

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Per Curiam. The Attorney General appeals as of right from the order of the Ingham Circuit Court affirming orders of the Michigan Public Service Commission in Case Nos. U-7511 and XJ-7512, establishing power supply cost recovery clauses in Consumers Power Company’s rate schedules. The Attorney General has raised essentially the identical issues in a number of separate appeals from orders of the commission. We have consistently found these appeals to be without merit. In Attorney General v Public Service Comm, 161 Mich App 506; 411 NW2d 469 (1987), we were faced with three issues analytically identical to the first three issues raised by the Attorney General in this appeal. No new argument has been raised and we are unpersuaded of any reason to change our prior decision. Accordingly, we address the Attorney General’s first three issues summarily: (1) MCL 460.6j(2); MSA 22.13(6j)(2) is constitutional since it provides sufficiently precise standards to guide the Public Service Commission; (2) Proposal h did not implicitly repeal MCL 460.6j(9); MSA 22.13(6j)(9), since they are not incompatible; and (3) the commission did not exceed its authority when it ruled that some customer classes could be exempted from paying a power supply cost recovery factor (pscr). We also note that there is presently no real dispute since no customer class has been exempted. With regard to the second and third issues raised above, we also rejected them in Attorney General v Public Service Comm, 158 Mich App 670; 405 NW2d 386 (1986). The Attorney General’s remaining issue is also without merit and will be addressed briefly. The Attorney General argues that the commission acted unlawfully by approving a levelized (averaged) pscr factor for the entire year instead of adopting a monthly recovery factor. This claim is frivolous. We agree with the circuit court that levelized factors are not unlawful under MCL 460.6j; MSA 22.13(6j), particularly considering that the factors are variable up to the limits set on the pscr factor. We agree with the commission that no advantage would be served by engaging in the more difficult task of computing monthly factors, especially given the annual reconciliation process. The commission properly acted within its discretion in approving an annual pscr factor. Affirmed.

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Per Curiam. Defendant appeals as of right from an order of the circuit court granting summary disposition to plaintiff and vacating an arbitration award. The arbitration award sustained defendant’s grievance that plaintiff had violated a collective bargaining agreement by contracting out normal bargaining unit work. The circuit court vacated the award on the basis that the dispute was not arbitrable and that the arbitrator had exceeded the scope of his authority. We affirm the order of the circuit court on the basis that the arbitrator exceeded the scope of his authority. Plaintiff (the school district) and defendant (the union) entered into collective bargaining agreements covering the periods July 1, 1982, to June 30, 1984, and July 1, 1984, to June 30, 1987. The agreements contained grievance procedures and provided for binding arbitration. The provisions in both contracts that are at issue in the present case are identical. The agreements will be referred to collectively as the collective bargaining agreement. The school district and the union also entered into a letter of agreement that was designated Appendix g and was attached to the collective bargaining agreement. Appendix g set forth the circumstances under which the school district could contract out normal bargaining unit work. In 1984 and 1985, the school district employed ten persons who were classified as roofers. The job description of roofers was not contained in the collective bargaining agreement. However, the school district’s job description of roofers included the repair of various types of roofs as one of their duties. The school district determined that many of its buildings needed to have their existing roofs removed and replaced with new roofs. In June and July, 1984, the school district awarded contracts to private roofing contractors to remove and replace the roofs on nine of its school buildings. The union filed a grievance alleging that the school district had violated the collective bargaining agreement by contracting out normal bargaining unit work. The relief sought by the union was payment of overtime that the bargaining unit employees would have received had the work not been contracted out. The school district asserted that the work was not normal bargaining unit work and that, even if it was, it fell under several of the circumstances in which normal bargaining unit work could be contracted out in accordance with Appendix G of the collective bargaining agreement. The union narrowed its objection to the contracting out of the roofing work on three of the nine school buildings. The union conceded that the bargaining unit employees could not have completed all three jobs within the time requirements. However, the union contended that bargaining unit employees could have done either the largest project or the two smaller projects. The grievance proceeded to arbitration. The school district voluntarily participated in arbitration and maintained its position that the work was not normal bargaining unit work and, even if it was, the circumstances in Appendix g applied. The arbitrator found that the work was normal bar gaining unit work. The arbitrator reasoned that, although the roofers’ job description included the repair of roofs, replacement of a roof was only a matter of degree. In addition, the arbitrator considered whether any of the circumstances in Appendix g applied and determined that they did not. The arbitrator awarded the union damages by using a formula that was based on the difference between the number of hours worked by the outside contractors and the number of hours worked by the bargaining unit employees during the same period. The school district filed suit in circuit court to vacate the arbitration award. The school district argued that the grievance was not arbitrable and that the arbitrator had exceeded the scope of his authority by deciding matters not subject to arbitration. The union filed a counterclaim seeking enforcement of the arbitration award. Both sides filed motions for summary disposition. The circuit court granted the school district’s motion for summary disposition on the grounds that the grievance was not arbitrable and the arbitrator had exceeded the scope of his authority. The circuit court ruled that it was beyond the arbitrator’s authority to decide that this was normal bargaining unit work and that the arbitrator added to the job description of the employees. In addition, the circuit court ruled that the arbitrator was without authority to decide that the work was a reasonable opportunity for overtime for the employees. On appeal, the union argues that the trial court erroneously ruled that the dispute was not arbitrable because the school district waived the issue of arbitrability and that the circuit court erroneously ruled that the arbitrator exceeded the scope of his authority. First, the union argues that the circuit court erred in ruling that the parties’ dispute was not arbitrable because the school district waived that issue. We agree that, by voluntarily participating in arbitration, the school district waived the issue of the arbitrability of the claim. In American Motorists Ins Co v Llanes, 396 Mich 113; 240 NW2d 203 (1976), the plaintiff voluntarily participated in arbitration without raising the issue of whether the claim was arbitrable. Our Supreme Court held that plaintiff could not challenge the unfavorable award in court by complaining for the first time that the issue was excluded from arbitration. In Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95; 323 NW2d 1 (1982), defendant did not participate in the arbitration proceedings. Plaintiff filed a circuit court action to confirm the award and defendant argued that there was no valid agreement to arbitrate because the agreement to arbitrate was signed by an employee without authorization. Our Supreme Court held that defendant had not waived the issue of the arbitrability of the claim. The Court distinguished Llanes on the basis that "Llanes stands for the proposition that a party may not participate in an arbitration and adopt a 'wait and see’ posture, complaining for the first time only if the ruling on the issue submitted is unfavorable.” Arrow Overall Supply Co, supra, pp 99-100. In the present case, the school district voluntarily participated in the arbitration proceedings without raising the issue of whether this grievance was, on its face, intended by the parties to be submitted to arbitration. Therefore, the circuit court should not have considered the issue of whether this was a grievance that was arbitrable. Even though the school district waived the issue of arbitrability, it did not waive the issue of whether the arbitrator exceeded the scope of his authority. In Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143; 393 NW2d 811 (1986), our Supreme Court explained that the issue of arbitrability involves looking at a claim on its face to determine whether the parties agreed to submit this type of claim to arbitration. However, even if a claim is arbitrable on its face, the arbitrator may exceed the scope of his authority if the "arbitral award reaches beyond the boundaries of the 'submission.’ ” Port Huron Area School Dist, supra, pp 161-162. Therefore, even though the school district waived the issue of arbitrability, the circuit court properly considered the issue of whether the arbitrator exceeded the scope of his authority. In Port Huron Area School Dist, the Court determined that the award was unenforceable because the arbitrator had exceeded his jurisdiction and authority under the collective bargaining agreement. The arbitrator found that a section of the agreement’s preamble had been violated. However, the Court noted that the agreement expressly provided that grievances concerning the preamble were not subject to arbitration. The arbitrator also found that a management policy decision was not reasonable or necessary. However, the agreement specifically provided that the arbitrator had no power to substitute his judgment for that of the school district as to the reasonableness of any practice, policy, rule or any action taken by the school district. The Court noted that ordinarily an arbitrator may consider the interpretation of contractual provisions, the intent expressed in a preamble and even the reasonableness of policy decisions reserved to the employer. However, those matters were outside the jurisdiction and authority of the arbitrator in Port Huron Area School Dist because the agreement expressly and specifically provided that those matters were not subject to arbitration. In the present case, the arbitrator found that (1) the roofing project was normal bargaining unit work within the meaning of Appendix g of the collective bargaining agreement and (2) the roofing project fell within none of the categories listed in Appendix g that would allow the work to be contracted out. The circuit court held that the arbitrator exceeded the scope of his authority under the contract in the following ways: 1. The arbitrator made a determination that the work contracted by the plaintiff as not being normal bargaining unit work, was normal bargaining unit work. 2. The arbitrator added to the job description of the employees. 3. The arbitrator decided that the contracted work was a reasonable opportunity for overtime for the employees. We will not review whether this was in fact normal bargaining unit work within the roofers’ job description for which overtime could be paid. Rather, our review is limited to whether the arbitrator had the authority to decide those issues in the manner that he did. In accordance with Port Huron Area School Dist, we will examine the terms of the contract to determine whether the arbitrator extended his authority "beyond the boundaries of the submission.” The scope of the arbitrator’s authority is expressly provided for in ¶ (8k) of the collective bargaining agreement. Paragraph (8k) provides in part as follows: The jurisdiction of the arbitrator shall be lim ited to grievance arising out of the interpretation or application of this Agreement or any written amendments hereof or supplements hereto. The arbitrator shall have no power to alter, add to, subtract from or modify any of the terms of this Agreement or any written amendments hereof or supplements hereto or to specify the terms of a new agreement or to substitute his discretion for that of the parties hereto or to assume any of their functions or responsibilities. Appendix g of the collective bargaining agreement provides: [It] is hereby agreed that the new contracting of normal bargaining unit work [sh]all be permitted when any one of the following circumstances exists: a) Emergencies; b) When necessary equipment is not in the possession of the Board and not reasonably obtainable; c) Projects beyond the ability of the bargaining unit, such determination to be made in the reasonable discretion of the Board; d) New construction; e) Unavailability of qualified and certified employees as determined by the present contract classifications; f) Inability to meet Board-determined timelines and quality specifications, said specifications and timelines to be the same as for contractors; g) Projects of limited duration which require a number of additional employees; and h) Other considerations involving extenuating circumstances. It is agreed that the Employer shall continue to determine when there are reasonable opportunities for overtime work and such overtime work opportunities shall be provided to bargaining unit employees. It is further agreed that this Appendix is not intended to permit the subcontracting of work, the result of which would have a direct effect on employees through the layoff of then existing bargaining unit members at the time of such subcontracting. It is further agreed that the language of this Appendix is subject to review through the language of Paragraph (8). This Appendix is not controlling for subcontracting begun prior to September 1, 1976 and constitutes the entire understanding of the parties in regard to the matter of subcontracting and is not to be regarded as impairing the right of the Board to subcontract, except to the extent otherwise stipulated in this Appendix. The collective bargaining agreement does not define "normal bargaining unit work” and it does not contain a job description of roofers. However, Appendix g provides that its language is subject to review through the language in article 8. The applicable section of article 8, ¶ (8k), provides that the arbitrator has jurisdiction over grievances arising out of the interpretation or application of the agreement. On its face, the meaning of "normal bargaining unit work” appears to be an issue that the parties agreed to submit to arbitration because it requires interpretation or application of the agreement. However, this is clearly a case where the arbitration award "reaches beyond the boundaries of the submission.” Paragraph (8k) expressly provides that the arbitrator has no power to alter, add to, subtract from or modify any of the terms of the agreement. Even if it is assumed that the roofers’ job description was subject to interpretation, the arbitrator had no authority to add to the description by determining that replacement of roofs was included in the roofers’ job description. Therefore, the circuit court was correct in ruling that the arbitrator exceeded the scope of his authority in the present case by deciding that roof replacement was normal bargaining unit work. In addition, subsection (c) of Appendix g provides that even normal bargaining unit work may be contracted out if, in the discretion of the school board, the work is beyond the ability of the bargaining unit. The arbitrator found that the work was not beyond the ability of the bargaining unit because the bargaining unit was supervised by a graduate civil engineer and the roof manufacturer could keep a representative on the job site. We think that this determination was also beyond the scope of the arbitrator’s authority. The parties contracted in subsection (c) of Appendix G that the school board would have discretion to determine what was beyond the ability of the bargaining unit. The parties also agreed in ¶ (8k) that matters left to either party’s discretion were not arbitrable. The school district has contended since the beginning of this dispute that the work was beyond the ability of the bargaining unit. We cannot ignore the express language of the collective bargaining agreement that leaves this determination to the discretion of the school board and beyond the reach of arbitration. Although the circuit court was correct in ruling that the arbitration award must be vacated, we do not agree with its third finding of error. The circuit court ruled that the arbitrator exceeded the scope of his authority by deciding that the contracted work was a reasonable opportunity for overtime for the union employees. Appendix G expressly provides that the school district shall continue to determine when there are reasonable opportunities for overtime work. In the present case, the school district had already determined that there was a reasonable opportunity for overtime work. Having determined that overtime work was necessary and having contracted that overtime work out to private roofing companies, the school district arguably violated the provision that overtime work shall be provided to bargaining unit employees. Thus, had the arbitrator stayed within the limits of his authority in determining that this was normal bargaining unit work and that none of the circumstances in Appendix g applied, then it would have been within the arbitrator’s authority to use the amount of overtime work that was already performed as a measure of damages. The school district had already exercised its discretion in determining that overtime work was available and the arbitrator was merely enforcing the provision that the work should have been given to bargaining unit employees. Therefore, we believe that the circuit court erred on the issue of overtime work, but correctly concluded that the arbitrator had exceeded the scope of his authority on other grounds. The order of the circuit court vacating the,arbitration award is affirmed. No costs, neither party having prevailed in full._' We also note that the arbitrator awarded damages based on the overtime work performed for all three projects. However, the union conceded that the bargaining unit employees could not have completed all three jobs within the time requirements. The union asserted that the employees could have completed either the largest project or the two smaller projects. The circuit court did not address this issue. However, when the arbitrator dictates a remedy which is beyond that which both parties agree is reasonable and proper, the arbitrator has exceeded his authority. Northern Michigan Ed Ass’n v Cheboygan Bd of Ed, 126 Mich App 781, 787-788; 337 NW2d 923 (1983). Therefore, the arbitrator exceeded his authority in awarding damages beyond what the union had agreed was reasonable.

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M. Warshawsky, J. Plaintiff appeals as of right from an order of summary disposition on plaintiff’s complaint seeking plaintiff’s treatment records from defendant pursuant to the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. We affirm. This appeal involves the refusal of the Center for Forensic Psychiatry (cfp) to provide plaintiff with free copies of his treatment records, compiled between November, 1972, and July, 1975. Plaintiff, an inmate at the Kinross Correctional Facility, was committed to the cfp until he was found competent to stand trial. Plaintiff’s initial letter to the cfp noted his indigence and requested copies of his treatment records pursuant to the foia. In a response letter, the cfp advised plaintiff that, pursuant to the Michigan Mental Health Code, plaintiff was entitled to a copy of his records upon prepayment of $80, which represented a charge of ten cents per page for the 800-page file. In a subsequent correspondence, plaintiff repeated his request for free copies, and the cfp again refused. Plaintiff brought an action under the foia in the Washtenaw Circuit Court following the cfp’s decision. Defendant moved for summary disposition, alleging a failure to state a claim upon which relief could be granted under MCR 2.116(C)(8). On November 25, 1985, the circuit court granted defendant’s motion. On January 24, 1986, the court denied plaintiff’s motion to set aside the opinion and order. Plaintiff argues that the trial court erred in summarily dismissing his complaint. A motion for summary disposition based on failure to state a claim tests the legal sufficiency of the complaint. The reviewing court must rely on the pleadings alone and assume that the factual allegations in the complaint are true along with any inferences which may be drawn from those facts. The motion should be granted only when the claim is so unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Bradford v Michigan, 153 Mich App 756, 761;396 NW2d 522 (1986). The foia exempts from disclosure any records or information exempted from disclosure by other statutory authority. MCL 15.243(l)(d); MSA 4.1801(13)(l)(d). The treatment records sought by plaintiff in the instant case are deemed confidential and exempt from disclosure under the Mental Health Code, MCL 330.1748; MSA 14.800(748). However, treatment records of mental health patients may be disclosed where the holder of the record and the recipient of treatment consent. MCL 330.1748(5); MSA 14.800(748X5). With regard to the manner of disclosure, the foia provides that the holder may charge a fee for providing copies of public records limited to actual mailing, duplication, search and other actual costs. Records may be furnished without charge only if the public body determines that it is in the public interest. For an indigent, a copy of a public record is to be furnished without charge for the first $20 of the fee for each request upon receipt of an affidavit showing inability to pay because of indigence. MCL 15.234(1); MSA 4.1801(4)(1). In the instant case, defendant consented to provide plaintiff a copy of his treatment records upon payment of an $80 copying fee, which did not cover the cost of searching, reviewing and mailing the record. Such disclosure was not a matter of public interest. Because plaintiff failed to attach an affidavit of indigence to his request, the $80 copying fee was not improper under the foia. At best, plaintiff may request the $20 waiver, leaving a $60 charge. Under the circumstances, however, no factual development could have established a right for plaintiff, although indigent, to receive copies of his 800-page treatment record without charge. Therefore, the circuit court properly dismissed plaintiff’s complaint for failure to state a claim upon which relief could be granted. Bradford, supra. We find plaintiff’s remaining issues to be without merit. Affirmed.

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Wahls, J. These consolidated cases require us to determine the constitutionality of statutory amendments to the Workers’ Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237 (101) et seq. Those amendments, set forth in 1987 PA 28, MCL 418.354(17)-(20); MSA 17.237 (354X17X20), provide, in part, that workers’ compensation payments resulting from liability pursuant to §§ 351, 361 or 835 of the act for personal injuries occurring before March 31, 1982, should not be coordinated with other employer-financed benefits specified in § 354, and that, if an employee’s benefits were so coordinated previously, reimbursement with interest of the amounts withheld should be made. The employers in the present cases argue that the amendments, which are applicable retroactively to cases involving injuries which occurred before March 31, 1982, first, "violate the due process and contract clauses of the federal and state constitutions by retroactively imposing additional liability upon employers for past compensable periods,” and, second, "violate the separation of powers and the one court of justice clauses of the Michigan constitution of 1963.” We disagree and conclude that neither of these constitutional challenges possesses merit. BACKGROUND In order to place in context the issues presented in this case, it is necessary to review briefly the legislative history of the challenged statute. In 1980 and 1981, the Legislature enacted several amendments to the Workers’ Disability Compensation Act. As part of those amendments, the benefit rate structure was changed, providing for an increase in weekly compensation from two-thirds of an employee’s average weekly wages to eighty percent of an employee’s after-tax average weekly wages. 1980 PA 357; MCL 418.351; MSA 17.237(351). Another portion of the workers’ compensation reforms, 1981 PA 203, which became effective on March 31, 1982, reduced an employer’s liability for workers’ compensation benefits by the amount of certain other employer-financed benefits (e.g, social security old-age insurance, pension, retirement, wage continuation, self-insurance, disability insurance) received by the employee. MCL 418.354; MSA 17.237(354). This setoff or "coordination” of benefits was intended to eliminate the duplication of benefits for injured workers and thus avoid creating a disincentive to work. After § 354 became effective on March 31, 1982, some employers began to coordinate the workers’ compensation benefits of many of their retired or disabled employees, including some employees who had been injured prior to March 31, 1982. As a result, employees injured before that date were being subjected to a reduction of benefits through coordination, even though they did not receive the increased maximum benefit rates pursuant to the statutory amendment. In Chambers v General Motors Corp, 1982 WCABO 132, the Workers’ Compensation Appeal Board held that the § 354 coordination-of-benefits provision could not be applied to claimants injured before March 31, 1982. Similarly, this Court, in Franks v White Pine Copper Division, Copper Range Co, 122 Mich App 177, 184-185; 332 NW2d 447 (1982), observed that the Legislature did not intend for employees injured before March 31, 1982, to have their workers’ compensation benefits coordinated, citing Senate Concurrent Resolution No. 575, which stated that the coordination legislation in § 354 "was hot designed to disrupt benefits which were already being received by an employee prior to the effective date of this act or benefits resulting from injuries incurred prior to the act’s effective date,” and that the coordination of benefits provided for in § 354 was "not to be applied retroactively to those receiving worker’s disability compensation payments or those injured prior to the effective date of this act.” Nevertheless, the Supreme Court, in reviewing Chambers, Franks, and a third consolidated case, held that the Legislature in fact intended that the benefits of all disabled employees be coordinated after March 31, 1982, even if some of those employees were injured before that date. Franks v White Pine Copper Div, 422 Mich 636, 664; 375 NW2d 715 (1985). Based on the Supreme Court’s decision in Franks, employers who had been coordinating the workers’ compensation benefits of employees injured before March 31, 1982, could continue to coordinate those benefits, and some employers who had not been coordinating the benefits of their disabled employees who were injured before March 31, 1982, required those employees to pay back the money that had been "overpaid” to them since that date. On December 30, 1985, the Supreme Court denied a motion to rehear the consolidated cases. However, the author of the Franks decision, Justice Patricia J. Boyle, dissented, voting to grant the motion for rehearing. Justice Boyle opined that reconsideration led her to believe — contrary to her earlier expressed view that the plain meaning of § 354 required the coordination of benefits for all disabled employees after March 31, 1982— that the language of § 354 "is ambiguous and requires construction,” and that "[t]he incorrect methodology of our opinion leaves serious questions regarding the original decision in these cases.” 424 Mich 1203. Moreover, Chief Justice Williams and Justice Cavanagh, while concurring in the denial of the motion for rehearing, wrote separately to clarify that their denial intimated no opinion regarding employers’ attempts to recoup overpayments. There was significant public reaction criticizing the Supreme Court’s decision in Franks. Critics included members of the Legislature that had passed § 354; James M. Brakora, Director of the Bureau of Workers’ Disability Compensation; and former Governor William G. Milliken. In a letter dated October 25, 1985, Governor Milliken stated that the Supreme Court had misconstrued the intent of his administration and the Legislature because "[i]t was not our intent that the coordination apply in any way to persons who had suffered their injuries prior to the effective date of the amendments.” In response to the Franks opinion, the Legislature adopted 1987 PA 28, which became effective on May 14, 1987, the relevant portions of which provide: (17) The decision of the Michigan Supreme Court in Franks v White Pine Copper Division, 422 Mich 636 (1985) is declared to have been erroneously rendered insofar as it interprets this section, it having been and being the legislative intention not to coordinate payments under this section resulting from liability pursuant to section 351, 361, or 835 for personal injuries occurring before March 31, 1982. It is the purpose of this amendatory act to so affirm. This remedial and curative amendment shall be liberally construed to effectuate this purpose. (18) This section applies to payments resulting from liability pursuant to section 351, 361 or 835 for personal injuries occurring on or after March 31, 1982. Any payments made to an employee resulting from liability pursuant to section 351, 361, or 835 for a personal injury occurring before March 31, 1982 that have not been coordinated under this section as of the effective date of this subsection shall not be coordinated, shall not be considered to have created an overpayment of compensation benefits, and shall not be subject to reimbursement to the employer or carrier. (19) Notwithstanding any other section of this act, any payments made to an employee resulting from liability pursuant to section 351, 361, or 835 for a personal injury occurring before March 31, 1982 that have been coordinated before the effective date of this subsection shall be considered to be an underpayment of compensation benefits, and the amounts withheld pursuant to coordination shall be reimbursed with interest, within 60 days of the effective date of this subsection, to the employee by the employer or carrier. (20) Notwithstanding any other section of this act, any employee who has paid an employer or carrier money alleged by the employer or carrier to be owed the employer or carrier because that employee’s benefits had not been coordinated under this section and whose date of personal injury was before March 31, 1982 shall be reimbursed with interest, within 60 days of the effective date of this subsection, that money by the employer or carrier. [MCL 418.354 (17)-(20); MSA 17.237(354) (17)-(20).] FACTS AND PROCEDURAL HISTORY In Docket No. 101298, plaintiff, Evert Romein, was receiving workers’ compensation benefits of $99 per week due to injuries he sustained on December 5, 1977, while working for defendant, General Motors Corporation. In September, 1983, gmc began coordinating Romein’s workers’ compensation benefits based upon his receipt of pension and social security old-age benefits. As a result of this coordination, his benefits were reduced to zero dollars. In June, 1984, a hearing referee in the Bureau of Workers’ Disability Compensation ordered that Romein’s workers’ compensation benefits be paid without coordination and that gmc pay a $1,500 penalty. On May 20, 1987, the wcab, citing the Supreme Court’s decision in Franks, reversed the referee’s determination, prompting Romein to apply for leave to appeal in this Court. In Docket No. 101510, plaintiff, Arturo Gonzalez, was receiving workers’ compensation benefits of $176 per week pursuant to a voluntary agreement of the parties due to a disabling lung condition Gonzalez allegedly had developed as a consequence of his exposure to certain materials while working for defendant, Ford Motor Company. In August, 1982, Ford began to coordinate Gonzalez’s benefits with other benefits he received, thus reducing his weekly workers’ compensation payment to zero dollars. In September, 1984, a hearing referee in the Bureau of Workers’ Disability Compensation found that Ford had improperly coordinated and reduced Gonzalez’s benefits, and ordered Ford to pay a $1,500 penalty. On May 27, 1987, the wcab, citing 1987 PA 28, found that Ford could not coordinate Gonzalez’s benefits, prompting Ford to apply for leave to appeal in this Court. In September, 1987, this Court granted leave to appeal in both cases, consolidating them for accelerated consideration. ISSUES First, gmc and Ford argue that subsections 17 through 20 of § 354 violate the due process, US Const, Am XIV; Const 1963, art 1, § 17, and impairment of contract, US Const, art I, § 10; Const 1963, art 1, § 10, clauses of the United States and Michigan Constitutions by retroactively imposing an additional obligation upon employers, i.e., "by retroactively imposing additional liability upon employers for past compensation periods.” We disagree with this argument because the challenged retroactive legislation is justified by a rational legislative purpose, Usery v Turner Elkhorn Mining Co, 428 US 1, 15; 96 S Ct 2882; 49 L Ed 2d 752 (1976); Pension Benefit Guaranty Corp v R A Gray & Co, 476 US 717, 730; 104 S Ct 2709; 81 L Ed 2d 601 (1984). Most important to our conclusion is that the retroactivity of the legislation does not abrogate a vested or contractual right of the employers in the consolidated cases before us. Indeed, we find that the employers enjoy no extrastatutory, vested or contractual right in these cases which could prohibit the Legislature from making a retroactively applicable change, at any time, in the remedies afforded employees under the statutory provision now at issue. The Workers’ Disability Compensation Act is remedial in nature and was enacted primarily to benefit the employees, not the employers, subject to its provisions. Norwin v Ford Motor Co, 132 Mich App 790, 795; 348 NW2d 703 (1984), lv den 424 Mich 871 (1986); Lahti v Fosterling, 357 Mich 578, 589; 99 NW2d 490 (1959). Moreover, the social and legal context in which subsections 17 through 20 of § 354 were enacted makes it clear to us that the Legislature was prompted to act by the desire to remedy a situation in which certain employees were receiving coordinated workers’ compensation benefits pursuant to § 354 but with the disadvantage of also receiving pre-1980 rates. Indeed, subsection 17 itself describes the amendatory subprovisions as "remedial and curative.” We cannot quarrel with this description. Moreover, in the Franks opinion itself, the Supreme Court stated that "[wjorkers’ compensation benefits are social-welfare income-maintenance benefits” and declared, citing Lahti, supra, pp 591-592, and Shavers v Attorney General, 402 Mich 554, 620; 267 NW2d 72 (1978), that "[ijncomemaintenance benefits payable under a legislatively mandated social welfare program are not property protected by the Due Process Clause, the Contract Clause, or the Takings Clause from substantive change by subsequent legislation. . . .” 422 Mich 654. See also Rookledge v Garwood, 340 Mich 444, 452-457; 65 NW2d 785 (1954); Crilly v Ballou, 353 Mich 303, 307-308; 91 NW2d 493 (1958); Lahti, supra; McAvoy v H B Sherman Co, 401 Mich 419, 456-460; 258 NW2d 414 (1977); Karl v Bryant Air Conditioning Co, 416 Mich 558, 575; 331 NW2d 456 (1982); Selk v Detroit Plastic Products, 419 Mich 1, 12-15; 345 NW2d 184 (1984); Freij v St Peters Evangelical Lutheran Church, 72 Mich App 456; 250 NW2d 78 (1976), lv den 399 Mich 862 (1977); Hochman, The supreme court and the constitutionality of retroactive legislation, 73 Harv L R 692, 704-706 (1960); Note, Rediscovering the contract clause, 97 Harv L R 1414, 1427 (1984). The right of the employers in these consolidated cases to coordinate the workers’ compensation benefits of employees whose benefits were paid as a result of their employers’ liability for personal injuries sustained prior to March 31, 1982, is derived from § 354, and thus is a statutory right. The Supreme Court has clarified that "a statutory right, though a valuable right, is not a vested right, and the holder thereof may be deprived of it.” Lahti, supra, p 589. Since the legislation challenged by the employers in the instant cases is remedial in nature, and since the employers’ right to coordinate the workers’ compensation benefits of the employees at bar is not a vested right, it follows with syllogistic certainty that § 354(17)-(20) may operate retrospectively: "A remedial or procedural statute may operate retrospectively if it does not 'take away vested rights.’ ” Karl, supra, p 575. See DeMars, Retrospectivity and retroactivity of civil legislation reconsidered, 10 Ohio North L R 253, 261-264 (1983). The right to coordinate workers’ compensation benefits relied upon by gmc and Ford was conferred by the Legislature and was revoked by the Legislature. What the Legislature gave, it could take away. Rookledge, supra, p 457; Lahti, supra, pp 588-589; Franks, supra, p 654. Second, gmc and Ford argue that subsections 17 through 20 of § 354 violate the separation of powers, Const 1963, art 3, § 2, and the one court of justice, Const 1963, art 6, § 1, clauses of the Michigan Constitution. The employers reason that, after the Supreme Court, in Franks, supra, declared what the law is under § 354 regarding an employer’s ability to coordinate the workers’ compensation benefits of employees such as those in the present cases, the Legislature, by passing subsec tions 17 through 20 of § 354, in an attempt to change retroactively what the Court had declared, usurped a judicial function. In their brief on appeal, the employers in these cases place great emphasis on the assertion that it is "unprecedented in the law” for a Legislature to reverse and overrule a court decision by passing a statute with retroactive applicability. We find the employers’ suggestion regarding the unprecedented nature of the challenged legislation to represent an indulgence in hyperbole. Such legislation may be included in that type of statutory enactment denominated as "curative.” Curative legislation has been defined as legislation enacted to cure defects in prior law. 2 Sands, Sutherland Statutory Construction (4th ed), § 41.11, p 410. See Note, Congressional reversal of supreme court decisions: 1945-1957, 71 Harv L R 1324 (1958); Hochman, The supreme court and the constitutionality of retroactive legislation, 73 Harv L R 692 (1960). As an example, we will cite a recent occurrence of such legislation in the federal forum. In 1981, the United States Supreme Court held that the term "wages” must be interpreted consistently for purposes of both income-tax withholding and the Federal Insurance Contributions Act (fica). Rowan Companies, Inc v United States, 452 US 247; 101 S Ct 2288; 68 L Ed 2d 814 (1981). In 1983, Congress partially codified and partially overruled the Supreme Court’s holding in Rowan by amending the Social Security Act to, among other things, permit the Treasury Department to interpret the term "wages” differently for income-tax withholding and fica purposes. Social Security Amendments of 1983, Pub L No 98-21, 97 Stat 65, codified at 26 USC 3121(a). In 1984, Congress passed a provision making the 1983 change retroactively applicable to instances predating the 1983 amendment. Deficit Reduction Act of 1984, Pub L No 98-369, 98 Stat 494, 1160. In the wake of the statutory amendments, courts have recognized that Congress acted in reaction to the Supreme Court’s decision in Rowan, and in fact intended to overturn the underlying premise in that decision that the term "wages” must be interpreted consistently for purposes of both income-tax withholding and the fica. See Temple University v United States, 769 F2d 126 (CA 3, 1985), cert den — US —; 106 S Ct 2914; 91 L Ed 2d 544 (1986); Canisius College v United States, 799 F2d 18 (CA 2, 1986), cert den — US —; 107 S Ct 1887; 95 L Ed 2d 495 (1987); McCoy v Comm’r of Internal Revenue, 809 F2d 333 (CA 6, 1987), app pending; John Carroll University v United States, 643 F Supp 675 (ND Ohio, 1986). We find the employers’ argument on this issue to be meritless. The Legislature, in passing subsections 17 through 20 of § 354, did not attempt to direct the courts in the exercise of judicial power or to infringe on that power in any way; rather, it merely sought to cure a defect in a prior law erroneously interpreted by the Supreme Court. As noted in plaintiffs’ briefs on appeal, the Legislature’s amendatory language simply makes "explicit [the] . . . retrospective legislative purpose which the Supreme Court found in [Franks] to be wanting in the 1981 version of Section 354.” Under such a circumstance, we detect no violation of the separation of powers or the one court of justice clause of the Michigan Constitution._ Since we uphold the validity of § 354(17)-(20) despite the constitutional challenges raised by the employers in these consolidated cases, we affirm the wcab’s decision in the appeal of Arturo Gonzalez and reverse the decision in the appeal of Evert Romein. However, in light of the confusion in the law regarding the issues presented in these cases, and the fact that a substantial question of statutory consruction was involved, we find that penalty benefits should not be assessed against the employers. MCL 418.801(2); MSA 17.237(801X2). The decision in Romein is reversed and the decision in Gonzalez is affirmed as modified. Subsequent to the date these consolidated cases were submitted to this Court for decision and oral argument was conducted, counsel for the parties unilaterally filed supplemental briefs, including a letter and exhibit by counsel for defendants, a reply by counsel for plaintiffs, and a response to plaintiffs’ reply by counsel for defendants. These documents were improperly filed, MCR 7.212(F), and shall not be considered by this Court in rendering its decision, MCR 7.212(H). For other cases in which courts have recognized a Legislature’s right to cure retroactively a court’s erroneous interpretation of a statute, see, e.g., Battaglia v General Motors Corp, 169 F2d 254 (CA 2, 1948), cert den 335 US 887; 69 S a 236; 93 L Ed 425 (1948); Fisch v General Motors Corp, 169 F2d 267 (CA 6, 1948), cert den 335 US 902; 69 S Ct 405; 93 L Ed 436 (1949); Long v United States Internal Revenue Service, 742 F2d 1173 (CA 9, 1984); Bd of Ed of East Windsor Regional School Dist v Diamond, 808 F2d 987 (CA 3, 1986).

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Per Curiam. Following a jury trial, defendant was convicted of five counts of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2X1), and one count of breaking and entering with the intent to commit a felony, MCL 750.110; MSA 28.305. On May 21, 1986, defendant was sentenced to two terms of 50 to 100 years imprisonment, two terms of 60 to 120 years imprisonment and one term of life imprisonment for the criminal sexual conduct convictions and a term of 10 to 15 years imprisonment for the breaking and entering conviction. Defendant appeals as of right. Defendant’s convictions arose out of the sexual assaults on two women, Lula and Gabrielle, on October 6, 1985, at Lula’s home in Detroit. In the early morning hours of October 6, 1985, Lula awoke to the sound of breaking glass. She sat up and saw a tall, dark man standing at the foot of her bed. The man held nunchaku (karate sticks) in his hand. The man directed the women to perform sexual acts upon each other. In addition, defendant had oral and genital sex with both women. Defendant was convicted of three counts of first-degree criminal sexual conduct based on the sexual penetration of Lula under circumstances involving the commission of any other felony, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). The court instructed the jury that the "other felony” could be either the breaking and entering with intent to commit criminal sexual conduct or the criminal sexual conduct committed upon Gabrielle. The convictions of two counts of criminal sexual conduct involving Gabrielle were obtained under MCL 750.520b(l)(e); MSA 28.788(2)(l)(e), which proscribes penetration while the actor is armed with a weapon or an article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon. Defendant raises six issues on appeal. We will discuss them in the order in which defendant presents them. i A DID DEFENDANT’S CONVICTION OF THE COMPOUND CRIME OF FIRST-DEGREE CRIMINAL SEXUAL CONDUCT, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), AND THE PREDICATE CRIME OF BREAKING AND ENTERING, MCL 750.110; MSA 28.305, VIOLATE THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY? MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) states: A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: (c) Sexual penetration occurs under circumstances involving the commission of any other felony. Defendant claims that the protection against double jeopardy under the United States and Michigan Constitutions was violated when he was convicted of both the compound crime of first-degree criminal sexual conduct and the predicate crime of breaking and entering with intent to commit criminal sexual conduct. We disagree. This issue was addressed in People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). In Robideau, the Court analyzed whether the prohibition against double jeopardy was violated where the defendants were convicted of both first-degree criminal sexual conduct, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), and the. predicate crimes of armed robbery and kidnapping. The Court rejected the Blockburger test of double jeopardy and held that the determination whether the defendants could be convicted of both the compound and predicate crimes depends on whether the Legislature intended multiple punishments. Robideau, supra, p 486. In determining legislative intent, the Court specified two factors. The first factor is whether the two statutes prohibit conduct which is violative of distinct social norms. If so, the statutes can generally be viewed as separate and amenable to permitting multiple punishments. Id., p 487. Regarding this factor in the instant case, we feel that the statutes pertaining to criminal sexual conduct and breaking and entering with intent to commit a felony prohibit conduct that is violative of distinct social norms. The focus of first-degree criminal sexual conduct is on penetration. Id., p 488. The focus of breaking and entering is clearly on forced entry into a dwelling or building. The second factor the Bobideau Court used in determining legislative intent was the amount of punishment expressly authorized by the Legislature. Regarding this factor, the Court stated: Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual 'convictions. [.Robideau, supra, pp 487-488.] Such is not the case with breaking and entering and criminal sexual conduct. The first-degree criminal sexual conduct statute is not a statute which incorporates most of the elements of the breaking and entering statute and increases the penalty as compared to the breaking and entering statute. While this aspect of the double jeopardy clause is violated by prosecutions for both larceny over $100 and larceny in a building, for example, we do not believe it applies to the two crimes in the instant case. After determining the Legislature’s intent through the use of the two factors, the Robideau Court determined that the double jeopardy clause did not prohibit convictions for both first-degree criminal sexual conduct and armed robbery or kidnapping. Robideau, supra, p 490. Defendant claims that the analysis of Robideau calls for a different result when the predicate crime is not a coequal felony, i.e., a felony with the same punishment. Defendant points to the language in footnote 8 of the Robideau opinion, which states: This analysis is consistent with the result reached in People v Wilder [411 Mich 328; 308 NW2d 112 (1981)] prohibiting dual convictions of first-degree felony murder and the predicate felony. Since, felony murder is punishable by a mandatory life sentence, while the predicate felonies are punishable by no more than a term of years up to life, it may be inferred that the Legislature intended to punish a defendant only once for committing both crimes. While someone in the process of committing a predicate felony has a real disincentive to commit murder (mandatory life) even absent the threat of dual convictions, the same person, assuming the predicate felony carries an up-to-life maximum penalty, would have no such disincentive to commit criminal sexual conduct unless dual convictions are imposed. [Robideau, supra, p 489, n 8. Emphasis in original.] We note that such language is dicta. We do not feel that the length of imprisonment is determinative and we do not read this language as holding that, whenever a predicate crime has punishment less than the compound crime, the defendant may not be convicted of both the predicate and compound crimes. Rather, according to Robideau, all factors must be considered in determining legislative intent. Thus, we conclude that the prohibition against double jeopardy is not violated by convictions of both first-degree criminal sexual conduct under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) and the predicate crime of breaking and entering with intent to commit criminal sexual conduct. B CAN THE "OTHER FELONY” BE THE CRIMINAL SEXUAL CONDUCT UPON GABRIELLE? In this subissue, defendant claims that the "other felony” used to support a conviction for criminal sexual conduct upon Lula under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) cannot be the criminal sexual conduct upon Gabrielle. Defendant points to the language of People v Pettway, 94 Mich App 812, 817; 290 NW2d 77 (1980), lv den 411 Mich 1083 (1981), in which this Court stated: As the prosecution correctly argues, felony, as construed in the phrase "any other felony,” refers to any felony other than criminal sexual conduct. [Emphasis in original.] In Pettway, this Court held that breaking and entering with intent to commit criminal sexual conduct falls within the "any other felony” portion of the statute. Pettway, supra, p 818. Whether criminal sexual conduct upon a second person can be the "other felony” supporting first-degree criminal sexual conduct under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c) was not at issue in Pettway. There is nothing in the statute which precludes the use of evidence of criminal sexual conduct upon another person for such purpose. We read "any other felony” as meaning a felony other than the one committed. Thus, the prohibition against double jeopardy does not bar the use of evidence of criminal sexual conduct upon another victim as the "other felony” which elevates the criminal sexual conduct committed upon the first person to first degree. ii DID THE TRIAL JUDGE’S VOIR DIRE OF THE PROSPECTIVE JURORS DEPRIVE DEFENDANT OF A FAIR TRIAL? Defendant claims the voir dire of the prospective jurors by the court deprived defendant of a fair trial. However, we find that defendant has waived this issue by failing to object to the court’s voir dire and in expressing his satisfaction with the jury. People v Duerson, 35 Mich App 223, 225; 192 NW2d 309 (1971). hi DID THE TRIAL JUDGE ERR IN HIS INSTRUCTIONS REGARDING THE REQUISITE ELEMENTS NEEDED TO BE PROVED IN ORDER FOR THE JURY TO FIND THAT DEFENDANT WAS ARMED WITH A WEAPON FOR THE PURPOSE OF MCL 750.520b(l)(e); MSA 28.788(2)(1)(e)? Defendant takes issue with the following remark made by the court to the jury: With reference to [Gabrielle], it is claimed that the same statute pertains, only the section that applies to her is the actor, meaning the Defendant or the person who is the wrongdoer, is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it —reasonably believe it to be a weapon. And it is alleged that the instances occurred with reference to [Gabrielle] under those circumstances, that she believed that the Defendant was armed with a weapon or an article used or fashioned in a manner to reasonably make her believe it was a weapon. [Emphasis added.] Defendant did not object. Later, the court instructed the jury as follows: With reference to [Gabrielle], the second element that the People must prove, is that at the time, the Defendant was armed with a weapon or an article used or fashioned in a manner to lead the victim, the victim being [Gabrielle], reasonably to believe it to be a weapon. A weapon is anything which the person assaulted reasonably believes could cause physical injury or death in the manner in which it is used. As I said to you, really, the reading of them, in many respects, sounds the same as first degree. But remember, there is a distinctive difference and the difference is indeed that the matter of whether a weapon was used or the Defendant — or the victim thought a weapon — that the Defendant was armed with a weapon or whether or not either, with reference to [Lula], whether or not a felony was carried on at the same time. It is for you to determine from all of the facts and circumstances disclosed by the evidence whether there was a dangerous weapon in question here or whatever was used, the Nunchuck sticks [sic], if you believe there were such things, were, indeed, were a dangerous weapon. I will tell you that a gun or a firearm is, by definition, and statute, a dangerous weapon, ladies and gentlemen. [Emphasis added.] Unless an objection is made to an alleged error in the instructions, a verdict will not be set aside on the basis of such error unless it has resulted in a miscarriage of justice. People v Federico, 146 Mich App 776, 784-785; 381 NW2d 819 (1985), lv den 425 Mich 867 (1986). A miscarriage of justice occurs when an erroneous instruction pertains to a basic and controlling issue in the case. Id., p 785. Even if jury instructions are somewhat imperfect, there is no error if they fairly presented to the jury the issues to be tried and sufficiently protected the rights of the defendant. Id. Challenged jury instructions must be reviewed in their entirety. Id.; People v Ritsema, 105 Mich App 602, 609; 307 NW2d 380 (1981), lv den 413 Mich 934 (1982). Defendant claims the first set of instructions could have caused the jury to think that Gabrielle need only have believed defendant to have had a weapon, rather than that defendant actually had a weapon. Although the court’s first remark was slightly confusing, we do not find it error requiring reversal in light of defendant’s failure to object and in light of the rule that jury instructions must be viewed in their entirety. Viewed in their entirety, the instructions correctly informed the jury that they could find defendant guilty only if he actually was armed with a weapon or an article used or fashioned in a manner to lead Gabrielle reasonably to believe it to be a weapon. Reversal is not required. IV IS DEFENDANT ENTITLED TO A NEW TRIAL WHERE SOME OF THE JURORS PRESUMABLY BELIEVED THAT THE TRIAL JUDGE SLEPT DURING THE PROCEEDINGS? After the jury rendered its verdict, the trial judge included the following in his final comments to the jury: I want to assure all of you in case — I understand some of you had some concerns. I never fell asleep. I never go to sleep. So, I mean, when my job was over with the voir dire, I did lean back and do try [sic] to stay in low profile. I try to stay out of the case and let the attorneys do their job. If any of you were concerned that I was asleep, the answer is, no, I wasn’t sleep and I heard everything that is to be heard. While I do lean back, I am not so different than other judges. Judges have been wont to fall asleep. That is not my concern. I didn’t. Defendant argues on appeal that the jurors’ perception that the judge slept during the proceedings might have affected the "quality of justice” and, thus, he is entitled to a new trial. We disagree. Defendant analogizes the situation to one in which the trial judge was absent from the courtroom during the proceeding. In People v Morehouse, 328 Mich 689, 692; 44 NW2d 830 (1950), cert den 341 US 922; 71 S Ct 739; 95 L Ed 1355 (1951), the Court held that a trial judge’s absence from the courtroom at any stage of the proceeding is not error requiring reversal unless it is shown to have prejudiced the defendant. In the present case, the judge properly responded to the parties’ objections and issues raised during trial. Defendant never objected to the judge’s demeanor. Moreover, other than the judge’s comment that he understood that, in essence, some of the jurors thought that he was asleep, there is no indication that the jurors thought that the judge was asleep. More important, the judge was not asleep. Defendant has not shown prejudice sufficient to entitle him to a new trial. v DID THE TRIAL JUDGE ERR BY FAILING TO GIVE THE JURY A DEADLOCKED JURY INSTRUCTION? In People v Holmes, 132 Mich App 730, 747; 349 NW2d 230 (1984), this Court stated that "when a jury becomes deadlocked” ABA Standard Jury Instruction 5.4 is the proper instruction. (Emphasis added.) In the instant case, the jury was deadlocked when it sent the court a note stating it was deadlocked. The court thereupon stated it would give the deadlocked jury instruction. However, after waiting for defense counsel to appear, the jury indicated it had made some progress and the court stated it was unnecessary to give the deadlocked jury instruction. We find no error, as the jury was no longer deadlocked at that point. VI DID THE TRIAL JUDGE ERR BY INSTRUCTING THE JURORS, DURING PRELIMINARY INSTRUCTIONS, THAT THEY WOULD NOT BE ALLOWED TO TAKE NOTES? We find no error in the court’s preliminary instruction to the jury that they could not take notes. Defendant did not object and on appeal does not show how this prejudiced him. It is within the trial court’s discretion to decide whether jurors may take notes and use them in their deliberations. People v Young, 146 Mich App 337, 340; 379 NW2d 491 (1985). Affirmed. US Const, Am V; Const 1963, art 1, § 15. Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). This Court was not faced with a double jeopardy issue in Pettway. This Court only had to decide whether breaking and entering with intent to commit criminal sexual conduct could be the predicate crime for first-degree criminal sexual conduct under MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). Thus, the case is not helpful to the resolution of issue i(a), supra.

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H. Hood, J. Following a jury trial, defendant was convicted of larceny over $100, MCL 750.356; MSA 28.588. Defendant subsequently pled guilty to being a third-felony habitual offender, MCL 769.11; MSA 28.1083, and was sentenced to from six years and eight months to ten years’ imprisonment. Defendant appeals as of right. We affirm. The charge arose out of an incident which occurred at the Foodland store in Adrian on November 20, 1986. On that date, a store employee, Rudolfo Lizcano, Jr., was working in the back room and saw defendant walk into the back room and pick up three egg boxes, which were large in size and made of cardboard. Defendant then walked out of the back room and into the front part of the store. Four other employees, manager Kirk Gilbert, Charles McGraw, Joy Gilbert, and Edna Agge, saw defendant put the egg boxes in a cart and wheel the cart over to a cigarette rack which stood at the end of one aisle. The cigarette rack was a tall, metal, three-sided rack on wheels. It was filled with cartons of cigarettes valued at between $9.29 and $9.59 each. Defendant pushed the rack out and went behind it and began removing cartons of cigarettes and putting them into the egg boxes. At this point, McGraw called the police. Officers Jerry D. Redlin, Gerald E. Brock, and Stanley J. Easier arrived. Officer Redlin went to the upstairs office and watched defendant from above. Officer Redlin "had previous knowledge of this type of situation where a suspect had ran [sic],” so he "made the decision to effect an arrest to . . . prevent an escape.” While Officer Brock went to the main door to block it, Officers Redlin and Easier arrested defendant. At the time of his arrest, defendant was walking down an aisle with a package of rolls in his hand. Officer Brock counted eighty-five cigarette cartons in the egg boxes. Defendant told Officer Easier his name was Ronald Mark Owens but, after giving the police his social security number, police discovered he was actually Karl Leon Frey. An inspection of defendant’s car which was parked outside revealed that the license plate was held up with a pencil so that persons behind the car could not read the number. There were no credit cards, checks, or other forms of identification in the car. When defendant was booked at the jail by Officer Patricia J. Lennard, he had no identification, wallet, credit cards, or checks on him. Defendant did not testify and presented no witnesses on his behalf. The court instructed the jury on the crimes of larceny over $100, larceny in a building, attempted larceny over $100, and attempted larceny in a building. The jury found defendant guilty of larceny over $100. On appeal, defendant’s only issue is his claim that the trial court erred in denying his motion in limine brought before trial to suppress use of evidence of his 1986 conviction for attempted larceny in a building, for impeachment. Defendant claims that, because of the court’s ruling, he chose not to testify and thus could not present a defense. The court denied the motion after finding that the conviction was less than ten years old, was for a felony, and that the probative value on the issue of credibility outweighed its prejudicial effect. The decision to allow impeachment by evidence of prior convictions is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. People v Wilson, 107 Mich App 470, 475; 309 NW2d 584 (1981). On appeal, the people claim that the issue has been waived because defendant did not testify at trial. The people cite Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984). In Luce, the defendant was charged with conspiracy and posses sion of cocaine with intent to distribute. The district court denied the defendant’s motion in limine to suppress evidence of a prior conviction. The United States Court of Appeals for the Sixth Circuit affirmed, holding that, when the defendant does not testify, the court would not review the district court’s in limine ruling. Luce, 469 US 39-40. The Supreme Court affirmed, holding that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. The Court reasoned: A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify. Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction. When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction. Because an accused’s decision whether to testify "seldom turns on the resolution of one factor,” New Jersey v Portash, 440 US 450, 467 [99 S Ct 1292, 1301; 59 L Ed 2d 501] (1979) (Blackmun, J„ dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it. Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally United States v Hasting, 461 US 499 [103 S Ct 1974; 76 L Ed 2d 96] (1983). Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term "harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant” reversible error in the event of conviction. [Luce, supra, 469 US 41-42.] Before Luce was decided, this Court on occasion reviewed cases wherein the defendants did not testify at trial, yet claimed the trial court erred in ruling that they could be impeached with a prior conviction. See People v Jones, 98 Mich App 421, 427-435; 296 NW2d 268 (1980); People v Casey, 120 Mich App 690, 693-697; 327 NW2d 337 (1982); People v Pedrin, 130 Mich App 86; 343 NW2d 243, aff'd 429 Mich 558 (1988); People v Johnson, 133 Mich App 150, 155-156; 348 NW2d 716 (1984). But see People v Ferrari, 131 Mich App 621; 345 NW2d 645 (1983), lv den 421 Mich 852 (1985). This Court did not hold in any of these cases that defendant had waived the issue of improper impeachment by his failure to testify; however, this Court did note the defendants’ failure to testify and considered this to be a strong factor in favor of a holding that the trial court did not abuse its discretion in ruling that the defendants could be impeached with the prior convictions. In Pedrin, supra, the Michigan Supreme Court granted leave and instructed the parties to brief, as one of the issues, whether the Court should adopt the Luce rule in Michigan, 422 Mich 972 (1985), Pedrin was consolidated with People v Allen, People v Brooks, People v Gray, and People v Smith, and the Supreme Court rendered its decision on January 19, 1988. People v Allen, 429 Mich 558; 420 NW2d 499 (1988). However, the Court did not reach the waiver issue, stating that the Court was unable to achieve a majority position, on the issue, and chose to reserve the question for another day. Allen, supra, p 613. Justices Boyle and Riley, dissenting, would have addressed the issue and would have adopted Luce. Id. (Boyle, J., dissenting, p 703; Riley, C.J., dissenting, pp 632-638). Justice Riley indicated she would apply the Luce rule only prospectively, however, because the defendants had done everything necessary to preserve the issue under the old rule and because adoption of the Luce rule was not foreseeable at the time of their trials. Id., (Riley, C.J., dissenting, p 638.)_ In People v Finley, 161 Mich App 1; 410 NW2d 282 (1987), this Court held that the Luce rule applied and that the defendant’s claim of improper impeachment by a prior conviction was waived by his failure to testify. Finley, supra, pp 7-8. The Michigan Supreme Court has granted leave in Finley to once again decide this issue. 429 Mich 894 (1988). Although Luce contains valid points, we decline to apply it to defendant in the instant case, as the Michigan Supreme Court has not yet held that the Luce rule applies in Michigan. Luce was decided under FRE 609(a) which is similar, although not identical, to MRE 609(a). It is well-established that a state may afford a defendant greater rights and protections under its own constitution than the United States Supreme Court has bestowed under the federal constitution. People v Sundling, 153 Mich App 277-290; 395 NW2d 308 (1986), lv den 428 Mich 887 (1987). While the Luce rule lends itself to summary resolution of such matters, we feel it is too rigid in its application, especially where a defendant does not testify because of the denial of the motion. Thus, we hold that defendant has not waived the issue by his failure to testify, and we will address the merits. MRE 609(a) states: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if (1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and (2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination. In Allen, supra, the Court amended MRE 609(a). The amended version of MRE 609(a) provides that all crimes containing an element of dishonesty or false statement are admissible to impeach the credibility of a witness. If the crime contains an element of theft, it is admissible only if the crime is punishable by imprisonment in excess of one year and the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court determines that the probative value on the issue of credibility outweighs its prejudicial effect. Id., pp 605, 614. All other crimes are inadmissible for impeachment. Id., p 605. The Court then set forth the proper factors to be considered by trial courts when balancing the probativeness of prior felony theft convictions against the prejudice. Id., pp 605-606, 614. Although the Court stated that the amendment would become effective March 1, 1988, the Court held that the clarified balancing test of probativeness against prejudice is to apply to cases pending on appeal in which the issue of impeachment by evidence of prior convictions under MRE 609(a) has been raised and preserved. Id., p 609. Since this is such a case, the clarified balancing test applies to the instant case. The clarified balancing test provides that, for purposes of the probativeness side of the equation, only an objective analysis of the degree to which the crime is indicative of veracity and the age of the conviction be considered. For purposes of the prejudice factor, only the similarity of the charged offense and the importance of the defendant’s testimony to the decisional process are to be considered. Id., p 606. In the instant case, the conviction for attempted larceny in a building is a theft offense. Theft offenses are only moderately probative of veracity. Allen, supra, p 611. The conviction was less than one year old at the time of defendant’s trial, thus adding to the probativeness. On the prejudice side, we note that the conviction was for a crime very similar to the one for which defendant was on trial. Defendant’s testimony was very important to his defense, as, without defendant’s testimony, the jury heard only the people’s version. On balance, we feel that the prejudicial effect of impeachment by the prior conviction outweighed the probativeness. Thus, we find that the court abused its discretion in allowing defendant to be impeached by the prior conviction. However, this error need not require reversal, as it may be harmless error. Allen, supra, p 612. The error may be harmless even where defendant did not testify. People v Kramer, 108 Mich App 240, 246; 310 NW2d 347 (1981). Because of the overwhelming evidence against defendant in the instant case, we find the error to have been harmless. Kramer, supra, p 246; People v Moseley, 94 Mich App 461, 465; 290 NW2d 39 (1979). Although we realize that, because defendant did not leave the store with the cigarettes, defendant’s intent to steal was proved only by the circumstanial evidence of giving the police a false name, having no identification, credit cards, or checks, and concealing his licence plate, we feel that this circumstantial evidence was overwhelming. In sum, we find that the defendant did not waive the issue of improper impeachment by his failure to testify. We find that the trial court did abuse its discretion in allowing defendant to be impeached by his prior conviction but that the error was harmless in light of all the evidence against defendant. Affirmed. M. J. Kelly, P.J., concurred in result only. The Ferrari Court held that the issue of improper impeachment by a prior conviction was waived because of defendant’s failure to testify. The Ferrari Court seems to have erroneously believed that Casey so held. Ferrari, supra, p 625. However, a close reading reveals that the quotation regarding waiver attributed by Ferrari to Casey was not the rule of law propounded in Casey, but, rather, was the Casey Court citing United States v Cook, 608 F2d 1175 (CA 9, 1979). Ferrari is an exception. See n 1.

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PER CURIAM. Plaintiff appeals as of right an order dismissing her complaint against defendant in this no-fault insurance action. We affirm. The plaintiff was injured in a car accident while driving a rental vehicle. She did not have her own automobile insurance policy at the time, but her husband, with whom she resided, had a no-fault policy with defendant at the time. The policy listed plaintiff as a driver, and it covered four vehicles; the rental vehicle was temporarily substituting for one of those vehicles because that vehicle “was in the shop.” Defendant paid personal protection insurance (PIP) benefits for a time, but terminated those benefits and contends that the rental car was not actually covered under the policy. Plaintiff commenced this action, asserting that defendant may not terminate those benefits. The trial court concluded that the insurance policy had been a business policy and that plaintiff was not in one of the business’s vehicles; therefore, plaintiff was not entitled to benefits, and the benefits already paid were a “windfall.” A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Although defendant brought its motion for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), the trial court examined evidence outside the pleadings, so we treat the grant of summary disposition as having been pursuant only to MCR 2.116(C)(10). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all the evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Maiden, supra at 120. We agree with the trial court’s determination that the policy at issue here was a business policy. The policy explicitly states that the policy type is “business auto,” and it is replete with further supporting indicators that it was issued to a business. The schedule of coverages refers to “business auto coverages” only. The schedule of covered vehicles lists four vehicles, two of which are described as being for “commercial” use and two of which are described as being for “service” use. Under the schedule for non-ownership liability, the premium is calculated on the basis of the “insured’s business” being “other than a social serv. agcy,” and the number of employees being between zero and 25. The policy identifies the “form of business” as being “individual,” and lists the “named insured and mailing address” as plaintiffs husband at his personal residence. However, a business can consist of a single self-employed individual or sole proprietor. The trial court correctly concluded that the policy had been issued to a business. We also agree with the trial court’s determination that plaintiff is not covered for PIP benefits under the policy unless in one of the business’s vehicles, which she was not. The policy contains a schedule of covered benefits and covered vehicles. PIP is limited to the enumerated vehicles, and only liability coverage extends to any other vehicles. PIP and liability coverages are distinct. Husted v Auto-Owners Ins Co, 459 Mich 500, 513; 591 NW2d 642 (1999). The policy provides that only liability coverage is extended to an automobile being used “as a temporary substitute for a covered ‘auto’ that you own that is out of service.” In contrast, although PIP coverage apparently could be purchased for vehicles not specifically listed, such coverage was not purchased in this policy. The trial court correctly concluded the policy does not provide PIP coverage for a vehicle not listed as owned by the business. Although plaintiff is named as a designated driver in the policy, this does not make her a named insured. Harwood v Auto-Owners Ins Co, 211 Mich App 249, 253; 535 NW2d 207 (1995). The only named insured on the policy is plaintiffs husband, and because the policy is unambiguously a business policy issued to an individual business, plaintiffs husband is an employee under MCL 500.3114(3). Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996). Plaintiff would therefore be entitled to whatever PIP benefits her husband would be entitled to under the policy. As discussed, the trial court correctly found that defendant owed no PIP benefits because the policy does not provide PIP coverage for the rental vehicle. Plaintiff also argues that defendant is required to continue making PIP benefit payments pursuant to the doctrine of equitable estoppel. “The principle of estoppel is an equitable defense that prevents one party to a contract from enforcing a specific provision contained in the contract.” Morales v Auto-Owners Ins Co, 458 Mich 288, 295; 582 NW2d 776 (1998). “Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts.” Casey v Auto-Owners Ins Co, 273 Mich App 388, 399; 729 NW2d 277 (2006) (internal quotation and citation omitted). Plaintiff contends that she refrained from filing a claim with another insurance provider because of her reliance on defendant’s PIP benefit payments, and the “one-year-back” rule, MCL 500.3145(2), now precludes her from doing so. We disagree. At oral argument, counsel for defendant conceded that defendant terminated payments for a few specific services less than a year after the accident because defendant did not believe those services were necessary, but defendant did not terminate PIP benefit coverage altogether for contractual reasons until more than a year after the accident. However, a party who is actually “cognizant of all the material facts can claim nothing by estoppel,” even if that cognizance is by virtue of an agent. Cudahy Bros Co v West Michigan Dock & Market Corp, 285 Mich 18, 26-27; 280 NW 93 (1938). Critically here, the prejudiced party had the same access to the true facts as the party to be estopped; in other words, where plaintiff had a feasible means to discover the truth, she cannot contend that she was influenced by the defendant. Sheffield Car Co v Constantine Hydraulic Co, 171 Mich 423, 450-451; 137 NW 305 (1912). Here, plaintiff was aware of the insurance contract, which expressly limited PIP benefits to enumerated vehicles and extended only liability coverage for temporarily substitute vehicles; moreover, she retained counsel only a few months after the accident. Thus, she had equal access to the pertinent information and the means to independently assess defendant’s actions. Therefore, the doctrine of equitable estoppel does not apply here. Plaintiff finally contends that she is entitled to continue receiving PIP benefits as an innocent third party to the transaction between her husband and defendant where her husband procured the no-fault policy as the named insured. We disagree. The “innocent third party” rule prohibits an insurer from rescinding an insurance policy because of a material misrepresentation made in an application for no-fault insurance where there is a claim involving an innocent third party. Katinsky v Auto Club Ins Ass’n, 201 Mich App 167, 170; 505 NW2d 895 (1993). Defendant has not rescinded the insurance policy in this case. Rather, defendant stopped paying plaintiff benefits because the policy did not cover her claim. Thus, the “innocent third party” rule is inapplicable. Furthermore, a third-party beneficiary may only enforce rights actually found in the contract. Rudolph Steiner School of Ann Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 738; 605 NW2d 18 (1999). The contract here does not provide for PIP coverage for vehicles other than those enumerated, so plaintiff could not require PIP benefit payments under the contract even if she were an innocent third party. Affirmed. We note in part that this assertion is directly contrary to plaintiffs claim that she and her husband decided to place all of their household vehicles on the business insurance policy “to qualify for a multi-car discount just like most married couples would do to save money on insurance premiums.”

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WHITBECK, C.J. In this medical malpractice action, defendants Dr. Reuvan Bar-Levav & Associates, the estate of Dr. Reuvan Bar-Levav (Dr. Bar-Levav), and Dr. Leora Bar-Levav appeal as of right the jury verdict in favor of Elizabeth Dawe on various grounds. On cross-appeal, Dawe appeals the trial court’s calculation of prejudgment interest on the jury’s award. We reverse, vacate the judgment, and remand. I. BASIC FACTS This medical malpractice action arises out of a shooting incident at defendants’ psychiatric office where Dawe received treatment. On June 11, 1999, Joseph Brooks, who was a former patient of Dr. Bar-Levav, came to the office, drew a handgun, and shot and killed Dr. BarLevav. Brooks then proceeded to the back of the office and fired into Dawe’s group therapy room. Brooks killed one patient and wounded others, including Dawe. After firing dozens of rounds into the room, Brooks committed suicide. Dawe sued defendants, alleging that Brooks made threatening statements to defendants in which he indicated that he “fantasized about murdering” and that he demonstrated his ability to carry out threats by coming to defendants’ office with a handgun. Dawe further alleged that a “manuscript” that Brooks delivered to defendants in June 1999 “could be reasonably construed as a threat of violence against other members who participated in his group therapy sessions, including [Dawe].” Accordingly, Dawe alleged that defendants were liable under two theories: statutory liability for failure to warn under MCL 330.1946, and common-law medical malpractice. With respect to her common-law medical malpractice claim, Dawe alleged that defendants breached their applicable standard of care, which included “informing the police, warning patients or others, and taking reasonable precautions for the protection of patients when a doctor or health care provider has information which could reasonably be construed as a threat of violence against a patient or others,” when defendants failed to warn Dawe and the police of Brooks’s “threats” or take reasonable steps to protect Dawe. Dawe also filed an affidavit of Meritorious Claim in support of her complaint. Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that there was no evidence that Brooks expressed a threat to defendants about Dawe specifically and, therefore, defendants owed no duty to warn or protect Dawe under MCL 330.1946. Defendants also noted that Dawe was not alleging malpractice with regard to her individual care; rather, her only allegation was a failure to fulfill the duty to warn, which was derived solely from the statute. In response, Dawe argued that it was significant that she was defendants’ patient rather than merely a “third person” to whom the statute applied. Dawe argued that her special physician-patient relationship with defendants also required them to treat her within the applicable standard of care stated in her complaint. In other words, Dawe argued that defendants owed both statutory and common-law duties. Dawe further argued that she had presented a genuine issue of material fact that defendants violated that standard of care. In support of her motion, Dawe submitted the affidavit of Dr. Mark Fettman, Dawe’s psychiatric expert, who attested that a psychiatrist has a duty to take reasonable precautions for the protection of patients. According to Dr. Fettman, included within this duty is the requirement that the psychiatrist assess a patient to determine if the patient is a suitable candidate for group therapy before placing the patient in a group. Dr. Fettman averred that once a patient has been placed in group therapy, the psychiatrist has a further duty to continually assess the patient to ensure that the patient remains suitable for group therapy. Dr. Fettman attested that defendants violated the applicable standard of care by placing Brooks in a group session with Dawe and other patients. The trial court ruled that summary disposition was not appropriate because Dawe had stated a prima facie case and there were genuine issues of material fact regarding whether defendants violated MCL 330.1946 or the applicable standard of care. Accordingly, the trial court denied defendants’ motion. At trial, Dawe argued that defendants breached their duty to warn and that defendants breached their duty to provide Dawe with a safe clinical environment for her treatment. Specifically, Dawe contended that defendants breached the standard of care by placing Brooks in Dawe’s group therapy sessions when they knew or should have known that Brooks was a danger to the other group members. After the close of Dawe’s proofs, defendants moved for a partial directed verdict on Dawe’s claim of failure to warn under MCL 330.1946, arguing that Dawe failed to establish that Brooks communicated to defendants a threat of violence specifically against Dawe. Defendants also argued that Dawe failed to present expert testimony concerning the standard of care applicable under the statute; that is, defendants noted that Dr. Fettman’s testimony applied solely to defendants’ alleged duties when placing Dawe in group therapy, not to defendants’ duty to warn. In response, Dawe again argued that it was significant that she was defendants’ patient, apparently on the basis that MCL 330.1946 did not even apply in cases where the victim was a patient. Nevertheless, the trial court denied the motion on the ground that Dawe had stated a prima facie case sufficient to survive a directed verdict. After the six-day trial in September 2005, the jury returned a verdict in favor of Dawe. Defendants moved for a judgment notwithstanding the verdict (JNOV) and for a new trial, raising several of the same issues now raised on appeal; however, the trial court denied the motions. Defendants now appeal. II. PREEMPTION OF A PSYCHIATRIST’S COMMON-LAW DUTY TO PROTECT Defendants argue that the only duty that a psychiatrist has to protect others from a patient is the duty imposed by MCL 330.1946, and that the Legislature abrogated all other common-law duties to protect third persons when it enacted MCL 330.1946. We agree. A. THE STATUTE MCL 330.1946(1) provides: If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient[ ] has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in [MCL 330.1946(2)]. Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person. MCL 330.1946(2) provides: A mental health professional has discharged the duty created under subsection (1) if the mental health professional, subsequent to the threat, does 1 or more of the following in a timely manner: (a) Hospitalizes the patient or initiates proceedings to hospitalize the patient under [MCL 330.1400 et seq.] or [MCL 330.1498a et seq.]. (b) Makes a reasonable attempt to communicate the threat to the third person and communicates the threat to the local police department or county sheriff for the area where the third person resides or for the area where the patient resides, or to the state police. (c) If the mental health professional has reason to believe that the third person who is threatened is a minor or is incompetent by other than age, takes the steps set forth in subdivision (b) and communicates the threat to the department of social services in the county where the minor resides and to the third person’s custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in the best interests of the third person. In other words, a mental-health professional does not have a duty to take the actions described under MCL 330.1946(2) unless four criteria are met: (1) a mental-health professional is presently treating a patient, (2) that patient communicates a threat of physical violence to the mental-health professional, (3) that threat of physical violence is directed against a readily identifiable third person, and (4) the patient has the apparent intent and ability to carry out the threat in the foreseeable future. B. PRINCIPLES OF COMMON-LAW PREEMPTION “The common law, which has been adopted as part of our jurisprudence, remains in force until amended or repealed.” “Whether a statutory scheme preempts, changes, or amends the common law is a question of legislative intent.” But “legislative amendment of the common law is not lightly presumed.” When the Legislature exercises its authority to modify the common law, “it should speak in no uncertain terms.” C. PRINCIPLES OF STATUTORY INTERPRETATION Wfiien interpreting a statute, [t]his Court’s primary task ... is to discern and give effect to the intent of the Legislature. “The words of a statute provide ‘the most reliable evidence of [the Legislature’s] intent....’” In discerning legislative intent, a court must “give effect to every word, phrase, and clause in a statute .... The Court must consider “both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” “The statutory lan guage must be read and understood in its grammatical context, unless it is clear that something different was intended.” “If the language of a statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. ”[ ] The Legislature is presumed to have intended the meaning it plainly expressed. D. RELEVANT CASELAW INTERPRETING MCL 330.1946 To establish a prima facie case of negligence, the plaintiff must prove as a matter of law that the defendant owed a duty to the plaintiff to avoid negligent conduct. Generally, under the common law, “there is no duty that obligates one person to aid or protect another.” However, under the common law, “[w]here there is a duty to protect an individual from a harm by a third person, that duty to exercise reasonable care arises from a ‘special relationship’ either between the defendant and the victim, or the defendant and the third party who caused the injury.” In Davis v Lhim, the Court adopted the reasoning of Tarasoffv Regents of Univ of California and held that the special relationship between a psychiatrist and his or her patient gives rise to “a duty of reasonable care to a person who is foreseeably endangered by [the psychiatrist’s] patient.” The Michigan Supreme Court later reversed Lhim on the ground that the psychiatrist in Lhim was protected by governmental immunity, and, in light of that holding, the Court found it unnecessary to address “whether a duty to warn should be imposed upon mental-health professionals to protect third persons from dangers posed by patients.” Shortly thereafter, the Michigan Legislature enacted MCL 330.1946, thereby codifying the duty of mental-health professionals to warn third parties of danger from their patients. As recognized by this Court, the legislative history of the statute indicates that the Legislature enacted the statute to “limit the liability of mental health practitioners.” Since its enactment, only two published cases have interpreted the statute. However, the issue now before this Court — whether a common-law duty to warn or protect has survived the statute’s limitation on a psychiatrist’s liability to protect others — has not been resolved. In 1996, this Court released its first opinion addressing the statute. In Jenks v Brown, the plaintiffs ex-wife told her psychiatrist that she intended to kidnap her, and the plaintiffs, son. The plaintiff then sued the psychiatrist, alleging that he breached MCL 330.1946 by failing to warn the plaintiff of his ex-wife’s threat. This Court affirmed the trial court’s grant of summary disposition in the psychiatrist’s favor, holding that the psychiatrist had no duty to the plaintiff because the threat was directed at the child, not the plaintiff. This Court explained: In prior years, the common-law duty to warn had been extended in some cases to unnamed third parties and even to property. In response to these developments, the duty to warn statute limited a mental health practitioner’s duty to that as provided in the statute. Furthermore, in order for any duty to arise, a patient must communicate “a threat of physical violence against a reasonably identifiable third person.” It is apparent from the language of the statute and its legislative history that it is intended to protect only those readily identifiable individuals against whom a threat of physical violence is made[ ] The plaintiff also sought to amend his complaint to add a common-law theory of negligence. This Court ruled any such amendment futile on the ground that there was no special relationship between the plaintiff and the psychiatrist that would give rise to a duly to protect the plaintiff. In so ruling, this Court acknowledged but declined to address the issue “whether a claim brought against a mental-health practitioner under a common-law theory of failure to warn is superseded by MCL 330.1946[.]” Two years later, this Court again published an opinion interpreting the statute. In Swan v Wedgwood Christian Youth and Family Services, Inc, a teenage boy (LaPalm) killed his mother’s boyfriend after being released from the defendant’s residential facility where LaPalm had received psychiatric treatment. The plaintiff, as personal representative of the decedent’s estate, sued the defendant, alleging that it negligently treated LaPalm, thereby proximately causing the decedent’s death. Relying on Jenks, this Court affirmed the trial court’s grant of summary disposition in the defendant’s favor on the ground that MCL 330.1946 served “as a bar to the plaintiffs suit because, pursuant to the statute, it owed no duty to the decedent.” More specifically, this Court explained that the defendant owed no duty to warn or protect the decedent under the terms of the statute because LaPalm never communicated a threat against the decedent. This Court stated, “Under the statute, the only duty owed is a duty to warn in those situations where a patient communicates a threat and the object of the threat is reasonably identifiable.” The Swan Court also rejected the plaintiffs argument that the statute did not apply because his claim against the defendant alleged negligence rather than a failure to warn. This Court explained: Plaintiff notes correctly that the type of claims it asserts are often brought together with a failure to warn claim, but they are separate questions. However, plaintiffs argument fails because to the extent that he alleges a breach of duties on the part of defendant, those duties were owed to LaPalm and not to the decedent, as the circuit court correctly noted. Moreover, plaintiffs argument ignores the last sentence of MCL 330.1946(1)..., which provides, “Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.” (Emphasis added.) We believe that this language is unam biguous and clearly limits the duty a mental health professional owes to third persons to the duty to warn identifiable third persons “as provided in this section...Plaintiff cannot claim the benefit of any alleged breach of duty to LaPalm, and the statute plainly provides that defendant did not owe a duty to the decedent.[ ] This Court also acknowledged but rejected the plaintiffs position to the extent that it could be interpreted as arguing that defendant owed a common-law, rather than a statutory, duty to the decedent. More specifically, this Court concluded that even under the common law the defendant had no duty to warn or protect the decedent because no foreseeable danger to decedent, or any other third person, was made known during LaPalm’s treatment. In so ruling, this Court again declined to “decide whether a common-law duty survived the enactment of the statute[.]” Thus, this case presents this Court with an opportunity to resolve a recurring issue of contention regarding a plaintiffs ability to sue a psychiatrist (or other mental-health professional) outside the limitation imposed by the statute. E. THE PSYCHIATRIST’S COMMON-LAW DUTY TO PROTECT “THIRD PERSONS” FROM PATIENTS We conclude that a plain reading of MCL 330.1946 indicates that the statute was intended to modify the common-law duty to warn or protect third persons from a patient that arises out of the special relationship between a psychiatrist and that patient. The second sentence of subsection 1 clearly states that a mental- health professional has no duty to “warn” or “protect” a “third person,” except as provided under MCL 330.1946. Thus, the Legislature has clearly stated its intent to preempt a mental-health professional’s common-law duty to warn or protect third persons. Indeed, Dawe concedes this interpretation. However, because Dawe alleges ambiguity in the phrase “third person,” this conclusion does not end our inquiry. F. THE PSYCHIATRIST’S COMMON-LAW DUTY TO PROTECT PATIENTS FROM OTHER PATIENTS Dawe argues that MCL 330.1946 addresses only the duty that arises from the relationship between a psychiatrist and a dangerous patient while specifically preserving other duties and, therefore, does not abrogate or modify the common-law duty to treat other patients within the applicable professional standard of care, which includes a duty to provide a safe clinical environment for patients. We disagree. As mentioned, Dawe concedes that “MCL 330.1946 explicitly governs the issue of” a mental-health professional’s duty when a patient communicates a threat of violence against a reasonably identifiable third person, and therefore concedes that it is clear that the Legislature intended to modify a mental-health professional’s common-law duty to warn or protect those third persons. But she contends that it is not at all clear that the Legislature intended to modify or abrogate every common-law duty that a mental-health professional may have to protect the mental-health professional’s other patients. In support of her position, Dawe finds it significant that under subsection 5, the Legislature expressly stated, “This section [MCL 330.1946] does not affect a duty a mental health professional may have under any other section of law.” Dawe interprets this to mean that the Legislature clearly contemplated that some duties would remain despite the language of MCL 330.1946(1), which purports to eliminate all duties to “warn” or “protect” “third persons.” In other words, Dawe would have us conclude that MCL 330.1946(1) only addresses a mental-health professional’s duty to warn or protect third persons from a patient arising from the mental-health professional’s relationship with that patient who may pose a danger to the third person, but that the statute does not modify any common-law duties that the mental-health professional may have to protect another patient based on the mental-health professional’s relationship with that patient (e.g., a psychiatrist’s duty to render professional care). Thus, the issue essentially boils down to whether the term “third person” in MCL 330.1946(1) includes the psychiatrist’s other patients. The second sentence of MCL 330.1946(1) expressly states: “Except as provided in this section, a mental-health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.” (Emphasis added.) The phrase “third person” is defined as “the grammatical person used in an utterance in referring to anyone or anything other than the speaker or the one or ones being addressed.” Reading the phrase in context and employing a common usage of the phrase “third persons” lead to the inevitable conclusion that the phrase encompasses all other persons who are neither the dangerous patient nor the mental-health professional. Accordingly we can only conclude that the Legislature intended the term “third persons” to include those third persons who might also happen to be the psychiatrist’s patient. Therefore, we conclude that the statute applies both to “third persons” who are members of the public at large and to “third persons” who are also the psychiatrist’s patients. To read “third persons” as not including other patients employs a strained reading of the language and contravenes the dictate that we may not speculate regarding the intent of the Legislature beyond the language expressed in the statute. Thus, we believe that the statute was specifically intended to expressly limit a mental-health practitioner’s duty to that “as provided in this section,” thereby limiting a mental-health practitioner’s only duty to protect to only those readily identifiable persons against whom a threat of physical violence is made. In other words, we believe that it is clear that the Legislature intended to modify or abrogate any other conceivable duty that a mental-health professional may have to protect others, which would include a duty to take reasonable steps to ensure that the patient is treated in a safe clinical environment. The duty a mental-health professional owes to protect third persons does not vary depending on the cause of action, nor on the identity or category of the “third person.” Further, we disagree that subsection 5 of the statute, in which the Legislature stated, “This section does not affect a duty a mental health professional may have under any other section of law,” supports a conclusion that the Legislature contemplated that some common- law duties would remain despite the language of MCL 330.1946(1). To the contrary, reading the plain language of the statute indicates that the Legislature merely contemplated that a psychiatrist’s other statutory duties remain viable — for example, the duty to report suspected abuse under the Child Protection Law. More specifically, subsection 5 begins with the words “[t]his section,” clearly referring to the statute, MCL 330.1946, as “[t]his section.” Subsection 5 then concludes with the words “under any other section of law[.]” The Legislature’s decision to use the word “section” again here clearly indicates that it was again referring to statutory law, rather than common law. G. CONCLUSION In sum, we conclude that no common-law duty to protect survived the Legislature’s enactment of MCL 330.1946. We conclude that MCL 330.1946 preempts the field on the issue of a mental-health professional’s duty to warn or protect others, including the psychiatrist’s other patients. We therefore conclude that Dawe’s claim that defendants breached their duty to provide Dawe with a safe clinical environment for her treatment is without merit. Consequently, we conclude that the trial court erred when it refused to grant defendants’ requests for relief premised on the theory that they had no common-law duty to protect Dawe beyond that imposed by MCL 330.1946. H. UNFAIR RESULT We acknowledge that the evidence presented at trial was compelling proof that defendants knew or should have known that Brooks posed a danger to the other patients in his therapy group and, therefore, should not have been placed in group therapy. Therefore, it is an unfair result to shield defendants from liability in this case. Common sense and the general tenets of the common-law duty to protect arising out a special relationship would seem to justify holding defendants accountable here. However, we are bound to interpret plain statutory language as written. The plain language of the statute dictates the result we reach today, and any arguments that the statute is unwise or results in bad policy must be addressed to the Legislature. III. STATUTORY DUTY TO WARN OR PROTECT UNDER MCL 330.1946 Applying the language of the statute, defendants argue that Dawe failed to present evidence that Brooks communicated to defendants a threat of physical violence against Dawe. Therefore, defendants argue that the trial court erred when it declined to grant defendants’ motions for summary disposition, directed verdict, and JNOV on Dawe’s claim under MCL 330.1946. In interpreting MCL 330.1946, this Court has clarified that “[i]t is apparent from the language of the statute and its legislative history that it is intended to protect only those readily identifiable individuals against whom a threat of physical violence is made.” Accordingly, communication of a threat of physical violence directed against the victim is essential to liability under the statute. Applying the statutory criteria to this case, we conclude that Dawe failed to present evidence from which a reasonable jury could conclude that Brooks communicated a threat of physical violence against Dawe to defendants. The only relevant testimony was that of James Stanislaw, a certified social worker employed by defendants, who served as the therapist for the group that included Brooks and Dawe. And although Stanislaw’s testimony, even taken in the light most favorable to Dawe, established that Brooks probably indicated that he wanted to hurt someone at the practice, his testimony did not establish that Brooks made a threat of physical violence against Dawe, either individually or as a member of the therapy group. Therefore, we conclude that Dawe failed to present evidence from which a reasonable jury could conclude that Brooks communicated to defendants a threat of physical violence against Dawe, as a readily identifiable third person. Thus, Dawe failed to establish a claim as a matter of law under MCL 330.1946. Consequently, the trial court should have granted defendants’ motion for directed verdict on this claim. Given the resolution of this issue, we decline to address defendants’ argument that the statutory claim should have been dismissed because Dawe failed to present expert testimony concerning the standard of care applicable under MCL 330.1946. Further, we find it unnecessary to address whether the trial court erred in failing to grant defendants’ motion for JNOV IV CONCLUSION The trial court erred by failing to grant defendants a directed verdict. Therefore, we vacate the lower court judgment against defendants, reverse the trial court’s denial of defendants’ motion for a directed verdict, and remand for entry of an order dismissing Dawe’s claims against defendants. Given our disposition, we decline to address the parties’ remaining arguments regarding errors related to the trial and judgment. Reversed, judgment vacated, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Kelly, J., concurred. Defendants discharged Brooks from their care on March 19, 1999. See MCL 600.2912d. Dawe’s counsel specifically stated: “[T]his statute that [defendants are] referring to is talking — it’s in establishing a duty by someone that isn’t normally a patient. That doesn’t exist here because Elizabeth Dawe was [a patient],... This other statute is talking about if Elizabeth Dawe wasn’t a patient[.]” 1995 PA 290 amended MCL 330.1946 to change the third use of the word “patient” in subsection 1 to “recipient.” All other references to “patient” in the statute were left unaltered. The term “recipient” is defined to mean “an individual who receives mental health services from the department, a community mental health services program, or a facility or from a provider that is under contract with the department or a community mental health services program.” MCL 330.1100c(12). Although not all patients of mental-health professionals will qualify as recipients, see Saur v Probes, 190 Mich App 636, 641; 476 NW2d 496 (1991) (construing former MCL 330.1700, which defined “recipient” in a substantially similar way to present MCL 330.1100c[12]), for this issue, it is not necessary to examine how the use of the term “recipient” might affect the duty imposed by this statute. Wold Architects & Engineers v Strat, 474 Mich 223, 233; 713 NW2d 750 (2006), citing Const 1963, art 3, § 7. Id. Id. Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006). Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004) (internal citations omitted). Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007). Swan v Wedgwood Christian Youth & Family Services, Inc, 230 Mich App 190, 195; 583 NW2d 719 (1998). Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 498-499; 418 NW2d 381 (1988). Murdock v Higgins, 454 Mich 46, 54; 559 NW2d 639 (1997). Davis v Lhim, 124 Mich App 291, 301; 335 NW2d 481 (1983), rev’d on other grounds sub nom Canon v Thumudo, 430 Mich 326 (1988). Tarasoff v Regents of Univ of California, 17 Cal 3d 425; 131 Cal Rptr 14; 551 P2d 334 (1976). Canon, supra at 355. See 1989 PA 123. Jenks v Brown, 219 Mich App 415, 418; 557 NW2d 114 (1996), citing House Legislative Analysis, HB 4237, July 11, 1989. Id. at 417. Id. at 418-419 (citations omitted). Id. at 420. Id. at 421. Id. at 421 n 1. Swan, supra at 191-193. Id. at 193-194. Id. at 197-199. Id. at 198-199. Id. at 198 (emphasis added). Id. at 199 (citations omitted). Id. at 199-200. Id. at 200-201. Id. at 200. Random House Webster’s College Dictionary (2000) (emphasis added). Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 (2007). See Swan, supra at 198 (“Under the statute, the only duty owed is a duty to warn in those situations where a patient communicates a threat and the object of the threat is reasonably identifiable.”); Jenks, supra at 419 (“It is apparent from the language of the statute and its legislative history that it is intended to protect only those readily identifiable individuals against whom a threat of physical violence is made.”). MCL 722.623. See Oakland Co Bd of Rd Comm’rs v Michigan Prop & Cas Guaranty Ass’n, 456 Mich 590, 613; 575 NW2d 751 (1998); Richter v Turlow, unpublished opinion per curiam of the Court of Appeals, issued October 1, 1999 (Docket No. 210922), p 2. Because defendants do not substantively address their motion for summary disposition, we limit our analysis to whether the trial court should have granted defendants’ motion for a directed verdict. Swan, supra at 198, citing Jenks, supra at 419. See Lagow ex rel Welch v Segue, Inc, unpublished opinion per curiam of the Court of Appeals, issued August 17, 2001 (Docket No. 219624). See Reed v Yackell, 473 Mich 520, 528; 703 NW2d 1 (2005).

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TALBOT, J. Defendant, city of Detroit, appeals as of right the order granting plaintiffs’, city of Huntington Woods, Bonnie Sheehy Nielsen, Kellie Treppa, and John Steinberg, motion for summary disposition and request for a declaratory judgment pertaining to the sale of the Rackham Golf Course. Flaintiffs cross-appeal certain parts of the trial court’s order. We affirm in part, reverse in part, and remand for further proceedings. I. FACTUAL HISTORY AND BACKGROUND This lawsuit involves a dispute concerning the authority of defendant to sell or convey its interest in the Rackham Golf Course, which comprises approximately 121 acres and is situated in plaintiff city of Huntington Woods. Originally, this parcel was part of a recorded plat identified as the “Bronx Subdivision.” In 1922, on petition by the Baker Land Company, a portion of the land platted within the Bronx Subdivision property, which now comprises the Rackham Golf Course, was removed from the plat by vacation of that part of the plat by order of the Oakland Circuit Court. Approximately six months after entry of the order removing this portion of the property from the subdivision plat, the owner, the Baker Land Company, deeded the property to Horace Rackham and his wife, Mary Rackham (hereinafter referred to as the Baker deed). The remaining portion of the Bronx Subdivision was developed as residential property. At the time of this conveyance, it appears there were no particular improvements or development with regard to the property. There is no dispute that this conveyance was in fee simple and contained the following relevant provision: “It is part of the consideration hereof that the land transferred by this deed shall be used only as a public park or golf course or for other similar purpose.” The Rackhams constructed an 18-hole golf course, with a clubhouse, on the property. In 1924, the Rackhams deeded the improved property, containing the golf course and the clubhouse, to defendant (hereinafter referred to as the Rackham deed). The Rackham deed included several conditions, along with a reversionary clause. Specifically, the Rack-ham deed provided, in relevant part: Provided always, however, that these presents are upon the several express conditions and limitations following, to-wit: FIRST: That the said premises shall be perpetually maintained by the said party of the second part exclusively as a public golf course for the use of the public under reasonable rules, regulations and charges to be established by second party. SECOND: That the course and the turf thereon shall be maintained at a standard condition at least equal to its condition at the time of the acceptance of this grant. THIRD: That beverages containing any alcoholic content whatever shall not he brought upon, kept, used or sold on said premises by any party hereto or by any person or persons, firm or corporation. FOURTH: First parties hereby reserve the right to restrict or limit the use of the premises hereby conveyed in such manner as to them shall seem proper in order to carry out and fulfill the purpose for which said course was built and improvements made. FIFTH: That if any of the foregoing conditions shall be broken then the estate hereby granted shall be forfeited and the said premises shall revert to the parties of the first part and their heirs and assigns who shall thereupon have the right to re-enter and re-possess the same. The parties acknowledge that since this conveyance, in 1924, defendant has continuously operated and maintained the property as a public golf course. II. PROPERTY BIDS In 2006, the Detroit Planning and Development Department received an unsolicited inquiry from Premium Golf, LLC, seeking to acquire defendant’s interest in the Rackham Golf Course. Defendant communicated this offer to the Detroit City Council, indicating: We are in receipt of a request from Premium Golf LLC, a Michigan Limited Liability Company, to purchase the ... property for the amount of $5,000,000. Premium Golf LLC has offered to purchase the property and continue to use it as a golf course. Given the City’s financial condition and in an effort to meet our land sales projections we are recommending this sale. Concerned that maximum value be obtained by defendant for the property, an additional term of the proposed agreement indicated that defendant would receive substantial remuneration beyond the referenced sale price if Premium Golf, LLC, were successful in removing the use conditions and was able to develop the property for residential construction. In response to questions raised by the city council, defendant’s planning and development department indicated: The City received an unsolicited offer from Premium Golf, LLC to purchase Rackham Golf Course with the deed restriction in tact [sic] with the immediate plan to continue to operate it as a golf course. Premium Golf is in negotiations with the Rackham heirs to buy out the deed restriction. While the offer from Premium Golf, LLC, was under consideration, plaintiff city of Huntington Woods also submitted an unsolicited bid to purchase the property from defendant for the sum of $5,500,000 contingent on the approval of a bond issue by voters. After this lawsuit was initiated, defendant’s planning and development department authorized the issuance of a request for proposals (hereinafter referred to as the RFP), which basically sought bids for the acquisition of the golf-course property. The RFP provided, in pertinent part: The intent of this Request for Proposal is to retain an experienced and qualified Developer who has the potential and financial capacity to purchase the Rackham Golf Course for the existing use or demonstrate the ability to obtain re-zoning for other uses.... The City of Detroit has established a minimum bid price of $6,250,000 for sale of the Rackham Golf Course .... In the event that the respondent is able to remove the deed restriction, the City of Detroit will require a minimum of $5,000,000 in additional compensation. There is an existing deed restriction that the property be maintained as a public golf course. Shortly thereafter, plaintiff city of Huntington Woods, responding to defendant’s RFR authorized the submission of an offer to purchase the property, with appurtenances, for $6.25 million. III. LOWER-COURT PROCEEDINGS Plaintiffs filed their initial complaint on June 20, 2006, seeking a declaratory judgment. Shortly thereafter, plaintiffs filed an amended complaint for a declaratory judgment and an injunction. Plaintiffs alleged that defendant held the golf course in public trust subject to restrictions regarding its use. Plaintiffs argued that defendant’s attempt to sell the property to a private entity was contrary to the deed restrictions and, therefore, precluded. Plaintiffs city of Huntington Woods, Nielsen, and Treppa further argued that as subsequent owners of property in the Bronx Subdivision, they have contractual rights “which initially accrued to the Baker Land Company to enforce the restrictions in the [Baker] deed to the Rackhams.” Plaintiff Treppa contended that as an owner of property abutting the golf course, she enjoyed “special rights in the maintenance of the Rackham Golf Course and the status quo may not be changed without their concurrence.” Plaintiffs further alleged a right to enforce the Baker deed and Rackham deed restrictions as third-party beneficiaries. Plaintiffs sought a determination from the trial court that: (A) restrictions on use of the property contained in the Baker and Rackham deeds “remain valid and enforceable and preclude the sale and/or development... of that property for residential housing”; (B) a determination that defendant cannot sell the property to a private entity because it is a “public golf course”; (C) the property at issue cannot be sold or developed for any purpose other than that specified in the Rackham deed “without the concurrence of property owners abutting and having an unobstructed view thereof” and the property owners of the Bronx subdivision; and (D) the court enjoin the sale of the property. Defendant filed an answer and asserted as relevant affirmatives defenses: 1. Plaintiff [sic] has failed to state a claim upon which relief can be granted. 2. There is no justiciable case or controversy before the Court. 3. Plaintiffs lack standing to sue. 4. Plaintiffs have failed to join indispensable parties [the Rackham heirs]. Plaintiffs filed a motion for summary disposition, pursuant to MCR 2.116(C)(9) and (10), asserting that defendant had no interest it could sell in the golf course because it served only as a trustee that maintains the property in trust for use only by the public as a public golf course. Plaintiffs asserted that the language of the Rackham deed was restrictive, because it required defendant to maintain the property “ ‘as a public golf course for the use of the public.’ ” Consequently, plaintiffs asserted that defendant has only an easement interest and not title to the property and that any attempt to sell it to a private entity would be a breach of the Rackham deed restrictions. Plaintiffs also asserted that they were proper parties to bring the action because their properties abutted the golf course and had unobstructed views or they could demonstrate their reliance on maintenance of the property as a golf course in purchasing or improving their residences. Plaintiffs contended that the language of the Baker deed comprised a restriction on the use of the land. Because plaintiffs are property owners in the chain of title from the original grantor of the Baker deed, they asserted that they are entitled to enforce those restrictions. Defendant responded, asserting the lack of a justiciable controversy. Defendant observed that the city council had rejected a resolution approving the purchase of the golf course by Premium Golf, LLC. Acknowledging that other offers or bids were pending and being reviewed by the city council, defendant asserted that plaintiffs’ claims for declaratory relief were merely hypothetical and that no appreciable harm could be demonstrated to have resulted from defendant’s contemplation of offers to purchase the property. Defendant argued that it had operated and maintained the property for 80 years as a golf course and that there has been no breach of duty or provision pertaining to the conveyance as delineated in the Rackham deed. As a result, defendant sought the grant of summary disposition in its favor, pursuant to MCR 2.116(1)(2), asserting that the claims of plaintiffs presented no issue “ripe for judicial review” and, therefore, dismissal was required for lack of jurisdiction. In addition, defendant argued that there was no prohibition against conveying the property subject to the conditions delineated in the Rackham deed. While defendant asserted that the Rackham heirs could release their reversionary rights, defendant additionally contended that such an event was merely hypothetical and, therefore, review by the trial court was precluded. Defendant argued that the provisions in the Baker deed did not comprise a restrictive covenant, which runs with the land, but were merely a statement of purpose that is not enforceable by the grantor. Following a hearing, the trial court granted plaintiffs’ motion for summary disposition, pursuant to MCR 2.116(C)(10), ruling, in relevant part: The deed from the Rackhams to the city of Detroit contains a clear and undeniable restriction that the property is to be used as a public golf course, or the property may revert to the Rackham heirs. This does not, however, prohibit the city of Detroit from ever selling the property. ... Insofar as Defendant indicates it may transfer the property subject to the deed restrictions, it is partially correct. Defendant may transfer its interest in the property once.it has acquired all the necessary waivers so as to eliminate any possibility of reverter.... As to Plaintiffs [sic] contention that the deed from the Baker Land Company to the Rackhams prohibits the use of the property for any purpose other than those specifically set forth therein, this is also granted.... It cannot be ignored that the property was originally platted for development and prior to the transfer to the Rackhams the plat was vacated by an action in this Court. The facts and record indicate the intention of Baker Land Company was that the property be used only as a public park or golf course. The absence of a reverter clause does not change the very clear intention as set forth in the deed. The trial court denied plaintiffs’ request for summary disposition pursuant to MCR 2.116(C)(9), indicating the “fail[ure] to address in the supporting brief how the pleadings are defective or insufficient....” On the basis of its determination of the propriety of summary disposition in favor of plaintiffs pursuant to MCR 2.116(C)(10), the trial court denied defendant’s request for summary disposition pursuant to MCR 2.116(I)(2). An order memorializing the trial court’s ruling was entered on October 25, 2006. IV ISSUES On appeal, defendant challenges the trial court’s ruling, asserting that plaintiffs’ claim is not justiciable because a sale of the property is not imminent. Defendant further contends that plaintiffs lack standing because they have failed to demonstrate any individualized or particularized harm different from that of the general public. Defendant contends that the trial court erred in its determination that defendant cannot convey the property, even subject to the deed restrictions, without first obtaining waivers from the Rackham heirs of their reversionary interest. Finally, defendant argues that the trial court’s ruling that the Baker deed contained a restrictive covenant running with the land and enforceable by the grantor was erroneous. Instead, defendant asserts that the Baker deed merely includes a statement of purpose because the deed lacks a reverter clause and was between private parties and, thus, cannot be construed as a dedication to public use. On cross-appeal, plaintiffs argue that the trial court’s ruling, while favorable, did not go far enough. Plaintiffs contend that the trial court erred in its determination that defendant had a right to convey the property because defendant is merely a trustee with an easement interest. In addition, plaintiffs argue that defendant must obtain not only the approval of the Rackham heirs but also the consent of the abutting property owners in order to convey the property and that such a conveyance can only be to another public entity so as not to violate the Rackham deed restrictions. V STANDARD OF REVIEW This Court reviews de novo a trial court’s grant or denial of a motion for summary disposition pursuant to MCR 2.116(C)(10). Bragan v Symanzik, 263 Mich App 324, 327-328; 687 NW2d 881 (2004). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiffs claim. “In reviewing a motion for summary disposition brought under MCR 2.116 (C)(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists.” Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001). Summary disposition is appropriate only if there are no genuine issues of material fact and “the moving party is entitled to judgment as a matter of law.” MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). In addition, whether a party has standing is a question of law, which we review de novo. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004). Questions pertaining to justiciability and ripeness comprise constitutional issues, which are also reviewed de novo. Michigan Chiropractic Council v Comm’r of the Office of Financial & Ins Services, 475 Mich 363, 369; 716 NW2d 561 (2006). VI. CONSTITUTIONAL ISSUES “In seeking to make certain that the judiciary does not usurp the power of coordinate branches of government, and exercises only ‘judicial power,’ both this Court and the federal courts have developed justiciability doctrines to ensure that cases before the courts are appropriate for judicial action.” Id. at 370. Although the term “judicial power” is not defined in our constitution, “ ‘judicial power’ has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making.” [Michigan Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich 280, 293; 737 NW2d 447 (2007), quoting Nat’l Wildlife, supra at 614-615.] Our Supreme Court has further “distill[ed] this litany of considerations arising from the proper exercise of the ‘judicial power,’ and... determined that ‘the most critical element’ is ‘its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute.’ ” Michigan Citizens for Water Conservation, supra at 293, quoting Nat’l Wildlife, supra at 615. The doctrine of ripeness is designed to prevent “the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon ‘ “contingent future events that may not occur as anticipated, or indeed may not occur at all.” ’ ” Michigan Chiropractic Council, supra at 371 n 14 (citations omitted). Hence, when considering the issue of ripeness, the timing of the action is the primary focus of concern. Defendant contends that plaintiffs’ complaint was not ripe for consideration by the trial court because defendant had neither sold its interest in the golf course nor violated any restrictions contained in the Rackham deed regarding use of the property as a public golf course. “The existence of an actual controversy is a condition precedent to invocation of declaratory relief and this requirement prevents a court from deciding hypothetical issues.” Detroit v Michigan, 262 Mich App 542, 550; 686 NW2d 514 (2004) (internal quotation marks and citation omitted). However, it is the purpose and intent behind the grant of declaratory relief to provide litigants with court access in order to “preliminarily determine their rights.” Id. at 551; MCR 2.605(A)(1). An actual controversy is deemed to exist in circumstances where declaratory relief is necessary in order to guide or direct future conduct. In such situations, courts are “ ‘not precluded from reaching issues before actual injuries or losses have occurred.’ ” Detroit, supra at 551 (citation omitted). Defendant is correct in its assertion that, when this litigation was initiated, there had been no violation of the restrictive covenants contained in the Rackham deed and the property had not been sold. However, even though a sale had not been effectuated, it was obvious that defendant was not only seriously considering sale of the property but had begun, through the issuance of a formal RFl^ to solicit bids. Hence, the primary issue asserted by plaintiffs regarding the right or authority of defendant to sell the property, and pursuant to what terms, comprised an issue that was not hypothetical. “[Declaratory relief is designed to resolve questions like the one at issue before the parties change their positions or expend money futilely.” Id. at 551. As a result, plaintiffs’ request for declaratory relief properly seeks a determination regarding defendant’s authority to sell the property. The trial court was not precluded from ruling whether the sale was authorized and under what conditions merely because a sale had not yet been effectuated. Defendant further asserts that plaintiffs lacked standing to pursue this matter because they could not demonstrate a sufficient injury, separate and distinct from that of the general public. Standing ensures that a genuine case or controversy is before the court. It requires a demonstration that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large. To successfully allege standing, a plaintiff must prove three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly... traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. [Michigan Citizens for Water Conservation, supra at 294-295, quoting Nat’l Wildlife, supra at 628-629 (additional citations and internal quotation marks omitted).] Contrary to defendant’s assertion, the aforementioned plaintiffs have demonstrated a “concrete and particularized” harm that was “imminent.” As we have noted, defendant was actively pursuing a sale of the golf course. Plaintiffs, as owners of property abutting the golf course or having an unobstructed view of the golf course, could assert an injury different from that of the general public, which was merely concerned with access to the property. Instead, plaintiffs’ interests extended to the enjoyment and beneficial use of their own property, which is distinct from the potential for harm to the general public. As our Supreme Court recognized in Baldwin Manor, Inc v Birmingham, 341 Mich 423, 435; 67 NW2d 812 (1954): “ ‘If the facts warranted the conclusion . . . that the gift. . . has been subverted to a use foreign to that of a public park, there is no doubt that complainant as an abutting property owner might seek the aid of a court of equity.’ ” (Citation omitted.) In addition, the Court quoted with approval 64 CJS, Municipal Corporations, § 1823, pp 310-311, regarding the rights of property owners in such situations: “[S]uch right of action where he does sustain a special injury; and ordinarily the owners of property abutting on a park or square have such a special right to insist that it shall not be appropriated to other uses. “The owner of a lot in the immediate vicinity of a park, although not abutting thereon, but who is an adjacent proprietor in that he has an unobstructed view from his property, may sustain such an injury by reason of its diversion to other uses as to give him a right of action to enjoin the diversion and abandonment by the city of the grounds as a public park.” [Baldwin Manor, supra at 436.] Defendant contends that Baldwin is inapplicable and factually distinguishable because there has been no diversion of use of the property as a golf course. However, we note that in the RFP soliciting bids, defendant has clearly indicated that “[t]he intent of this Request for Proposal is to retain an experienced and qualified Developer who has the potential and financial capacity to purchase the Rackham Golf Course for the existing use or demonstrate the ability to obtain rezoning for other uses.” (Emphasis added.) Consequently, defendant’s own solicitation of bids under these conditions precludes its assertion that the alleged harm is based solely on conjecture or is hypothetical in nature. In addition, the harm is “clearly traceable” to defendant’s proposed action to sell the property and encourage its alternative development for residential purposes in order to secure additional remuneration. Finally, a decision favorable to plaintiffs would clearly redress the injury, thereby satisfying the technical requirements for establishing standing for these parties. VII. FEE SIMPLE vs. EASEMENT Defendant asserts that the trial court erred in determining that defendant was precluded from transferring its interest in the Rackham Golf Course without first obtaining waivers from individuals with reversionary interests. Defendant contends that as long as it conveys the property subject to the deed restrictions there is no breach or abandonment sufficient to give rise to the reverter clause. In response and on cross-appeal, plaintiffs assert that defendant’s interest in the property is merely an easement, which cannot be conveyed to a private entity such as Premium Golf, LLC. Rather, plaintiffs contend that the language of the deed requires the golf course be maintained by a public entity and that the trial court did not go far enough and should have required defendant to obtain the waivers or permission of abutting land owners for any conveyance. Initially, we must determine and define the precise nature of the property interest conveyed to defendant by the Rackham deed. An inquiry into the scope of the interest conferred by a deed such as that at issue here necessarily focuses on the deed’s plain language, and is guided by the following principles: (1) In construing a deed of conveyance[,] the first and fundamental inquiry must be the intent of the parties as expressed in the language thereof; (2) in arriving at the intent of parties as expressed in the instrument, consideration must be given to the whole [of the deed] and to each and every part of it; (3) no language in the instrument may be needlessly rejected as meaningless, but, if possible, all the language of a deed must be harmonized and construed so as to make all of it meaningful; (4) the only purpose of rules of construction of conveyances is to enable the court to reach the probable intent of the parties when it is not otherwise ascertainable. These four principles stand for a relatively simple proposition: our objective in interpreting a deed is to give effect to the parties’ intent as manifested in the language of the instrument. [Dep’t of Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich 359, 370; 699 NW2d 272 (2005) (citations and internal quotation marks omitted).] Our starting point in this analysis is the language of the Rackham deed, which provides that it does “grant, bargain, sell, remise, release, alien and confirm” to defendant “[Qorever, [a]ll that certain piece or parcel of land situate and being in the Township of Royal Oak, County of Oakland” as described by metes and bounds. The deed provides for specific “express conditions and limitations” regarding use of the property by defendant with rights of reversion “if any of the foregoing conditions shall be broken then the estate hereby granted shall be forfeited and the said premises shall revert to the parties of the first part and their heirs and assigns who shall thereupon have the right to re-enter and re-possess the same.” As with any instrument, a deed must be read as a whole in order to ascertain the grantor’s intent. Carmody-Lahti, supra at 370. “[A] deed granting a right-of-way typically conveys an easement, whereas a deed granting land itself is more appropriately characterized as conveying a fee or some other estate[.]” Id. at 371 (emphasis in original). Notably the terms “easement” and “right-of-way” are not contained in the Rackham deed. Rather, the deed indicated that the conveyance was for a “certain piece or parcel of land... .” Therefore, on the basis of the plain and unambiguous language of the Rackham deed, we reject plaintiffs’ assertion and find that a fee simple in the land was conveyed to defendant, rather than an easement. However, our inquiry does not stop with this determination and we must now ascertain what type of fee was conveyed. The Rackham deed clearly and unambiguously delineates “express conditions and limitations” pertaining to use of the land conveyed to defendant. In addition, following a listing of those conditions, the deed affirmatively provides that the property “shall revert” upon the breach of “any of the foregoing conditions ... .” A distinction exists between a fee subject to a condition subsequent and a fee simple determinable. Specifically, [a] “fee simple determinable” is a limited grant, while a “fee simple subject to a condition subsequent” is an absolute grant to which a condition is appended. A “fee simple determinable” is a fee subject to special limitation. It expires automatically on the happening or nonhappening of a specified event, while a fee simple subject to a condition subsequent is subject to a power in the grantor to terminate the estate on the happening of a specified event, such as a breach of a condition. [28 Am Jur 2d, Estates, § 164, p 191.] The intent of the Rackhams to create a condition subsequent is clearly and definitively demonstrated by the language contained in the deed. Clark v Grand Rapids, 334 Mich 646, 655; 55 NW2d 137 (1952). Although “conditions subsequent are not favored in law,” in this instance the presence of a reverter clause specifically requiring forfeiture upon breach of any of the delineated conditions requires us to find that the interest conveyed by the Rackham deed is a fee simple subject to a condition subsequent. Id. at 654; Quinn v Pere Marquette R Co, 256 Mich 143, 152; 239 NW 376 (1931). Guided by our determination regarding the interest conveyed by the Rackham deed, we are then able to address defendant’s assertion that the trial court erred in requiring it to obtain waivers from those individuals retaining reversionary rights in the property before any conveyance. Defendant contends that it may convey the property to any entity as long as the restrictive conditions pertaining to maintenance of the property as a public golf course are preserved. Although recognizing that an abutting property owner “who proves special injury caused by an actual diversion of the use may obtain an injunction against the diversion or misuse,” defendant asserts that abutting property owners cannot force or require that it “obtain a relinquishment of the use restriction ... in order to sell [the] land.” Defendant is partially correct in its assertion. The trial court’s imposition of a requirement that defendant first obtain waivers from those with reversionary interests is not based on the inherent rights of abutting property owners. Rather, the trial court’s requirement that defendant can sell its interest in the golf course “only after the surrender or conveyance of the rights and interest by appropriate waivers, releases, deeds or condemnation proceedings of those having possible rights as reversioners” is based on basic principles regarding estates in real property and caselaw. Specifically, our Supreme Court has repeatedly determined that “[i]f the estate was a fee upon condition subsequent, plaintiff could not enforce the reverter, because the possibility of reverter cannot be assigned before breach of condition.” Quinn, supra at 152, citing Halpin v Rural Agricultural School Dist, 224 Mich 308, 313; 194 NW 1005 (1923). As a result, and in accordance with the trial court’s determination, defendant is precluded from conveying the subject property while the reversionary rights of the Rackham heirs remain intact. This restriction on a conveyance raises an issue regarding prohibitions against restraints on alienation of property. We determine that this is not a viable issue in this case because MCL 554.381 provides, “No statutory or common law rule of this state against perpetuities or restraint of alienation shall hereafter invalidate any gift, grant, devise or bequest, in trust or otherwise, for public welfare purposes.” See also MCL 123.871. Because the agreement delineated in the Rackham deed requiring maintenance of the property as a public golf course for use by the public clearly qualifies as one invoking a public-welfare purpose, it is statutorily exempt as an unlawful restraint on alienation. Although the trial court ruled that defendant had a right to sell the property, subject to removal of the reversioners’ rights, it did not further limit defendant’s right to convey the property on the basis of the status of the purchaser as either a public or a private entity. Defendant contends that its selection of a purchaser is not restricted to only another public entity, while plaintiffs assert the language of the deed does limit the nature of the entity qualified to serve as a potential buyer. The Michigan Constitution provides: “Any city or village may acquire, own, establish and maintain, within or without its corporate limits, parks, boulevards, cemeteries, hospitals and all works that involve the public health or safety.” Const 1963, art 7, § 23. MCL 117.4e(3) allows municipalities to provide in their charters “[f]or the maintenance, development, operation, of its property and upon the discontinuance thereof to lease, sell or dispose of the same subject to any restrictions placed thereupon by law[.]” Similarly, defendant’s City Code contains provisions delineating the authority and procedure for the sale of “surplus real property and property used for public purposes.” Detroit City Code, Article VIII, § 14-8-1 through § 14-8-11. This right to sell is consistent with our determination that a fee interest was conveyed to defendant; however, we must reconcile defendant’s statutory right to sell property with any restrictions of conveyance contained in the Rackham deed. Plaintiffs contend the language of the Rackham deed precludes the conveyance of this property to a private entity. Specifically, plaintiffs argue that the wording unequivocally requires “[t]hat the said premises shall be perpetually maintained by the said party of the second part exclusively as a public golf course for the use of the public . .. .” (Emphasis added.) Plaintiffs assert that the use of the term “public” twice within this sentence or provision is indicative of the grantor’s intent that the property must remain publicly owned, thereby precluding any conveyance to a private entity. This reading of the deed language is consistent with the principle that “ ‘all the language of a deed must be harmonized and construed so as to make all of it meaningful....’” Carmody-Lahti, supra at 372 (citation omitted). Use of the term “public” before golf course indicates nonprivate ownership, with the further limitation that the property also is designated specifically “for the use of the public ... The language of the deed clearly evokes the intent of the Rackhams, as grantors, to restrict the use of the subject property. Specifically, the deed provides, in relevant part: [S]aid premises shall be perpetually maintained by said party of the second part exclusively as a public golf course for the use of the public under reasonable rules, regulations and charges to be established by second party.... First parties hereby reserve the right to restrict or limit the use of the premises hereby conveyed in such manner as to them shall seem proper in order to carry out and fulfill the purpose for which said course was built and improvements made. [Emphasis added.] This is further shown by the retention of a right of reverter and is consistent with our Supreme Court’s recognition that the Rackham “ ‘golf course was opened for the use of the public in August, 1924, being dedicated to the general public by the city of Detroit and operated as a governmental function supported by tax funds appropriated therefor and same has been used continuously since August, 1924, for public purposes.’ ” Detroit v Oakland Co, 353 Mich 609, 616; 92 NW2d 47 (1958), quoting a stipulation by the parties. As acknowledged by the Baldwin Court, “[t]he right of a municipality to alter the status and use of property conveyed to and accepted by it for a specific purpose” has frequently been the subject of dispute. Baldwin Manor, supra at 429. As noted by the Court: A distinction is to be made between cases where a public square is dedicated without restriction and cases where the dedication is restricted to a particular purpose. In the former case, any reasonable public use may be made of the square, but in the latter, it must be devoted to the particular purpose indicated by the dedicator. [Id. at 430.] In addition, “dedications made by individuals . . . are construed strictly according to the terms of the grant....” Id. Quoting with approval 26 CJS, Dedication, § 65, pp 154-155, the Baldwin Court noted: “[I]f a dedication is made for a specific or defined purpose, neither the legislature, a municipality or its successor, nor the general public has any power to use the property for any other purpose than the one designated, whether such use be public or private, and whether the dedication is a common-law or a statutory dedication; and this rule is not affected by the fact that the changed use may be advantageous to the public.” [Baldwin, supra at 430-431.] The only recognized exception to this rule is “ ‘under the right of eminent domain.’ ” Id. at 431. Given the unambiguous language used and the clearly stated intent of the grantors, we conclude that the Rackham deed contains an express covenant precluding the use of the subject property for any purpose other than a public golf course. Consequently, although defendant may sell the property, the trial court correctly indicated that it must first secure waivers from those retaining reversionary rights to the property. However, the trial court failed to recognize that additional restrictions requiring the golf course to remain public necessitated a further limitation on the type of entities to which defendant might convey the property. As a result, we determine that defendant may only sell the subject property to another public entity and not to a private entity, despite the retention of any conditions or assurances that the property would remain a golf course open to the public. Finally, defendant and plaintiffs dispute both the meaning and effect of the language in the Baker deed regarding use of the land. Specifically, plaintiffs contend the wording, “It is part of the consideration hereof that the land transferred by this deed shall be used only as a public park or golf course or for other similar purpose,” comprises a restrictive covenant intended to ran with the land. In contrast, defendant asserts that the language is merely a statement of purpose. Our focus is on “the intent of the parties as manifested in the plain language of the deed at issue ....” Carmody-Lahti, supra at 375. The Baker deed specifically indicates that it is a conveyance of land “in Fee Simple.” However, the instrument lacks a reverter clause or any words indicating the referenced provision pertaining to use of the property, which identifies it as a “condition.” “The absence of a reverter clause is ordinarily controlling against construction of a provision as a condition.” Clark, supra at 653. Typically, “where there is no reverter clause [in a deed], a statement of use is merely a declaration of the purpose of conveyance, without effect to limit the grant.” Quinn, supra at 151. Defendant contends that successors in interest are not bound by the statement of intent, citing Briggs v Grand Rapids, 261 Mich 11, 14; 245 NW 555 (1932), which held that “[t]here was no obligation on the part of the city to maintain the park in perpetuity.... [W]here there is no reverter clause, a statement of use is merely a declaration of the purpose of conveyance, without effect to limit the grant.’ ” (Citation omitted.) However, we note that Briggs is factually distinguishable because the property at issue was purchased for valuable consideration by the city and is not “a case where property was donated or dedicated for park purposes ....” Id. When ruling on the effect of the Baker deed, the trial court stated, in relevant part: [T]he facts in the case at bar indicate the language was intended to serve as a restriction and not merely, quote, “a declaration of the purpose of conveyance,” unquote, as in the Briggs case. It cannot be ignored that the property was originally platted for development and prior to the transfer to the Rackhams the plat was vacated by an action in this Court. The facts and records indicate the intention of Baker Land Company was that the property be used only as a public park or golf course. The absence of a reverter clause does not change the very clear intention as set forth in the deed. Defendant contends that the trial court erred by determining that the restriction in the Baker deed to the Rackhams constituted a restrictive covenant that ran with the land rather than merely a statement of purpose. “A covenant is a contract created with the intention of enhancing the value of property and is a valuable property right.” Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 491; 686 NW2d 770 (2004). Because such covenants are based in contract, the intent of the drafter is deemed controlling. Stuart v Chawney, 454 Mich 200, 210; 560 NW2d 336 (1997). We note as a recognized principle of construction regarding restrictive covenants that they are to be strictly construed against the party seeking their enforcement and that any doubts pertaining to their interpretation are to be resolved in favor of the free use of the property. O’Connor v Resort Custom Builders, Inc, 459 Mich 335, 341-342; 591 NW2d 216 (1999). Importantly, “when the intent of the parties is clearly ascertainable, courts must give effect to the instrument as a whole.” Village of Hickory Pointe Homeowners Ass’n v Smyk, 262 Mich App 512, 515-516; 686 NW2d 506 (2004). Relying on prior rulings of our Supreme Court, this Court has previously determined that restrictive covenants are to be construed in connection with the surrounding circumstances, which the parties are supposed to have had in mind at the time they made it, the location and character of the entire tract of land, the purpose of the restriction, whether it was for the sole benefit of the grantor or for the benefit of the grantee and subsequent purchasers, and whether it was in pursuance of a general building plan for the development and improvement of the property. [Webb v Smith (After Remand), 204 Mich App 564, 570; 516 NW2d 124 (1994), quoting Brown v Hojnacki, 270 Mich 557, 560-561; 259 NW 152 (1935) (additional citations and internal quotation marks omitted).] In ascertaining whether restrictive covenants run with the land, our Supreme Court has indicated: The test as to whether a covenant runs with the land or is merely personal, is whether the covenant concerns the thing granted and the occupation or enjoyment of it, or is a collateral and personal covenant not immediately concerning the thing granted. If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing granted or demised and the act to be done or permitted must concern the land or the estate conveyed. In order that a covenant may run with the land its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment. [Greenspan v Rehberg, 56 Mich App 310, 321; 224 NW2d 67 (1974) (citations and internal quotation marks omitted).] Applying the above definitions to the factual circumstances of this case, we concur with the trial court’s determination that the language of the Baker deed, restricting use of the property to a “public park or golf course or for other similar purpose,” despite the absence of a reversionary clause or other conditional language, comprises a restrictive covenant that runs with the land. As pointed out by the trial court, the property conveyed by the Baker deed; which ultimately became the Rackham Golf Course, was originally platted as part of a residential development. The Baker Land Company specifically instituted legal proceedings to vacate that portion of the plat in order to develop the land as a public park or golf course. The language of the deed, coupled with the actions taken to distinguish this plat, expressly indicates the Baker Land Company’s intention that the property not be developed for residential use, which would enhance the value of the surrounding area. Specifically, the restriction on use denoted in the Baker deed reflects the “pursuit] of a general building plan for the development and improvement of the property.” Webb, supra at 570 (citations and internal quotation marks omitted). Because we determine that the restriction concerns both the land conveyed and its future use, it comprises a covenant that runs with the land. As a result, the obligation to maintain the restricted use of the property passes to subsequent owners, Greenspan, supra at 321, and, thus, precludes the Rackhams, defendant, and future owners' from using the land for any purpose other than as a public golf course. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. In addition, the trial court denied the motion of Premium Golf, LLC, which is not a party to this appeal, to intervene in the action. Defendant was to receive $10,000 for each single-family detached lot; $8,000 for each cluster-style home; and $5,000 for each multiple-family dwelling unit, defined as including eight or more units in each building. Plaintiff Steinberg owns a home in the Huntington Woods subdivision that does not abut the golf course. We note that the cited provision is now contained in 64 CJS, Municipal Corporations, § 1561, p 719.

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PER CURIAM. In this wrongful-death medical-malpractice action, plaintiff appeals as of right a jury verdict and court judgment of no cause of action. We affirm. I Plaintiffs decedent sought treatment from defendant Fenton Medical Center on July 24, 2001. He had symptoms of pain in the left side of his chest, left arm, and neck. Defendant Deborah Wilson, a licensed physician’s assistant supervised by defendant Deborah Duncan, M.D., a family-practice physician, examined him. She found that his pulse and blood pressure were normal, and he was not short of breath, but he had sounds (i.e., “rales”) in his lungs. He also had tender ness in his chest wall, and his chest pain did not increase with exertion. She ordered a chest x-ray and electrocardiogram (EKG). The EKG was normal, but the chest x-ray showed that some air sacs in his lungs had collapsed. Wilson diagnosed the decedent as having pneumonia and prescribed an antibiotic. Two days later, the decedent complained of a severe headache, which made him feel like his head was bursting. An ambulance was called, but the decedent died before he arrived at the hospital. No autopsy was performed before the decedent’s interment. His remains were exhumed a year later for a partial autopsy of his lungs and heart. The pathologist found blood clots in the decedent’s lungs, but the parties’ experts disputed whether these clots formed before or after his death. Plaintiff brought this action alleging that the decedent’s recent history of deep vein thrombosis should have alerted defendants to the possibility of a pulmonary embolism (blood clot or clots blocking the flow of blood to the lungs) or a cardiac problem requiring urgent care. Plaintiff alleged that a physician’s assistant and a family-practice physician following the appropriate standard of care would have immediately hospitalized the decedent for treatment with blood-thinner medication and additional tests to confirm or rule out an acute pulmonary or cardiac condition. Defendants maintained that the decedent did not show any indications of a life-threatening condition when Wilson examined him, and they disputed plaintiffs claim that the decedent died from a pulmonary or cardiac condition caused by blood clots. II Plaintiff first argues that the trial court erred by denying her motion to strike Ronald Nelson as defen dants’ expert witness regarding the appropriate standard of care for a physician’s assistant. Plaintiff argues that Nelson was not qualified as an expert under MCL 600.2169(1) because his supervising physician specialized in internal medicine and Wilson’s supervising physician, Dr. Duncan, specialized in family practice. This issue presents a question of statutory interpretation, which we review de novo. Tomecek v Bavas, 276 Mich App 252, 260; 740 NW2d 323 (2007). MCL 600.2169(1) provides: In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose hehalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. (ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty. (c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or hoth of the following: (i) Active clinical practice as a general practitioner. (ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed. Defendants contend that the terms “specialist” and “general practitioner” refer only to physicians and that the criteria set forth in § 2169(l)(a) and (c) therefore apply only to physicians, not physician’s assistants or other nonphysician health professionals. The statute does not define the terms “specialist” or “specialty.” In Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006), our Supreme Court construed the term “specialty” to mean “a particular branch of medicine or surgery in which one can potentially become board certified.” In Cox v Flint Bd of Hosp Managers, 467 Mich 1; 651 NW2d 356 (2002), our Supreme Court held that MCL 600.2912a, which sets forth the applicable standards of care for general practitioners and specialists in medical-malpractice actions, does not establish a statutory standard of care for nurses. The Court held that the terms “general practitioner” and “specialist” apply only to physicians; therefore, nurses are subject to the common-law standard of care. Id. at 18-20. In Brown v Hayes, 270 Mich App 491, 499-500; 716 NW2d 13 (2006), rev’d in part on other grounds 477 Mich 966 (2006), this Court held that under Cox, the terms “specialist” and “general practitioner” apply only to physicians, and therefore § 2961(l)(a) and (c) are not applicable in determining the qualifications necessary to testify regarding the appropriate standard of care for an occupational therapist. Id. at 499-500. The trial court’s denial of plaintiffs motion to exclude Nelson’s testimony is consistent with this Court’s decision in Brown, and with the Supreme Court’s construction of “specialty” as “a particular branch of medicine or surgery in which one can potentially become board certified” in Woodard, supra at 561. Section 2961(1)(a) and (c) apply, respectively, to specialists and general practitioners, but these terms refer only to physicians, not other health professionals. A physician’s assistant is not a physician; therefore, the criteria set forth in § 2961(1)(a) and (c) do not apply. Brown, supra. Further, the statutes pertaining to licensing for physician’s assistants do not recognize board certification in any specialty. See MCL 333.17060 through 333.17082. A physician’s assistant cannot be a specialist in accordance with the Supreme Court’s construction of that term in Woodard, supra. It is significant that a physician’s assistant need have no special certification to work under a physician who is a specialist. Both Wilson and Nelson were eligible to work under either a family-practice physician or an internal-medicine physician. Plaintiff argues that notwithstanding the foregoing, a different result must obtain in the instant case because MCL 333.17078(2), a statute pertaining to physician’s assistants, states that a physician’s assistant “shall conform to minimal standards of acceptable and prevailing practice for the supervising physician.” We disagree. While this provision states the standard of care applicable to a physician’s assistant, and an expert witness must demonstrate familiarity with that stan dard to be qualified to offer expert testimony, it does not follow that physician’s assistants are specialists under § 2961(1)(a). Thus, neither § 2169(1)(a) nor § 2169(1)(c) apply to defendant’s choice of an expert witness regarding the appropriate standard of care for Wilson; rather, the expert’s qualifications are governed by § 2169(1)(b), which applies to both physicians (specialists and general practitioners) and other health professionals. Brown, supra at 500. During the year preceding the decedent’s death, Nelson devoted a majority of his professional time to active clinical practice as a physician’s assistant, the same health profession to which Wilson belongs. Accordingly, he was qualified as an expert witness pursuant to § 2169(1)(b)(i). hi Plaintiff next argues that the trial court erred by denying her motion to strike Dr. James Setchfield’s testimony opining that the decedent probably died from an “intracranial process.” Plaintiff argues that this testimony was improper because it was speculative and lacked foundation, contrary to MRE 702. She also complains that defendants failed to disclose Dr. Setchfield as an expert witness on the issue of causation and that he was not qualified to offer this opinion. We review preserved evidentiary issues for an abuse of discretion, Woodard, supra at 557, and unpreserved issues for plain error affecting plaintiffs substantial rights, Hilgendorf v St John Hosp & Med Ctr Corp, 245 Mich App 670, 700; 630 NW2d 356 (2001); MRE 103(a)(1). At trial, plaintiff cross-examined Dr. Setchfield on these issues and did not challenge his testimony until he was excused from the stand. At that point, plaintiff objected to the testimony on the ground that it was speculative, but did not object on the other grounds asserted on appeal. The trial court ruled: It can’t be proved or it can’t be disproved is the way he put it. He did have a medical basis at least in his mind for stating that opinion. I actually think it was improper, but I think as well that it is a theory that he supported with the record and I think [plaintiffs counsel] cross-examined him on the issue, and I am not going to strike it from the jury’s consideration. I don’t think it’s worth much, but I am not going to tell them that. Plaintiff never objected on the basis that defendant failed to alert plaintiff that Dr. Setchfield would offer causation testimony. Rather, plaintiff cross-examined Dr. Setchfield on his deposition testimony that he had no opinions on causation. Having opted not to seek the trial court’s intervention on this basis, but rather to present it to the jury as an issue of credibility, plaintiff cannot now claim that the trial court erred by not striking the testimony on that basis. We find no plain error affecting plaintiff s substantial rights. Hilgendorf, supra at 700. Similarly, we review the court’s decision to let the testimony stand in the context that plaintiff failed to object when the testimony was offered and chose instead to cross-examine on the issue, only to later move to strike the testimony on the basis that it was too speculative. The trial court did not abuse its discretion by ruling that at that point, in light of the fact that the witness offered a medical basis for his opinion, relating it to the decedent’s symptoms, and also clearly acknowledged that it could not be proved or disproved, the court would leave it to the jury to decide what weight to give to the testimony. Woodard, supra at 557. IV Plaintiff also argues that the trial court erroneously permitted Dr. James Martin to testify regarding the decedent’s cause of death. We reject this claim for similar reasons. Defense counsel questioned Dr. Martin regarding the care given the decedent on July 24, 2001. Dr. Martin testified that he found nothing inappropriate in the treatment. Defense counsel continued: Q. Can you see anything on the 24th that was going to be a predictor of Mr. Wolford’s death some three days later? A. Nothing there. No. Nothing. Q. And today is there any way to predict what caused his death? A. Autopsy. Q. Okay. A. Complete autopsy. Q. And we only have an autopsy of the lungs and the heart. A. That’s what I understand. Q. Do those autopsy findings predict his death or tell us why he died? A. No. Plaintiffs counsel then objected: “Objection. Foundation. He’s not a pathologist. He has not established that within a year — in 2001 or a year prior that he was doing coronary work.” The court overruled the objection. Defense counsel continued and told the witness that counsel was asking him to answer in his capacity as a family practitioner. Counsel then inquired whether Dr. Martin reviewed autopsy results in his practice and asked a series of questions regarding whether patients who die from heart attacks and pulmonary embolisms have severe headaches immediately before death. Defense counsel then asked Dr. Martin whether, from a clinical standpoint, the fact that the decedent had a severe headache immediately before dying was significant. Dr. Martin answered that the decedent’s massive headache caused him to “wonder if there isn’t something cerebral going on, in his brain.” Defense counsel continued: Q. How can something in your brain kill you? A. You can have several things. You can have a regular artery rupture and bleed or you can have an aneurysm. At the base of [sic] brain there is a little circle of vessels. Eemember, if you’re old enough to remember the old tires that would get a balloon on the side, well, that’s sort of what an aneurysm is. It’s a bulging out in a weak spot and when that ruptures that is like turning a fire hose loose in your living room and squirting your TV and your electrical and sound equipment, it goes out. That’s what happened to Mr. Wolford. It sounds like he had that. Q. Is there any — what else can cause sudden death? A. Sudden death? Q. Sudden death. A. Something cerebrally in the brain, a heart attack, you could have an arrhythmia, and a big pulmonary embolus. Those cause sudden death. Q. Anything other than a brain issue that you can think of that would cause sudden death in Mr. Wolford from your review? A, You have to restate it. I couldn’t hear you. Q. Is there anything that you’ve seen about this case that points to the heart having caused the sudden death? A. No. Q. How about a [pulmonary embolism]? A. No. Plaintiffs counsel made no objection to the foregoing testimony, except the initial objection set forth above regarding the doctor’s response to the autopsy question. We conclude that plaintiff failed to preserve the challenges raised on appeal. Our review is thus for plain error affecting plaintiff s substantial rights. Hilgendorf, supra at 700; MRE 103(a)(1). We reject plaintiffs argument that the trial court’s ruling on the initial objection “permitted Dr. Martin to ramble on for three pages as to the possible causes of Mr. Wolford’s death.” Nothing precluded plaintiff from objecting on the basis that Dr. Martin was not identified as a causation witness or that his testimony was speculative. Further, the court’s initial ruling on the objection to the question whether the autopsy predicted the decedent’s death or told why he died did not foreclose objection to the testimony plaintiff now challenges on appeal. We find no plain error affecting plaintiffs substantial rights. Hilgendorf, supra at 700. Affirmed. Of course, Nelson’s testimony was also subject to MRE 702. However, plaintiff does not challenge his testimony on this basis.

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PER CURIAM. Defendant, the Bureau of Construction Codes and Fire Safety (the Bureau), appeals by leave granted from the trial court’s final order granting declaratory and injunctive relief to plaintiff Guardian Environmental Services, Inc. We affirm. This declaratory judgment action arose from a dispute between plaintiff, a licensed mechanical contractor, and the Bureau, which was charged with the enforcement of the Electrical Administrative Act (EAA), MCL 338.881 et seq. In August 2004, plaintiff contracted with the Allen Park School District to perform renovation work in five of the district’s school buildings. Specifically, plaintiff was hired to replace existing pneumatic energy management systems with direct digital control energy management systems in four of the school buildings and to replace a hybrid energy management system with a direct digital control energy management system in the fifth school building. Replacement of the existing energy management systems required plaintiff to install low-voltage wiring and communications network cabling. Plaintiff intended to perform this work itself instead of subcontracting the work to a licensed electrical contractor. Plaintiff maintained that because it was a licensed mechanical contractor and because the work involved the “replacement” and “upgrading” of energy management systems that control existing mechanical systems, MCL 338.887(3)(i) permitted it to perform this work without an electrical contractor’s license. On March 17, 2005, William Fox, a state inspector for Wayne County, ordered plaintiff to cease installing low-voltage wiring at the Allen Park project. Concerned that Fox’s action would affect its other projects, including work that it was performing for the Warren Consolidated School District, plaintiff contacted Virgil Monroe, chief of the Bureau’s electrical division. Monroe determined that MCL 338.887(3)(i) did not allow plaintiff to install low-voltage wiring and forwarded to Chuck Goerlitz, plaintiffs manager, a May 1998 bulletin authored by Tom Kriegish, the former chief of the electrical division, which set forth the Bureau’s position regarding what work was permissible without an electrical contractor’s license pursuant to MCL 338.887(3)(i). Goerlitz requested an appeal of Monroe’s decision that plaintiff was not allowed to install the low-voltage electrical wiring. He also noted that the term “existing mechanical systems” required clarification and requested a statement of the Bureau’s position on the meaning of the phrase. In response to Goerlitz’s communications, Monroe confirmed that the May 1998 article set forth the Bureau’s “complete and final position” on work that may be performed without an electrical contractor’s license pursuant to MCL 338.887(3)(i). With respect to the meaning of the phrase “existing mechanical systems,” Monroe explained: Existing mechanical systems are not defined in the Act. According to Webster’s New World Dictionary, Third College Edition, “Existent” is defined as 1 — having existence or being; existing, 2 — existing now; present; immediate. Using this definition, the term “existing mechanical systems” would be systems existing at the time of service, repair, replacement, etc. 7 (3) (i) would cover these installations. It would not include systems removed then changed to a different type of system, such as, the replacement of an existing pneumatic controlled system with a new electrical controlled system. In this instance a licensed electrical contractor would be required. This is the final position of the Electrical Division. Plaintiff requested that the Electrical Administrative Board overrule Monroe’s decision. However, at its October 7, 2005, meeting, the Electrical Administrative Board unanimously upheld Monroe’s interpretation of MCL 338.887(3)(i). Plaintiff then petitioned the Michigan Department of Labor and Economic Growth for declaratory relief, which the department denied. On February 27, 2006, plaintiff filed an action seeking a declaration from the trial court that an exception to the requirement that all electrical wiring be performed by an entity holding an electrical contractor’s license set forth under MCL 338.887(3)(i) applied to the work plaintiff sought to perform, namely, the replacement of an existing pneumatic energy management system with a direct digital control energy management system. The trial court granted plaintiff’s request for declaratory and injunctive relief on August 7, 2006. On appeal, the Bureau argues that the trial court’s interpretation of MCL 338.887(3)(i) was contrary to the plain language of the statute. We disagree. We review de novo both questions of law arising from a declaratory judgment action and questions of statutory interpreta tion. Green Oak Twp v Munzel, 255 Mich App 235, 238; 661 NW2d 243 (2003); Dessart v Burak, 252 Mich App 490, 494; 652 NW2d 669 (2002), aff'd 470 Mich 37 (2004). We review the trial court’s decision to grant or deny declaratory relief for an abuse of discretion. Gauthier v Alpena Co Prosecutor, 267 Mich App 167, 170; 703 NW2d 818 (2005). In the absence of fraud, findings of fact made or adopted by an administrative agency are conclusive on appeal if they are supported by competent evidence on the record; however, the decision of an administrative agency may be reversed if the agency’s decision was based on erroneous legal reasoning or if the agency operated within the wrong legal framework. Schmaltz v Troy Metal Concepts, Inc, 469 Mich 467, 471; 673 NW2d 95 (2003). In interpreting a statute, the fundamental task of a court is to “discern and give effect to the Legislature’s intent as expressed in the words of the statute.” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). Where the plain and ordinary meaning of the statutory language is clear, further judicial construction is unwarranted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). See also DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). Judicial construction of a statute is proper only where reasonable minds could differ about the meaning of the statute. Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998). We accord to every word or phrase of a statute its plain and ordinary meaning, unless a term has a special, technical meaning or is defined in the statute. Casco Twp v Secretary of State, 472 Mich 566, 593 n 44; 701 NW2d 102 (2005); MCL 8.3a. In ascertaining the plain and ordinary meaning of undefined statutory terms, we may rely on dictionary definitions. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). MCL 338.887 provides, in pertinent part: (1) Except as otherwise provided in this act or in subsection (3), a person, firm, or corporation shall not engage in the business of electrical contracting unless the person, firm, or corporation has received from the board or from the appropriate municipality an electrical contractor’s license. (2) Except as otherwise provided in this act or in subsection (3), a person, other than a person licensed under this act and employed by and working under the direction of a holder of an electrical contractor’s license, shall not in any manner undertake to execute any electrical wiring. (3) A license under this act is not required in the execution of the following classes of work: (i) Work performed by mechanical contractors licensed in classifications listed in section 6(3)(a), (b), (d), (e), and (f) of the Forbes mechanical contractors act, 1984 PA 192, MCL 338.976, plumbing contractors licensed under 1929 PA 266, MCL 338.901 to 338.917, and employees of persons licensed under those acts while performing maintenance, service, repair, replacement, alteration, modification, reconstruction, or upgrading of control wiring circuits and electrical component parts within existing mechanical systems defined in the mechanical and plumbing codes provided for in the Stille-DeRossett-Hale single state construction code act, 1972 PA 230, MCL 125.1501 to 125.1531, including, but not limited to, energy management systems, relays and controls on boilers, water heaters, furnaces, air conditioning compressors and condensers, fan controls, thermostats and sensors, and all interconnecting wiring associated with the mechanical systems in buildings which are on the load side of the unit disconnect, which is located on or immediately adjacent to the equipment, except for life safety systems wiring. Here, each party argues that the plain language of the statute supports its interpretation of MCL 338.887(3)(i). Plaintiff contends that under the plain meaning of MCL 338.887(3)(i), a mechanical contractor may replace an energy management system within an existing mechanical system. The Bureau, however, asserts that the statutory exception set forth under MCL 338.887(3) (i) unambiguously allows mechanical contractors only to replace wiring and other electrical components within existing energy management systems. In making this argument, the Bureau contends that the statute would allow a mechanical contractor to replace a pneumatic energy management system with another pneumatic energy management system. The Bureau also contends that the statutory exception provided under MCL 338.887(3)(i) allows plaintiff to remove a direct digital control energy management system, but it does not permit plaintiff to replace an existing pneumatic energy management system with a direct digital control energy management system. However, the Bureau’s proposed interpretation of the term “replacement” imposes the additional, extra-statutory requirement that the substituted system must be of like kind. Instead, we conclude that the Legislature intended to allow plaintiff to replace an existing pneumatic or hybrid energy management system with a direct digital control energy management system within an existing mechanical system. Random House Webster’s College Dictionary (1997) defines “replacement” as “the act of replacing” and as “a person or thing that replaces another,” and defines “replace” as “to assume the function of; substitute for: to replace gas lights with electric lights.” Especially in light of the example of “replace” included in this definition, we conclude that the proper interpretation of “replacement” as used in MCL 338.887(3)(i) includes the abandonment or removal of a pre-existing defective or obsolete pneumatic energy management system and the installation of a new direct digital control system for an existing mechanical system. The statutory exception included in MCL 338.887(3)(i) provides that a mechanical contractor may “performG maintenance, service, repair, replacement, alteration, modification, reconstruction, or upgrading of control wiring circuits and electrical component parts within existing mechanical systems ....” According to the statute, an example of the “electrical component parts” or “control wiring circuits” “include[es], but [is] not limited to, energy management systems ....” MCL 338.887(3)(i). Thus, an energy management system is one example of an electrical component part of a pre-existing mechanical system that a licensed mechanical contractor is permitted to replace. The Legislature’s choice of the term “replacement” reflects its intent that an electrical contractor’s license is not required for the removal of a pneumatic energy management system and the installation of a direct digital control energy management system in a pre-existing mechanical system. We conclude that the trial court’s decision that the exception set forth under MCL 338.887(3)(i) allowed plaintiff to perform the disputed work was based on a correct, plain-language interpretation of the statute. Next, the Bureau argues that the trial court exceeded its authority when it improperly declined to defer to the Bureau’s interpretation of the statute. We disagree. An administrative agency’s interpretation of a statute it is charged with enforcing is entitled to great weight and we will overrule the interpretation only if it is clearly erroneous. Schmaltz, supra at 471. However, if an administrative agency’s interpretation of a statute is contrary to the statute’s plain meaning, the intent of the Legislature as expressed in the statutory language must prevail. By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 49-50; 703 NW2d 822 (2005). The Bureau asserts that the interpretation of a statute by an agency charged with enforcing the statute should not be overruled in the absence of “cogent reasons.” See Oakland Schools Bd of Ed v Superintendent of Pub Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977), quoting United States v Moore, 95 US 760, 763; 24 L Ed 588 (1877). However, an agency’s interpretation of a statute contrary to the plain language of the statute constitutes a compelling, “cogent” reason for overruling the agency’s clearly erroneous interpretation. See Consumers Power Co v Pub Service Comm, 460 Mich 148, 157 n 8; 596 NW2d 126 (1999) (“An agency interpretation cannot overcome the plain meaning of a statute.”). Mindful that one branch of government may not exercise powers conferred to other branches of government, Const 1963, art 3, § 2, the Bureau’s contention that the trial court’s failure to defer to its construction of MCL 338.887(3)(i) violated the “separation of powers” doctrine ignores the significant concepts of checks and balances and judicial review. The judiciary alone is the final authority on questions of statutory interpretation and must overrule administrative interpretations that are contrary to clear legislative intent. Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich 479, 491 n 23; 697 NW2d 871 (2005). See also Chevron USA Inc v NRDC, Inc, 467 US 837, 843 n 9; 104 S Ct 2778; 81 L Ed 2d 694 (1984). Because the Bureau’s construction of MCL 338.887(3)(i) was contrary to the intent of the Legislature, as expressed in the unambiguous language of the statute itself, a cogent reason existed for the trial court not to defer to the Bureau’s erroneous interpretation. Accordingly, the trial court neither violated the “separation of powers” doctrine nor exceeded its authority in rejecting the Bureau’s invitation to defer to its construction of MCL 338.887(3)(i). Affirmed. The Bureau of Construction Codes and Fire Safety is part of the Michigan Department of Labor and Economic Growth. The question presented by the parties on appeal is one of statutory construction, the parties did not present extensive evidence regarding the nature, purpose, and makeup of the energy management systems that plaintiff planned to install, and the trial court did not engage in significant fact-finding. Therefore, we accept the allegations in the complaint as true for purposes of presenting pertinent background facts in this opinion. Plaintiff subcontracted the high-voltage wiring associated with the project to a licensed electrical contractor. The May 1998 article provides in relevant part: Recently, several individuals have asked bureau staff whether a mechanical contractor or authorized master plumber may perform work relating to electrical installations, without an electrical license. Existing pneumatic control systems may be modified, upgraded, or replaced by a mechanical contractor. However, when an existing pneumatic system is abandoned, and replaced with a new electrical control system, it must be installed by a licensed electrical contractor. The trial court’s order stated, in pertinent part: [P]ursuant to the exemption provided in MCL 338.887(3)(i), [plaintiff], a licensed mechanical contractor, may install low voltage electrical wiring when replacing, modifying or upgrading energy management systems within existing mechanical systems, including, but not limited to, the replacement of a pneumatic control energy management system with a direct digital control energy management system. Our Supreme Court has granted leave to appeal in another case involving the issues of: “(1) what legal framework appellate courts should apply to determine the degree of deference due an administrative agency in its interpretation if a statute within its purview; [and] (2) whether the Court of Appeals erred in deferring to the Michigan Public Service Commission’s interpretation of MCL 484.2502(1) (a)... .” SBC Michigan v Pub Service Comm., 480 Mich 977 (2007). See also In re Complaint of Rovas Against Ameritech Michigan, 276 Mich App 55; 740 NW2d 523 (2007). Our Supreme Court’s decision in SBC Michigan could alter the common law regarding the deference that must be given to agency interpretations. However, under existing law, deference to an administrative agency’s interpretation of a statute is proper only where reasonable minds could differ regarding the meaning of the statute, i.e., the statutory language is ambiguous. By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 49-50; 703 NW2d 822 (2005). Further, pursuant to the language of this Court in By Lo Oil Co, if an administrative agency’s interpretation of a statute is contrary to the plain meaning of the statute, the agency’s interpretation is clearly erroneous. Id. at 49-50. Where, as here, the statutory language is unambiguous, the statute must be applied as written. Pohutski, supra at 683.

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O’CONNELL, J. In this no-fault case involving repayment for services rendered, plaintiff appeals by leave granted a circuit court order that reversed a district court order denying defendant’s motion for partial summary disposition. We reverse the circuit court order, reinstate the district court order, and remand to the district court for further proceedings. We address plaintiffs jurisdictional question first. Plaintiff argues that whether plaintiffs facility and staff members are properly licensed to provide the services rendered is a regulatory matter that should be considered first by the Board of Psychology, because it has specialized knowledge and, therefore, is better suited to decide whether the services fall within the practice of psychology and whether plaintiff falls within an exception to the licensing requirement. We disagree. We review de novo the applicability of the primary-jurisdiction doctrine because it is a question of law. SPECT Imaging, Inc v Allstate Ins Co, 246 Mich App 568, 580; 633 NW2d 461 (2001). Primary jurisdiction is applicable “when a claim may be cognizable in a court but initial resolution of issues within the special competence of an administrative agency is required.” Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 197; 631 NW2d 733 (2001) (citation omitted). Although the doctrine’s applicability is determined by “its own facts” on a case-by-case basis, we utilize the following three-pronged test: First, a court should consider to what extent the agency’s specialized expertise makes it a preferable forum for resolving the issue. Second, the court should consider the need for uniformity and consistency in resolution of the issue. Third, it should consider whether judicial resolution of the issue will have an adverse effect on the agency’s performance of its regulatory responsibilities. [SPECT, supra at 580 (quotation marks and citation omitted.] In the present case, we find that the district court was not required to defer to the board. The district court, not the board, has original subject-matter jurisdiction over a claim for no-fault benefits. Id. Defendant was not seeking to have plaintiff and its staff members’ licenses revoked, an issue squarely within a regulatory agency’s sole discretion, see Attorney General v Diamond Mortgage Co, 414 Mich 603, 610-611; 327 NW2d 805 (1982), but rather sought the interpretation and application of a statute regarding no-fault benefits. The board does not have specialized knowledge that would make it the preferable forum. The Legislature defined the scope of psychology and the scope of the other fields in which plaintiffs staff members are licensed to practice. The courts are just as capable of interpreting those statutes as the board. Additionally, “requiring the lower court to decide whether these individuals violated the Public Health Code to the extent that plaintiff is unable to recover expenses under the no-fault act would not result in a ‘pervasive regulatory scheme’ being ‘thrown out of balance.’ ” SPECT, supra at 581. Because we find that the district court properly exercised jurisdiction, we move on to plaintiffs claim that the circuit court improperly reversed the district court’s order and granted partial summary disposition to defendant to the extent any service fell with the definition of “biofeedback techniques.” We agree. We review de novo a trial court’s grant of summary disposition. Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 725; 613 NW2d 378 (2000). A motion under MCR 2.116(0(10) tests the factual support of a plaintiffs claim. Id. at 725-726. Summary disposition is only appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 726. “In reviewing the trial court’s decision, we must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, and, giving the benefit of the doubt to the nonmoving party, we must determine whether a genuine issue of material fact exists to warrant a trial.” Id. Issues of statutory construction are also reviewed de novo. Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 396; 605 NW2d 685 (1999). Under the no-fault act, an injured insured is entitled to the payment of personal protection insurance (PIP) benefits for “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a). However, PIP benefit payments are limited under MCL 500.3157: “A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance... may charge a reasonable amount for the products, services and accommodations rendered.” (Emphasis added.) The issue is whether the services provided by plaintiff were “lawfully rendered” given plaintiffs alleged violations of the Public Health Code (PHC), MCL 333.1101 et seq., and the Professional Service Corporation Act (PSCA), MCL 450.211 et seq. “[Ojnly treatment lawfully rendered, including being in compliance with licensing requirements, is subject to payment as a no-fault benefit.” Cherry v State Farm Mut Automobile Ins Co, 195 Mich App 316, 320; 489 NW2d 788 (1992). However, services might be lawfully rendered even if a particular service is “excluded” from the scope of the provider’s licensed field: “ ‘The purpose of the licensing statute is not to prohibit the doing of those acts that are excluded from the definition of [the field of practice], but to make it unlawful to do without a license those things that are within the definition.’ ” Hoffman v Auto Club Ins Ass’n, 211 Mich App 55, 65; 535 NW2d 529 (1995), quoting Attorney General v Beno, 422 Mich 293, 303; 373 NW2d 544 (1985). An excluded activity would be considered unlawful if it constituted the practice of another field without a license. Hoffman, supra at 65. However, “merely because [certain] activities may constitute the practice of [one specialized field, or even several], . . . does not thereby inevitably mean that they are not within the scope of [another].” Beno, supra at 332. Indeed, the PHC provides that its provisions “shall be liberally construed for the protection of the health, safety, and welfare of the people of this state.” MCL 333.1111(2). To determine if the circuit court properly determined that neurobiofeedback (NBF) falls exclusively within the scope of psychology, we must examine the various statutes under which plaintiff and its staff are licensed and compare them with other provisions of the PHC. Under the PHC, those licensed to practice medicine have the broadest grant of authority and provide services related to a patient’s physical or mental health. MCL 333.17001(d). The following parameters are provided with respect to the practice of psychology: (a) “Psychologist” means an individual licensed under this article to engage in the practice of psychology. (b) “Practice of psychology” means the rendering to individuals, groups, organizations, or the public of services involving the application of principles, methods, and procedures of understanding, predicting, and influencing behavior for the purposes of the diagnosis, assessment related to diagnosis, prevention, amelioration, or treatment of mental or emotional disorders, disabilities or behavioral adjustment problems by means of psychotherapy, counseling, behavior modification, hypnosis, biofeedback techniques, psychological tests, or other verbal or behavioral means. The practice of psychology shall not include the practice of medicine such as prescribing drugs, performing surgery, or administering electro-convulsive therapy. [MCL 333.18201(1) (emphasis added).] Although several of the staff members at plaintiffs clinic have master’s degrees in psychology and limited licenses, the statute specifically provides for two limitations placed on such a license, one of which is “supervision by a psychologist who has a license other than a limited license.” MCL 333.18223(2). As there are no fully licensed psychologists at plaintiffs clinic to supervise the staff members, no staff member, even those with a master’s degree in psychology and a limited license, may practice psychology. Therefore, NBF can only be “lawfully rendered” if it falls within the scope of the other licenses of plaintiffs staff and is not exclusively within the scope of psychology. None of the “means” enumerated in MCL 333.18201(b) is defined in the statutes or administrative rules, so we may consult dictionary definitions of those terms. Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006). “ ‘[Technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.’ ” Id., quoting MCL 8.3a. Because the terms involve the provision of health care and the terms may have acquired a “peculiar and appropriate meaning” in fields involving health care, it is appropriate to look to medical dictionaries. Woodard, supra at 561. “Psychotherapy” is defined in The American Heritage Medical Dictionary (2007) as “the treatment of mental and emotional disorders through the use of psychological techniques designed to encourage communication of conflicts and insight into problems, with the goal being personality growth and behavior modification.” “Behavior modification” is defined as “the use of basic learning techniques, such as conditioning biofeedback, reinforcement, or aversion therapy, to teach simple skills or alter undesirable behavior.” Id. “Biofeedback,” to which NBF is related, given its name, is defined as follows: The process of making involuntary and unconscious hodily functions (as the heartbeat) perceptible to the senses (of vision and hearing) in order to control them by conscious mental effect. [Bender, Attorneys’ Dictionary of Medicine (2000).] [A] method of learning to modify a particular hody function, as temperature, by monitoring it with the aid of an electronic device. [Random House Webster’s College Dictionary (1997).] There are also specific definitions for NBF, also known as neurotherapy and EEG biofeedback: Neurofeedback ... , also called neurotherapy, neurobiofeedback or EEG biofeedback (EEGBF) is a therapy technique that presents the user with realtime feedback on brainwave activity, as measured by electrodes on the scalp, typically in the form of a video display, sound or vibration. The aim is to enable conscious control of brainwave activity. If brain activity changes in the direction desired by the therapist, a positive “reward” feedback is given to the individual, and if it regresses, either a negative feedback or no feedback is given (depending on the protocol). Rewards can be as simple as a change in the pitch of a tone or as complex as a certain type of movement of a character in a video game. This experience could be called operant conditioning for internal states. [The Free Encyclopedia <http:// encyclopedia.thefreedictionary.com/Neurofeedback> (accessed May 23, 2008).] Under this definition, it may be that the NBF procedure utilized by plaintiff is a “biofeedback technique.” But, under the various additional definitions, it is also clear that “biofeedback” is a subset of “behavior modi fication,” which in turn is a subset of “psychotherapy.” We find that NBF clearly falls within the practice of psychology because it falls within the definitions of several different “means” in MCL 333.18201(b). However, this does not answer the question whether NBF is exclusively within the scope of the practice of psychology. Indeed, we find nothing in the statutory language that specifically restricts NBF to the practice of psychology. “A court must not judicially legislate by adding into a statute provisions that the Legislature did not include.” In re Wayne Co Prosecutor, 232 Mich App 482, 486; 591 NW2d 359 (1998). Initially, we note that MCL 333.18214 provides several exemptions from the licensing requirement to practice psychology: (4) This part does not prohibit a certified, licensed, registered, or otherwise statutorily recognized member of any profession including a lawyer, social worker, school counselor or marriage counselor from practicing his or her profession as authorized by law. (5) This part does not prohibit a clergyman, professional educator, or professional counselor, including an alcoholism or drug abuse counselor, whose practice may include preventative techniques, counseling techniques, or behavior modification techniques from practicing his or her profession consistent with his or her training and with a code of ethics for that respective profession. [Emphasis added.] Both Steven White and James White are licensed registered nurses, and James White is also a licensed nurse practitioner. The practice of nursing is defined as the systematic application of substantial and specialized knowledge and skill, derived from the biological, physical and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability. [MCL 333.17201(1)(a) (emphasis added).] James White is also a licensed social worker, and Donald Deering is a licensed social service technician. MCL 333.18501(1) defines the practice of social work: (g) “Practice of social work at the master’s level” means, subject to subsection (5), all of the following applied within the scope of social work values, ethics, principles, and advanced skills: (i) The advanced application of the knowledge of human development and behavior and social, economic, and cultural institutions. (ii) The advanced application of macro social work processes and systems to improve the social or health services of communities, groups, or organizations through planned interventions. (Hi) The application of specialized clinical knowledge and advanced clinical skills in the areas of assessment, diagnosis, and treatment of mental, emotional, and behavioral disorders, conditions, and addictions. Treatment methods include the provision of advanced social work case management and casework and individual, couple, family, or group counseling and psychotherapy whether in private practice or other settings. (h) “Social service technician” means an individual registered under this article who is specially trained to practice only under the supervision of a licensed master’s social worker or a licensed bachelor’s social worker. [Emphasis added.] MCL 333.18501(5) provides: The practice of social work at the master’s level does not include the practice of medicine or the practice of osteo pathic medicine and surgery, including, but not limited to, the prescribing of drugs or administration of electroconvulsive therapy. Additionally, both nurses and social workers are required to take continuing education courses in pain and pain-symptom management, which may include courses regarding “behavior modification” or “behavior management.” See Mich Admin Code, R 338.2908m(1) and 338.10601(2)(a). Deering is also a licensed counselor who, pursuant to MCL 333.18101(b), is authorized “to engage in the practice of counseling.” The practice of counseling is defined, in relevant part, as the application of clinical counseling principles, methods, or procedures .... The practice of counseling does not include the practice of psychology except for those preventative techniques, counseling techniques, or behavior modification techniques for which the licensed counselor or limited license counselor has been specifically trained. [MCL 333.18101(d) (emphasis added).] “Counseling principles, methods, or procedures” include the application of behavioral modification techniques. MCL 333.18101(a)(ix). As the definitions and statutory provisions above provide, the NBF procedure utilized by plaintiff can be characterized as “psychotherapy,” which is within the scope of social work, or “behavior modification,” which is within the scope of counseling. Because James White is certified by the Biofeedback Certification Institute of America for EEG biofeedback, he arguably meets the requirements under MCL 333.18101(d) of being specifically trained in what is potentially a “behavior modification technique.” Accordingly, we conclude that there remains a question for the district court regarding how NBF should be characterized. Depending on how NBF is characterized, the services provided by plaintiff and its staff may indeed have been “lawfully rendered.” Therefore, the district court properly denied defendant’s motion for partial summary disposition, and the circuit court improperly reversed that decision. Because we determine that there is a genuine issue for the district court regarding whether the NBF procedure utilized was solely a biofeedback technique falling exclusively within the scope of psychology, there also remains an issue of fact regarding whether plaintiffs sole shareholder was required to be a licensed psychologist before it can be determined if there was a violation of the PSCA. Accordingly, defendant was not entitled to summary disposition on this issue, regardless of the outcome of the pending appeal before our Supreme Court in Miller v Allstate Ins Co (On Remand), 275 Mich App 649; 739 NW2d 675 (2007), lv gtd 480 Mich 938 (2007). We reverse the circuit court order granting defendant’s motion for partial summary disposition, reinstate the district court’s dismissal of defendant’s motion for partial summary disposition, and remand to the district court for further proceedings consistent with this opinion. We do not retain jurisdiction. We note that the district court intended to take “some evidence from people to educate [it].” We agree that “an evidentiary hearing at which experts from the licensing board or other qualified individuals could render their decision” would be appropriate in this situation and is consistent with the trial court’s gatekeeping function under MRE 702. See Chapin v A & L Parts, Inc, 274 Mich App 122, 126; 732 NW2d 578 (2007).

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Long, J. This case comes into this court by writ of certiorari to review the action of the circuit court for Wayne county in denying the petition for a writ of mandamus. It appears that Morley Bros., doing business at Saginaw, obtained a. judgment in the Saginaw circuit court against Fred E. Talmadge, who resides at Saginaw. The judgment not being paid, an execution was issued to the sheriff of Wayne county, and levied upon 20 shares of stock of' the respondent company, a corporation organized under Act No. 50, Pub. Acts 1887 (3 How. Stat. § 3981a et seq.). The stock was sold upon the execution, and bid in by the petitioner, and a demand made upon the respondent company for a transfer of the stock to it. This was refused on the ground that the stock was exempt from levy and sale on execution. Section 16 of the act under which the respondent corporation was organized provides: “The shares held by any member, being a householder, of any association incorporated under the provisions of this act, shall be exempted from levy and sale on execution or attachment to the amount of one thousand dollars in such shares at the par value thereof: Provided, that such exemption shall not apply to any person who shall have a homestead exempted under the general laws of this State.” 3 How. Stat. § 3981 p. It was shown that Talmadge, with his wife and children, has lived for the past seven years at No. 520 Hayden street; that the property belongs and has belonged to the wife since 1891, and is of the value of about $2,500, but covered by a mortgage of $2,382; and that Talmadge owns no real estate. The claim of the petitioner is that the homestead exemption provided for by section 7721, 2 How. Stat., is intended for the family, and is exempt in the interest of all the members of the family, equally when the title to the property is in the husband or in the wife, and that, therefore, Mr. Talmadge, the holder of this stock, has a homestead, within the meaning of section 16 of the act. The land in question belongs to the wife, but is the family homestead. As said by this court in Rowe v. Kellogg, 54 Mich. 206: “There can be no question but that the husband has a valuable and important interest, which the courts will protect. As head of the family, he has possession jointly with his wife, and has, therefore, a right to complain of any unlawful interference. * * * The land is in his tenancy, while the family occupy it, as distinctly as if leased to him.” The tenancy here is not, however, sought to be disturbed. The only question is, Has Mr. Talmadge a homestead, within the meaning of this act? Does the fact that he occupies a dwelling house owned by his wife prevent him from claiming the benefit of section 16 ? He has a beneficial interest in the homestead owned by the wife, so long as she occupies it, but it is an interest which inures to him only as an incident to his being the head of the family. The wife may sell the property without the consent of the husband, and thus defeat his homestead interest and that of the family, or she may abandon her husband and family, and oust them from possession of the property which-has been occupied as a home. The nature of and limitations on the husband’s interest in the wife’s homestead are fully discussed in Buckingham v. Buckingham, 81 Mich. 89. It was said: “As against creditors of the wife, he is entitled to be protected in his possession and occupancy of the home-stead. The Constitution and laws, however, confer upon married women such absolute right to the disposition of their own separate property that she may convey the homestead by deed without the husband’s joining in the instrument. If she may do this voluntarily, and without his consent, there would seem to be no legal principle which would prevent her from voluntarily deserting her husband and abandoning her homestead.” It can hardly be said that such a homestead as here described is the homestead which the legislature intended, by the act, should deprive the owner of stock of the right to the exemption up to $1,000 from levy and sale on execution. The purpose of the act was to enable persons of small means to acquire a homestead, and we think it cannot be said that the homestead intended by the act which would defeat the exemption was one resting in the unstable holding which the husband might have in property owned by the wife. The court below very properly denied the writ of mandamus. The order will be affirmed. The other Justices concurred.

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Hooker, J. In June, 1898, the common council of the city of Grand Haven passed' a resolution to transfer from the contingent fund of said city in the hands of its treasurer, and to divide between and add to several other city funds, the sum of $7,000. The mayor, Baar, attempted to veto the resolution, but the clerk, Kirby, refused to file it, and the mayor employed Smedley to institute mandamus proceedings to compel it. This was done, and they were successful. The case reached this court, and will be found reported in Baar v. Kirby, 118 Mich. 392. A similar proceeding was commenced against the council, but it was not brought to this court. The employment of Smedley by the mayor was not authorized by the council, but it is claimed that the mayor had authority to employ counsel, inasmuch as the city attorney was in sympathy with the resolution vetoed, and took the side of the council and clerk in the matter. In November, 1898, Smedley presented a bill against the city for $349.50 for his services in the two cases mentioned, and another bill against the clerk for $37.80, the costs of this court taxed in the case of Baar v. Kirby. These claims are said not to have been'verified as required by section 20, chap. 8, Act No. 215, Pub. Acts 1895, but the record indicates that they were. They were referred to the finance committee of the council, with the city attorney added, for examination and report. This committee reported at a subsequent meeting, in substance, that: 1. The city had not employed Smedley, and was under no obligation to pay his bill. 2. A reasonable sum should be allowed the mayor to pay his (the mayor’s) attorney fees. 3. They recommended that the mayor be allowed $37.80' to pay the bill of costs against the clerk, and $50 for all other legal expenses in his mandamus suits. 4. Nothing should be allowed to Smedley on his bills. Alderman Yos moved to amend this by a resolution allowing $349.50 to the mayor, with which to pay his attorney fees in the case against Kirby. This motion was voted upon by the aldermen, and resulted in a tie. The mayor voted for it, and declared the motion carried. The same course was taken on the motion as amended. Subsequently four members of the council commenced mandamus proceedings against the mayor to compel him to rescind his action in declaring the motions carried, and a few days later this application was filed by Smedley to compel the clerk to draw the warrant for $349.50. In the former, issues were framed and evidence was taken, while the latter was heard upon petition and answer. They were heard together, and the circuit judge makes return of the proceedings and final order in each. The return states as a reason for denying the writ in this case that the two cases were heard together, and the facts brought out in the Bishop Case were considered in disposing of this. In short, they seem to have been treated as one case, and, while the Bishop Case was not brought here by a separate writ, the matter is all before us." It is manifest that the meritorious question is the'same in both, viz., whether the mayor had a lawful right to decide the tie by his own vote. The circuit court found that he had a personal interest in the matter, and, if this is to be treated as a matter of fact, we cannot review it, any more than we could the finding of a jury. But the evidence is all returned, and it is proper for us to examine it, to ascertain whether it furnishes any opportunity for dispute upon the question, — dn other words, whether the judge has correctly applied the law to undisputed facts. Counsel for the relator urge that the council was attempting an unlawful thing; that they intended to divert the public funds from proper uses, under resolutions which had passed the council, but had been vetoed; that the city-clerk and attorney were aiding the council, and that it was within the proper sphere of the mayor to prevent it; and, therefore, that he had authority to employ counsel to aid him in necessary litigation on behalf of the city. This is substantially the broad proposition that, when a mayor thinks the council is taking illegal action, he has authority to bind the city for expenses and costs of necessary proceedings to try the question, or, at least, that he may institute proceedings, and that the test of his authority is the result. We need not discuss this question, as the case can be disposed of upon another ground. As said in the case of Barnert v. Mayor, etc., of Paterson, 48 N. J. Law, 395: “If this ground of recovery be regarded as untenable or doubtful, I think the action of the city authorities has been such as to raise this into an express promise to pay that the right of a corporation to indemnify an officer for losses and expenses incurred in the discharge of an official duty in a matter in which the corporation is interested is undoubted, and this power has generally been found sufficient to afford protection against flagrantly illegal action. One-half of the aldermen were in favor of granting it in this case, and, if the mayor was entitled to vote upon the question, the city is already bound to render compensation. This must depend upon the nature of the mayor’s relation to the matter. It is apparent that the employment of relator was on behalf of the city. The mayor expressly avoided a personal liability. This he had a right to do, and, while he could not pledge the credit of the city, it was competent for him to make an arrangement whereby the relator assumed the risk of losing his services if the authorities should not assume the burden at some subsequent time. The charter provides (chapter 8, §5) that “no alderman shall vote upon any question in which he shall have a direct personal interest.” Another provision (chapter 8, § 16) is, “No member of the council * * * shall be interested, directly or indirectly, in the profits of any contract * * * to be performed for the corporation.” This indicates that a pecuniary interest was intended. Anderson defines “interest” as “such relation to the matter in issue as creates a liability to pecuniary gain or loss from the event of the suit.” See, also, 11 Am. & Eng. Enc. Law, 422; Taylor v. Commissioners of Highways, 88 Ill. 526. We are of the opinion that the vote was authorized by the charter, under the admitted facts. It is urged that the circuit court has determined otherwise upon the question of fact; but we gather from the order and the return that the matter turned upon the legal question, and that it was not found that the mayor had incurred a pecuniary obligation, but that possibly relator might claim so, and that a legal controversy might arise, which the mayor would be brought to the expense of defending to escape pecuniary loss. But there is nothing to show a «probability of this. On the contrary, relator does not claim it. Counsel urge further that the respondent should not be required to issue the warrant, for the further reason that there is no resolution authorizing it. This is upon the theory that the order of the court in Bishop against Baar, holding the mayor’s vote illegal, has not been appealed from, and therefore nullifies the resolution adopted, and, further, that this application was for an order to compel the issue of a warrant payable to the relator, while no claim has been allowed in his favor, but only in favor of Baar, the mayor. These are technical. As we have said, the cases were heard together, and, for practical purposes, merged, at the circuit. The mei’its of both are here, and counsel for both parties have referred to the proceedings in the Bishop Case. The appeal has brought up the merits of the whole controversy. The respondent does not appear to have refused to issue a warrant to the relator on the ground that the mayor was entitled to it, .or to have offered to issue one payable to the mayor. The relator has signified a willingness to accept such a one. Counsel for the respondent, in their brief, treat the interest of the mayor in the claim as the main question, as it is. Again, it is said there is nothing in the petition to show that there is money in the fund to pay the order. Of this it is sufficient to say that, if the act forbids the drawing of a warrant in the absence of funds, nothing indicates a refusal upon such ground, and we are not advised that such fund is wanting. We are satisfied that the relator was entitled to have a warrant for the amount claimed, payable to himself or the mayor; and an order will be entered reversing the order of the circuit court, and directing the writ to issue accordingly, with costs of both courts. The other Justices concurred.

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Long, J. The relator commenced suit in the Wayne circuit court against the Evening News Association on September 27, 1890, for libel. Defendant demurred, setting up several causes of demurrer. In March, 1891, the demurrer was argued, and on February 10, 1892, the court sustained the demurrer, with costs, giving the plaintiff 20 days within which to amend. The cause was removed to this Court, and reversed as to costs, with leave to the plaintiff to amend without costs. The original declaration counted upon a great many libelous articles, all of which were set out in one count. On September 19, 1892, plaintiff filed an amended declaration,. selecting 20 of the articles included in the original declaration, and setting forth each one in a separate count. December 13, following, defendant moved the court below for an order striking from the amended declaration each of the counts therein which were based upon articles alleged to have been published more than two years before the amended declaration was filed, for the reason that under the original declaration, which contained but one count, the plaintiff could rely tipon but one cause of action, and that it was not competent to bring in by amendment, as independent causes of action, such articles as, at the time of the amendment, were barred by the statute of limitations. On February 20, 1893, an order was made, directing that plaintiff, within 20 days, elect upon which of the counts of the amended declaration, based upon a single libelous article set forth in the original declaration, he would proceed, in lieu of the count in the original declaration, and that when such election should be made all of the counts of the amended declaration, based upon articles which, at the time of the allowance of the right to amend the original declaration, had been published more than two years prior to the granting of such right to amend the original declaration, be stricken from the amended declaration, and that the defendant have 20 days thereafter to plead. This proceeding is for mandamus to compel the court belpw to vacate the above order. The court below was in error in holding that any of the published articles embodied in the original declaration were barred by the statute. These articles were declared upon in the original declaration, but we held that they were not well pleaded, by reason of their being set out in one count. They were not barred by the statute at the time the original declaration was filed, and the filing of the amended declaration was not the commencement of a new suit, but the continuation of the suit originally commenced, and did not introduce a new cause of action. The court was also in error in requiring the plaintiff to elect upon which count he would proceed to trial, and to strike out the other counts. He had a right to proceed upon all the counts. These articles were published upon different days, and may each constitute a cause of action. There is no reason, however, for saying that he may not join the several causes of action, and have them all tried in one suit. It is' settled that a plaintiff may join all his causes of action in one declaration, if, in separate suits, he could recover on each in the same form of action. Tregent v. Maybee, 54 Mich. 226. See, also, 1 Chitty, Pl. 199; 1 Tidd. Pr. 11, 12; Coryton v. Lithebye, 2 Saund. 117a-117d; Craft v. Boite, 1 Id. 246a; Savile v. Jardine, 2 H. Bl. 532. The writ must issue, as prayed. The other Justices concurred. See Randall v. Evening News Association, 92 Mich. 467.

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Hooker, 0. J. The defendant was convicted of assault, with intent to commit the crime of rape upon a girl of less than 14 years of age. The proof consisted of testimony from the girl, who unequivocally testified to the completed act of sexual intercourse,,' testimony from a physician, showing an examination and rupture of the membrane, testimony of one or two witnesses to admissions on the part of defendant to the effect, that he had intercourse with the girl on the occasion charged, and testimony that she was at the time below the age of 14 years, and that she had been subject to menstrual periods for a year. The defendant was sworn, and denied seeing the girl upon the occasion charged. The errors relied on are as follows: 1. That the court charged the jury that the defendant might be convicted of rape, of assault with intent to commit rape, or of simple assault. 2. That, defendant having denied the transaction, the jury should have been charged that there must be some testimony corroborating that of the girl, or the verdict must be not guilty. 3. That the jury should have been charged that if the girl had reached the age of puberty, although under 14 years of age, she was no longer a “child,” within the ¿leaning of the statute. 4. That the jury should have been directed to return a verdict for the defendant because the girl had reached the age of puberty. It is true that upon this record the proof upon one side shows the completed act of sexual intercourse with a girl under the age of 14 years, while upon the other a denial of any offense is made. Under such proof it cannot be denied that a verdict of assault with intent to rape is illogical. But an assault with intent to commit rape is necessarily included in every rape. The defendant’s counsel are alleging, not an injurious error, but one which, if it could be called an error, has resulted to defendant’s advantage. In the case of Hall v. People, 47 Mich. 636, this question was passed upon, and the omission to charge the jury that the defendant might be found guilty of the lesser offense was held to be error, in just such a case as this. See, also, State v. Shepard, 7 Conn. 56; Com. v. Cooper, 15 Mass. 187. The case of People v. Partridge, 86 Mich. 243, cited by counsel, differs from this case in this: That the offense of assault “without intending to commit the crime of rape ” could not be said to be 'included in the offense of rape, but, on the contrary, was •at variance with such offense. The charge of the court is not given, and we have no means of determining what, if anything, was said to the .jury upon the subject of corroboration, and, while the request of defendant’s counsel was refused, we cannot assume that the subject was not properly treated in the •charge. We do not intend to imply that the court should have given the request in substance, for we are not prepared to say that conviction in rape cases cannot be based upon the uncorroborated testimony of the woman assaulted. We see no reason for holding that the rule of the common law is changed by permitting the defendant to testify, .and believe that the question of credibility can be safely left to the jury. As'a matter of fact there were corroborating circumstances in the case. The remaining question is without merit. The statute (3 How. Stat. § 9094} provides that,— “If any person shall * * *- unlawfully and carnally know and abuse any female child under the age of fourteen years, he shall be punished,” etc. It is contended that the victim must not only be under the age of 14 years, but must be a child, i. e. must not have reached the age of puberty. We cannot assent to such a doctrine. The legislators who voted for this law must have known that puberty in females is common before the age of 14. There is nothing to indicate that the age of puberty was intended to have any bearing upon the subject. We find no error in the record, and the judgment will be affirmed. The other Justices concurred.

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Hooker, C. J. The respondent appeals from a conviction of manslaughter. One McCoy was attacked by a man named Cousins, in a saloon, for wearing some kind of a political badge, obnoxious to Cousins. Blows followed words, Cousins being knocked down once or twice by McCoy, who acted upon the defensive. ' During the melee, Carter, the respondent, ran up and struck McCoy, knocking him down. According to one or more witnesses, Carter struck McCoy twice. There was conflicting evidence as to McCoy’s being kicked by Cousins after he was down. At all events, the blow from Carter, or a kick immediately after by Cousins, dislocated the vertebrae of bis neck, and killed him. There was no testimony showing preconcert of action upon the part of Cousins and Carter. In his charge, the trial judge instructed the jury as follows: “If this claim be true, the respondent cannot be convicted unless the blow given by him was the direct cause of McCoy’s death, and such blow was not inflicted under the belief that it was reasonably necessary to protect himself from bodily harm; but, gentlemen, if Cousins and McCoy were having an altercation, and Carter, while Cousins •and McCoy were scuffling with each other, and knowing that the scuffle between the two had not ended, approached McCoy, and struck him without provocation, and so struck him for the purpose of assisting Cousins to whip McCoy, •and if such blow knocked McCoy to the floor, and put McCoy’s body in such a position that he was helpless to protect himself from Cousins, and if, while McCoy was in •such helpless position, Cousins immediately kicked him, then, gentlemen, such act upon the respondent’s part was unlawful, and in sucb. case he is guilty of manslaughter, if the direct cause of McCoy’s death was either the blow given by the respondent, or the kick 'given by Cousins while McCoy was upon the floor, or both combined.” Error is assigned upon this instruction. We think the court committed no error in this. Had Cousins and Carter joined in any preconcerted effort to whip McCoy, each would have been accountable for the other’s acts. If the circumstances show that, during the fight, Carter espoused Cousins’ cause, and entered the light to help him whip McCoy, he became responsible for what followed. It is not necessary that'this intention should be shown by Carter’s statements, but it may be inferred from his conduct. The question was one for the jury, and was fairly left to them. Error is assigned upon the refusal to give several requests to charge. All were based upon the proposition that, if death resulted from Cousins’ kick, instead of Carter’s blow, the respondent should be acquitted, and, as already intimated, the court properly refused them. In a supplemental brief, presented at the hearing, some questions are raised which have no assignments of error-to support them. They are based upon an alleged failure of the trial judge to give instructions to which counsel for the respondent now conceive him to have been -entitled, upon the subjects of self-defense and reasonable doubt. It is urged that a verdict should not be allowed to stand if the record shows that the judge did not fully explain to the jury the quéstions necessary to an understanding of the case. Counsel who tried this case did not deem it necessary to call the court’s attention to these matters by requests to charge, nor did he assign error upon them. Both were alluded to in -the charge, and the distractions were correct as far as they went. We think, however, that these questions are not entitled to consideration, because not raised by the record. We find no error in the proceedings, and the same will be affirmed. The other Justices concurred.

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Long, J. This case was in this Court at the April term, 1892, and is reported in 92 Mich. 17. Respondent had been convicted of murder in the second degree, and the case was reversed, and sent down for another trial. The second trial has been had, resulting in a conviction of manslaughter. The case comes up again upon a writ of error, aided by an ancillary writ of certiorari, which brings up the proceedings on the argument of the case before the jury and the rulings of the court thereon, which were not included in the bill of exceptions, but to which the court below now makes return. ■ It appears from the affidavit for the writ of certiorari' and the return thereto that an agreement was made between! the prosecuting attorney and counsel for respondent that the case should be submitted to the jury without argument. Counsel claims a violation of this agreement by the prosecuting attorney, to the prejudice of the respondent. After the testimony had closed, the prosecuting attorney voluntarily suggested to counsel for respondent that the case be submitted to the jury under the charge of the court, without argument. Counsel agreed to this, and the case was adjourned until the next day, when respondent's counsel presented certain requests for the court to charge, and read them to the court. The prosecuting attorney, in response to these requests, with a pretense of answering them, and against the protest of counsel for respondent, then addressed himself to tbe court and jury, arguing tbe questions of fact to the jury. Counsel for respondent protested that the case was to be submitted without - argument, and excepted to the ruling of the court in permitting this course to be taken. The prosecuting attorney, however, was permitted 'to proceed, and did proceed, with the argument upon the .merits, in which he dwelt to some considerable extent upon the testimony of Dr. Siebert, arguing that his testimony showed conclusively that the respondent was guilty as charged. When this case was in this Court before, it was .reversed, on the ground that the statements made by the •deceased to Dr. Siebert, and to which Dr. Siebert was permitted to testify, were no part of the res gestee, and incompetent. The people, in order to make this testimony competent, on the present trial claimed by the doctor that the ■deceased said he was about to die from his wounds, and the testimony of Dr. Siebert as to what deceased said was then admitted as a dying declaration. Dr. Siebert testified •that deceased told him that— “There had been a fight over at his saloon, and that he had been cut with a knife by the defendant, Mr. O'Brien." The prosecuting attorney, in his further address, dwelt upon this part of the case. In speaking of the testimony of Dr. Siebert, as to the conversation with deceased, he .stated that the deceased said: “I got them from the hands of Chris. O'Brien. I got •.these mortal wounds from a knife in his hands.” Among -other things, the prosecuting attorney said to áhe jury: “Now, gentlemen of the jury, of course the defendant will claim self-defense, and I want you to aid us in the trial of this cause. Pay strict attention to all the testimony, both pro and con. Put yourselves in the manner ■of jurors and detectives." Bespondent’s counsel called the attention of the court to the use of this language, and said he would take an exception to the invitation • to the jury to act as detectives, in addition to their other duties, when the court responded: “ Take an exception.” The prosecuting attorney thereupon qualified the statement by adding: “In detecting the evidence, it is your duty as jurors.” It is evident that the court permitted the prosecuting attorney to go over the merits of such parts of the case, and argue them fully to the jury. This argument, undoubtedly, had its effect upon the jury. It was a plea for the conviction of the respondent, and a statement that there could be no question of doubt as to the facts or the law. It was an undue advantage over the respondent, which the court should not have permitted. It was prejudicial to the rights of the respondent for the prosecuting officer of the county to call upon the jurors to act as detectives, and for the court, when its attention was called to that kind of argument, to say to counsel, “ Take an exception.” The duty of the jury was to listen to the testimony, the arguments of counsel, and the charge of the court, and, when they retired for deliberation, to give the respondent the benefit of every reasonable doubt. Perhaps the line of argument indulged in by the prosecuting attorney would not have been as potent' for conviction had it not been for his conduct throughout the trial, when his manner of conducting the examination of witnesses was open to grave criticism. His questions were leading, and, when objected to, were repeated, and the court itself, it seems, was unable many times to prevent it. The witnesses for the defense were criticised in the presence of the jury. John Luth was asked if he knew the penalty of perjury. The court instructed the prosecuting attorney that he must not say to the witnesses for the defense that they were committing perjury; if they were, he would have a right to contradict them by other testimony. The prosecuting attor ney responded that he would take that course, but he knew he was right. The conduct of the trial by the prosecuting attorney was well calculated to prejudice the jury against the respondent, and in the closing argument advantage was taken of it. We do not think the respondent has had that fair and impartial trial which is guaranteed by the Constitution. The conviction must be set aside, and a new trial granted. Hooker, C. J., McGrath and Montgomery, JJ., concurred. Grant, J., did not sit..

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Grant, J. Plaintiff's husband was killed on the morning of October 12, 1890, before daylight, on the track of the Chicago & Northwestern Eailroad. The condition of his body, which was found after daylight, showed that he had been struck by a passing train. Plaintiff claims that he came to his death by reason of intoxication, to which the defendant, a saloon keeper, contributed. There was evidence tending to show that he was in the habit of getting intoxicated. The plaintiff testified: “My husband got drunk whenever he could get liquor, and, when he got his pay, he would spend more or less of his wages in drinking. Sometimes he would spend five or six or seven dollars, and sometimes more. He didn't get drunk oftener than twice a month. Every time he would go out, of course, he would get drunk. This was true of him for the last eight or nine years." The deceased worked in a saw-mill at Carney, a small saw-mill town situated on the Chicago & Northwestern Eailroad. Nadeau, another small town on the same road, is two miles distant. There were no saloons in Carney, but there were some in Nadeaii, including the defendant's. The deceased left home between 6 and 7 o'clock in the evening, and went to Nadeau. In going between these two places, it was common for foot passengers to walk upon the railroad track. The deceased Avent to some of these saloons during the night, including that of the defendant, where he, Avith others, remained till betAveen 12 and 1 o'clock in the morning. The defendant says that he came there between 11 and 12 o'clock, and admits that he had one glass of beer and a glass of cider while there, and that he once saw him under the influence of liquor. The deceased had purchased a bottle of whisky at another saloon during the evening, and had also drunk at some of them. There was also evidence tending to .show that the' deceased conducted himself that evening as he usually did when intoxicated, and that he spent the most of his time from 7 to 1 o’clock in the saloons. The declaration is in the usual form in such cases. Plaintiff recovered verdict and judgment. 1. The evidence of intoxication at the time the deceased was in the defendant’s saloon and drank there is weak, but we think there was some evidence tending to show that fact. The deceased was in the habit of getting intoxicated, and, according to the evidence of the plaintiff, his appetite for intoxicating liquor was strong, and he gratified it whenever opportunity offered. He had spent a considerable part of the evening and night in the saloons, and there was evidence tending to show that he was in defendant’s saloon between one and two hours when the defendant was violating the law in keeping his saloon open. We do not think the court erred in refusing to instruct the jury that there was no evidence that the deceased was intoxicated. 2. It is contended that there was no evidence that the deceased was killed by the railroad train, or by reason of intoxication. It is urged in this behalf that the night was dark and stormy; that the deceased had no lantern; that he might have been killed for the purpose of robbery, and his body placed on the track; or that he might have stumbled and fallen on the rail, and injured himself, so as to be unable to avoid the train. ' We think all these were questioas for the jury. "Under the evidence, the manner in which he came to his death was for the jury, not the court, to determine. 3. The court instructed the jury that plaintiff could not recover unless she had proven either that the deceased was intoxicated when the defendant sold the liquor to him, or that he was a person in the habit of becoming intoxicated. The -learned counsel for the defendant insists that there can be no recovery in such cases without proof that the defendant knew that the person was in the habit of becoming intoxicated. The statute does not predicate the right of recovery upon such knowledge on the part of those selling intoxicating liquors. It gives an absolute right of action against those who have caused or contributed to the intoxication which results in injury. Judgment affirmed. The other Justices concurred.

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McGrath, J. This is an appeal from a judgment for' plaintiff in an action for false imprisonment. Plaintiff, on October 20, 1891, was a member of the common council of the city of Muskegon. The Merchants’ National Bank was the financial depository of said city. John Torrent was president of said bank, and defendant Lange was cashier. On that date, plaintiff, as alderman, presented to the common council of the city, at a session thereof, the following preamble and resolution: “Whereas, by a late decision of the Supreme Court of this State, a decree of the circuit court for the county of Muskegon, in chancery, was affirmed against John Torrent, and which decree will in all probability compel the said Torrent to pay. at least $125,000; and whereas, the said Torrent is the principal surety of the Merchants’ National Bank on its bond as depository of the moneys of the city of Muskegon; and whereas, this council does not deem it entirely safe to leave the city’s money on deposit in said bank without additional security to be approved by this council: “ Therefore, he it resolved by the common council of the city of Muskegon that, for the security of said city, an order be drawn on the city treasurer in favor of Leonard Eyke, the city treasurer, for the sum of $184,000, and that the money so received by said Leonard Eyke as the proceeds of said order be deposited in the other four banks of the city in equal proportions, and there kept until such additional security to the satisfaction of this council be given by the said Merchants’ National Bank. “John Wachsmuth.” A motion to refer the resolution was lost by a vote of three to nine. A motion to adopt was lost by a vote of five to seven. On October 26, 1891, the Merchants’ National Bank commenced an action on the case for libel by capias, which was issued upon the affidavit of the defendant Lange. An order to hold to bail in the sum of $2,000 was indorsed by a circuit court commissioner, and plaintiff was arrested, committed to jail, and afterwards gave bail. It is contended that the order to hold to bail protects the defendants. The officer indorsing the order was one of special and limited jurisdiction. The affidavit disclosed that the resolution was offered by plaintiff as a member of the common council to that body, and related to a matter in the line of plaintiffs duty as a public officer. In other words, the affidavit, upon its face, showed that the resolution charged as libelous was, as a matter of law, absolutely privileged. So far from setting forth any facts and circumstances tending to show grounds for granting the order, the affidavit expressly negatived any liability whatever to the plaintiff. The defect was therefore jurisdictional, and the order was absolutely void, and affords no protection to the parties instituting the proceedings, procuring the order, and delivering the process to the sheriff for execution. An'arrest and imprisonment,in a civil case upon void process is as one without process, and cannot be justified. Good faith, honest belief, and the advice of counsel may be shown to rebut the presumption of malice, and to avoid punitive damages, but not to justify an arrest and imprisonment under an absolutely void process. Johnson v. Maxon, 23 Mich. 129; Johnson v. Morton, 94 Id. 1; 7 Amer. & Eng. Enc. Law, 679, 681 (note 1), 19 Id. 516; Vredenburgh v. Hendricks, 17 Barb. 179; Fischer v. Langbein, 103 N. Y. 84; Miller v. Adams, 52 Id. 409; Bonesteel v. Bonesteel, 28 Wis. 245; Fenelon v. Butts, 53 Id. 344. It is urged that malice cannot be charged against a corporation unless it is shown that the act done was ordered by the board of directors. The suit was instituted in tbe name of the corporation. Its cashier made the affidavit, in which he alleged that— “He is cashier and agent of the Merchants* National Bank of Muskegon, Michigan, the plaintiff named in the annexed writ of capias ad respondendum, and is duly authorized to and makes this affidavit for and in behalf of said plaintiff.*'’ The attorneys for the plaintiff were the regular attorneys of the bank, were employed and paid by the bank, and one of the attorneys was 'at the time a director in said bank. ■ A motion was made by defendant to quash the capias, which was granted. Application was then made to this Court by the bank for a mandamus directing the circuit court to set aside the order quashing the writ. The expenses of that proceeding were shown to have been paid by the bank. The cashier must be presumed, prima facie, to have had authority to direct the commencement of the suit. Frost v. Machine Co., 133 Mass. 565, where it was held that the general manager or agent of a corporation must be presumed to have had authority to direct the issue of a writ of replevin, for the improper service of which the corporation was sued. The ratification of an unauthorized act of an officer of a corporation may be presumed from acts of recognition and acquiescence. Beach, Priv. Corp. § 196. Again, defendants* plea sets forth that the alleged acts, if committed at all, were committed by the “said defendant Herman 0. Lange, acting as the cashier and agent of the Merchants* National Bank.** In order to avail themselves, in any event, of want of authority, the fact should have been pleaded. Beach, Priv. Corp. § 863. It is now well settled that a corporation may be liable in tort, even though a malicious intent is necessary to be proven. The malice of the agent is imputable to the corporation. Cooley, Torts, (3d ed.) p. 136; 7 Amer. & Eng. Enc. Law, 684; Beach, Priv. Corp. §§ 428, 445, 447, 453, 455. As is said by Mr. Beach (section 455): “The doctrine that an action will not lie against a corporation for a tort is exploded. The same rule applies to corporations as to individuals. They are equally responsible for injuries done in the course of their business by their' servants. This is said to be so well settled as not to require the citation of authorities.” See, also, Bacon v. Railroad Co., 55 Mich. 224, 228; Goodspeed v. Bank, 22 Conn. 530; Carter v. Machine Co., 51 Md. 290; Reed v. Bank, 130 Mass. 443; Vinas v. Insurance Co., 27 La. Ann. 367; Railroad Co. v. Jackson, 81 Ind. 19; Quigley v. Railroad Co., 11 Nev. 350; Miller v. Railroad Co., 8 Neb. 219; Williams v. Insurance Co., 57 Miss. 759; Railroad Co. v. Schuyler, 34 N. Y. 30. In Goodspeed v. Bank the court say: “But, after all, the objection to the remedy of this plaintiff against the bank in its corporate capacity is not so much that, as a corporation, it cannot be made respon-, sible for torts committed by its directors, as that it cannot be subjected to that species of tort which essentially consists in motive and intention. The claim is that, as a corporation is ideal only, it cannot act from malice, and therefore cannot commence and prosecute a malicious or vexatious suit. This syllogism or reasoning might have been very satisfactory to the schoolmen of former days; more so, we think, than to the jurist, who seeks to discover a reasonable and appropriate remedy for every wrong. To say that a corporation cannot have motives, and act from motives, is to deny the evidence of our senses, when we see them thus acting, and effecting thereby results of the greatest importance every day. And, if they can have any motive, they can have a bad one; they can intend to do evil as well as to do good. If the act done is a corporate one, so must the motive and intention be. In the present case, to say that the f vexatious suit/ as it is called, was instituted, prosecuted, and subsequently sanctioned by the bank, in the usual modes of its action, and still to claim that, although the acts were those of the bank, the intention was only that of the individual directors, is a distinction too refined, we think, for practical application.” The judgment is affirmed. Hooker, 0. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.

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McGrath, J. Complainant had given a mortgage to his father, who died testate in May, 1888, leaving the mortgage to complainant, charged with the payment of decedent’s debts, his funeral expenses, the erection of a monument upon the family burial lot, and the payment of $400 to complainant’s sister, Mrs. Bursons. Defendant was named, appointed, and qualified as executor. Complainant had, in 1888, paid the funeral expenses and debts, and had erected the monument. ■ Woodworth had a personal claim against the husband of Mrs. Bursons of $457, for which he held Bursons’ notes. He regarded this claim of little value, and considered complainant as solvent. In November, 1888, he made an arrangement with Mrs. Bur-sons by which he was to surrender her husband’s notes, take her receipt in full for the legacy, and take complainant’s note for $400, and look to him for that amount. This arrangement was carried out. Bursons’ notes were surrendered, Mrs. Bursons gave her receipt “ in full of the legacy,” and complainant gave his note to Woodworth for $400, payable one year after date. The receipt given by Mrs. Bursons was filed in the probate court. No assignment of Mrs. Bursons’ claim was asked for or taken. Defendant’s version of the transaction is as follows: '' Q. Did you at the time agree with Hannah Bursons and her husband to take the note or obligation of Abraham De Coo for $400, in payment of her legacy? “A. Yes, that was the agreement upon which the notes were surrendered. * * * " Q. Soon after your return home, did you see Abram De Coo, Jr., in relation to this matter, state to him the arrangement that you had made with Hannah Bursons and her husband, and request him to give you his note of $400? “A. Well, it was, I think, in May. I went down to C-rand Ledge, and I stayed with Abram over night, and I told him there that I had made this arrangement; and he gave me a note, at my request, for $420, in paymen't of this legacy and some other business.” Complainant testifies that when he gave the note to defendant the latter ■ agreed to close up the estate and discharge the mortgage. Defendant does not deny this. His testimony is as follows: “ Q. To refresh your recollection, at the time Mr. De Coo gave you the $400 note, did you not state to him, in the presence of his wife, that everything was fixed up satisfactorily? 'Come up, and we will go to Charlotte and discharge the mortgage?’ "A. I did not; not in them words. " Q. Did you say so in substance? "A. I will state what I said: I stated then that we would come out sometime, and straighten the business all up, and I would get my discharge and the discharge of ■the bondsman. " Q. And you meant, of course, that that included the discharge of the mortgage? “A. Yes, of course; all of the business. * * * ‘‘Q. Was there anything said, at the time you took the note, that you took it in payment of the legacy? “A. I think there was. Well, nothing in particular said, more than this. Abe and I settled up, and added $20 that he also owed me, and put -it all in one note. “Q. What was said about your taking that note in payment of the legacy? “A. Well, we was to meet at Charlotte, and settle up the business. ******** “Q. You say this was after he had given you the note? “A. Yes. Now, this was not the talk, but it was my supposition, — that he would come out, and the whole thing, would be settled up, so that I could get my discharge; and that would include the discharge of the mortgage. This I said to Abe; that some time we would go out to Charlotte, and we would settle the whole matter up, so that I could get my discharge. After this note was signed, I went and saw Abe, and wanted him to go to Charlotte and fix this matter up, so that I could get the release of Mr. Hudson, who was on my bond. There was a day set, and on that day I came down here. I came for the purpose of making a final settlement.” He says further: "I never asked him to pay the note but once, and that was about six months after it became due. At the time I took the note, I considered him perfectly solvent. If I had known his financial condition, I would not have taken this note. I never expected to get my pay on the Bursons notes.” Defendant kept the note for 1 year and 10 months, then returned it under cover, and, as executor, commenced a statutory foreclosure of the mortgage. His theory now is that he was mistaken in regard to complainant’s solvency at the time that the note was given, and that he had. a right to surrender the note, and sue on the original obligation. But the original obligation was due to Mrs. Bur-sons. Complainant was released from that obligation, and assumed another, — the indebtedness of Bursons. Mrs. Bursons receipted in full for the legacy, Woodworth filed that receipt in the probate court, complainant gave his personal obligation to Woodworth, and both parties agreed that the mortgage should be discharged, the estate closed, and Woodworth’s bondsman released. Complainant owes defendant $400, but, in consideration of his assumption of the promise to Woodworth, the latter agreed to discharge the mortgage and close np the estate. The very security which he claims the right of succession to he agreed to discharge, and that agreement entered into the consideration for the note. He cannot now be allowed to revive the mortgage, nor can he be permitted to use his office as executor to enforce payment of an obligation running to himself. The decree below is reversed, and a decree entered here for complainant, with costs of both courts. Long and Montgomery, JJ., concurred with McGrath, J.

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Grant, C. J. (after stating the facts). Manifestly, the election law was wholly ignored in the appointment of Mr. Kerr, in intrusting the ballots to him, and permitting him to have free access to the electors after they had passed into the voting‘precinct, and into the booths themselves. It is urged that the inspectors of election acted in good faith, and supposed they had the right to appoint a man as an instructor of election. It is difficult to understand how intelligent men should reach this conclusion. The law makes no such provision, but makes it the clear duty of one inspector to keep possession of the ballots, and to hand them to the voters, after another inspector has opened the package, and still another has put his initials upon them. It is due to the member^ of the election board to say that there is no evidence that they acted from corrupt motives. If, however, this conduct can be sustained, and the plain provisions of the law ignored, rascals can very readily make the same plea, and it would be difficult to expose their rascality. These provisions of the law have been held mandatory. Attorney General v. McQuade, 94 Mich. 439; Attorney General v. Stillson, 108 Mich. 419. By a reference to the latter case, on page 421, it will appear that the interpreter, an officer provided by the act, was stationed very near to, and in plain sight of, the inspectors, and talked with the voters, as they came in, in a foreign language. It does not appear that there was more evidence of fraud in that case than in this. That case differs from this only in two particulars: First, that the conversation between the interpreter and the voters was not in the English language, as it was in this; and, second, that the “instructor,” as he was called in this case, had a better opportunity to secretly influence electors than did the interpreter in that. If these provisions are mandatory, — and we have so held, — they cannot be evaded by showing that the parties acted in good faith and that voters were not influenced. The law was intended to prevent just such transactions and chances .to influence voters, and courts cannot fritter them away by permitting jurors to find that there was no fraud and that voters were not unduly influenced. The judgment must be set aside, and one entered for the relator. The other Justices concurred.

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Grant, C. J. (after stating the facts). 1. The rights of boom companies and others in driving logs down the navigable streams of this State were settled in Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. Under that decision log drivers have no right to stop the logs flowing down the stream so as to interfere with the natural flow of the water with the running logs in it. If stopping the logs caused the water to overflow, the boom companies are responsible in damages for the overflow. In such cases the pleader need only allege the obstructions, the stoppage of the water, the consequent overflow and damage, to make his declaration sufficient. It is unnecessary to add the allegation that this was negligently done. The act speaks for itself, and carries with it the obligation to respond in damages. Negligence is not a necessary element of liability. It may be necessary to stop the logs in order to save them, and the boom company might be liable to the log owners for loss if it failed to stop them. But this necessity does not relieve the company from liability for tbe overflow. The demurrer was therefore properly overruled. 2. If the declaration had alleged the destruction of so many tons of hay each year, we think the position taken by the defendant would have been sound, because hay is not grass in a growing state, but the grass after it has been cut and dried for fodder. Webst. Diet.; Cent. Diet. But under the declaration in this case it is manifest that the word was not used in this sense, because it referred to it as growing upon the land, and described the injury as occurring to the “ growing hay.” We think there was no opportunity of being misled, and that the instruction to direct a verdict was properly refused. Judgment affirmed. The other Justices concurred.

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Moore, J. This case was tried before the judge without a jury. The judge made the following findings: “1. On the 8th day of July, 1895, the plaintiff, being the owner of the ‘Adams Block,’ so called, on the east side of Front street, in the city of Marquette, in which block was located a gallery known as ‘Childs’ Art Gallery,’ rented the said art gallery to the defendant for the term ending April 30, 1897, to be occupied for an art gallery, for the rental of $10 a month until May 1, 1896, and $20 a month, payable on the last day of each month, for the remaining 12 months. Said lease was in writing, and contained, among other provisions, the following: “ ‘And also that said party of the second part [the defendant] will, at his owm expense, during the continuance of this lease, keep the said premises and every part thereof in as good repair, and at the expiration of the term yield and deliver up the same in like condition, as when taken, reasonable use and wear thereof and damage by the elements excepted.' “Then follows the usual clause for peaceable and quiet enjoyment on paying the installments of rent aforesaid. The lease was received in evidence upon the trial, and is made a part of this finding. “2. The defendant entered into possession of the said art gallery, which consisted of a number of rooms, including an operating room, which had a skylight of glass about 13 by 18 feet in size, such as is in general use in the photograph and like business. During the continuance of such lease, and in the month of August, 1896, the defendant applied to the plaintiff for a reduction of the rent for the remainder of the term, and complained of the dullness of business. After some discussion of the subject, the plaintiff agreed to reduce the rent to $15 per month for the remainder of the term, upon condition that said defendant was to remain a tenant for another year, to wit, from May 1, 1897, to May 1, 1898, at the old rental of $20 per month. These terms were agreed upon, and such arrangement was made by the parties. “3. The skylight referred to contained large lights of glass, 20 by 30 inches, and in the month of March, 1897, during the term of said written lease, some men in the employ of plaintiff, while engaged in throwing snow from a roof adjoining said skylight, accidentally broke two or three lights of glass in said skylight, the snow falling thereon. An attempt was made by the plaintiff’s agent to repair the injury, and two more lights were broken in the process, making five lights broken in all. No putty was used in the attempted repairs, the frame and woodwork being wet and the weather cold, but nails were driven in, fastening the glass. The next day one of the lights of glass broke across where the nail had been driven, and the defendant called the attention of the plaintiff’s agent to the broken glass, and complained of it. The said damage done to the skylight by the falling snow was not properly repaired, and the skylight leaked badly whenever it rained, or whenever the falling snow melted, during all the subsequent occupancy by defendant, rendering it necessary to use boxes and pans to catch the water, and rendering it unpleasant and unsuitable, if not impossible, to do a profitable business in the operating room at such times, and materially affecting the business of the defendant, the falling.water injuring the carpet, curtains, and furniture of defendant, of which condition the defendant complained to the agent of the plaintiff. “ 4. At the close of the term of the written lease, to wit, on May 1, 1897, the defendant was in arrears for rent for February, March, and April, 1897. The defendant was called upon for rent by the agent of the plaintiff at the close of each month, and he refused to pay the rent until the skylight was repaired, and so stated to such agent. The defendant continued to occupy the premises under the verbal arrangement and agreement of August, 1896. The plaintiff’s agent applied to the defendant monthly for the payment of rent. The defendant on these occasions pomplained of the leaking condition of the skylight, and paid no rent (except $15 in June, which was applied in payment of the February rent), and said he wanted to see the plaintiff,- and he also complained that the rent was too high. This condition Of things continued until August 2, 1897, when the plaintiff wrote a letter to the defendant, of which the following is a copy: , “ ‘Marquette, Mioh., August 2, 1897. “ ‘G. A. Werner, Esq., “ ‘City. “ ‘ Dear Sir: .September last I agreed with you that in consideration of your agreeing to pay $20 per month for rent of gallery from May 1, ’97, to April 30, ’98, and also agreeing to pay this rent promptly on the 1st of evei'y month, that I would take off $5 a month from your lease until May 1, ’97. Trusting your honor to do as you agreed, I told my clerks to collect only $15 a month until May 1, ’97, and $20 after that. On this agreement you are now $90 behind with your rent, that was to have been paid promptly. Will you please give us check or pay this back rent at once ? “‘Yours truly, . “‘S. Adams.’ “Soon after receiving this letter, the defendant saw the plaintiff, and complained that the rent was too high, denied that he had ever agreed to pay $20 a month after May 1, 1897, and complained of the leaky condition of the skylight, and refused to pay any rent until the skylight was repaired. The plaintiff refused to repair the skylight, claiming that it was the duty of the defendant to do so under the terms of the lease. The defendant then said to the plaintiff that he would move out, and somewhere from the 10th to the 16th day of August, 1897, he commenced to make preparations to move,- and arranged to repair his own building for the business. He continued, however, to occupy the plaintiff’s premises until about September 15, 1897. Although the plaintiff 'had refused to repair the skylight, he sent a man into the gallery soon after the defendant had determined to move out, and about August 21st, with instructions to'repair the skylight. The defendant objected to being disturbed, and said he-was going to move out, and told the man to wait until he had moved. The same man came back about a week later, and was again sent away by defendant. The defendant at this time was engaged in moving out, having already removed the negatives and some stock. The plaintiff finally sent men to repair the skylight. They commenced the work about September 7,1897, and completed it about September 17th. They put in 15 new lights of glass, and three men worked türee days or more. During the time they were at work the defendant completed moving out, and vacated the premises, to the knowledge of the plaintiff. “5. At the time of the commencement of this suit, rent remained unpaid for the months of March and April, 1897, at the rate of $15 per month, and for May, June, July, August, and September, 1897, at the rate of $20 per month, —making, in all, $130. The defendant was entitled to a credit for work of $2, leaving a balance due the plaintiff of $128, to the close of the month of September, 1897, for rent. Before the trial of the case, the defendant tendered to the plaintiff, and paid into court, the sum of $160.25 in full for damages and costs to that time. I find that the amount so tendered was sufficient to pay the plaintiff’s demand and the costs of said suit up to the time of such tender. “ From the foregoing facts I find, as matter and conclusion of law, that the said premises, by reason of the leaky condition of said skylight, were in an untenantable condition, and were unfit and unsuitable for the carrying on of said business, and that it was the duty of the plaintiff to repair the same; that the plaintiff’s servants, while in his employ, having injured the said skylight as aforesaid, it became and was the duty of the plaintiff to properly repair the same; and that his refusal and neglect to repair said skylight, after complaint and notice by the defendant, justified the defendant in terminating the lease and vacating the premises; and that the conduct of the plaintiff in the premises amounted to an eviction in the law.” When the original lease was made, as well as when it was modified by the verbal arrangement, the building was adapted to the needs of the tenant, who had hired it for a particular business. This was understood by the landlord. Through the act of the landlord, injuries were done to the building which rendered it practically useless for the purpose for which it was hired. The attention of his agent was called to the condition of the building. He undertook to make repairs. His efforts resulted in making a bad matter worse. Through the act of the landlord, represented by his employes and agent, the tenant was deprived of the beneficial use of the building. The conclusion of the circuit judge is justified by the following cases: Young v. Collett, 63 Mich. 331; Pridgeon v. Boat Club, 66 Mich. 326; Bostwick v. Losey, 67 Mich. 558; Leonard v. Armstrong, 73 Mich. 577; Pierce v. Joldersma, 91 Mich. 463; Grove v. Youell, 110 Mich. 285; Fisher v. Nergararian, 112 Mich. 327. Judgment is affirmed. The other Justices concurred.

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Grant, C. J. (after stating the facts). For about a year plaintiff had crossed the street at this place, and at the same time of the day, when cars were running frequently. She was therefore entirely familiar with the situation, and the danger incident! to the place, and the necessity of care upon her part. She stood about 6 feet from the track till the east-bound car had passed. Can it be doubted that the moment she had crossed that track and entered upon the place between, at which time she was about 5 feet from the other track, she could have seen the approaching car, had she looked ? If this be so, how can it be said that she had performed the duty which she owed to herself, — to look before advancing upon the other track ? It is evident that she did not look until she had stepped upon the track where the car was approaching. She had walked about 15 feet without looking. The car approaching on the south track was too far away to give her any apprehension. She had only to glance to the right as she • advanced after the car on the south track moved away from her, and she would have seen the car •approaching. This case cannot be distinguished from McGee v. Railway Co., 102 Mich. 107 (26 L. R. A. 300, 47. Am. St. Rep. 507); Henderson v. Railway Co., 116 Mich. 368; Borschall v. Detroit Railway, 115 Mich. 473. Judgment reversed, and new trial ordered. The other Justices concurred.

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Grant, C. J. (after stating the facts). The only ground of negligence upon which plaintiff could recover was that submitted to the jury, viz., the failure to have an employé stand upon the footboard of the tender to warn him. The object of the rule requiring an employé to be upon the footboard when backing across public highways is for the protection of the public, and not of the employés of the company. Rohback v. Pacific Railroad, 43 Mo. 187. There was no more danger to the plaintiff in working upon this crossing than there was at any other part of the tracks in the yard outside the highway. There is no testimony tending to show that employés understood that this rule was intended for a protection to them, or that the plaintiff so understood it. Evidently he knew that he was going into a place of danger; that it was his duty to keep a sharp lookout for his own protection; and that he did not rely upon such a warning, because he stood there 10 to 15 minutes, waiting for the engine to pass over. All the witnesses who testified upon the subject, both those for the plaintiff as well as for the defendant, testified that it was the plaintiff’s duty to watch out for approaching cars, and to get out of the way. One of the rules of the company provides: “ Trackmen may expect trains at any moment, and must always be on the lookout and prepared for them.” It is expected, and it is not unreasonable, that trackmen should look put for approaching trains and engines, and especially in yards, where they may be expected at an}*- moment. There was a train going upon another road, and there was a mill near by, making some noise. The law did not permit the plaintiff to rely upon his sense of hearing alone. Obviously he did not intend to, but it is certain that he did. He knew that the engine might come that way. The engineer had signaled for the right to cross. There is nothing to show that he did not hear this signal. The gates were closed. A glance at his surroundings would have warned him of danger. A glance every few seconds towards this engine would have disclosed its approach. Such precaution would not have interfered with his work, and, if it would, there is nothing to indicate that the defendant prohibited him from taking it, or that it expected him to work without taking it. Keefe v. Railway Co., 92 Iowa, 182 (54 Am. St. Rep. 542), is very similar in its facts to this case. The plaintiff’s intestate was struck by the tender of an engine which was backing up. The court said: “The presence of the tracks and cars thereon, and the movement of engines, were constant warnings to him of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger. These rules are founded upon the necessities of the business of operating railways. They are reasonable and just, and are fully sustained by the decisions of this and other courts.” Where plaintiff, an employ.é, stood with his back to the approaching cars, and did not look back or watch for the moving engine, and was struck, it was said: ‘ ‘ It cannot be that, under these circumstapces, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employés who had all the time knowledge of what was to be expected. We see in the facts as disclosed no negligence on the part of the defendants, and if, by any means, negligence could be imputed to them, surely the plaintiff, by his negligent inattention, contributed directly to the injury.” Aerkfetz v. Humphreys, 145 U. S. 418. Under circumstances somewhat similar, the supreme court of Massachusetts held that an employé had no right to abandon the use of his eyes, and rely upon a warning from every car that might be shunted upon the track where he was working. Lynch v. Railroad Co., 159 Mass. 536. See, also, Schaible v. Railway Co., 97 Mich. 318 (21 L. R. A. 660); Daly v. Railway Co., 105 Mich. 193. The plaintiff was clearly guilty of contributory negligence. It is unnecessary to discuss the other points raised. Judgment reversed, and new trial ordered. The other Justices concurred.

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Montgomery, J. This is certiorari to review proceed ings had before John Cummiskey, circuit court commissioner of Livingston county, resulting in an order for the removal of the cause from Livingston to Wayne county for trial. The return shows that on the hearing of the petition for removal it appeared that the attorneys of both parties resided in Wayne county; that the plaintiff resided in Livingston county; that the judge of the Livingston circuit court was disqualified by reason of having been of counsel in relation to the subject-matter, while none of the judges of the Wayne circuit court were disqualified from hearing the cause. Upon this showing the ordeiwas made. The statute (section 6495) provides: “That whenever any civil suit or proceeding shall be pending in any circuit court in this State, either on the law or equity side of said court, in which the judge of said court * * * has heretofore been consulted ox-employed as counsel iix the subject-matter to be litigated in said suit, * * * the same may be transferred to some other circuit court in the maxxxxe'r provided by this act." Sectioix 6498 provides for a hearing upon the application, and further provides that— “If he [the commissioner] shall be satisfied that the-judge of the circuit court where such suit is pending is disqualified to sit in said cause, within the intent and meaning of the first section of this act, he shall grant an order for the transfer of said cause or proceeding to the-circuit court of some other county, which couxxty shall be specified in said order." It is clear that the proofs offered showed that the order was justified, unless it be held, in accordance with 'the-plaintiff’s contention, either that the commissioner failed to obtain jurisdiction to make the order because of the insufficiency of the petition, or that there was an abuse of discretion on his part in transferring the cause at all, in view of the fact that a trial could have been had before another judge, or that he, in a similar manner, abused his discretion in transferring the cause to Wayne, instead of Washtenaw, county. The criticism upon the petition is that it was not verified, and that it failed to set forth that the judges of the Wayne circuit court were qualified. The statute does not require the petition to be verified. Section 6496. It does state that such application shall be in writing, and shall set forth the grounds specifically for such transfer. Section 6498 makes provision as to the method of furnishing the evidence upon which the commissioner acts. The statute does not require that the petition shall' set forth that the judge of the circuit to which the cause is to he transferred is qualified to sit. This fact, it is true, should be shown to the commissioner, but this showing is made on the hearing of the application, after notice to the other side. This must necessarily be so, for it cannot be known to the applicant to what circuit the commissioner would be disposed to order the case transferred. The fact that another circuit judge was expected to hold a term of court in Livingston county could not affect the right or duty of the commissioner upon the application in question. The statute is imperative. If the showing before him complies with the statute, as was said' in Pack v. Circuit Judge, 74 Mich. 33, “the only matter left to his discretion is the circuit and county to which the cause shall be transferred.” It is claimed, also, that there was an abuse of discretion in not removing the cause to Washtenaw, rather than to Wayne, county. None of the attorneys resided in Washtenaw county, but. it does appear that the defendant’s road runs through that county, and that it is more convenient to the witnesses who are residents of Livingston county to attend the case in Washtenaw county. Without expressing any opinion as to whether the defendant has any such residence in Washtenaw county as would have authorized a removal of the cause there, we think there was no such abuse of discretion as would justify this Court in vacating the order made. The order will be affirmed, with costs. The other Justices concurred.

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McGrath, J. This is a bill by certain tax-payers of the village of Frankfort against tbe trustees and officers of said village, to restrain tbe payment of moneys under a contract entered into in May, 1890, by the council, with George L. Davis, trustee, for a water supply to said village. After the execution of said contract a corporation was formed, which succeeded to all the rights of said George L. Davis under said contract. The bill, is fatally defective, in that neither said Davis nor said corporation, so succeeding to his rights, is made a party defendant thereto. All the parties in interest, and whose rights may be affected, ought to be made parties. Jenn. Oh. Pr. 21, 22; Puter. PI. & Pr. (Mich.) 37. The other parties to the contract in question would not be concluded by any decree herein, and the village, in case of a decree against it, would be subject-to still further litigation. The decree of the court below, dismissing the bill, is affirmed, with costs to defendants. The other Justices concurred.

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